People v. Tallwhiteman
| Decision Date | 10 March 2005 |
| Docket Number | No. 03CA0211.,03CA0211. |
| Citation | 124 P.3d 827 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roy Allen TALLWHITEMAN, Jr., Defendant-Appellant. |
| Court | Colorado Supreme Court |
John W. Suthers, Attorney General, Christine C. Brady, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David S. Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Defendant, Roy Allen Tallwhiteman, Jr., appeals the judgment of conviction entered upon a jury verdict finding him guilty of two counts first degree assault, attempted reckless manslaughter, felony menacing, and reckless endangerment. He also appeals the sentence. We vacate defendant's convictions of first degree assault-extreme indifference and reckless endangerment, but otherwise affirm.
Defendant, who was intoxicated, walked down a street in Durango displaying a large knife with a serrated edge and brass knuckle handle. Two men on the street described defendant as making a hissing sound as he walked between them.
Defendant continued walking and encountered the victim, who testified that defendant aggressively stared at him and muttered as he walked past. The victim twice felt compelled to turn around and put his hands up in a boxing stance. The second time the victim turned around, defendant and the victim fought. Defendant stabbed the victim in the right side of his forehead.
Defendant was charged with attempted first degree murder, first degree assault with intent to cause serious bodily injury with a deadly weapon, first degree assault-extreme indifference, menacing with a deadly weapon, and crime of violence.
The jury returned guilty verdicts on first degree assault with intent to cause serious bodily injury with a deadly weapon, first degree assault-extreme indifference, menacing with a deadly weapon, attempted reckless manslaughter as a lesser included offense of attempted first degree murder, and reckless endangerment, as a lesser offense.
The trial court imposed concurrent sentences of twenty-eight years on each of the two assault charges, three years on the attempted reckless manslaughter charge, two years on the menacing charge, six months on the reckless endangerment charge, and one year for violation of bond conditions. This appeal followed.
Defendant first contends that the trial court erred when it refused the jury's request that the court re-read to them the parties' stipulation of certain facts. We are not persuaded.
The reading of all or part of a witness's testimony at the specific request of the jury during deliberations is left to the trial court's discretion, and we review the court's decision under the abuse of discretion standard. Settle v. People, 180 Colo. 262, 264, 504 P.2d 680, 680 (1972); People v. Jenkins, 83 P.3d 1122, 1128 (Colo.App.2003); People v. Balkey, 53 P.3d 788, 790 (Colo.App.2002). The court should consider whether reading back certain testimony would give it undue weight or emphasis; the difficulty involved in reading back the testimony; whether the jury's request is reasonably well focused; and the amount of time the procedure would consume. People v. Balkey, supra.
At trial, the parties entered into the following written stipulation:
The parties have agreed as to the existence of certain facts. On March 26, 2002, Dr. McManus, an emergency room doctor at Mercy Medical Center, requested a blood draw of Mr. Tallwhiteman for medical purposes. The blood was drawn at 11:45 p.m. The laboratory at Mercy Medical Center tested Mr. Tallwhiteman's blood alcohol level by conducting a test of Mr. Tallwhiteman's blood serum. The result of the test was .279. You may regard those facts as proven.
The trial court read the stipulation into the record after a police officer testified about blood alcohol content (BAC) of persons who are pulled over for driving under the influence. Later testimony by a forensic chemist and toxicologist indicated that the serum test referred to in the stipulation translated into a BAC of between .23 and .25.
Jury instruction 13 stated: During deliberations, the jury asked in regard to instruction 13, "Judge, what are these facts?" Defendant requested the stipulation be re-read and likened it to admitted documentary evidence, such as a tape recording, which, under C.R.C.P. 47(m), may be taken into the jury room. The prosecution objected because the stipulation referred only to the blood serum level, not the BAC, and thus could be misleading to the jury and place undue emphasis on defendant's blood serum level.
The trial court ruled that the stipulation was more like testimony in a transcript than a tape recording. Earlier, when the jurors requested that the court re-read the transcript of three witnesses, the parties agreed that the jurors must rely on their collective memory regarding testimony and that those transcripts would not be re-read to the jury. The court applied the same rationale to the jurors' request regarding the stipulation. Thus, the court replied to the jury,
Here, the prosecution pointed out to the court the potential confusion and undue weight that might be given to the blood serum level if the stipulation were re-read to the jury without testimony about defendant's legal BAC number. See Settle v. People, supra (). Moreover, the parties had agreed in another instance that jurors would be instructed to rely on their collective memory regarding trial testimony.
