# People v. Rodriguez

> Supreme Court of Colorado · April 15, 1996 · 914 P.2d 230

URL: https://www.frixlaw.com/law-library/cases/1129992

## Case

- **Full name:** The PEOPLE of the State of Colorado, Plaintiff-Appellee/Cross-Appellant, v. Frank D. RODRIGUEZ, Defendant-Appellant/Cross-Appellee
- **Court:** Supreme Court of Colorado
- **Decided:** April 15, 1996
- **Citations:** 914 P.2d 230; 1996 WL 107221
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Erickson, Scott, Kirshbaum, Lohr
- **Cited by:** 308 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1129992

## How later opinions describe it (automated extraction)

- holding the determination of whether newly discovered evidence would probably bring about an acquittal "should be premised on whether the new evidence, as developed in trial, when considered with all the other evidence is such that a reasonable jury would probably conclude tha…
- holding that a jury instruction listing additional modes of sexual penetration than those listed in the information did not impermissi-bly amend the charge of sexual assault because/in part, “the added modes of sexual penetration [did] not change the applicable statute, senten…
- recognizing that a "fair assesgment of counsel's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time"
- recognizing that a “fair assessment of counsel’s performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time”
- holding that "to obtain relief on a due process claim arising from an incomplete record, a [criminal] defendant must always demonstrate specific prejudice resulting from the state of that record"

## Opinion text

914 P.2d 230 (1996)
The PEOPLE of the State of Colorado, Plaintiff-Appellee/Cross-Appellant,
v.
Frank D. RODRIGUEZ, Defendant-Appellant/Cross-Appellee.
No. 91SA112.
Supreme Court of Colorado, En Banc.
March 11, 1996.
As Modified on Denial of Rehearing April 15, 1996.
*245 Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Robert M. Petrusak, Senior Assistant Attorney General, Criminal Enforcement Section, Denver, for Plaintiff-Appellee/Cross-Appellant.
David F. Vela, State Public Defender, Michael J. Heher, Deputy State Public Defender, Nora V. Kelly, Denver, for Defendant-Appellant/Cross-Appellee.
*246 Justice ERICKSON delivered the Opinion of the Court.
In 1986, the trial court [1] sentenced Frank Rodriguez to death for his participation in the kidnapping, robbery, rape, and murder of Lorraine Martelli. We affirmed the imposition of the death sentence, People v. Rodriguez, 794 P.2d 965 (Colo.1990) ( Rodriguez IV), and the United States Supreme Court denied certiorari. Rodriguez v. Colorado, 498 U.S. 1055 , 111 S.Ct. 770 , 112 L.Ed.2d 789 (1991). Pursuant to Crim.P. 35, Rodriguez sought postconviction review of his death sentence. The district court granted relief in part, denied relief in part, and refused to vacate the death sentence. Both Rodriguez and the prosecution appealed. We affirm in part, reverse in part, and remand in part with directions.
I
Facts and Procedural History
On November 14, 1984, Rodriguez; [2] his brother, Chris Rodriguez; David Martinez; and Patricia Thomas participated in events which culminated in the brutal murder of Lorraine Martelli. The facts of the murder are set forth in People v. Rodriguez, 794 P.2d 965, 969-971 (Colo.1990) ( Rodriguez IV ), cert. denied, 498 U.S. 1055 , 111 S.Ct. 770 , 112 L.Ed.2d 789 (1991). [3] A jury convicted Rodriguez of first-degree murder, first-degree felony murder, first-degree sexual assault, first-degree aggravated motor vehicle theft, second-degree kidnapping, aggravated robbery, conspiracy to commit first-degree murder, conspiracy to commit second-degree kidnapping, conspiracy to commit first-degree aggravated motor vehicle theft, and five counts of using a deadly weapon during the commission of the above offenses. R., v. 3 at 545-558.
