Opinion
No. 25471
Decided June 3, 1974.
Defendant was convicted of first-degree murder and appealed.
Affirmed
1. CRIMINAL EVIDENCE — Sufficiency to Sustain Conviction — Fundamental Rules. As to the issue of whether the evidence is sufficient in fact to sustain defendant's conviction, the following fundamental rules govern appellate courts: the evidence, with reasonable inferences therefrom, must be viewed in the light most favorable to the jury's verdict; the jury is assumed to have adopted that evidence which supports its verdict; and, the jury having found the guilt of the accused proved beyond a reasonable doubt, reviewing court will neither weigh the evidence nor appraise the credibility of witnesses.
2. HOMICIDE — First Degree — Inferences — Support — Verdict — Review — Disturb — Negative. In prosecution for first-degree murder, which involved beating and kicking of cab driver to death by four persons, one of whom was the defendant, record reveals reasonable inferences supported by the evidence sustaining the first-degree murder conviction; and, under the circumstances, reviewing court will not disturb the jury verdict.
3. JURY — Pretrial Publicity — Newspaper Articles — Failure to Show — Reading of Articles — Prejudice — Negative — Fair Trial. Pretrial publicity consisting of newspaper articles did not deny defendant his right to a fair trial on the basis of prejudice of jury where defendant failed to cite one instance in record where it was shown that any juror had read the articles and where record reveals no evidence that jurors had read the articles.
4. Pretrial Publicity — Nexus — Alleged Prejudice. There must be a nexus between the pretrial publicity and a jury's alleged prejudice.
5. INSTRUCTIONS, CRIMINAL — Tendered — Covered — Rejected — Without Support — Refusal — Proper. Where tendered instructions were either covered by those given by the court or properly rejected as being without support in the evidence, held, under the circumstances, trial court's refusal to submit to jury several of defendant's tendered instructions was not error.
Appeal from the District Court of Adams County, Honorable Clifford J. Gobble, Judge.
John P. Moore, Attorney General, John E. Bush, Deputy, Jack E. Hanthorn, Assistant, Gregory L. Williams, Assistant, for plaintiff-appellee.
Robert L. McDougal, for defendant-appellant.
This appeal challenges a conviction for first-degree murder, C.R.S. 1963, 40-2-1. We affirm.
Medina was jointly tried with one Maestas, whose conviction has previously been affirmed by this court, People v. Maestas, 183 Colo. 378, 517 P.2d 461 (1973). Many of the issues raised by this appellant were rejected by this court in Maestas, and do not require any discussion herein. The arguments presented which were not raised by Maestas and which warrant consideration will be discussed.
The facts developed at the trial are that Medina, Maestas, and two others (who were granted a severance for trial) had been drinking until two in the morning. One of the four tried to persuade a lady to leave a cab which had come to take her home. When the cabdriver intervened, a fight ensued, resulting in the four, Medina included, beating and kicking the cabdriver to death. That Medina was involved, including having kicked the victim, is beyond doubt in the record.
I.
[1,2] As his first ground for reversal, Medina argues that his motion for judgment of acquittal should have been granted as there was insufficient evidence of guilt. Essentially, however, Medina's argument is addressed to the weight and credibility of the evidence. We reiterate fundamental rules governing appellate courts which dispose of this issue:
"As to the issue of whether the evidence is sufficient in fact to sustain defendant's conviction, we reiterate these established rules: the evidence, with reasonable inferences therefrom, must be viewed in the light most favorable to the jury's verdict; the jury is assumed to have adopted that evidence which supports its verdict; and, the jury having found the guilt of the accused proved beyond a reasonable doubt, this court will neither weigh the evidence nor appraise the credibility of witnesses. [citations omitted.]" Dodge v. People, 168 Colo. 531, 452 P.2d 759 (1969).
Here reasonable inferences are supported by the evidence, and we will not disturb the jury verdict. People v. Lewis, 180 Colo. 423, 506 P.2d 125 (1973).
II.
[3,4] As a second ground for reversal, Medina argues that pretrial publicity denied him his right to a fair trial. He points to newspaper articles, which if heard and believed by a juror might have been grounds for a challenge for cause, and if read widely by the jury panel could have presented an issue of prejudice. Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969). On the other hand, appellant has not cited one instance in the record where it is shown any juror had read the articles. Our search of the record reveals no evidence that the jurors read the articles. We fail to see, therefore, how Medina was prejudiced. There must be a nexus between the pretrial publicity and a jury's alleged prejudice. People v. Simmons, 183 Colo. 253, 516 P.2d 117 (1973); Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972).
III.
[5] The third issue raised by Medina relates to the trial court's refusal to submit to the jury several defendant's tendered instructions. Without an exception, the tendered instructions were either covered by those given by the court or properly rejected as being without support in the evidence.
Additional arguments presented have been answered in Maestas, and numerous other issues raised have been considered and are without merit.
The judgment is affirmed.
MR. JUSTICE KELLEY and MR. JUSTICE GROVES do not participate.