People v. Vigil

• Citation: 718 P.2d 496
• Decision Date: 14 April 1986
• Docket Number: No. 84SA529,84SA529
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Vincent Scott VIGIL, Defendant-Appellant.
• Court: Supreme Court of Colorado

Page 496

718 P.2d 496

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Vincent Scott VIGIL, Defendant-Appellant.

No. 84SA529.

Supreme Court of Colorado,

En Banc.

April 14, 1986.

Rehearing Denied June 9, 1986.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Nathan B. Coats, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Kenneth A. Padilla, Denver, for defendant-appellant.

DUBOFSKY, Justice.

The defendant, Vincent Scott Vigil, appeals his convictions after a jury trial in Jefferson County District Court of first degree sexual assault, § 18-3-402(2), 8 C.R.S. (1978), and commission of a crime of violence, § 16-11-309, 8 C.R.S. (1985 Supp.). The defendant also challenges the sentence imposed for the convictions. We affirm the judgment of the district court.

The defendant was charged with sexually assaulting the eighteen-year-old female victim outside her home in Lakewood, Colorado, in the early morning hours of July 2, 1982. Between 4:00 and 4:30 a.m., the victim was awakened by a knock on her bedroom window. Outside the window was a man who told the victim that he was Scott and that her former boyfriend who was hurt was in Scott's jeep and needed her help. The victim associated the name and the voice of the man outside the window with the defendant, Vincent Scott Vigil. The victim knew the defendant well because he had been the roommate of her former boyfriend. Although the victim felt uneasy about the situation, she dressed, picked up a towel and wet washcloth, and went outside.

The victim recognized a jeep parked in front of the house as the defendant's. As she walked toward the jeep, the man identified by the victim as the defendant stepped forward from the shadows, put an arm around the victim's neck and a knife to her throat, and threatened to kill her if she screamed. The assailant forced the victim to the ground in the shadow of some nearby bushes and sexually assaulted her. During the assault, the victim screamed and the assailant choked her. When the victim screamed and struggled again, the assailant choked her into unconsciousness. The victim regained consciousness about a half hour later and woke her mother who called the police. The victim was taken to a hospital where medical personnel observed that her jaw was broken, that she had multiple small hemorrhages in the white portion of one eye and around her face and neck indicative of strangling, and that she had multiple abrasions on her head, neck, shoulders and one breast.

The defendant was tried on charges of first degree sexual assault, commission of a violent crime in connection with the first degree sexual assault, second degree assault, and a crime of violence in connection with the second degree assault. At trial, witnesses for the defendant testified that he was with friends until shortly before the assault and that he could not have been at the victim's home at the time the assault was committed. Through cross-examination of prosecution witnesses, defense counsel attempted to undermine the victim's identification of the defendant as the assailant.

The jury returned a verdict finding the defendant guilty on all counts except crime of violence relating to the second degree assault count. Because the district court determined that the verdicts on the second degree assault count and the count of crime of violence while committing second degree assault were inconsistent, it dismissed the second degree assault count. Judgments of conviction on the remaining counts were entered. The district court sentenced the defendant to a term of twenty-four years. ¹

I.

Most of the defendant's assignments of error concern 1) the seating of the jury, 2) the conduct of the jury, 3) the conduct of the prosecution, and 4) the jury instructions given by the district court. We address these aspects of the trial in turn.

A.

The defendant first argues that the district court erred in refusing to permit defense counsel, during voir dire, to ask potential jurors where they lived. While we agree that the court improperly precluded this line of inquiry, under the circumstances of this case the error was harmless.

Section 13-71-110(5), 6 C.R.S. (1973) provides:

(5) The names of qualified jurors drawn from the qualified jury wheel shall be made available to the public and the content of juror qualification forms completed by the jurors shall be made available to the parties or their attorneys of record unless the court determines in any instance in the interest of justice that this information be kept confidential or its use limited in whole or in part. (Emphasis added.)

