Opinion
As Modified on Denial of Rehearing Oct. 30, 1975.
Page 400
Stuart A. VanMeveren, Dist. Atty., Loren B. Schall, Asst. Dist. Atty., Larry R. Abrahamson, Chief Deputy Dist. Atty., Fort Collins, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Forrest W. Lewis, Deputy State Public Defender, Denver, for defendant-appellant.
VanCISE, Judge.
In 1971, the defendant, Richard Tapia was convicted of voluntary manslaughter. His conviction was reversed in 1973 for inadequate jury instructions on self-defense. See People v. Tapia, 183 Colo. 141, 515 P.2d 453.
On retrial in 1974, Tapia was again convicted of the same offense. In this appeal he alleges, as grounds for reversal, the trial court's refusal to grant a new trial because of jury misconduct, its denial of a motion for change of venue because of pretrial publicity concerning the case, and its denial of a motion for mistrial for the prosecutor's misconduct. We affirm.
I.
At the hearing on Tapia's motion for new trial, three persons who had been on the jury panel were called as witnesses. James Costillo, who had been a prospective juror but had been excused, testified that in the jury room on the first day of the trial, Elizabeth Trafford, who ultimately sat as a juror on the case, inquired what Tapia had been doing for the past three or four years since the event occurred in 1970. Ross Nutter, another prospective juror who was also excused, responded, according to Costillo, 'that he had already been tried previously and the case had been thrown out due to improper instructions.' Costillo felt that 'everybody that was in the room . . . should have heard it because they were talking in speaking tones.' He admitted this did not make any difference in his own mind as to how he felt about the case.
Nutter testified that he did not recall hearing or having made any statement about the proceedings being a retrial. He knew it was a retrial, but had not drawn any conclusions from that fact either as to guilt or innocence or as to whether Tapia had been convicted or acquitted in the first trial.
Trafford's testimony was that Nutter's statement had no effect on her, that for all she knew Tapia could harve been found not guilty and a retrial was being held because more evidence had been found. She heard no further mention of retrial from any juror at any time.
No other jurors or prospective jurors were called to testify. The court, noting that the only evidence 'is the one juror who served and said it did not make any difference to her,' found that the alleged misconduct of the jurors was not prejudicial. We agree. '(A) verdict ought not to be set aside for every incidental and casual motion of a former trial or a former conviction . . . unless the court may fairly and reasonably see in the light of all the circumstances that such reference and discussion did or might have prejudiced the appellant's case.' Polanco v. State, 135 Tex.Cr.R. 265, 117 S.W.2d 792.
II.
Prior to the trial, Tapia moved for change of venue from Larimer County on the ground that prejudicial adverse publicity concerning his prior conviction and appeal was such that he would not receive a fair trial in that jurisdiction. In support of his motion, he offered identical affidavits executed by a local newspaper publisher, a lawyer, and a Ft. Collins municipal judge. Each stated that the affiant had read newspaper articles concerning the case, and believed that Tapia could not receive a fair and impartial trial in Larimer County 'due to the newspaper, radio, and word-of-mouth publicity concerning his conviction, appeal and retrial ordered by the Colorado Supreme Court.' Tapia also presented his own affidavit expressing his fear that he could not receive a fair trial there. The motion was denied, and its denial is claimed as error on this appeal.
In support of his contention, Tapia cites Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543, and Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663. These were cases where the publicity was so massive, pervasive and unfavorable to the defendant that jury prejudice was presumed. Under such circumstances it was held not necessary to prove that the publicity actually affected the jurors in arriving at their verdict. See Walker v. People, 169 Colo. 467, 458 P.2d 238.
There was no such showing in the instant case. The only evidence offered as to the publicity was the four affidavits. No newspaper articles, broadcast transcripts, or even statements as to specific publications concerning Tapia were produced at the hearing. The court found 'that the publicity in this case . . . has not been massive. In fact, there has been very little publicity on the matter. It has not been the kind of publicity that would create any prejudice . . ..'
Absent evidence of massive publicity that could be said to have contaminated the community, there is no presumption of jury prejudice. The burden is on the defendant to 'establish a nexus between the publicity and the alleged denial of a fair trial,' Sergent v. People, 177 Colo. 354, 497 P.2d 983, and this he failed to do both at the hearing on the motion and at the trial. The facts in this case are well summarized in Sergent:
'Here the voir dire amply demonstrates the absence of prejudice and the ability of the jurors to set aside any opinions that they may have received from the news media to the end that the case could be determined on the law and on the evidence.'
Accordingly, the denial of the change of venue did not constitute reversible error. People v. Medina, Colo., 521 P.2d 1257; Sergent v. People, supra; Kurtz v. People, 177 Colo. 306, 494 P.2d 97; Small v. People, 173 Colo. 304, 479 P.2d 386.
III.
On cross-examination of Tapia, after questions concerning his carrying a gun, the following questions were asked and answers given:
'Q. Now, let us leave this for a little bit; let us talk, about you a little bit. Did you ever have any nickname when you were in Denver with the C. C. Riders?
A. Not that I know. I don't think so. That would have been, that might have been Little Ceasar, something like that, when I was small.
