People v. Washington, No. 03CA1895.

Docket NºNo. 03CA1895.
Citation179 P.3d 153
Case DateMay 31, 2007
CourtCourt of Appeals of Colorado
179 P.3d 153
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Trevon Deon WASHINGTON, a/k/a Venda Johnson Jr., Defendant-Appellant.
No. 03CA1895.
Colorado Court of Appeals, Div. I.
May 31, 2007.
Certiorari Granted December 18, 2007.

[179 P.3d 155]

[179 P.3d 156]

John W. Suthers, Attorney General, Matthew S. Holman, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

The Viorst Law Offices, P.C., Anthony Viorst, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge JONES.


Defendant, Trevon Deon Washington, appeals the trial court's judgment of conviction entered on jury verdicts finding him guilty of three counts of first degree murder after deliberation; four counts of aggravated robbery; and one count each of attempted first degree murder, second degree kidnapping, aggravated first degree sexual assault, conspiracy to commit first degree murder, and accessory to a crime. We affirm.

I. Background

On September 10, 1998, defendant, Randy Canister, and Dante Owens went to an apartment where the four victims, DH, PS, NP, and MN, resided. A few weeks earlier, DH and PS had gone to California to purchase cocaine, which they brought back to Colorado. The cocaine was to be split between Canister and DH; however, there was testimony that DH withheld some of the cocaine from Canister as payment for transporting the drugs.

After sitting and talking for about an hour, defendant, Canister, and Owens got up and began walking toward the door. DH got up with them and was walking in front of Canister. Before reaching the door, defendant pulled out a gun and said, "We're not leaving without taking all of this shit."

Canister forced DH to go back to a bedroom, while defendant ordered the others to sit in the living room. Defendant then gave the gun to Owens, told Owens to hold the gun on PS, NP, and MN, and went into the bedroom. Defendant returned a short time later and asked PS, NP, and MN, "Where's the shit?" They responded by shaking their heads.

Defendant took the gun back from Owens and told PS to undress and sit on the couch. Defendant and the other assailants then forced MN to perform oral sex on PS (MN's stepbrother), perform oral sex on Owens, have sexual intercourse with Owens, and perform oral sex on defendant in various rooms in the house.

When MN returned to the living room after performing oral sex on defendant, DH, PS, and NP were lying on the floor, face

179 P.3d 157

down, with their hands and feet tied together. Defendant made MN lie on the floor and tied her. Defendant asked who had tied NP, Owens said he had, and defendant re-tied NP.

Defendant put socks in MN's and NP's mouths. Socks were also placed in DH's and PS's mouths. One of the assailants played a song on the stereo, turned up the volume loud, and programmed the stereo to play the song repeatedly.

Canister told DH, "California comes back on you ten times worse," and shot DH in the head. DH was shot a second time in the head. PS and NP were also shot in the head more than one time. MN testified that she saw defendant shoot PS in the head. She tried to scoot under a table to protect herself but defendant shot her in the back four times. Owens then shot her in the head.

Defendant, Canister, and Owens ransacked the apartment. They left with a bag.

DH, PS, and NP died at the scene. An autopsy of DH showed that he had puncture wounds on his neck and chest. PS also had bruises and contusions that were inflicted before he died. MN survived, but was rendered a paraplegic.

MN identified defendant, Canister, and Owens as the assailants.

In September 1998, the People charged defendant with (1) three counts of first degree murder (after deliberation), in violation of § 18-3-102(1)(a), C.R.S.2006; (2) three counts of first degree murder (felony murder), in violation of § 18-3-102(1)(b), C.R.S. 2006; (3) one count of attempted first degree murder, in violation of § 18-2-101(4), C.R.S. 2006; (4) one count of second degree kidnapping, in violation of § 18-3-302(1), C.R.S. 2006; (5) one count of aggravated first degree sexual assault, in violation of § 18-3-402(1)(a), C.R.S.2006; (6) four counts of aggravated robbery, in violation of § 18-4-302(1)(a), C.R.S.2006; (7) one count of conspiracy to commit first degree murder, in violation of § 18-2-201(5), C.R.S.2006; and (8) one count of accessory to a crime, in violation of § 18-8-105(1) and (3), C.R.S. 2006.

