People v. Nunez

684 P.2d 945, 1984 Colo. App. LEXIS 1091
CourtColorado Court of Appeals
DecidedApril 26, 1984
DocketNo. 82CA0374
StatusPublished
Cited by2 cases

This text of 684 P.2d 945 (People v. Nunez) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Nunez, 684 P.2d 945, 1984 Colo. App. LEXIS 1091 (Colo. Ct. App. 1984).

Opinion

BERMAN, Judge.

Defendant, Juan Nunez, appeals his conviction of aggravated robbery and of a crime of violence. We affirm.

This case concerns the June 27, 1980, robbery of the Leprino family in their home in Golden. On that evening, two men gained entry to the Leprino home by representing themselves as government census takers. A third man, later identified as defendant, was seen carrying a “U.S. Census” shoulder bag, walking back and forth on the sidewalk in front of the house.

After the two men had asked Mr. Lepri-no a few census questions, one of the men left the house, indicating that he had to tell his colleague outside (the defendant) to go to another address. Less than a minute later, that man and the defendant “burst in” the house, produced a gun, and ordered the Leprinos to lie down on the floor. The men then tied up Mr. and Mrs. Leprino, their 18-year-old son, and their 13-year-old daughter, and threatened to kill them if they opened their eyes.

For longer than one hour, the men robbed the home of some $250,000 worth of silverware and jewelry and ransacked and destroyed much of what they did not take, pausing only to phone “New York” occasionally in order to locate various other items which they believed to be in the residence, but which they could not find. Near the end of the robbery, the defendant and his confederates took the Leprino family and a 14-year-old girl who had been visiting the Leprino’s daughter, to the basement and locked them in the bathroom. About ten minutes after Mr. Leprino perceived that the plunderers had vacated his home, he untied himself and the others and phoned the sheriff.

On November 12, 1980, Mr. Leprino identified defendant from a photographic lineup of about eight photos. The following day, Leprino’s son “tentatively identified” defendant from a photographic display. On November 20, 1980, both Leprino and his son identified the defendant from a physical lineup of six persons.

On December 11, 1981, defendant was convicted by a jury of aggravated robbery and of a crime of violence. Thereafter, he was sentenced to 16 years imprisonment.

I.

Defendant’s first contention is that the trial court erred in denying his motion for mistrial. That motion was based on a witness’ response in the prosecution’s redirect examination to the effect that she was [947]*947promised nothing more than “around the clock protection before and after this trial” in exchange for her testimony. We find no error in denial of the motion.

“A mistrial is the most drastic remedy for prejudicial conduct.” Massey v. People, 649 P.2d 1070 (Colo.1982); People v. Norwood, 37 Colo.App. 157, 547 P.2d 273 (1975). The grant or denial of a mistrial is within the sound discretion of the trial court and will not be disturbed on appeal absent a gross abuse of discretion prejudicing the defendant. Massey v. People, supra; Hamrick v. People, 624 P.2d 1320 (Colo.1981).

A defendant has the right in cross-examination to impeach a witness’ credibility by inquiring into the nature of any prosecutorial promises or deals motivating the witness to testify against the defendant. People v. Pate, 625 P.2d 369 (Colo.1981); People v. Peterson, 633 P.2d 1088 (Colo.App.1981), aff'd in part, rev’d in part on other grounds, 656 P.2d 1301 (Colo.1983). However, the People also have a correlative right on redirect examination to question the witness about the matter of promises or deals in an effort to dispel any unfavorable innuendo cast on the witness by defendant’s cross-examination. People v. Taggert, 621 P.2d 1375 (Colo.1981). Indeed, the People’s right to rebut any unfavorable inferences drawn from cross-examination impeaching a witness on the basis of bias is an “unqualified right.” Abeyta v. People, 156 Colo. 440, 400 P.2d 431 (1965).

Here, the record shows that defense counsel repeatedly questioned the witness as to whether she was receiving any “deals” in exchange for her testimony. Defense counsel’s questions implied a motive on the part of the witness to testify against the defendant in order to aid her husband, a co-defendant who had previously been tried, convicted, and sentenced to 16 years imprisonment in connection with the Leprino burglary.

In People v. Jones, 193 Colo. 250, 565 P.2d 1333 (1977), appeal dismissed, 434 U.S. 962, 98 S.Ct. 498, 54 L.Ed.2d 447 (1977), our Supreme Court specifically found “no error” in the trial court’s admission of a prosecution witness' testimony concerning her fear of a defendant. The Court based this holding on the fact that “[t]he district attorney elicited the subject testimony on redirect examination to counter defense counsel’s cross-examination on the witness’ possible bias .... ” It went on to state: “Moreover, the defendant did not object contemporaneously and thereby has waived his right to have this issue considered on appeal .... ” But this additional statement does not invalidate the Court’s earlier holding that such rebuttal evidence of a witness’ fear of defendant is admissible to respond to a defendant’s innuendos of the witness’ bias against him.

We conclude that defense counsel “opened the door” to both the prosecution’s redirect question and to its response by inquiring into the matter of promises made to the witness by the prosecution. Given this fact, the trial court did not abuse its discretion in denying defendant’s motion for mistrial. Moreover, defendant’s claims of prejudice are minimized by the fact that the prosecution did not mention the witness’ testimony concerning the promise of protection in his closing arguments.

II.

Defendant’s second argument is that his conviction should be reversed because, he alleges, he was denied due process of law when the trial court denied his motion to suppress the victims’ pretrial and in-court identification of him and because the photographic lineup display at issue was lost after defendant’s conviction and before transmission of the record to this Court. We disagree.

We agree with both defendant and the trial court that the test to be applied in determining the admissibility of identification testimony is:

“whether, in the totality of the circumstances, the [procedure] was so unnecessarily suggestive and conducive to irreparable mistaken identification that it [948]*948should be excluded.... The People must demonstrate by clear and convincing evidence that no IMPERMISSIBLE suggestion was present.”

People v. Roybal, 43 Colo.App. 483, 609 P.2d 1110 (1979) (emphasis in original); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

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Bluebook (online)
684 P.2d 945, 1984 Colo. App. LEXIS 1091, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-nunez-coloctapp-1984.