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People v. Richardson

Court of Appeals of Colorado, Sixth Division

August 23, 2018

The People of the State of Colorado, Plaintiff-Appellee,
Gary Val Richardson, Defendant-Appellant.

          Adams County District Court No. 13CR3497 Honorable Thomas R. Ensor, Judge.

          Cynthia H. Coffman, Attorney General, Paul E. Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Nicole M. Mooney, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

          Carparelli [*] , J., specially concurs.


          FOX JUDGE.

         ¶ 1 Gary Val Richardson appeals the judgment of conviction entered on jury verdicts finding him guilty of possession of a controlled substance, violation of bail bond conditions, attempted second degree assault, and attempted third degree assault. Richardson's appeal presents this novel question in Colorado: Is it reversible error for a judge to preside over a case in which his spouse is in the venire and to allow his spouse to remain on the jury? While we cannot endorse the judge's decision here, even assuming error we affirm because Richardson can show no prejudice resulting from this juror's presence.

         I. Background

         ¶ 2 An attempt by three Adams County sheriff's deputies to serve Richardson with an arrest warrant led to a police standoff. The standoff ended when officers deployed tear gas into the basement crawl space where Richardson was hiding and Richardson fired a gun at the police.

         ¶ 3 After Richardson was extracted from the crawl space, he was arrested and taken to jail. While he was changing into jail clothing, a vial containing a white, crystalline substance - later confirmed to be methamphetamine - fell to the floor at Richardson's feet.

         ¶ 4 Richardson was ultimately charged, as a habitual criminal, with possession of a controlled substance, violation of bail bond conditions, five counts of attempted second degree assault or attempted third degree assault, and possession of a weapon by a previous offender. The jury found him guilty of most of the charges (including two counts of attempted second degree assault and three counts of attempted third degree assault), but acquitted him of possession of a weapon by a previous offender. Richardson was then sentenced to an effective term of sixteen years in the Department of Corrections' custody.

         ¶ 5 Richardson raises five arguments on appeal: (1) there was insufficient evidence to convict him of attempted second degree assault or attempted third degree assault; (2) the presiding judge erred by allowing his spouse to sit on the jury; (3) the court violated his equal protection rights in denying a Batson v. Kentucky, 476 U.S. 79 (1986), challenge (to different prospective jurors) as untimely; (4) the court erred by admitting hand-drawn diagrams of the alleged crime scene; and (5) the court erred by allowing a witness to testify as an expert without being qualified as such, despite the court's earlier ruling that the witness must be qualified as an expert to testify. We address these arguments in turn.

         II. Sufficiency of the Evidence

         ¶ 6 Richardson argues that there was insufficient evidence to support his convictions for attempted second degree assault and attempted third degree assault. We disagree.

         A. Additional Background

         ¶ 7 Adams County sheriff's deputies and a K-9 dog arrived at Richardson and his daughter's residence. With the daughter's permission, three officers entered the house and - following three announcements of their presence by one officer - sent the K-9 to search the basement. The K-9 did not indicate that there was a person at the bottom of the stairs, so the officers descended into the east side of the basement.

         ¶ 8 From the bottom of the stairs, the officers observed a water heater and furnace to their left. A sheet hung behind the furnace. Through an opening in the sheet, they saw a bed in the northwest corner of the basement (to their right). The K-9 was directed to search again. As the K-9 approached the opening in the sheet, the officers heard a sound they identified as a loud gunshot. The officer handling the K-9 noted that the K-9 responded to the sound the same way he did to gunshots at the gun range - he hunkered down with his ears down. A male voice from behind the sheet then said, "Fuck you. Send that dog in here and I'll kill it and you're going to kill me."

         ¶ 9 The officers called for backup, and members of the Commerce City Special Weapons and Tactical (SWAT) team arrived to extract Richardson from the basement. Richardson proceeded to engage five members of the SWAT team in a five-to-six-hour standoff.

