No. 82CA0628Colorado Court of Appeals.
Decided August 9, 1984. Rehearing Denied September 13, 1984. Certiorari Granted March 11, 1985.
Appeal from the District Court of Arapahoe County Honorable Kenneth K. Stuart, Judge
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Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Maureen Phelan, Assistant Attorney General, for plaintiff-appellee.
Mary G. Allen, for defendant-appellant.
Division II.
Opinion by JUDGE BERMAN.
[1] Defendant, Paul Louis Fields, appeals his convictions by a jury of one count of first degree murder in the shooting death of Douglas Clunie and two counts of attempted first degree murder in the shooting and attempted shooting of Jay Davis and Anthony Butera, respectively. We affirm. [2] In August 1980 the defendant, a former deputy sheriff in Denver, began to work as a security guard at a K-Mart Store in Arapahoe County. The defendant worked with Jay Davis, the director of security for the store. Their immediate supervisor was Doug Clunie. The manager of the store was Anthony Butera. [3] Butera had decided to terminate defendant’s employment because of an alleged incident of lying by the defendant. On the afternoon of March 19, 1981, the defendant arrived at work and was told that Butera wanted to talk with him in his office. Butera, who was fearful of how defendant might react to his termination, made final preparations for his confrontation with defendant by clearing his desk of various items which might be usable as weapons and by sending Clunie to locate Davis so that Davis could join Butera and Clunie in the meeting with defendant. [4] Butera and defendant sat alone for several minutes until Clunie returned with Davis. After all four men were seated, Butera informed defendant that he was terminating him and explained the reasons for the termination. [5] The defendant responded by stating that the termination was part of a “conspiracy to get rid of him and all other Blacks” and that “this was just round one with round two coming up.” Davis then commented, additionally, that he could not tolerate defendant’s “advances” to some of the female employees in the store, to which defendant stood up and responded with more charges of a “conspiracy to get rid of me” and with this statement: “The last [person] that tried to screw me over was in a bad way now.” Clunie remained silent during the entire meeting. [6] Defendant then verbally threatened the lives of both Davis and Clunie and, turning to Butera, stated, “I have no beef with this man.” At that point, defendant turned again toward Davis, pulled a gun, and shot Davis in the head at a range of six to twelve inches. Defendant then immediately turned, aimed his gun, and fired three times at Clunie. Butera dropped behind his desk, and almost simultaneously, the defendant fired two shots in Butera’s direction, both of which missed. [7] Clunie died of an acute loss of blood from gunshot wounds which perforated both lungs, the heart, and the aorta. Davis was in a coma for six months, suffered some brain damage, and was blinded from the gunshot wounds he received. Butera was uninjured. [8] Defendant’s theory of defense was self-defense. [9] Defendant claimed that he thought Davis reached for his gun and that he believed he was going to be killed unless he acted first. However, Davis testified that he never carried a handgun and did not even own one. Furthermore, none of the three victims were found to have been armed and the overwhelming weight of the evidence shows that none had made any threatening or furtive gestures prior to being shot. [10] Defendant was convicted and sentenced to a term of life on the first degree murder charge and two concurrent terms of 12 years on the two attempted first degree murder charges. This appeal followed. I.
[11] Defendant’s first contention is that the trial court erred in denying his motion to
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dismiss based upon the alleged violation of defendant’s statutory speedy trial rights under § 16-4-103, C.R.S. (1983 Cum. Supp.) and that, if this court holds that § 16-4-107, C.R.S. (1978 Repl. Vol. 8) is applicable instead, the latter statute is constitutionally infirm. We perceive no error in the trial court’s denial of defendant’s motion and no infirmity in the statute at issue.
A.
[12] On May 11, 1981, defendant’s bail was set at $250,000 and, on June 24, 1981, bail was reduced to $60,000 on defendant’s motion. On August 18, 1981, defendant’s wife visited the defendant in jail, where defendant informed her that he was angry, that he was going to make bail that day, and that he was going to “take care of” her. Mrs. Fields interpreted this as a threat upon her life. Defendant also threatened a police officer who was a potential witness for the People.
B.
[19] Defendant argues, in the alternative, that § 16-4-107, C.R.S. (1978 Repl. Vol. 8) is violative of equal protection and, thus, unconstitutional. Ordinarily, we are without jurisdiction to address such questions as the facial constitutionality of a statute. See § 13-4-102(1)(b), C.R.S.
