People v. Wilson

• Decision Date: 23 May 2013
• Docket Number: Court of Appeals No. 11CA0009
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Charles Edward WILSON, Defendant–Appellant.
• Court: Colorado Court of Appeals

318 P.3d 538

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Charles Edward WILSON, Defendant–Appellant.

Court of Appeals No. 11CA0009

Colorado Court of Appeals,

Div. VII.

Announced May 23, 2013

Arapahoe County District Court No. 08CR1279, Honorable Valeria N. Spencer, Judge, Honorable Jack F. Smith, Judge, Honorable Marilyn L. Antrim, Judge. JUDGMENT AND SENTENCE AFFIRMED.

John W. Suthers, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Law Office of Gregory Lansky, LLC, Gregory Lansky, Denver, Colorado, for Defendant–Appellant

Opinion by JUDGE BERNARD

¶ 1 This appeal raises two issues arising out of a sentencing hearing in a criminal case. First, is a court required to hold a hearing under People v. Shreck, 22 P.3d 68 (Colo.2001), before a fingerprint examiner testifies at a sentencing hearing, to determine whether expert testimony about fingerprint comparisons is admissible? We conclude, under the circumstances here, that (1) such a hearing was not required, and, alternatively, (2) any error in denying such a hearing was harmless.

¶ 2 Second, what burden of proof governs the factual sentencing question of whether a defendant was previously convicted of a prior drug-related felony, when such a finding is used to enhance a felony conviction for possession of a controlled substance from a class 6 felony to a class 4 felony, under former section 18–18–405(2.3)(a)? We conclude that the proper burden of proof is a preponderance of the evidence.

¶ 3 Here, defendant, Charles Edward Wilson, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession of a controlled substance and the sentence that the court subsequently imposed. We affirm. In doing so, we also reject defendant's contention that the trial court erred when it denied his request to read the legal definition of “entrapment” to the jury during voir dire.

I. Background

¶ 4 In May 2008, defendant asked an undercover police officer, who was posing as a prostitute on east Colfax Avenue, if she wanted to smoke crack cocaine with him. He showed her a Blistex tube that contained three rocks of crack cocaine, and police officers from the Aurora Police Department then arrested him.

¶ 5 The prosecution charged defendant with one count of the class 6 felony of possession of a controlled substance. Before trial, the prosecution announced that, if defendant were to be convicted, the prosecution would introduce evidence at the sentencing hearing of defendant's 1997 drug-related felony conviction. The purpose for this evidence was, under former section 18–18–405(2.3)(a), to increase the classification of the conviction from a class 6 felony to a class 4 felony, which would concomitantly increase the possible sentence.

¶ 6 The prosecution endorsed an expert fingerprint examiner to testify at the sentencing hearing. The examiner would provide her opinion that the fingerprints recently taken from defendant matched the fingerprints taken from the person who had been convicted of the 1997 drug-related felony. This testimony would be part of the prosecution's proof that defendant was the person who had been convicted of the 1997 drug-related felony.

¶ 7 Defendant requested that a Shreck hearing be held to determine whether the fingerprint examiner's testimony should be admitted at the sentencing hearing. After a hearing, the motions court denied this request.

¶ 8 A second judge presided at defendant's trial and sentencing hearing. The jury convicted defendant of the class 6 felony.

¶ 9 At the sentencing hearing, the trial court allowed the fingerprint examiner to testify as an expert. The fingerprint examiner testified about the methods she used to compare known fingerprints with unknown fingerprints, and she gave her opinion that fingerprint exemplars recently taken from defendant matched the fingerprints associated with the 1997 drug-related felony. Defendant's counsel cross-examined the fingerprint examiner about the reliability of her methods.

¶ 10 The trial court found that the prosecution had proved, by a preponderance of the evidence, that defendant had been convicted of the 1997 drug-related felony. The court increased the class of the conviction to a class 4 felony. After finding that extraordinary mitigating circumstances existed, the court sentenced defendant to eighteen months in prison.

II. The Trial Court Properly Refused to Offer an Entrapment Instruction During Voir Dire

A. Standard of Review

¶ 11 We review a trial court's decision to limit voir dire for an abuse of discretion. People v. Collins, 730 P.2d 293, 300 (Colo.1986) (“The propriety of questions to potential jurors on voir dire is within the discretion of the trial court, and its ruling thereon will not be disturbed on appeal unless an abuse of that discretion is shown.”).