         ¶ 10 Over the course of the standoff, the SWAT team fired multiple rounds of tear gas into the crawl space (at the southwest corner of the basement) where Richardson had barricaded himself. After firing the initial rounds of tear gas, the SWAT team members heard a sound they believed to be a muffled gunshot. Richardson still refused to leave the crawl space - allegedly making comments such as "[w]hy don't you mother fuckers come in and get me," "I'm coming out," "[g]ive me some cigarettes," and "I want my phone." Several more rounds of tear gas were deployed into the crawl space before Richardson surrendered.

         B. Preservation and Standard of Review

         ¶ 11 Defense counsel moved for a judgment of acquittal on the attempted assault charges. The court granted the motion on the charges concerning the first three alleged victims - the Adams County sheriff's deputies - but denied the motion for the remaining five alleged victims - the SWAT team members.

         ¶ 12 Although the People suggest that the trial court erred when it granted the motion of acquittal as to the first three officers, they have not cross-appealed and that ruling is not before us. However, Richardson contends that given the acquittal on those charges, he should have been acquitted on the remaining charges. We are not convinced.

         ¶ 13 "We review de novo whether the evidence is sufficient to support a conviction." People v. Randell, 2012 COA 108, ¶ 29. In evaluating the sufficiency of the evidence, we must determine whether a rational fact finder might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of the defendant's guilt beyond a reasonable doubt. People v. Sprouse, 983 P.2d 771, 777 (Colo. 1999); Randell, ¶ 31. Our inquiry is guided by five well-established principles: (1) we give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence; (2) the credibility of witnesses is solely within the jury's province; (3) we may not serve as a thirteenth juror to determine the weight of the evidence; (4) a modicum of relevant evidence will not rationally support a conviction beyond a reasonable doubt; and (5) verdicts in criminal cases may not be based on guessing, speculation, or conjecture. Sprouse, 983 P.2d at 778; Randell, ¶ 31.

         C. Analysis

         ¶ 14 The record evidence was sufficient for the jury to conclude that Richardson attempted second and third degree assault against the SWAT team members.

         ¶ 15 A person commits attempted second degree assault if, with intent to cause bodily injury to another person, he attempts to cause such injury to any person by means of a deadly weapon. § 18-2-101(1), C.R.S. 2017; § 18-3-203(1)(b), C.R.S. 2017.

         ¶ 16 A person commits attempted third degree assault if, with criminal negligence, he attempts to cause bodily injury to another person by means of a deadly weapon. § 18-2-101(1); § 18-3-204(1)(a), C.R.S. 2017.

         ¶ 17 The following evidence was presented to the jury:

• The SWAT team members were familiar with the sound of gunshots - several had experience as firearms instructors or snipers, and they spent significant time training at gun ranges.
• The SWAT team members testified that the tear gas launcher discharging does not sound like a handgun discharging.
• After the initial rounds of tear gas were deployed into the crawl space, several of the officers heard a sound that they identified as "a gunshot from the crawl space," "a muffled gunshot," "a muffled pop which I believed to be a partial gunshot," "what I believe was a gunshot," and "what I thought was a muffled gunshot. It's a very distinct sound [.]"
• One officer saw the insulation around the crawl space move just after he heard the alleged gunshot.
• One officer testified he heard a team member yell, "That was a shot."
• The officers initially wondered if Richardson had self-inflicted a gunshot wound until they heard him coughing.
• An officer - located across from the crawl space behind the bed in the basement - heard what he identified as a bullet impact the wall to the left of him after he heard the alleged gunshot.
• The same officer heard Richardson yell something to the effect of "I shot at you" or "The shot came out towards you."
• The SWAT team members checked with each other to confirm a bullet had not ricocheted or hit someone.
• After Richardson was arrested, one of the officers searched the crawl space and found a small semiautomatic handgun - later identified as a .380 - and a single shell casing.
• The recovered gun, which had a capacity of five rounds in the magazine plus one round chambered, had three rounds in the magazine and one round chambered.
• The gun was capable of firing, and the recovered shell had been fired from the recovered gun.