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However, on June 7, 1983, in response to a proposed transfer of jurisdiction because of this issue, our Supreme Court “Ordered that jurisdiction shall be retained by the Court of Appeals.” Accordingly, we have jurisdiction to address the issue of the statute’s constitutionality. See People v. Wieder, 693 P.2d 1006 (Colo.App. 1984); Fisher v. Jorgensen, 674 P.2d 1003 (Colo.App. 1983).
[20] The first step in any equal protection analysis is to determine the standard to be used in assessing the validity of the challenged legislation. Since the right to be tried within ninety days of a bond increase is not a “fundamental right,” see People v. Curtis, 681 P.2d 504(Colo. 1984), and since the class of pretrial detainees is not a suspect class, the rational basis test must be applied. See Claimants in re Death of Kohler v. Industrial Commission, 671 P.2d 1002 (Colo.App. 1983). [21] Under the rational basis test, the state need only show that the challenged provision is rationally related to a legitimate state interest Bellendir v. Kezer, 648 P.2d 645 (Colo. 1982). Thus, classes may be treated differently, so long as this unequal treatment is based on reasonable differences. Bushnell v. Sapp, 194 Colo. 273, 571 P.2d 1100
(1977). [22] Having established the appropriate test under which the statute at issue is to be examined, the second step is to set forth the appropriate standard of proof required by constitutional analysis. It is a fundamental principle that every statute is presumed constitutional unless proven to be invalid beyond a reasonable doubt. Turner v. Lyon, 189 Colo. 234, 539 P.2d 1241 (1975). More specifically, under a rational-basis-equal-protection analysis, the statute at issue may be invalidated only if no set of facts can reasonably be conceived to justify it. Millis v. Board of County Commissioners, 626 P.2d 652
(Colo. 1981). [23] Here, it is permissible for the two classes of detainees under § 16-4-103, C.R.S. (1983 Cum. Supp.) and § 16-4-107, C.R.S. (1978 Repl. Vol. 8), respectively, to be treated differently because their unequal treatment is based on reasonable differences between the two classes. That is, the detainees under the two statutes are not similarly situated since the former statute contemplates detainees who have been free on bond and, while free, committed a felony; whereas the latter statute contemplates, among others, detainees like defendant herein who was not free on bond and, even if out on bond, committed no felony while free. [24] Where one free on bail commits other crimes, these further crimes “will necessarily result in greater pressure to flee from the jurisdiction of the court or otherwise frustrate its lawful processes.” Rendel v. Mummert, 106 Ariz. 233, 474 P.2d 824 (1980). Thus, it is rational for the General Assembly to provide that, if a defendant commits felonies while out on bail, the courts may expressly revoke defendant’s bond or increase the amount of the bond to such a high level that defendant’s bond is effectively revoked. And, as a counterbalance to this almost certain deprivation of liberty, it is equally rational for the General Assembly to provide that that pretrial confinement, precisely because it is so certain, may not extend for longer than ninety days. [25] In contrast to a defendant whose bond is determined under § 16-4-103, C.R.S. (1983 Cum. Supp.), a defendant whose bond is determined under §16-4-107, C.R.S. (1978 Repl. Vol. 8) has committed no additional felonies. Thus, any bond increase under § 16-4-107, C.R.S. (1978 Repl. Vol. 8) is likely to be far more moderate than that occasioned under §16-4-103, C.R.S. (1983 Cum. Supp.). Therefore, any extended pretrial deprivation of liberty is far less certain under § 16-4-107, C.R.S. (1978 Repl. Vol. 8) than under § 16-4-103, C.R.S. (1983 Cum. Supp.) and, consequently, so is the need for the protection of a ninety-day speedy trial provision. [26] Given the non-suspect nature of the class against which defendant claims the statute at issue discriminates, and given
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the rational relationship which § 16-4-107, C.R.S. (1978 Repl. Vol. 8) bears to the legitimate state interests of insuring defendant’s appearance at trial, while seeking to minimize pretrial detention and preserve the liberty of unconvicted persons, we hold that the statute here at issue is constitutional.
II.
[27] Defendant’s second contention is that he was deprived, in three distinct ways, of his constitutional and statutory rights to trial by a panel of impartial jurors. We disagree.