In a separate proceeding, Rodriguez' brother, Chris Rodriguez, was convicted of the following crimes: first-degree murder, first-degree sexual assault, aggravated motor vehicle theft, second-degree kidnapping, robbery, conspiracy to commit first-degree murder, conspiracy to commit second-degree kidnapping, and conspiracy to commit aggravated motor vehicle theft. People v. Rodriguez, 786 P.2d 472, 473 (Colo.App.1989), cert. denied, No. 89SC600 (Colo. Jan. 29, 1990). David Martinez was convicted of second-degree kidnapping and sentenced to twenty years. R., v. 67 at 105. The prosecution granted Patricia Thomas immunity in exchange for her testimony and did not charge her for her participation in the criminal episode. See R., v. 2 at 8.
Prior to the penalty phase of Rodriguez' prosecution, the trial court conducted a habitual criminal proceeding pursuant to section 16-13-103, 8 C.R.S. (1984 Supp.), and the jury found beyond a reasonable doubt that Rodriguez had been convicted of three prior felonies. R., v. 33 at 63-65.
At the penalty phase of Rodriguez' trial, the jury found that six statutory aggravating factors existed beyond a reasonable doubt: (1) committing murder while under a felony sentence of imprisonment; (2) intentionally killing a person kidnapped by him or by anyone associated with him; (3) intentionally killing a person in furtherance of an agreement to kill; (4) intentionally causing the death of a person in the course of or in furtherance of a felony or in his immediate flight therefrom; (5) killing in an especially heinous, cruel or depraved manner; [4] and (6) *247 committing murder for the purpose of avoiding or preventing a lawful arrest or prosecution. R., v. 4 at 746-52; see § 16-11-103(6), 8A C.R.S. (1986). The jury further found that the mitigating factors did not outweigh the aggravating factors and sentenced Rodriguez to death. R., v. 4 at 753.
The trial court stayed the death sentence pending an automatic direct appeal, pursuant to section 16-11-103(7), 8A C.R.S. (1986), and C.A.R. 4(d). [5] The Colorado State Public Defender's Office represented Rodriguez on direct appeal. After four extensions of time to file an opening brief and nearly two years after the case had been docketed in this court, defense counsel filed a 138-page document entitled "Partial Opening Brief," with a protest that a complete brief could not be filed without an additional extension of time. [6] Am.R., v. 18 at 1-151. Rodriguez attached an appendix to the "Partial Opening Brief" which listed 102 additional issues which he claims he wanted to raise, but could not because of unreasonable time limitations and an inadequate record on appeal. [7] Am.R., v. 5 at 1219-1231.
On direct appeal, we affirmed the death sentence. Rodriguez IV, 794 P.2d 965 . On February 11, 1991, Rodriguez filed a Crim.P. 35(b) motion for reduction of sentence, and, on February 21, 1991, the district court denied relief. Am.R., v. 4 at 823. On March 13, 1991, Rodriguez filed a notice of appeal in the court of appeals seeking review of the district court's denial of his Crim.P. 35(b) motion. Id. at 889-91. On March 28, 1991, we accepted jurisdiction over the appeal and granted Rodriguez' motion for a stay of execution. Id.
On March 25, 1991, Rodriguez filed a Crim.P. 35(a) and (c) motion in the district court and a motion to obtain the appointment of private counsel to investigate and litigate claims of ineffective assistance of counsel. Id. On April 12, 1991, the prosecution filed a motion to dismiss Rodriguez' motions on the ground that the district court lacked jurisdiction over the case due to the pendency of the Crim.P. 35(b) appeal in this court. Id. at 881. On April 19, 1991, Rodriguez filed a motion to withdraw the previously filed Crim.P. 35(a) and (c) motion. Id. at 888. On May 30, 1991, we ordered that the case be remanded to the district court for the limited purpose of setting a time frame to permit Rodriguez to file any and all postconviction claims relating to his conviction and sentence. Id. at 889-91. We further ordered that the district court conduct a hearing on all such claims that it deemed appropriate and issue a final ruling without unnecessary delay. Id. On July 8, 1991, the district court ordered that Rodriguez submit all post-trial motions by August 1, 1991. Id. at 897.
