Opinion
Rehearing Denied Nov. 13, 1975.
Page 717
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Mary J. Mullarkey, First Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Mary G. Allen, Deputy State Public Defender, Denver, for defendant-appellant.
RULAND, Judge.
Defendant, Raymond Francis Chavez, was tried by a jury and convicted of vehicular homicide in violation of s 18--3--106, C.R.S.1973. Having established defendant's indigency, present counsel was appointed to perfect this appeal. We affirm.
I. Motion for Continuance
Defendant contends that the trial court erred in denying his motion for a continuance. While conceding that the granting of a motion for continuance lies within the sound discretion of the trial court and that its decision relative thereto will not be overturned unless it was 'plainly erroneous,' Miller v. People, 178 Colo. 397, 497 P.2d 992, defendant contends that under the circumstances of this case, the denial was plain error. We disagree. The record reflects that defendant was arraigned on December 7, 1973, at which time trial was set for January 28, 1974, and defendant was given 20 days within which to file pre-trial motions. However, defendant's motion for a continuance was not filed until January 11, 1974.
In support of the motion, defendant's counsel expressed the need to make a study in order to determine whether a change of venue was necessary as a result of decedent's status in the community as a 'rather prominent citizen.' He explained the lateness of the motion by the uncertainty of the defendant's financial resources to effectuate the study.
Even assuming such a study would establish that decedent was a prominent citizen, it does not necessarily follow that adverse community sentiment would be such that defendant could not obtain a fair trial. Defendant does not assert that any adverse sentiment was disclosed by voir dire of the prospective jurors, and we find no basis in the record for concluding that any prejudice resulted to defendant during the trial as a result of any status decedent held in the community. Hence, the trial court properly denied the motion. See People v. Holcomb, Colo., 532 P.2d 45; People v. Perry, 180 Colo. 161, 503 P.2d 350.
II. Challenge to the Array
Defendant contends that the Uniform Jury Selection and Service Act, s 13--71--101 et seq., C.R.S.1973, was not complied with in the selection of prospective jurors for his trial, and that, therefore, the trial court erred in denying his oral challenge to the array in an in camera hearing on the morning of trial. In support of this contention, he asserts that nine out of 35 prospective jurors selected for his trial were not randomly selected as required by s 13--71--110(1) and (2), C.R.S.1973, with the result that there was no chance for prospective jurors with Spanish surnames to be added to the jury panel. This contention lacks merit.
Initially, we note defendant's failure to follow the procedures provided by statute and role in challenging compliance with jury selection procedures. Insofar as material, s 13--71--113(2), C.R.S.1973, provides:
'Upon motion filed . . . containing a sworn statement of facts which, if true, would constitute a substantial failure to comply with this article, the moving party is entitled to present in support of the motion the testimony of the jury commissioner or the clerk . . ..' (emphasis supplied)
This is the exclusive means for such a challenge. Section 13--71--113(3), C.R.S.1973. The record does not reflect that a written motion and sworn affidavit were filed in the instant case prior to the in camera hearing or thereafter.
Nevertheless, we have examined the record of the in camera hearing and conclude that there has been substantial compliance with the jury selection procedures set forth in s 13--71--110(1) and (2), C.R.S.1973.
In Adams County the administrative assistant to the jury commissioner performs the function of selecting prospective jurors for the various divisions of the district court. She testified that approximately 250 names of prospective jurors were provided by the 'State Court Administrator' and placed in a jury wheel. Twenty-six names were pulled from the jury wheel for defendant's trial. Upon request from the trial court for more prospective jurors, the witness took nine names from a list also drawn from the jury wheel for another trial which was later cancelled. She first selected the 22nd and 23rd name on this list at random. Thereafter, she learned that the other trial had been cancelled so she took the remaining names from the top of the list, omitting the first name because she knew that that juror was not present. The witness testified in effect that in proceeding as outlined above, she followed the same procedure used for each case in that jurisdiction. Based upon the foregoing testimony, the trial court found that no 'personal selection' had been involved in the selection of the prospective jurors for defendant's case and denied defendant's challenge.
Section 13--71--110(2), C.R.S.1973, provides:
'A judge of any court . . . having authority to conduct a trial . . . within the county by order may direct the jury commission to draw and assign to that court . . . the number of qualified jurors he deems necessary for one or more jury panels . . .. Upon receipt of the order and in a manner prescribed by the court, the jury commission shall publicly draw at random from the qualified jury wheel the number of qualified jurors specified. The qualified jurors drawn for jury service shall be assigned at random by the clerk to each jury panel in a manner prescribed by the court.' (emphasis supplied)
Since the nine prospective jurors were obtained from a list compiled from the jury wheel, and since there is no showing in the record that persons of Spanish descent were excluded from the names of prospective jurors under the tests stated in Montoya v. People, 141 Colo. 9, 345 P.2d 1062, or that the jury commissioner failed to comply with the procedure prescribed by the trial court, we hold that there was substantial compliance with the statute and the trial court properly denied defendant's challenge to the array.
III. Sufficiency of the Evidence
Pursuant to s 18--3--106, C.R.S.1973, it was necessary for the People to prove that defendant drove a motor vehicle while under the influence of alcohol and that this conduct was the proximate cause of decedent's death. There is no dispute that defendant was the driver of an automobile involved in a collision which resulted in a fatality. However, defendant contends that his motion for judgment of acquittal should have been granted because the evidence was insufficient to establish defendant's intoxication or that defendant's intoxication, if any, was the proximate cause of the collision with decedent.