A.
[28] In support of his contention, defendant’s first argument is that the trial court erred in denying defendant’s challenges for cause of jurors Hammer, Coon, and Bishop. Although juror Hammer remained on the jury as an alternate, he was excused at the end of the trial. Neither juror Coon nor juror Bishop remained on the jury because defendant exercised peremptory challenges to excuse both. Defendant exhausted all of his peremptory challenges.
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[35] As regards juror Bishop, defendant contends that she was unfit as a juror because: (1) Bishop was exposed to pre-trial publicity about the case and recalled that the crime had been committed by a K-Mart employee who had been fired, and (2) Bishop “expressed some doubt” as to whether she could erase these preconceptions from her mind and decide the case on the evidence. Again, such facts alone are not sufficient to sustain a challenge for cause. [36] The record shows that Bishop had not formed an opinion as to defendant’s guilt or innocence. Furthermore, in response to questioning by the court, Bishop stated unequivocally that she would decide the case on “the evidence and instructions of law as the Court gives them,” rather than on something she might have read eight or nine months ago. Hence, Bishop was not disqualified by any partiality or bias from serving on defendant’s jury. See People v. Taggart, supra. B.
[37] Defendant’s argument that the trial court erred in denying his motion for 15 peremptory challenges is also without merit.
C.
[39] Defendant’s next argument is that the trial court erred in denying his motion, during voir dire, for mistrial and quashing of the jury panel on the grounds that the People made unconstitutional use of its peremptory challenges to “systematically exclude minority group members from the jury.” Specifically, defendant claims that the prosecution’s use of three of its peremptory challenges to excuse Spanish surnamed persons was constitutionally impermissible. We disagree.
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impose an intolerable burden on limited judicial resources with only a highly questionable improvement in the quality of justice.
[43] Accordingly, we embrace instead the rule set forth in the United States Supreme Court’s opinion in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), noting that a majority of the Illinois Supreme Court also prefers Swain. People v. Payne, 99 Ill.2d 135, 75 Ill. Dec. 643, 457 N.E.2d 1202 (1983). In Swain, the United States Supreme Court considered, under the Equal Protection Clause, the propriety of prosecutorial exercise of peremptory challenges to exclude members of a minority group from a particular criminal jury. [44] The Court’s analysis in Swain began with sixteenth century English common law and noted that at one time only the defendant was allowed to exercise peremptory challenges. Three hundred years ago, peremptories on both sides became the settled law of England which law was later incorporated into the federal law of this country and the law of each state. [45] Although the right to peremptory challenges is not constitutionally required, it is recognized as one of the most important rights afforded to the accused. Indeed, drawing upon Blackstone’s commentaries, the Court i Swain recognized the function of the challenge as one affording an appearance of justice to all parties and allowing protection against the seating of a hostile juror where challenge for cause was unsuccessful. [46] Finally, the Court in Swain warned that judicial scrutiny of the prosecution’s exercise of the peremptory challenge would effectively sound the death knell of the peremptory challenge as we know it. The challenge, if required to be justified, would no longer be “peremptory.” As the high court in Swain so ably elucidated: “The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control . . . . In light of the purpose of the peremptory system . . . , we cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it.” [47] In sum, the peremptory challenge is a paramount right of both the defendant and the People. To the defense: “The right to challenge a given number of jurors without showing cause is one of the most important rights secured to the accused . . . . Any system for the impaneling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of that right, must be condemned.” Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1893). As the eminent jurist Lord Coke wrote: “The end of challenge is to have an indifferent trial . . . and to bar the party indicted of his lawful challenge is to bar him of a principal matter concerning his trial.” 3 Inst. 27, chap. 2. [48] To the people, the peremptory challenge is equally essential. For “the view in this country has been that the system [of peremptory challenges] should guarantee not only `freedom from any bias against the accused, but also from any prejudice against the prosecution. Between [the defendant] and the state the scales are to be evenly held.'” People v. Williams, 97 Ill.2d 252, 73 Ill. Dec. 360, 454 N.E.2d 220 (1983), quotin Hayes v. Missouri, 120 U.S. 68, 7 S.Ct. 350, 30 L.Ed. 578 (1887).Page 759
[49] In light of the inherent value to both the defendant and the People of the peremptory challenge, we refuse to cripple either party in its use of such an important tool by requiring that each party justify with “good cause” every exercise of its right. Accordingly, applying Swain to the facts before us, we perceive no error in the use of peremptory challenges in defendant’s trial.III.