After the prosecution indicated its intent to seek the death penalty, defendant filed a motion with the court pursuant to §§ 18-1.3-1102 and 18-1.3-1103, C.R.S.2006, to preclude such punishment because he was mildly mentally retarded. After holding an evidentiary hearing, the court concluded that defendant was not eligible for the death penalty because he was mildly mentally retarded.

On July 24, 2003, following a trial that lasted three weeks, a jury convicted defendant of all counts. On the People's motion, the trial court dismissed the three convictions for first degree murder (felony murder) prior to sentencing because they were redundant of the convictions for first degree murder (after deliberation). See People v. Glover, 893 P.2d 1311, 1314 (Colo.1995).

On August 22, 2003, the court sentenced defendant to serve consecutive life sentences in the Department of Corrections, without the possibility of parole, on the three first degree murder (after deliberation) convictions and consecutive sentences for various terms of years on the remaining convictions.

II. Drawing the Jury Panel from a Fair cross-section of the Community

In the course of jury selection, defendant filed a motion to dismiss the jury pool on the grounds it was constituted in violation of the Colorado Uniform Jury Selection and Service Act, § 13-71-101, et seq., C.R.S.2006, the Sixth and Fourteenth Amendments to the United States Constitution, and the Colorado Constitution (presumably, art. II, § 16). The essence of defendant's motion was that the State's method of constituting jury panels for Arapahoe County systematically excluded a disproportionate number of African-Americans and Hispanics, such that his jury was not selected from a fair cross-section of the community.

The trial court conducted a hearing on defendant's motion after the trial. Defendant presented evidence showing how the State creates jury panels for Arapahoe County, and expert testimony as to the degree of underrepresentation of African-Americans and Hispanics on jury panels in Arapahoe County, as well as the likelihood that the

179 P.3d 158

degree of such underrepresentation is attributable to chance.

The trial court denied defendant's motion, finding that defendant had failed to demonstrate systematic exclusion of African-Americans and Hispanics to a constitutionally significant degree, and that any underrepresentation was justified by the State's compelling interests in not overusing prospective jurors from Aurora, Colorado (who are eligible for municipal court jury service as well as county and district court jury service) and creating jury panels in an economically efficient manner.

Defendant contends that the trial court erred in denying his motion. We disagree.

A. Standard of Review

We review a trial court's factual findings concerning a fair cross-section claim for clear error, but review its legal determination whether a defendant established a violation of the fair cross-section requirement de novo. See United States v. Orange, 447 F.3d 792, 797 (10th Cir.2006); State v. Gibbs, 254 Conn. 578, 758 A.2d 327, 337 (2000); State v. Paz, 118 Idaho 542, 798 P.2d 1, 7 (1990), overruled in part on other grounds by State v. Card, 121 Idaho 425, 825 P.2d 1081 (1991). Here, defendant does not challenge any of the trial court's factual findings. He challenges only the trial court's legal conclusion that he failed to demonstrate a constitutional violation. Hence, our review is de novo.

B. Creation of Jury Panels for Arapahoe County

The Office of the State Court Administrator of the Colorado State Judicial Branch creates "jury wheels" — essentially, master lists of eligible potential jurors — for every county in the state. It culls driver's license and voting records to determine eligible jurors statewide, randomly assigns each such person a number, and then sorts the eligible jurors by county. See §§ 13-71-105, 13-71-107, 13-71-108(1), C.R.S.2006.

The State Court Administrator also creates a jury wheel for the City of Aurora. It does so, in large part, by selecting potential jurors from the Arapahoe County jury wheel who reside in Aurora. (Aurora is mostly, but not entirely, located in Arapahoe County.) Prior to March 2003, potential jurors chosen for the Aurora jury wheel were removed from the Arapahoe County jury wheel. In March 2003, however, that practice ceased, and prospective jurors residing in Aurora remained in both jury wheels, and therefore remained eligible and available for jury service in Aurora Municipal Court and in Arapahoe County county and district courts.

Each week, eligible potential jurors are drawn at random from the master county jury wheel to form the jury panel for that week. To reduce the likelihood that persons will be selected for jury service with disproportionately high frequency, the State Court Administrator, acting pursuant to statute, assigns each prospective juror a "service rank," which gives weight to prior jury service during a five-year period, with more recent service weighted more heavily. See § 13-71-108(2), C.R.S.2006. Those prospective jurors with lower service ranks are selected for jury panels before those with higher service ranks.

