People v. Al-Yousif

Citations: 206 P.3d 824; 2006 WL 3824897Docket: 04CA0320

Court: Colorado Court of Appeals; December 27, 2006; Colorado; State Appellate Court

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Naif Al-Yousif, the defendant, was convicted of first-degree felony murder, robbery, accessory to a crime, concealing a death, and theft by receiving. The Colorado Court of Appeals vacated his convictions for theft by receiving and robbery but affirmed the remaining convictions, remanding for correction of the mittimus. The case arose from events on January 10, 2001, when Al-Yousif's cousin and brother picked up the victim from the airport. After the victim failed to appear for dinner, his family reported him missing days later. Investigations revealed vandalism at the victim's apartment, the sale of his car, and unauthorized cashing of checks from his account. Surveillance footage identified Al-Yousif and another individual cashing the checks. Upon arrest, Al-Yousif claimed he had brought the victim to his home, where he found the victim tied up and subsequently witnessed the victim being strangled by another person. The victim's body was disposed of in a garbage container, and his belongings were stolen. Al-Yousif fled to California but was later convinced to return to Colorado, where he was arrested. The court also addressed Al-Yousif's claim regarding jury access to transcripts of videotaped interviews, ruling that such access was appropriate for aiding the jury in understanding inaudible portions of the tapes.

During jury deliberations, jurors may have unsupervised access to confessions and testimonial evidence, as established in Colorado case law (People v. Ferrero, People v. Miller). According to C.R.C.P. 47(m), jurors are permitted to take jury instructions, personal notes, and admitted exhibits into the jury room. The court in People v. McKinney clarified that this includes all forms of testimonial evidence, such as videotapes, audiotapes, and written documents. In the current case, the trial court admitted a videotaped interview of the defendant and its transcript, despite the defendant's objections, as the interviewing detective confirmed the transcript's accuracy. The jury, experiencing difficulties with the videotapes, requested transcripts of both the defendant's and another witness's statements, which the court allowed. However, the jury's request for depositions of defense witnesses was denied.

Unbeknownst to the court, the defendant's transcript was inadvertently included in the jury room for the duration of deliberations. It was determined that the trial court did not err in allowing the jury access to these transcripts, as they were properly admitted into evidence. The jury's viewing of the videos in the jury room without the defendant present was also deemed permissible, following precedent that does not require the defendant's presence for such viewings.

Additionally, the defendant argued that the trial court abused its discretion by admitting evidence of him presenting a false identification card in Arizona, claiming it was irrelevant and prejudicial. The court maintained that it possesses broad discretion in assessing the relevance and probative value of evidence, and such decisions will not be overturned unless deemed arbitrary or unreasonable. Relevant evidence is defined as having any tendency to affect the likelihood of a consequential fact in the case.

Relevant evidence is admissible under CRE 403 unless its probative value is substantially outweighed by the danger of unfair prejudice, which refers to evidence leading to decisions based on improper bases. The balance favors admission, and courts must consider the maximum probative value and the minimum expected unfair prejudice. In this case, while the defendant fled Colorado and was stopped in Arizona for a traffic violation, he sought to suppress statements made to law enforcement. However, the prosecution indicated they wouldn’t use these statements. During trial, an Arizona patrolman testified, which the defendant objected to based on the pretrial concession. The trial court ruled that the prosecution could not introduce the defendant's statements but permitted evidence of a false ID card, relevant to the defendant's flight and consciousness of guilt, finding no abuse of discretion.

The defendant also challenged the trial court's decision to allow the prosecution to amend the robbery count before trial. Under Crim. P. 7(e), the court has discretion to permit amendments to the information prior to trial, which is to be construed liberally. The trial court granted the prosecution’s motion to include additional items taken during the robbery, noting that the defendant had full notice and discovery, and the amendment did not introduce new charges. The court found no abuse of discretion in allowing the amendment. Finally, the defendant argued that the court erred in not providing a jury instruction on duress as a defense to felony murder, which was also rejected.

Felony murder is classified as a class one felony under Section 18-3-102(3), C.R.S.2005. A defendant is guilty of first degree murder-felony murder if, while committing or attempting to commit robbery, they cause the death of a non-participant in the crime. Section 18-1-708, C.R.S.2005, prohibits a duress defense for offenses other than class one felonies, making it inapplicable to felony murder. The defendant argued that this statute is unconstitutional, suggesting a scenario where he could be acquitted of robbery but convicted of felony murder; however, he was convicted of robbery, undermining his argument.