[50] Defendant’s third contention is that the trial court erred in admitting the testimony of defendant’s co-worker regarding defendant’s threatening expressions of ill will toward Clunie some four to five months prior to Clunie’s murder. Defendant argues that the probative value of his statements to the co-worker was outweighed by its possible prejudicial effect because of the “remoteness in time” and, thus, that the testimony should have been excluded under CRE 403. We do not agree.
IV.
[53] Defendant’s next contention is that he did not learn until the day before Jay Davis testified that the prosecution intended to call him as a witness and that, therefore, the trial court abused its discretion in denying defendant’s request for a continuance for the purpose of obtaining a psychiatric evaluation of Davis. We disagree.
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injuries can rest nowhere but with the defendant.
[57] In light of the record before us, the trial court did not abuse its discretion in its denial of a continuance. V.
[58] Defendant’s fifth contention is that, based on evidence presented at an in camera hearing on Davis’ competency, Davis was incompetent to testify because of traumatically induced memory loss and, therefore, it was error for the trial court to allow him to testify. Again, we disagree.
(7th Cir. 1956). A witness’ testimony need not be complete or convincing, so long as it is not so illogical that it is incredible as a matter of law Wise v. Hillman, 625 P.2d 364 (Colo. 1981). [63] Here, defendant has failed to demonstrate Davis’ inability to perceive, recollect, or communicate. Davis obviously had the opportunity to observe that about which he testified, and there is nothing so illogical about Davis’ testimony which could justify any conclusion that he was incompetent as a matter of law. [64] There is a vast dichotomy between the threshhold legal determination of competency and the factual determination of credibility. Defendant’s arguments here have spoken only to the latter determination, which is the sole province of the jury and which is a province we may not invade.
VI.
[65] Defendant next contends that the evidence of deliberation was insufficient to warrant the submission of first degree and attempted first degree murder charges to the jury. Once again, we disagree.
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judgment. See People v. Madson, 638 P.2d 18 (Colo. 1981).
[67] The element of deliberation can rarely be proven other than through circumstantial or indirect evidence. People v. Madson, supra. Such circumstantial proof may include evidence of the defendant’s possession and use of a deadly weapon or of manifestations of ill will between the defendant and the victim. People v. Madson, supra. Here, some of both of these types of evidence was presented and, when viewed in the light most favorable to the prosecution, such evidence was indeed sufficient to submit the question of deliberation, in the context of first degree and attempted first degree murder charges, to the jury.VII.
[68] Defendant contends, finally, that the cumulative effect of the alleged errors deprived him of his right to a fair trial, but since we have determined each of defendant’s allegations of error to be without merit, we reject this contention. People v. Marin, 686 P.2d 1351 (Colo.App. 1983).
[1] This case provides a detailed explanation of the California and Massachusetts approach as articulated in People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978) and Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1979).
[72] JUDGE KELLY specially concurring.
[73] I specially concur.
[74] Although I agree with the result reached by the majority, in my view, this case does not require that we make a choice between Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) and People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). See also Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1979). Even if this court were to adopt the more liberal rule of Wheeler, here, as in People v. Smith, 622 P.2d 90 (Colo.App. 1980), the defendant has been denied no right.
[75] The record shows that there were four persons with Spanish surnames who were peremptorily challenged by the parties. One was excused by the defendant, and three were excused by the People. One of the three prospective jurors excused by the People stated on voir dire that when he had been discharged from employment, he felt like killing someone and could understand how someone in that situation might want to shoot somebody. The second prospective juror excused by the People had a good friend who had recently been charged with murder in Denver, the case was concluded, and the juror expressed disbelief that his friend was guilty of the offense. It is difficult to believe that any prosecutor would permit two such jurors to serve on the panel in a case such as this.
[76] Although the People’s reasons for excluding the third prospective juror are not clear, it is my view that the peremptory challenge of one juror does not equate with a “systematic” exclusion of minority group members. I am not ready either to “embrace” or to reject the reasoning i Swain v. Alabama, supra, on a record which does not compel us to address the issue. I adhere to the views expressed in People v. Smith, supra.