         ¶ 18 This evidence was sufficient for the jury to conclude that (1) a second shot was fired when five members of the SWAT team were in the basement and (2) the shot was directed at them.

         ¶ 19 Richardson stresses that recovering only one shell casing means the evidence was insufficient to support a finding that two shots were fired in the basement. But, on review we do not sit as a thirteenth juror, Sprouse, 983 P.2d at 778, and it is the function of the fact finder alone "to consider and determine the weight to be given to the evidence and to resolve conflicts, inconsistencies, and disputes in the evidence," People v. Liggett, 114 P.3d 85, 89 (Colo.App. 2005), affd, 135 P.3d 725 (Colo. 2006). The photographs of the basement presented to the jury show that the basement was cluttered; the jury could reasonably have concluded that a second shell casing was lost among the disorder, and thus resolve this asserted discrepancy in the evidence.

         ¶ 20 The jury could reasonably have concluded that Richardson attempted second degree assault or attempted third degree assault because firing at the officers would constitute a substantial step toward the commission of either offense. § 18-2-101(1) (Criminal attempt is defined as "engag[ing] in conduct constituting a substantial step toward the commission of [an] offense. A substantial step is any conduct . . . which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.").

         ¶ 21 The recovered gun in the crawl space allowed the jury to reasonably conclude that Richardson was armed with a deadly weapon.

         ¶ 22 There was also sufficient evidence - the comment "I shot at you," and the timing of the shot after tear gas was deployed - to conclude that Richardson fired at the officers, evidencing an intent to cause bodily injury. See § 18-2-101(1); § 18-3-203(1)(b); see also People v. Phillips, 219 P.3d 798, 800 (Colo.App. 2009) ("If there is evidence upon which the jury may reasonably infer an element of the crime, the evidence is sufficient to sustain that element.").

         ¶ 23 The evidence was also sufficient to conclude that Richardson acted with criminal negligence because he fired a gun in a small space where a bullet would likely cause injury. See § 18-2-101(1); § 18-3-204(1)(a).

         ¶ 24 Thus, we reject Richardson's argument that the evidence was insufficient to support his convictions for attempted second degree assault and attempted third degree assault.

         III. Judge's Spouse Serving on the Jury

         ¶ 25 We now turn to the novel question in Richardson's appeal: Is it reversible error for a judge to preside over a case in which his spouse was in the venire and to allow his spouse to remain on the jury? Richardson argues that the judge had a responsibility to dismiss his spouse - or recuse himself from the case - sua sponte given his counsel's failure to object. Even assuming there was error, and recognizing that the trial judge had other options available in this situation, we affirm.

         A. Preservation

         ¶ 26 The People argue that Richardson abandoned this argument because no objection was raised during trial and Richardson did not use any challenges on the judge's spouse. The partial dissent suggests that the judge preserved the issue for review by bringing the issue of his wife being in the venire to the attention of the parties. But, it is the responsibility of the litigants - not the judge - to preserve issues for review. See People v. Cordova, 293 P.3d 114, 120 (Colo.App. 2011) ("To preserve an issue for appeal, a defendant must alert the trial court to the particular issue. This is so because 'the judge must largely rely upon the parties to research and raise issues, and giving the judge the wrong reason for a request is usually equivalent to giving the judge no reason at all.'") (citations omitted).

         ¶ 27 Whether a defendant waived or forfeited a right is a question of law we review de novo. See Stackhouse v. People, 2015 CO 48, ¶ 4. Allowing a defendant to stand silent and then protest an adverse verdict on that basis can "encourage gamesmanship" or allow a windfall for the defendant. Id. at ¶ 16.

         ¶ 28 There is a difference between waiver and forfeiture. United States v. Olano, 507 U.S. 725, 733 (1993); see People v. Lopez, 129 P.3d 1061, 1065 (Colo.App. 2005). Waiver is the "intentional relinquishment or abandonment of a known right," while "forfeiture is the failure to make the timely assertion of a right." Olano, 507 U.S. at 733 (citation omitted); see also People v. Rediger, 2018 CO 32, ¶ 39-40.