Additionally, the defendant claimed the trial court erred by not instructing the jury on the choice of evils defense for the robbery charge. This statutory defense applies only when a crime is committed to prevent imminent harm caused by circumstances beyond the actor's control. The defendant must demonstrate that his conduct was necessary due to an immediate threat and that no reasonable alternatives existed. 

The trial court addressed this defense in a pretrial hearing, allowing the defendant to present evidence, but he failed to do so. The prosecution reminded the court of the need for a pretrial ruling on the justification defense, but the defendant delayed his request until after evidence was presented. The court denied the instruction based on the defendant's noncompliance with procedural requirements. It was clarified that while a pretrial determination is not mandated, the defendant must still present evidence to support the defense before it can be considered by the jury.

Under Colorado law, evidence supporting a defense must be presented to the trial court before it can be admitted. In this case, the defendant was given two opportunities to provide an offer of proof for a request for a choice of evils instruction but declined. While he was not obligated to do so before the trial, he was required to do so before evidence admission. The prosecution raised the issue of the offer of proof multiple times, and the court found no error in denying the defendant's instruction request due to his failure to comply with statutory requirements.

The court did, however, agree that the trial court erred by instructing the jury on a class three felony theft by receiving charge. The defendant argued for a class four felony instruction as a lesser nonincluded offense, but the prosecution maintained that the evidence warranted a class three felony due to the amount involved. The court ultimately instructed the jury on both charges, but this led to the defendant being convicted of a higher offense than originally charged. The court found no legal basis for this outcome and vacated the conviction, remanding for correction.

Regarding claims of prosecutorial misconduct during closing arguments, the court found no basis for reversal. The defendant's right to a fair trial by an impartial jury was upheld, as the prosecutor's conduct was deemed within acceptable bounds, emphasizing the strength and significance of the evidence without infringing on the defendant's due process rights.

A prosecutor must adhere to appropriate advocacy limits during closing arguments. The absence of a contemporaneous objection from the defense may indicate that defense counsel believed the prosecutor's statements were not significantly damaging. When no objection is raised, appellate review is limited to plain error, which is rare in cases of prosecutorial misconduct during closing arguments. Such misconduct must be substantial enough to undermine the trial's fairness and cast doubt on the conviction's reliability. Factors considered in this assessment include the language and context of the statements, whether personal opinions were improperly expressed, the strength and clarity of evidence, emotional appeals, and the frequency of misconduct.

In this case, the trial court sanctioned the prosecution for a discovery violation, allowing the defense to introduce withheld evidence and receive an instruction regarding this failure. The prosecution improperly shifted accountability from law enforcement to itself during closing arguments, diluting the court's order. However, this isolated statement was not deemed plain error as it was not made in bad faith. The prosecutor also incorrectly stated that the defendant "lied" about using a fake driver's license, which has been disapproved in prior rulings, but this did not affect the trial's fairness. Lastly, the prosecutor's comments suggested that the jury would not fulfill its oath if they acquitted the defendant, asserting that the case was proven beyond a reasonable doubt and urging a guilty verdict.

No errors were found regarding the jury's responsibility to determine guilt beyond a reasonable doubt, and the prosecutor's statements during closing arguments did not merit reversal. The court reviewed whether the defendant's police statement was voluntary and compliant with Miranda rights under a de novo standard. The prosecution must prove, by a preponderance of evidence, that the statement was made voluntarily, considering the totality of circumstances, which include custody status, awareness of rights, opportunity for counsel, nature of the interrogation, and the defendant's mental and physical state. Although the trial court initially suppressed the statement due to a violation of the Fifth Amendment, it found the statement was voluntarily given. The trial court noted the absence of coercive tactics and that the defendant understood the situation, but determined he did not knowingly waive his Miranda rights. The People appealed, and the Colorado Supreme Court reversed the suppression order, ruling that the waiver was constitutional but did not address the voluntariness of the statement. The reviewing court confirmed the statement was voluntary, found no cumulative errors warranting reversal, and agreed that the defendant's robbery conviction should merge with the felony murder conviction. The case was remanded for correction of the mittimus, while the judgments for theft by receiving and robbery were vacated, with all other judgments affirmed.