On August 1, 1991, Rodriguez filed a Crim.P. 35(c) motion for postconviction review of his death sentence which was over 700 pages and raised 319 claims for relief relating to the guilt and penalty phases of the trial and the direct appeal. See Am.R., vv. 11-13, 68. Rodriguez' postconviction motion also contained claims relating to ineffective assistance of counsel and newly discovered evidence.
On December 11, 1991, the district court appointed Richard Hostetler as independent counsel to investigate and litigate Rodriguez' claims of ineffective assistance of counsel. *248 Am.R., v. 6 at 1486. On January 19, 1993, Hostetler filed a separate Crim.P. 35(c) motion claiming that Rodriguez received ineffective assistance of counsel during the guilt and penalty phases of his trial and on direct appeal. Am.R., v. 7 at 1631-1647. The district court held a hearing on Rodriguez' claims of ineffective assistance of counsel and, on October 7, 1993, denied relief. Id. at 1762-88.
On February 14, 1994, the district court ruled on Rodriguez' Crim.P. 35(c) motion that had been filed on August 1, 1991. The district court vacated Rodriguez' convictions for felony murder, conspiracy to commit second-degree kidnapping, and conspiracy to commit aggravated motor vehicle theft, but denied Rodriguez' motion to vacate the death sentence. R., v. 1 at 216-219. The district court denied all of Rodriguez' remaining postconviction claims, see id. at 152-222, but reserved ruling on the allegations of newly discovered evidence. Id. at 221-222. On March 17, 1994, the district court held a hearing on Rodriguez' claims of newly discovered evidence and denied relief. See R., v. 67 at 182-83.
Rodriguez now appeals the district court's denial of his Crim.P. 35(c) postconviction claims and its refusal to vacate his death sentence. Rodriguez' Opening Brief on this appeal is 419 pages and raises 151 issues. A list of these issues is attached as Appendix A. [8] Rodriguez also appeals the district court's denial of his claims alleging ineffective assistance of counsel. This issue was separately briefed on this appeal.
The prosecution cross-appeals, arguing that the district court erroneously vacated Rodriguez' convictions for felony murder, conspiracy to commit second-degree kidnapping, and conspiracy to commit aggravated motor vehicle theft.
The primary question on appeal is whether the district court erred in determining that Rodriguez' Crim.P. 35 motion did not warrant reversal and vacation of his death sentence. We conclude that the district court's vacation of Rodriguez' duplicative sentences and our remand to the district court of Rodriguez' conviction for first-degree sexual assault as a class 2 felony, see infra parts IX(A) and XIV, provide the only relief available to Rodriguez on the arguments presented in his Crim.P. 35 motions. Accordingly, we affirm in part, reverse in part, and remand in part with directions.
II
Issues Previously Litigated
A
The district court denied 110 of the 319 postconviction claims Rodriguez raised in his Crim.P. 35(c) motion, [9] holding that Rodriguez could not raise claims that he previously raised on direct appeal and which this court previously resolved in People v. Rodriguez, 794 P.2d 965 (Colo.1990) ( Rodriguez IV ), and Rodriguez v. Dist. Ct., City & Cty. of Denver, 719 P.2d 699 (Colo.1986) ( Rodriguez I ). On this appeal, Rodriguez specifically asserts the following issues, which are comprised of or contain claims which the district court disposed of as previously litigated: 5, 6, 9, 10, 66, 79, 90, 91, 92, 96, 106, 115, 135, 136, 137, *249 138, 150, and Rodriguez' argument that the inadequacy of the record on appeal denied him effective assistance of counsel. [10] In Issue 1 of this appeal, Rodriguez attempts to salvage the remaining claims which the district court disposed of as previously litigated, asserting that "the district court's ruling that Mr. Rodriguez had already had appellate review of many claims in his postconviction motions was erroneous." Rodriguez' Opening Brief at 32-37. We conclude that Rodriguez' failure to specifically reassert on this appeal all of the claims which the district court disposed of as previously litigated on direct appeal constitutes a conscious relinquishment of those claims which he does not reassert. Accordingly, we address only those postconviction claims that Rodriguez specifically reasserts on this appeal.
