Boulder County District Court No. 10CR392. Honorable M. Gwyneth Whalen, Judge.
John W. Suthers, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Joseph P. Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by JUDGE TERRY. Dailey and Miller, JJ., concur.
[¶1] Defendant, Noah Ray Thomas, appeals the judgment of conviction entered on a jury verdict finding him guilty of one count of vehicular homicide and five counts of vehicular assault. We affirm.
[¶2] As an issue of first impression in Colorado, we conclude in Part V.C of this opinion that, under the doctrine of specific contradiction, CRE 608(b) is not an impediment to admission of evidence that specifically contradicts testimony of a witness on direct or redirect examination.
[¶3] A single vehicle crash resulted in the death of one passenger and significant injuries to five other passengers.
[¶4] On the night of the crash, defendant, his brother, and their friends were drinking and socializing at a bar. During the course of the night, defendant met two women, H.F. and J.L., and the women joined defendant and his friends. The group became heavily intoxicated. After the bar closed, defendant, his brother, the two women, and four others got into a sport utility vehicle (SUV) to travel to defendant's house so that they could continue the party there.
[¶5] The prosecution presented evidence that defendant was the driver and missed a critical turn, resulting in the SUV crashing. Defendant and his brother got out of the vehicle, leaving five injured passengers and one dead passenger behind. The two brothers walked about a half mile to defendant's home, where defendant told his mother about the accident. Defendant's mother called a tow truck company. Neither defendant nor his family members contacted police or medical personnel.
[¶6] Although H.F. testified that defendant was driving at the time of the crash, defendant testified that H.F. was the driver.
[¶7] Defendant's first trial resulted in a hung jury. The jury in the second trial found him guilty, and the court sentenced him to twelve years in the Department of Corrections.
II. Challenge to Prospective Juror
[¶8] Defendant first contends that the trial court erred in granting the prosecution's challenge for cause to a prospective juror. According to defendant, this error in effect gave the prosecution an additional peremptory challenge, and an unfair tactical advantage over defendant in shaping the jury; prejudice to defendant is presumed; and reversal of the conviction is therefore required under People v. Lefebre, 5 P.3d 295, 303-04 (Colo. 2000), overruled by People v. Novotny, 320 P.3d 1194, 2014 CO 18. We discern no reversible error.
[¶9] Under section 13-71-121, C.R.S. 2013, a trial court may excuse a person from jury service for a trial that is expected to last more than three trial days " upon a finding of hardship or inconvenience, taking into account the expected length of the trial." We review for an abuse of discretion a trial court's decision whether to excuse a juror for cause based on hardship under that statute. People v. Isom, 140 P.3d 100, 103 (Colo. App. 2005).
[¶10] Here, the prospective juror was seventy years old. He said that he was feeling " a little shaky" because he ran a paper route at nighttime and made other daytime deliveries. His wife had been diagnosed with leukemia, and he said that he would have to continue working because he had his wife " to worry about." His work schedule was " seven days a week, 365 days a year." He described his work schedule as follows: he gets " up at midnight, [goes] out until about 6:00 [a.m.], [sleeps] for two [hours], [goes] all over the Denver area[,. .. goes] home and sleep[s] for three [hours], and then [he is] at it again." When asked whether it would be a hardship for him to serve on the jury for this trial, which was scheduled to last about two weeks, he said, " I'm torn between wanting to do [my] duty and the emotional. .. upheaval that comes from the personal end." He went on to discuss issues involving a family member who, he believed, had been wrongly convicted of a crime.
[¶11] The prosecutor challenged the prospective juror for cause based on " hardship as far as time," as well as emotional hardship. The trial court granted the motion based on the prospective juror's work schedule.
[¶12] Even though bias was not the ground for the prosecutor's challenge to the juror, on appeal, defendant primarily asserts that the juror was not properly susceptible to a challenge for cause based on bias in connection with his family member's criminal conviction. He further argues that the juror did not represent that he would suffer " actual hardship" as a result of his jury service.
[¶13] Because the record regarding the potential juror's work and sleep schedule, and his family situation, supports the court's dismissal of the prospective juror under section 13-71-121 based on hardship, we conclude that the court did not abuse its discretion in dismissing the juror on that ground.
III. Admission of J.L.'s Statements
[¶14] Defendant argues that the trial court erred by admitting, as prior inconsistent statements and statements of identification, J.L.'s statements to other witnesses, indicating that defendant was the driver during the crash. We perceive no error.
A. Standard of Review
[¶15] We will not disturb a trial court's evidentiary rulings absent a showing of an abuse of discretion. See Davis v. People, 2013 CO 57, ¶ 13, 310 P.3d 58, 61-62 (trial courts have considerable discretion to determine admissibility of evidence). A court abuses its discretion when its ruling (1) is based on an erroneous understanding or application of the law or (2) is manifestly arbitrary, unreasonable, or unfair. People v. Esparza-Treto, 282 P.3d 471, 480 (Colo. App. 2011).
[¶16] Where a defendant objects to the admission of evidence, we review for harmless error. People v. Garcia, 28 P.3d 340, 344 (Colo. 2001). Under this standard, even if there is error, reversal is not required unless the error affects the substantial rights of the accused. See Yusem v. People, 210 P.3d 458, 469 (Colo. 2009).
[¶17] An error of nonconstitutional dimension is prejudicial where there is a reasonable
probability that it contributed to a defendant's conviction by substantially influencing the verdict or impairing the fairness of the trial. People v. Casias, 2012 COA 117, ¶ 61, 312 P.3d 208, 220, 312 P.3d 208. Where there is no reasonable probability that such an error contributed to ...