The juror qualification form "shall elicit the name, address of residence, and age of the prospective juror." § 13-71-108, 6 C.R.S. (1973). Thus, under section 13-71-110(5), this information should have been made available to defense counsel in the absence of specific reasons for keeping it confidential. Here, the jury commissioner denied defense counsel's request for the juror master list, and the district court during voir dire in the presence of potential jurors ordered counsel to desist from questioning jurors about their addresses. The court later told counsel that its decision was based on a general request by the chief judge of the district court not to require the disclosure of such information. The court stated that

We have had many requests from the jurors in this district not to have their addresses revealed in the course of the proceedings. The request has come from jurors--not these jurors, but from jurors generally, therefore, the Chief Judge has asked us unless there is some reason or necessity for having the jurors give their address, not to force them to give their home addresses.

This rule of practice conflicts with section 13-71-110(5), which provides that as a general rule information of the type sought by defense counsel should be available without restriction. In the absence of specific findings why the interests of justice in this case required that the addresses of jurors remain confidential, defense counsel should have been permitted to elicit the information on voir dire.

Reversal of the defendant's conviction on this basis is required, however, only if the error affected the defendant's substantial rights. Crim.P. 52(a). Because the defendant does not allege a deprivation of constitutional rights with respect to the voir dire, the defendant has the burden of showing prejudice. Segura v. People, 159 Colo. 371, 412 P.2d 227 (1966); Gottfried v. People, 158 Colo. 510, 408 P.2d 431 (1965); Madrid v. People, 148 Colo. 149, 365 P.2d 39 (1961).

As part of his allegation of prejudice, the defendant argues that the district court's refusal to permit defense counsel to ask the jurors where they lived created an "aura of fear" of the defendant in the minds of the jurors. This argument is pure speculation. The defendant also contends that the district court's action prevented him from identifying those jurors familiar with the locations relevant to the crime or the defense. However, the district court specifically stated that counsel was not prohibited from inquiring directly of any juror whether the juror was familiar with these locations, and counsel made several such inquiries. The defendant's assertion of prejudice in connection with the voir dire is not well-founded.

As part of his challenge to the jury selection process, the defendant also questions the refusal of the district court to dismiss for cause two jurors who indicated that their ability to be impartial might be affected by their relationships with law enforcement personnel. We have held that the decision to grant or deny a challenge for cause is a matter reserved in the first instance to the discretion of the trial court, and that the trial court's decision will not be disturbed on appeal absent a clear abuse of that discretion. People v. Russo, 713 P.2d 356 (Colo.1986); People v. Abbott, 690 P.2d 1263 (Colo. 1984); People v. Taggart, 621 P.2d 1375 (Colo. 1981). The ultimate test to be applied in determining whether a juror should be dismissed for cause is whether it appears that the juror would render a fair and impartial verdict based on the evidence presented at trial and the instructions given by the court. People v Abbott, 690 P.2d at 1267; People v. Wright, 672 P.2d 518 (Colo. 1983).

Here, the defendant points out that the brother of juror Bobby Givens was a member of the Colorado Springs police department. In response to questioning by the court, Givens testified that he "might be inclined to give more weight to the testimony of the law enforcement people, based on the association." Givens also stated in response to questions posed by the prosecutor and defense counsel that his brother's being a police officer "subconsciously" might affect him. However, Givens also stated that he would be willing to follow the court's instructions on credibility, that consciously he would be able to follow the court's instructions, and that if he did so he could be "fair and impartial to both sides." The district court was persuaded that Givens could be fair and impartial, and denied the defendant's motion to have the juror dismissed for cause. While the court properly might have dismissed the juror, considering the entire testimony of Givens the court did not abuse its discretion in rendering a contrary decision. See People v. Wright, 672 P.2d at 521 (Colo. 1983); cf. Blades v. DaFoe, 704 P.2d 317 (Colo. 1985).

The evidence of potential prejudice or bias against the defendant on the part of Robert Schroeder, the other juror challenged for cause, is attenuated. The basis for the defendant's challenge to Schroeder was the latter's casual friendship with a Lakewood junior police cadet that he knew from a junior college class. Schroeder stated twice that his association with the police cadet "possibly" would affect him....