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People v. Gingles

Court of Appeals of Colorado, Third Division

December 4, 2014

The People of the State of Colorado, Plaintiff-Appellee,
Jack Virgil Gingles, Defendant-Appellant

Douglas County District Court No. 10CR271. Honorable Paul A. King, Judge.

John W. Suthers, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Adam Mueller, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by JUDGE DAILEY. Hawthorne and Dunn, JJ., concur.


Page 969


[¶1] Defendant, Jack Virgil Gingles, appeals the judgments of conviction entered on jury verdicts finding him guilty of second degree kidnapping, robbery, aggravated motor vehicle theft, and vehicular eluding (two counts). We affirm and remand with directions to correct the mittimus.

I. Background

[¶2] Defendant borrowed a vehicle from a friend. When defendant appeared to " tense up" while next to a sheriff's deputy on Interstate 25, the deputy checked the license plates on the car defendant was driving and discovered that it had been reported stolen. After another sheriff's deputy arrived to provide backup, the deputies in both patrol vehicles activated their emergency lights and attempted to pull defendant over. Defendant immediately sped away, however, driving (1) on and off the interstate; (2) through various residential neighborhoods and commercial areas; (3) on and off the interstate again; (4) through a barbed wire fence, into a dirt field; (5) across a two- to three-foot wide ravine and through another barbed wire fence; and (6) onto the interstate again.

[¶3] Both deputies chased him until he went through the second barbed wire fence. Only one of the deputies was able to navigate a way through that fence and continue the pursuit onto the interstate. There, that deputy attempted to stop defendant by performing

Page 970

a " PIT maneuver," [1] but defendant spun out and " shot through a green [grassy] area" between the interstate and an exit ramp, where defendant's car broke down. The deputy pulled in behind him.

[¶4] Both defendant and the deputy got out of their vehicles and ran across the interstate, the deputy cautiously following defendant. Across the interstate, defendant stopped another vehicle coming up the entrance ramp and got in. According to that vehicle's driver, defendant told her, " I have a gun," or " I'll shoot you." Two witnesses, including the deputy, testified that they saw defendant push the driver out of the vehicle[2] before driving away and nearly hitting the pursuing deputy in the process.

[¶5] Using forensic evidence collected from the stolen car and the innocent driver's car, police identified defendant and charged him with second degree kidnapping, second degree assault, aggravated robbery, aggravated motor vehicle theft (two counts), and vehicular eluding (two counts).

[¶6] In a video-recorded confession he gave police, defendant admitted his involvement in the incident, but said

o he borrowed the vehicle not knowing it was stolen;

o he did not have a gun with him in the innocent driver's vehicle;

o he did not push the innocent driver out of her vehicle or otherwise touch her; and
o he never threatened the innocent driver and she must have misunderstood him when, in reference to the deputy, he said, " He's going to shoot me."

[¶7] Although defendant did not testify at trial, he argued, consistent with his confession, that (1) he did not intend to injure the driver; (2) he did not have a gun with him in her car; and (3) he did not kidnap her because he never had control of her vehicle while she was inside it.

[¶8] A jury found defendant guilty, as charged, of second degree kidnapping, one count of aggravated motor vehicle theft, and two counts of vehicular eluding. The jury also found him guilty of robbery and third degree assault, as lesser-included offenses of his other charges. Subsequently, the trial court sentenced him to a controlling term on the kidnapping count of twenty years imprisonment in the custody of the Department of Corrections.

II. Unrestricted Jury Access to Defendant's Videotaped Confession

[¶9] Defendant contends that the trial court erred in permitting the jury to have unfettered access to the video recording of his confession. We are not persuaded.

[¶10] Defense counsel stated that she " d[id]n't have any objection to [the jury] wanting to see it as often as possible," but she did not want it to have unfettered access to the video recording. Accordingly, she requested that the court not give the jury access to the video unless and until the jury requested to view it.

[¶11] The trial court noted its familiarity with Frasco v. People, 165 P.3d 701 (Colo. 2007), and DeBella v. People, 233 P.3d 664 (Colo. 2010), both of which address a jury's unfettered access to video recordings of interviews of child sexual assault victims. It concluded that, because a video recording of a defendant's statement was " different from" the " videotape of a child sexual assault victim's interview," the jury should have unrestricted access to defendant's confession. In addition, the court noted that defendant would not be prejudiced because various statements in the video would " inure to the defendant's benefit, if they are believed by the jury." [3]

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[¶12] Generally, a jury is permitted to take into the jury room all exhibits received into evidence, subject to the trial court's discretion to order otherwise. See Frasco, 165 P.3d at 703. The trial court has an obligation, however, to ensure that '" evidence is not so selected, nor used in such a manner, that there is a likelihood of it being given undue weight or emphasis by the jury.'" Id. (quoting Settle v. People, 180 Colo. 262, 264, 504 P.2d 680, 680-81 (1972)). " This obligation is particularly pronounced with respect to jury access during deliberations to portions of trial testimony (as in Settle ) and to exhibits substituting for trial testimony." People v. Jefferson, 2014 COA 77, ¶ 10.

The fear expressed with respect to documents of testimonial character is that they present an unfair advantage to the proponent in having only this single segment of the entire trial testimony before the jury during deliberations. The foregoing applies as well to requests by the jury for videotape recordings, tape recordings, transcripts of testimony, or for having portions of testimony replayed or reread.

1 Michael H. Graham, Winning Evidence Arguments § 403:2, at 357-58 (2006) (footnote omitted).

[¶13] Consequently, " a trial court must 'oversee with caution' the jury's use of exhibits of a testimonial character, including video recorded interviews of witnesses." Jefferson, ¶ 11 (quoting Frasco, 165 P.3d at 703-04); see id. at ¶ 17 (likening a jury's unrestricted access to a witness's videotaped statement to bringing the witness into jury ...

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