No. 82CA1082Colorado Court of Appeals.
Decided June 7, 1984. Rehearing Denied July 5, 1984. Certiorari Denied November 5, 1984.
Appeal from the District Court of Adams County Honorable Dorothy E. Binder, Judge
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Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Dolores S. Atencio, Assistant Attorney General, for plaintiff-appellee.
David F. Vela, Colorado State Public Defender, Terri L. Brake, Deputy State Public Defender, for defendant-appellant.
Division I.
Opinion by JUDGE STERNBERG.
[1] The defendant, Cary Gano Rogers, was charged with first degree murder and first degree kidnapping following a shooting death which occurred outside a tavern in Adams County. Following a jury trial, the defendant was convicted of first degree murder, acquitted of first degree kidnapping, and was sentenced to a term of life imprisonment. He appeals, and we reverse and remand for a new trial. I.
[2] The defendant first contends that the trial court abused its discretion by denying his challenge for cause to a potential juror, R.A. Teter. We agree.
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had worked with the Adams County District Attorney’s office on a number of prosecutions, and had consulted in the past with the prosecutor who tried this case.
[4] Teter dealt with members of the Commerce City Police Department on a daily basis, and was personally acquainted with nearly all the members of the Adams County Sheriff’s Department. He had talked with a co-employee, an emergency medical technician, who had responded to the shooting in question, and who had attended the victim shot in this case. [5] When asked if he could be fair and impartial, considering his law enforcement associations, Teter responded: [6] “I would like to think I could be, you know, fair to both sides. Like I say, I do work with them [law enforcement agencies and the district attorney] every day and stuff like that but I think I could you know, draw the line as to — I’m not a law enforcement official, or however that goes.” [7] However, when asked if he thought that these associations would influence his ability to make an impartial decision he said: “Well, I don’t think with a man’s life that I would be, but possibly I guess there is always in the back of your mind.” [8] Great discretion is vested in the trial court in assessing the impartiality of jurors. Hanes v. People, 198 Colo. 31, 598 P.2d 131(1979). Here, this discretion was abused. [9] We do not hold that Teter was an employee of a public law enforcement agency thus requiring his discharge as a juror under § 16-10-103(1)(k), C.R.S. (1978 Repl. Vol. 8), and Crim. P. 24(b)(1)(XII). We do hold that the combination of factors involved: Teter’s close association with not only the law enforcement establishment, but also with this crime scene, and with the co-employee who had attended to this murder victim, required his dismissal for cause. See People v. Reddick, 44 Colo. App. 278, 610 P.2d 1359 (1980). [10] As a result of not excusing Teter, the defendant, who exercised all of his challenges, was deprived of his statutorily granted number of peremptory challenges because he was forced to use one of them to exclude Teter. Had the challenge been sustained, the composition of the jury would have been different, and we may not speculate what effect this might have had upon the trial’s outcome. People in Interest of R.A.D., 196 Colo. 430, 586 P.2d 46 (1978); Skeels v. People, 145 Colo. 281, 358 P.2d 605 (1961). Thus, the error was prejudicial. People v. Maes, 43 Colo. App. 365, 609 P.2d 1105 (1979).
II.
[11] Defendant raises two other assertions of error which must be addressed because it is likely they will arise upon retrial of this case. First is the contention that the trial court erred in refusing to instruct the jury correctly on the probative value of evidence about the victim’s bad character. There was no error.
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great bodily injury or death and his subsequent action.”
[17] Defendant, however, tendered an additional instruction that the victim’s reputation for carrying a weapon was a factor which the jury could consider in determining whether he acted in conformity with his character and carried a gun at the time of the shooting. [18] Defendant argues it was error to refuse this instruction because a crucial issue in this case was whether the victim was carrying a gun, which he was reaching for, at the time defendant shot at him. [19] On the contrary, the crucial issue in the case was what defendan believed the victim was going to do — pull a gun — rather than what the victim actually did. There was no evidence presented that the victim was carrying a gun on this occasion. In fact, no gun was found in the victim’s possession following the shooting, and the defendant admitted that he did not see a gun. Instead, he testified that he believed that the victim was reaching for a gun because he had seen him carrying a gun in the pocket of his vest on previous occasions. [20] A defendant is entitled to a jury instruction on his theory of the case when it is based on the evidence. People v. McKnight, 626 P.2d 678(Colo. 1981). Here, however, there was no evidentiary foundation for this tendered instruction, and the instruction given regarding the victim’s character was appropriate.
III.
[21] Defendant also argues that the trial court erred in giving a “flight” instruction, and in giving it in an improper form. We disagree.