B. Discussion

¶ 12 To receive a fair trial, the defendant must be tried by an impartial jury. Id. The purpose of voir dire is to allow counsel “to determine whether any potential jurors possessed any beliefs that would bias them such as to prevent [the defendant] from receiving a fair trial.” People v. Rodriguez, 914 P.2d 230, 255 (Colo.1996)(quoting People v. O'Neill, 803 P.2d 164, 169 (Colo.1990)).

¶ 13 A trial court, therefore, may appropriately limit voir dire. Crim. P. 24(a)(3) (“The court may limit or terminate repetitious, irrelevant, unreasonably lengthy, abusive or otherwise improper examination.”). For example, a trial court may limit voir dire to prevent an attorney from “instruct[ing] the jury regarding the law or the defendant's theory of the case.” People v. Lybarger, 790 P.2d 855, 859 (Colo.App.1989)(citing People v. Shipman, 747 P.2d 1, 3 (Colo.App.1987)), rev'd on other grounds,807 P.2d 570 (Colo.1991); see alsoPeople v. Maestas, 701 P.2d 109, 110 (Colo.App.1985). This is because “[t]he knowledge or ignorance of prospective jurors concerning questions of law is generally not a proper subject of inquiry for voir dire since it is presumed that the jurors will be adequately informed as to the applicable law by the instructions of the court.” Collins, 730 P.2d at 301.

¶ 14 Here, the trial court permitted defense counsel to question the jurors about their biases and their willingness “to accept the basic principles of criminal law.” People v. Lefebre, 5 P.3d 295, 299 (Colo.2000). Nevertheless, defendant argues that voir dire was insufficient because the trial court refused his request that the court read to the potential jurors a legal definition of the defense of entrapment. He argues that,

without the prospective jurors knowing and understanding what constitutes the defense of entrapment, including their concepts of proclivity and predisposition and whether they possessed an assumed predisposition of [defendant], it was impossible for [defendant] to be aware of their biases and/or prejudices for the entrapment defense.

We disagree for two reasons.

¶ 15 First, as was presumed in Collins, the record reflects that the jurors in this case were adequately informed at the proper time—at the close of evidence—of the governing law. SeeCollins, 730 P.2d at 301. And defendant does not challenge the instructions on the issue of entrapment that the trial court ultimately gave to the jury.

¶ 16 Second, contrary to defendant's assertion, the trial court permitted his counsel to question the jurors thoroughly about their views on the defense of entrapment. During the prosecution's voir dire, defense counsel objected and asked the court to “read the legal definition of entrapment.” The court then stated:

I'm going to limit the voir dire on that issue because it's going to make a great deal of difference what the court rules in the course of the trial. So I'm going to ask counsel to just basically talk about the general law, which has really been talked about at this point, and if the jurors could follow the legal definition given by the court, and then the court will give those legal definitions and the jury will be sworn to follow the legal principles based on the factual situation that I find. So I'm going to ask you to conclude that discussion. [Defense counsel] is under the same admonition.

(Emphasis supplied.)

¶ 17 Defense counsel questioned the jurors on their views on the entrapment defense. This general questioning led one juror to reveal his unwillingness to follow the trial court's instructions, seeLefebre, 5 P.3d at 299:

[Defense counsel]: What do you think about that notion that I can say, [“]Hey, so somebody can go commit a crime, commit all the elements of that crime, but if they were entrapped then the law requires that they be found not guilty[”]? Does that seem fair to you?

[Juror M]: Not really.

[Defense counsel]: Tell me why.

[Juror M]: Because if someone did all the elements, I mean murder—if someone murdered someone, and it was entrapment, I mean they still did that so I don't know. It seems like they should still pay for the crime.

[Defense counsel]: So you would have—

[Juror M]: Entrapment or not, I guess you consciously are doing what you are doing.

Both the prosecutor and defense counsel later agreed that juror M should be dismissed for cause.

¶ 18 Defense counsel also questioned other jurors about the general nature of the entrapment defense.

¶ 19 The trial court subsequently prevented defense counsel from exploring a particular factual hypothetical that was not relevant to this case:

[Defense counsel]: Let's say there is a murder.

[Juror C]: Um-hum.

[Defense counsel]: You find out that the murder was committed after a police officer went to the defendant's house and said, “If you don't murder this person, I'm going to kill the rest of your family.”

[Juror C]: See, that would play into all of the evidence and everything else. Yes, I would have to weigh that as well as the evidence. And I would have to make a decision based on that.

[The Court]: The court had limited both sides to—that's a hard...