Viewing the evidence in a light most favorable to the jury's verdict, as we must, See People v. Bennett, 183 Colo. 125, 515 P.2d 466; People v. Salas, Colo., 538 P.2d 437, we are convinced that the evidence was sufficient to establish defendant's guilt of the crime charged beyond a reasonable doubt. While some of the evidence tending to show intoxication was in conflict, and, while defendant's evidence tended to show that the collision resulted from defective brakes rather than intoxication, these issues were properly submitted to the jury for resolution, See People v. Salas, supra, as was determination of the credibility of any of the People's witnesses whose testimony appeared to be in conflict. See People v. Elliston, 181 Colo. 118, 508 P.2d 379. Hence, the trial court properly denied the motion.
IV. Admissibility of Evidence
Defendant contends that certain statements made by him to one of the investigating officers were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and hence should not have been admitted in evidence. This contention has no merit.
After defendant had identified himself as the driver of one of the cars involved in the accident, the investigating patrolman took defendant to his patrol car and advised him of his Miranda rights. Defendant indicated that he understood his rights. He then denied being the driver of the car that collided with decedent's vehicle and said he did not know the driver's name or where he had gone. The officer ceased his questioning, told defendant to remain in the patrol vehicle, and left to complete his investigation. Defendant does not challenge the admissibility of his statements to this officer, and the record does not reflect that defendant asserted his right to remain silent in connection with this questioning.
A short time thereafter an investigator for the district attorney's office approached defendant as he was seated in the patrol vehicle. This investigator had been told by the patrolman that he thought defendant was the driver of the car involved in the accident. The investigator's own testimony is in conflict as to whether he was also told of defendant's previous Miranda advisement. In any event, the investigator again advised defendant of his rights and told him that he was under investigation for vehicular homicide. After defendant indicated that he understood his rights, he stated to the investigator that he was not driving the accident car, that he was drunk, and that he did not know who the driver was or where he went. As established by defense counsel in examination of the investigator, subsequent to these statements defendant invoked his right to remain silent. Thereupon the investigator ceased his questioning. At trial defendant testified that he may have told the first officer that he was not driving the car, but that he had no recollection of repeating that statement to the investigator.
At no time did defendant seek a ruling from the trial court that he had not knowingly and voluntarily waived his rights. Rather, he asserted at trial and here that the investigator's questioning of defendant with the knowledge that he had been interrogated by another officer constituted harassment contrary to the spirit of Miranda, and that, therefore, his motion for a mistrial, as well as a subsequent alternative motion to strike the testimony, should have been granted. We disagree.
Since adequate Miranda warnings were given, since defendant stated to both officers that he understood his rights, and since the statements which defendant seeks to exclude were made before he exercised his right to remain silent, no violation of his constitutional protection occurred. See People v. Hosier, Colo., 525 P.2d 1161; People v. Reed, 180 Colo. 16, 502 P.2d 952. The mere fact that he was interrogated more than once does not, in and of itself, constitute harassment.
V. Closing Argument
Defendant contends that the trial court erred in not granting his motion for mistrial based on allegedly prejudicial comments by the district attorney during closing argument.
From the partial record of closing argument submitted in this appeal, it appears that the district attorney in rebuttal argument commented that the defendant had only one defense, namely defective brakes, but that he did not advise anyone of the defects on the date of the collision. Defense counsel objected at this point but the trial court apparently made no ruling. The district attorney then commented that defendant also failed to advise anyone on the date of the offense that he was stunned because he had suffered head injuries in the accident. Thereafter the district attorney argued to the jury that the defendant could not have been in a state of shock because of any injuries since he had the presence of mind to deny being the driver to the investigator and then to invoke his constitutional right to remain silent silent until he had conferred with his attorney. Defense counsel again objected and the court cautioned the district attorney not to make further comments on this subject.
Relying on cases such as United States v. Nolan, 416 F.2d 588 (10th Cir.), Cert. denied, 396 U.S. 912, 90 S.Ct. 227, 24 L.Ed.2d 187; Hines v. People, 179 Colo. 4, 497 P.2d 1258; and especially People v. Campbell, Colo., 531 P.2d 381, defendant asserts that the foregoing comments were prejudicial since they referred to defendant's exercise of his right to remain silent. However, the basis for reversal in Nolan and Hines was that, since the defendant had not made statements of any kind to the investigating officers, the prosecutor's reference in closing argument to the defendant's silence amounted to imposing a penalty on the exercise of a constitutional right because such statements raise an inference of guilt. The basis for reversal in Campbell was the prejudice resulting from the district attorney's persistent reference, despite the trial court's admonitions, to the defendant's silence (when interrogated by investigating officers as to crimes unrelated to the crime under investigation) combined with the fact that the other evidence against the defendant was 'tenuous at best.' The principles enunciated in those cases do not apply under the facts of this case.
Here the defendant stated to the officers, after he was given proper Miranda warnings, that he was not the driver. Then at trial he testified that he was the driver but asserted that the collision resulted because his car went out of control because of defective brakes. In this context we conclude it was proper for the district attorney to comment in closing argument on the discrepancies between defendant's statements at the scene of the collision and his testimony at trial as reflecting on defendant's credibility. See People v. Storr, Colo., 527 P.2d 878; Cf. Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570; Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1.
Moreover, when defendant in effect attempted to explain his prior inconsistent statement about not driving the vehicle by referring to the head injuries, thus implying that he was not responsible therefor, he placed the issue of his state of mind following the collision directly before the jury. Therefore, since the defense (and not the prosecution elicited evidence that defendant exercised his right to remain silent, we hold that it was not error for the district attorney to point out, as a reflection on defendant's credibility, the inconsistency between defendant's claim of incapacitating head injuries and the fact that he had the mental ability to make a conscious decision to exercise a constitutional right.
Judgment affirmed.
SMITH and KELLY, JJ., concur.