         ¶ 29 Although the judge and counsel were clearly aware the judge's spouse was in the venire and a member of the selected jury panel, we conclude that Richardson did not timely and properly alert the trial court that he objected to the judge's spouse serving on the jury. Before voir dire, the judge said, "Be nice to Juror 25. My dinner is on the line." During voir dire, the prosecutor spoke to the judge's spouse, Juror 25, but neither party voiced a problem with her serving or otherwise challenged her. When the parties were exercising their peremptory challenges, the judge said, "[Juror 25]? We have the defendant's fifth peremptory challenge to the panel. I need you to make a call." In response, the defense excused a different juror, thus forgoing his opportunity to remove Juror 25.

         ¶ 30 After the jury was sworn and dismissed for a break, the following dialogue occurred:

[Judge]: Quite frankly, I don't know that I've ever heard of a sitting judge having a spouse or family member on the jury. There's nothing wrong with it. I think she'll be a fine juror. I have not spoken to her about this case.
[Defense Counsel]: I think we're both afraid to challenge her.
[Judge]: That wasn't a stupid idea. Thank you. I appreciate it.
[Defense Counsel]: Thank you.

         While defense counsel indicated - after the jury was sworn - that he was afraid to directly challenge the judge's wife, counsel did not sufficiently raise a timely objection.

         ¶ 31 Whether a defendant is entitled to a jury free of the presiding judge's spouse is a novel question in Colorado. And, it is unclear if that is a right that a defendant or his counsel can affirmatively waive. Crim. P. 24(b)(2) (providing that, generally, the parties waive all matters relating to the qualification and competency of prospective jurors by not raising the issues prior to the jury being sworn in, but exceptions may apply); see Olano, 507 U.S. at 733; Stackhouse, ¶ 15 ("[O]nly a select few rights are so important as to require knowing, voluntary, and intelligent waiver to be personally executed by the defendant."); cf. People v. Bowens, 943 N.E.2d 1249, 1258 (Ill.App.Ct. 2011) ("These circumstances compel the conclusion that defendant's decision not to peremptorily remove [the judge's spouse] was an affirmative acquiescence to [the spouse's] jury service, which thereby constitutes a waiver of this issue on appeal."). Even assuming error, because Richardson failed to make a timely objection, we conclude he at least forfeited the right. See Olano, 507 U.S. at 733; see also Weaver v. Massachusetts, 582 U.S.__, __, 137 S.Ct. 1899, 1912-13 (2017) (deciding that constitutional error, even a structural error, can be forfeited and waived).

         ¶ 32 Forfeited errors can be reviewed on appeal for plain error. See Rediger, ¶ 40; see also Stackhouse, ¶ 27 (Márquez, J., dissenting) ("Yet, if a legal rule is violated during trial, 'and if the defendant did not waive the rule, then there has been an "error" . . . despite the absence of a timely objection.'" (quoting Olano, 507 U.S. at 733-34)).

         B. Standard of Review

         ¶ 33 Before addressing the merits of Richardson's argument, the first question is whether this was structural error requiring automatic reversal or plain error. While it may have been preferable for the trial judge to excuse his spouse from jury service or to recuse himself, because counsel chose not to challenge her or otherwise seek relief, we cannot say - based on this record - that either decision constitutes structural error. Given Richardson's failure to point to prejudice resulting from the spouse's jury service, we conclude that the judge's conduct here did not amount to plain error.

         1. Structural Error

         ¶ 34 Structural errors require reversal, regardless of whether the error affected the judgment of conviction. Hagos v. People, 2012 CO 63, ΒΆ 10. Examples of these errors in Colorado include "complete deprivation of counsel, trial before a biased judge, unlawful exclusion of members of the defendant's race from a grand jury, denial of the right to ...

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