B
Rodriguez has no constitutional right to postconviction review; rather, any right he has is statutory. People v. Wiedemer, 852 P.2d 424, 438 (Colo.1993). We presume the validity of the judgment of conviction and place upon Rodriguez the burden to establish his right to relief by a preponderance of the evidence. See People v. Naranjo, 840 P.2d 319, 325 (Colo.1992).
Rule 35 proceedings are intended to prevent injustices after conviction and sentencing, not to provide perpetual review. People v. Hampton, 187 Colo. 131, 133 , 528 P.2d 1311, 1312 (1974). Accordingly, Rodriguez cannot use a proceeding under Rule 35 to relitigate matters fully and finally resolved in an earlier appeal. See People v. Johnson, 638 P.2d 61, 63 (Colo.1981); People v. Trujillo, 190 Colo. 497, 500 , 549 P.2d 1312, 1314 (1976); Morse v. People, 180 Colo. 49, 52 , 501 P.2d 1328, 1329 (1972); People v. Bradley, 169 Colo. 262, 265 , 455 P.2d 199, 200 (1969); ABA Standards for Criminal Justice, Postconviction Remedies § 22-6.1(a) at 22-62 (2d ed. 1986). [11] An issue is "fully and finally litigated when the highest court of the state to which a defendant could appeal as of right has ruled on the merits of the question." ABA Standards § 22-6.1(a) at 22-62. Moreover, an argument raised under Rule 35 which does not precisely duplicate an issue raised on appeal will be precluded if its review "would be nothing more than a second appeal addressing the same issues on some recently contrived constitutional theory." People v. Bastardo, 646 P.2d 382, 383 (Colo.1982).
The United States Supreme Court has defined the concept of "same grounds" for the purposes of successive applications for postconviction relief by federal prisoners:
By "ground," we mean simply a sufficient legal basis for granting the relief sought by the applicant. For example, the contention that an involuntary confession was admitted in evidence against him is a distinct ground for federal collateral relief. But a claim of involuntary confession predicated on alleged psychological coercion does not raise a different "ground" than does one predicated on alleged physical coercion. In other words, identical grounds may often be proved by different factual allegations. So also, identical grounds may often be supported by different legal arguments, or be couched in different language, or vary in immaterial respects.
Sanders v. United States, 373 U.S. 1, 16 , 83 S.Ct. 1068, 1077 , 10 L.Ed.2d 148 (1963) (citations omitted); see also People v. Scheer, 184 Colo. 15, 19 , 518 P.2d 833 (1974) (holding that previous Crim.P. 35 attacks on the voluntariness, coercion, and adequacy of advisement of defendant's guilty plea precluded raising a similar attack alleging that defendant did not understand the nature of the charge). We use this standard to assist our review of those claims which the district court disposed of as having been previously litigated.
*250 C
In his Crim.P. 35(c) motion, Rodriguez raised numerous claims challenging the constitutionality of the capital sentencing statute, § 16-11-103, 8A C.R.S. (1986), under which he was sentenced. The district court held that our decisions in People v. Tenneson, 788 P.2d 786 (Colo.1990), and People v. Davis, 794 P.2d 159 (Colo.1990), cert. denied, 498 U.S. 1018 , 111 S.Ct. 662 , 112 L.Ed.2d 656 (1991), disposed of Rodriguez' claims. R., v. 1 at 209-10. In Issue 3, Rodriguez challenges the propriety of the district court's ruling, and, in Issues 5, 6, 7, 8, 9, and 87, he collectively reasserts his attack on the death statute.
