People of The State of Colo. v. MUNOZ

240 P.3d 311

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Raymond MUNOZ, Defendant-Appellant.

No. 07CA0697.

Colorado Court of Appeals,Div. II.

Aug. 20, 2009.

Rehearing Denied Oct. 15, 2009.

COPYRIGHT MATERIAL OMITTED.

John W. Suthers, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Law Office of Samuel Santistevan, LLC, Samuel Santistevan, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge NIETO. ^*

Defendant, Raymond Munoz, appeals the judgment of conviction entered upon jury verdicts finding him guilty of first degree murder after deliberation, felony murder, two counts of first degree burglary, three counts of menacing, and two crime of violence counts. We affirm.

I. Background

A. Factual Background

On February 2, 2006, defendant went to the victim's house to visit A.R., a mutual friend of the victim and defendant. Defendant asked to speak to A.R. The victim refused to allow defendant to speak with A.R., and a fight between defendant and the victim ensued. After they exchanged several blows, the fight ended. As defendant was leaving, he threatened the victim, saying, “I'll be back.” Defendant also threatened, A.R., saying, “You better watch your back,” and, “[A]ll your shit is gone.” Defendant had been storing some of A.R.'s belongings at a storage unit, and A.R. interpreted defendant's words to mean that he intended to take her belongings.

The following day, defendant returned to the victim's home. A.R. testified that she, the victim, and two other friends were present. They heard two very loud banging noises on the front door, and immediately thereafter, the door sprung open. Two men entered the victim's house. A.R. recognized one of the men as defendant, and he was carrying a sawed-off shotgun.

Defendant and his accomplice rushed over to the victim, and defendant struck the victim on the head with the shotgun, knocking him to the floor. Defendant then assaulted the victim by thrusting a knife into the side of his chest. The pathologist who conducted an autopsy of the victim testified at trial that the victim died as the result of a stab wound inflicted from the side, which punctured his left lung and heart.

The victim could not be revived and was pronounced dead at the scene. Defendant was apprehended at his apartment building the next day and was taken into custody.

B. Investigation and Pretrial Motions

Police conducted a search of the victim's home, defendant's car, defendant's apartment, and another apartment in defendant's apartment building in which defendant hid to avoid arrest. The investigators collected a substantial amount of physical evidence, including clothing belonging to defendant soiled with the victim's blood, a large knife thought to be the murder weapon, and six other miscellaneous small and medium-sized knives collected during the police officers' search for the murder weapon.

Police also investigated another crime which they believed was connected to the victim's killing. Earlier on the day of the killing, defendant allegedly broke into nine storage units and stole items from the units. One of the units, which defendant's wife had rented, had contained items belonging to A.R. Defendant allegedly broke into his wife's storage unit, removed A.R.'s belongings, and took them to a basement in a neighboring apartment.

Defendant was charged with first degree murder after deliberation, pursuant to section 18-3-102(1)(a), C.R.S.2008; felony murder, pursuant to section 18-3-102(1)(b), C.R.S.2008; two counts of first degree burglary, pursuant to section 18-4-202(1), C.R.S.2008; three counts of menacing, pursuant to section 18-3-206(1)(a) and (b), C.R.S.2008; and two crime of violence counts, pursuant to section 18-1.3-406(2)(a)(I)(B), C.R.S.2008.

Before trial, the prosecution moved to admit evidence of defendant's prior acts pursuant to CRE 404(b), including the fight between defendant and the victim the day before the murder and defendant's theft of items belonging to A.R. from his wife's storage unit. At the hearing on the motion, the prosecution argued that testimony about the fight was proper under CRE 404(b) because it was relevant to show intent, plan, and motive to murder the victim. In regard to defendant's alleged theft of items belonging to A.R., the prosecution argued that the evidence should be admitted to prove defendant's motive for the killing, burglary, and menacing.