Q. Did you have the nickname the Enforcer?
A. No.
Q. Have you heard that before?
A. No.
Q. It was a new word to you?
A. Yes.'
At that point, out of the presence of the jury, Tapia's lawyer objected and moved for a mistrial unless the prosecutor had proof that the defendant had the nickname of 'Enforcer' and produced the proof. Only hearsay was offered, which the court refused to accept. The objection was sustained, but the motion for mistrial was denied on the basis, as stated by the court, that 'it is not prejudicial at this stage of the game, in this part of the case.' On the return of the jury to the courtroom, the court instructed it to disregard both the question and answer concerning the nickname of 'Enforcer.' We do not condone this type of cross-examination. However, under the circumstances of this case, we see no reversible error. Since the trial court found the remark not to have been prejudicial and since it advised the jury to disregard both the question and the answer, we will not disturb the court's ruling denying a mistrial. As stated in People v. Goff, Colo., 530 P.2d 514;
'A mistrial is addressed to the sound discretion of the court and the prejudice asserted as a basis therefor must be so substantial that the effect on the jury cannot be remedied by means less than a mistrial. Where the jury has been instructed to disregard tendered evidence, as in this instance, it must be presumed that the jury in the performance of its duty did so.'
Accord, People v. Medina, supra; People v. Lowe, Colo., 519 P.2d 344; People v. Anderson, Colo., 518 P.2d 828.
Judgment affirmed.
PIERCE, J., concurs.
STERNBERG, J., dissents.
STERNBERG, Judge (dissenting):
I respectfully dissent. A mistrial should have been granted when the prosecutor asked the defendant the unfounded question about his alleged nickname 'The Enforcer.' Failing that, and considering the totality of the circumstances, defendant's motion for new trial should have been granted.
In order to understand properly the issues raised on appeal, a recital of the salient facts is required. Two groups of young people, one Anglo and the other Chicano, came into contact one evening in the resort town of Estes Park. Both groups had been drinking. Following an exchange of insults, a fight ensued, the defendant shot the victim, and he died several months later. The testimony was in conflict as to the details of the fight, and as to who was the aggressor. Some witnesses testified that the victim approached the defendant and asked what the trouble was, whereupon the latter drew his pistol and shot the victim.
On the other hand, there was testimony of witnesses that immediately prior to the shooting the defendant was cornered in a recessed doorway with no avenue of retreat, that the victim and others were beating him, and that his glasses were knocked to the ground and broken and a dental retainer was knocked from his teeth. At the trial, defendant's theory of the case was self-defense.
The defendant had been tried on these charges once before in this community. That conviction was reversed by the Supreme Court for failure to instruct properly on the theory of self-defense. Prior to this second trial, a motion for a change of venue was filed. It was based upon affidavits of prominent persons who swore that in their opinions defendant could not receive a fair trial in this community. I would agree with the majority that, At that stage of the proceedings, denial of the motion was not an abuse of discretion.
Recognizing the necessity of keeping from this jury the knowledge that there had been a previous trial and conviction of this defendant, See Salas v. People, 177 Colo. 264, 493 P.2d 1356, the trial court took great pains to screen the jury from the taint of such knowledge. In spite of this, however, knowledge of the fact of a previous trial and conviction did come before the jury panel. Again, I would agree that that fact along would not require a new trial.
Where I part company with the majority is in regard to its treatment of the prosecutorial excess that occurred during the testimony of defendant. I would go beyond the majority's mere condemnation of this type of questioning and would hold that this particular question was so prejudicial that it could not be cured by merely sustaining the objection and instructing the jury to disregard it. The inadequacy of the trial court's response to this prosecution tactic is well-stated by Mr. Justice Jackson in a concurring opinion in Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790:
'The naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction.'
I find Hervey v. People, 178 Colo. 38, 495 P.2d 204, controlling. There, the Supreme Court reversed a murder conviction where the prosecutor asked questions and made insinuations in an attempt to establish robbery as a motive. Noting the lack of evidence with regard to robbery, the court reached the following conclusion:
'Without any evidence to support a theory of robbery, it was unprofessional conduct on the part of the prosecutor to ask questions and to make statements which implied the existence of a factual predicate which he knew he could not support with evidence.'
The court cited the ABA, Standards Relating to the Prosecution Function, and found violations of those standards. Similarly, those standards were violated by the prosecutor here. See ss 5.6 and 5.7 thereof.
The defendant did not deny firing the shot in question; rather his theory of the case was self-defense. Substantial testimony of the defendant and others advanced this defense. Defendant had offered an explanation, unrelated to these events, as to why he was carrying a weapon. Yet, on cross-examination, by impermissible means, the prosecutor attempted to, and quite likely did, demolish defendant's explanation for carrying a weapon. He also cast doubt on defendant's theory of self-defense.
By this unfounded question, the prosecutor placed before the jury the inference he wanted--that defendant carried a pistol not for the stated reason of self-defense from others than those involved here--but rather that he carried it for aggressive purposes in his capacity as 'The Enforcer' and, by inference and innuendo, used it to those ends.
Furthermore, at the time the court was considering defendant's motion for new trial, it had before it not only this matter of prosecutorial excess and the knowledge of the contents of the affidavits alleging inability to receive a fair trial in that venue, but also the fact that at least one juror had learned of the previous trial. And, I believe that upon proper consideration of the cumulative effect of these matters, the trial court should have granted defendant a new trial.