Our decisions in Tenneson, 788 P.2d at 789-92 , and Davis, 794 P.2d at 170-74 , upheld the constitutionality of section 16-11-103 and rejected the argument that the death penalty violates the Cruel and Unusual Punishment and Due Process Clauses of the United States and the Colorado Constitutions. We see no reason to overrule that precedent. Accordingly, we reject the arguments raised in Issues 3, 6, 7, 8, and 87. [12]
In Davis , we held that a court is not constitutionally required to provide proportionality review of a death sentence or to inquire as to whether the punishment imposed on the defendant is disproportionate to the punishment imposed on others convicted of the same offense. 794 P.2d at 173-74. We see no reason to set this precedent aside. Accordingly, we reject Issues 5 and 9.
III
Issues Inadequately Raised
A postconviction motion "may be summarily denied where, as here, it does not specify the facts which constitute the basis for the unconstitutional charge." Hooker v. People, 173 Colo. 226, 228 , 477 P.2d 376, 377 (1970). In his postconviction motion, Rodriguez raised many claims which did little more than allege that his conviction and sentence were illegal and unconstitutional. These claims did not set forth facts from which the court could discern any basis for unconstitutional action or inaction. See id. [13]
Rodriguez reasserts many of these issues on this appeal. On appeal, Rodriguez must inform this court "both as to the specific errors relied upon and as to the grounds, supporting facts and authorities therefor." See People v. Diefenderfer, 784 P.2d 741, 752 (Colo.1989). Many of the reasserted issues appear as they appeared in the motion and are likewise inadequately supported in this proceeding. Accordingly, we affirm the district court's dismissal of the following issues: Issue 21 (alleging cumulative error); Issue 25 (challenging the plea bargain given to David Martinez); Issue 34 (alleging that this court gave preferential treatment to the prosecution); Issue 37 (alleging prosecutorial misconduct surrounding Patricia Thomas' testimony); Issue 42 (challenging the admissibility of "probability" and "reliability" evidence concerning hairs and fibers); Issue 43 *251 (challenging the admissibility of the prosecution's evidence concerning the cuts on David Martinez' hands); Issue 45 (challenging the admissibility of certain exhibits); Issue 47 (alleging prosecution's discriminatory use of peremptory strikes); Issue 60 (alleging ex parte communication between the trial court and jurors); Issue 63 (alleging defective jury summoning and selection); Issue 66 (alleging limitations on voir dire concerning the commutation of death row inmates in New Mexico); [14] Issue 94 (alleging error in the trial court's refusal to require David Martinez to cooperate with Rodriguez' investigation); Issue 97 (alleging that Rodriguez' letters and statements to Margie Marquez were involuntary statements); Issue 98 (alleging inadequate representation on the first day of jury selection); Issue 102 (alleging the trial court's failure to comply with a Supreme Court order regarding the first day of jury selection); Issue 105 (alleging prosecutorial misconduct regarding Margie Marquez); and Issue 119 (alleging that the charges and convictions were "circular").
Rodriguez also attempts to use his brief on this appeal to fortify a number of issues inadequately raised or supported by his motion. Because the district court can summarily dismiss claims inadequately presented to it, see Hooker, 173 Colo. at 228 , 477 P.2d at 377 , our consideration of such issues on appeal of the district court's order would effectively grant Rodriguez a successive 35(c) motion without also burdening him with the harsher standard of review appropriate to a successive motion. See infra at part IV. We decline to grant Rodriguez this deference and, instead, uphold the district court's dismissal of these claims, regardless of the adequacy of their presentation upon this appeal. We refuse to review the following issues because of Rodriguez' failure to adequately specify the errors and legal grounds for relief at the district court level: Issue 4 (challenging the trial court's refusal to death qualify the judge); Issue 10 (alleging bias on the part of Judge Phillips); portions of Issue 11 (those portions alleging unauthorized communication between judges regarding Rodriguez' case and error in the trial court's refusal to have a judge from another district hear the case); [15] Issue 24 (alleging discovery violations); Issue 26 (alleging police failure to obtain exculpatory evidence from David