Defendant argued that the prior acts were not relevant and disputed the prosecution's contention that the evidence would show intent, plan, or motive. Defendant also contended that the prosecution's characterization of his alleged taking of A.R.'s items from the storage unit as a theft was prejudicial because there was no evidence to suggest defendant was not authorized to enter his wife's unit and remove the property.

The court granted the prosecution's motion, reasoning that the fight between defendant and the victim the day before the murder was proper under the rule because it provided evidence of defendant's intent, plan, and motive in the killing of the victim. The court reasoned that the introduction of defendant's alleged theft of items belonging to A.R. from his wife's storage unit was proper under CRE 404(b) because it was evidence of defendant's motive in the killing, burglary, and menacing.

Prior to trial, defendant also moved to sever his case from his co-defendant's. The trial court indicated that it would grant defendant's motion for severance, but expressed doubts about whether defendant's trial could be set on a date within the statutory speedy trial period if the court tried defendant separately from his co-defendant. The court asked defense counsel, “So you are waiving speedy?” Defense counsel responded, “We would, if-yes, I guess we'll go ahead and do that today, if that's how the Court wants to handle that.” Subsequently, the trial court severed defendant's case from his co-defendant's and set a trial date beyond the initial statutory speedy trial period.

C. Trial

At trial, the prosecution called thirty-two witnesses. The prosecution presented a substantial amount of physical evidence and eyewitness testimony in support of its allegation that defendant broke into the victim's home brandishing a weapon and stabbed the victim. The prosecution also presented CRE 404(b) evidence to show defendant's motive for committing the murder, burglary, and menacing, including testimony from a storage facility manager inculpating defendant in the taking of A.R.'s belongings from his wife's storage unit.

During examination of the manager, the prosecutor was careful to inquire only about the theft of items from defendant's wife's storage unit. However, when defense counsel cross-examined the manager, he inquired into whether other units had been broken into during the episode on February 3. This was the first mention of the entry into the other units. During defense counsel's cross-examination of the manager, the following exchange took place:

Defense counsel: [T]here were nine storage lockers broken into that day, right?

Manager: There were several, I don't recall the exact number.

Defense counsel: This one that belonged to [defendant's wife] was one of them?

Manager: Yes.

A subsequent witness, the police officer who responded to the call concerning the storage units, testified on direct examination that nine units had been burglarized and that it appeared that the perpetrator had cut the locks off the units with a bolt cutter. On cross-examination, defense counsel inquired further into the burglary of the units at the storage facility. The following exchange took place:

Defense counsel: You said nine units were burglarized; is that right?

Police Officer: Yes, sir.

Defense counsel: It looked like maybe a bolt cutter might have cut them, but you are not sure, but something did?

Police Officer: Most of the locks were missing. I only recovered one portion of one lock.

Defense counsel: Do you remember on what unit that was?

....

Police Officer: Yes, it was in front of the door for L6....

After the presentation of evidence, the trial court provided instructions to the jury. The court provided the following instruction on reasonable doubt:

Every person charged with a crime is presumed innocent. This presumption of innocence remains with the defendant throughout the trial and should be given effect by you unless, after considering all of the evidence, you are then convinced that the defendant is guilty beyond a reasonable doubt.

The burden of proof is upon the prosecution to prove to the satisfaction of the jury beyond a reasonable doubt the existence of all of the elements necessary to constitute the crime charged.

Reasonable doubt means a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence, or lack of evidence, in the case. It is a doubt which is not a vague, speculative, or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.

If you find from the evidence that each and every element has been proven beyond a reasonable doubt, you will find the defendant guilty. If you find from the evidence that the prosecution has failed to prove any one of more of the elements beyond a reasonable doubt you will find the defendant not guilty.

(Emphasis added.)

For each of the charged offenses, the court set out the elements of the offense and provided the following instruction:

After considering all of the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of [the offense charged].

After considering all of the evidence, if you decide the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt, you should find the defendant not guilty of [the offense charged].

(Emphasis...