C. Applicable Law
1. The Fair cross-section Requirement

The Sixth Amendment to the United States Constitution guarantees every defendant "the right to a speedy public trial by an impartial jury...." See also Colo. Const. art. II, § 16. This guarantee "contemplates a jury drawn from a fair cross section of the community.......

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12 practice notes
  • People v. Bryant, Docket No. 141741.
    • United States
    • Supreme Court of Michigan
    • June 28, 2012
    ...United States v. Rioux, 97 F.3d 648, 657–658 (C.A.2, 1996); Francis v. Fabian, 669 F.Supp.2d 970, 984 (D.Minn.2009); People v. Washington, 179 P.3d 153, 162–164 (Colo.App.2007); People v. Bell, 49 Cal.3d 502, 526–527, 262 Cal.Rptr. 1, 778 P.2d 129 (1989). Despite our straightforward reading......
  • In re N.B., No. 06CA1325.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 6, 2007
    ...sought to be precluded is identical to an issue actually and necessarily determined in a prior proceeding); see also People v. Washington, 179 P.3d 153, ___ (Colo.App. 2007)(the law of the case doctrine applies to decisions of law, not factual questions, and is not followed if the ruling is......
  • People v. Scheffer, No. 06CA0780.
    • United States
    • Colorado Court of Appeals of Colorado
    • April 2, 2009
    ...defendant's substantial rights shall be disregarded); People v. Rodriguez, 914 P.2d 230, 273-75 (Colo.1996) (same); People v. Washington, 179 P.3d 153, 167 (Colo.App.2007) (same), aff'd, 186 P.3d 594 224 P.3d 291 (Colo.2008). We reach this conclusion for three reasons. First, assuming, as d......
  • People v. Clark, No. 07CA0157.
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    • Colorado Court of Appeals of Colorado
    • March 19, 2009
    ...plain error. Id. A prosecutor's use of the phrase "I submit" is not necessarily impermissible personal opinion. See People v. Washington, 179 P.3d 153, 169 (Colo.App.2007), aff'd, 186 P.3d 594 (Colo.2008); Mandez, 997 P.2d at 1269. Here, the phrase was used in obvious comment on defendant's......
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12 cases
  • In re N.B., No. 06CA1325.
    • United States
    • Colorado Court of Appeals of Colorado
    • September 6, 2007
    ...sought to be precluded is identical to an issue actually and necessarily determined in a prior proceeding); see also People v. Washington, 179 P.3d 153, ___ (Colo.App. 2007)(the law of the case doctrine applies to decisions of law, not factual questions, and is not followed if the ruling is......
  • People v. Bryant, Docket No. 141741.
    • United States
    • Supreme Court of Michigan
    • June 28, 2012
    ...United States v. Rioux, 97 F.3d 648, 657–658 (C.A.2, 1996); Francis v. Fabian, 669 F.Supp.2d 970, 984 (D.Minn.2009); People v. Washington, 179 P.3d 153, 162–164 (Colo.App.2007); People v. Bell, 49 Cal.3d 502, 526–527, 262 Cal.Rptr. 1, 778 P.2d 129 (1989). Despite our straightforward reading......
  • People v. Scheffer, No. 06CA0780.
    • United States
    • Colorado Court of Appeals of Colorado
    • April 2, 2009
    ...defendant's substantial rights shall be disregarded); People v. Rodriguez, 914 P.2d 230, 273-75 (Colo.1996) (same); People v. Washington, 179 P.3d 153, 167 (Colo.App.2007) (same), aff'd, 186 P.3d 594 224 P.3d 291 (Colo.2008). We reach this conclusion for three reasons. First, assuming, as d......
  • People v. Walden, No. 08CA0859.
    • United States
    • Colorado Court of Appeals of Colorado
    • June 25, 2009
    ...excluding evidence will not be reviewed when substance of evidence is not made known to court by an offer of proof); People v. Washington, 179 P.3d 153, 165-66 (Colo.App.2007), aff'd, 186 P.3d 594 (Colo.2008)(The defendant's "failure to make a proper offer of proof precludes him from r......
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