Accordingly, we conclude the trial court did not abuse its discretion when it refused the jury's request to re-read the parties' stipulation.
Defendant contends that the trial court plainly erred by permitting police officers, who had not been offered or accepted as experts, to testify that it is not uncommon for guilty criminal suspects and defendants (1) to deny committing the offenses, (2) to falsely accuse the police of brutality, and (3) to falsely claim that they do not understand their Miranda rights. Specifically, defendant contends the officers' testimony was improperly admitted as lay opinion testimony under CRE 701. We disagree.
During redirect examination of one of the arresting police officers, the prosecution elicited the following testimony:
On cross-examination of another arresting officer who had been called as a witness by defendant, the prosecutor engaged in the following colloquy:
Later in the same cross-examination, the prosecutor asked the officer about defendant's statement that he did not understand his Miranda rights at the time of his arrest:
Defendant did not object to any of this testimony. Although we thus review for plain error, we conclude there was no error, plain or otherwise, in the admission of this testimony.
A reviewing court must not disturb a trial court's admission of evidence pursuant to CRE 701 absent an abuse of discretion. People v. Hoskay, 87 P.3d 194, 197 (Colo.App.2003).
If a witness is not testifying as an expert, the witness's testimony in the form of opinion or inferences is limited to those opinions or inferences that are (a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of CRE 702. CRE 701; People v. Stewart, ...
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People v. Stewart
...won't address it. E.g. , Vanderpool v. Loftness , 2012 COA 115, ¶¶ 26-28, 300 P.3d 953 (citing numerous cases); People v.Tallwhiteman , 124 P.3d 827, 834 (Colo. App. 2005) ; People v. Ridenour , 878 P.2d 23, 28 (Colo. App. 1994).¶ 56 The majority believes defendant raised the argument but t......
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People v. Tresco
...Crim. P. 32(b)(1). The sentencing court should consider the nature of the offense and the offender’s conduct. People v. Tallwhiteman , 124 P.3d 827, 837 (Colo. App. 2005). While the court may not base its determination on materially untrue evidence, it may "consider conduct for which the of......
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People v. Whittiker
...took a substantial step toward causing the death of another person. See §§ 18-2-101, 18-3-104(l)(a), C.R.S.2006; People v. Tallwhiteman, 124 P.3d 827, 835-36 (Colo.App.2005). Therefore, defendant's conviction for attempted manslaughter does not merge into his convictions for first and secon......
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People v. Carey
...from the elements of the offense in the first prosecution." People v. Allen, 868 P.2d 379, 381 (Colo. 1994); see People v. Tallwhiteman, 124 P.3d 827, 835 (Colo.App.2005); see also § 18-1-408(1), C.R.S.2007. Double jeopardy principles also preclude the imposition of "multiple punishments fo......
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ARTICLE 3
...means of committing the same offense; therefore, one of the first degree assault convictions must be vacated. People v. Tallwhiteman, 124 P.3d 827 (Colo. App. 2005). First degree assault is a per se grave or serious offense. People v. Gee, 2015 COA 151, 371 P.3d 714. ■ 18-3-203. Assault in ......
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Section 18 CRIMES - EVIDENCE AGAINST ONE'S SELF-JEOPARDY.
...not only against a second trial for the same offense but also against multiple punishments for the same offense. People v. Tallwhiteman, 124 P.3d 827 (Colo. App. 2005). Enhancing a penalty based on prior convictions does not put a defendant in jeopardy for an "offense". Nor does it punish t......
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ARTICLE 3 OFFENSES AGAINST THE PERSON
...means of committing the same offense; therefore, one of the first degree assault convictions must be vacated. People v. Tallwhiteman, 124 P.3d 827 (Colo. App. 2005). First degree assault is a per se grave or serious offense. People v. Gee, 2015 COA 151, 371 P.3d 714. ■ 18-3-203. Assault in ......