Martinez and Patricia Thomas); Issue 29 (alleging that Rodriguez was not provided with oral statements of prosecution witnesses); Issue 32 (alleging discovery violations); Issue 33 (alleging that Rodriguez was not afforded adequate opportunity to prepare or file an adequate brief on direct appeal); Issue 40 (alleging error in the trial court's refusal to allow Rodriguez to impeach Patricia Thomas with videotaped testimony); Issue 44 (alleging improper admission of testimony); portions of Issue 46 (alleging that Rodriguez was denied his right to make motions, objections, and record regarding bench conferences and penalty phase jury instructions); [16] Issue 48 (alleging unreasonable restrictions on voir dire); Issues 52 and 78 (alleging trial court error in refusing to excuse for cause prospective jurors who knew of Chris Rodriguez' conviction and sentence); Issue 53 (alleging error in the trial court's failure to appropriately swear prospective jurors); Issue 56 (alleging error in the trial court's refusal to allow individual sequestered voir dire); Issue 58 (realleging defects in procedure on the first day of jury selection); [17] Issue 59 (alleging inadequate voir dire of one panel due to defense counsel's inexperience); Issue 64 (alleging undue limitations on voir dire); Issue 76 (alleging error in the trial court's refusal to excuse potential juror G.P. for cause); Issue 77 (alleging improper *252 excusal of potential jurors for cause due to their death penalty views); Issue 79 (alleging error in the trial court's failure to instruct jurors who were aware of Chris Rodriguez' conviction not to consider that fact); Issue 82 (alleging error in the trial court's refusal to strike the panel of prospective jurors to whom the prosecutor stated that "defendants want to get sentenced right before Christmas," R., v. 20 at 133); Issue 85 (alleging trial court error in refusing to preclude the prosecution from arguing theories inconsistent with that argued in the trials of the other participants); Issue 86 (alleging error in the exclusion of evidence of David Martinez' physical condition after arrest); Issue 88 (alleging error in allowing testimony regarding photographs not admitted into evidence); Issue 89 (alleging inadequate waiver of Rodriguez' right to testify); Issue 90 (alleging erroneous admission of photographs); Issue 91 (alleging erroneous prosecutorial examination of Margie Marquez as to Rodriguez' letters); Issue 92 (alleging erroneous allowance of the prosecution's cross-examination of the jail chaplain); Issue 93 (alleging that the trial court erroneously concluded that Rodriguez' statements to police after his arrest were voluntary); Issue 99(B) (alleging judicial bias); [18] Issue 100 (alleging error in the trial court's refusal to allow the jail chaplain to wear his collar while sitting with the Rodriguez family); Issue 103 (alleging error in the scheduling of trial); Issue 104 (alleging prosecutorial violations of due process); and Issue 151 (alleging that Rodriguez was not competent to stand trial).
In Issue 41, Rodriguez alleges error in the district court's dismissal of postconviction claims which he now reasserts in Issues 42, 43, 44, 45, and 88. Because we hold these underlying issues to be inadequately presented, we reject Issue 41.
IV
Waiver
The district court disallowed 191 claims which were "available for appeal, but which counsel nevertheless eliminated based on priority." [19] R., v. 1 at 178. Rodriguez now generally contends that his decision not to pursue these claims on direct appeal does not constitute waiver and then specifically reasserts many of these issues on this appeal of the denial of postconviction relief. Of the remaining issues, we conclude that many are waived.
Although the standard for waiver is essential to the proper determination of many postconviction claims, we have had little occasion to address it. See McCleskey v. Zant, 499 U.S. 467, 477 , 111 S.Ct. 1454, 1461 , 113 L.Ed.2d 517 (1991). For the most part, we have addressed the standard only obliquely, through dicta and dismissals of claims. See id. The case law and dicta which do address the standard are not easily synthesized, but indicate that the state of the law at the time of Rodriguez' direct appeal precludes waiver of the limited number of constitutional issues which Rodriguez reasserts on this appeal.
The criminal justice system is intended to ensure "that guilt shall not escape or innocence suffer." Berger v. United States, 295 U.S. 78, 88 , 55 S.Ct. 629, 633 , 79 L.Ed. 1314 (1935). Within that system, postconviction proceedings have a dual purpose: to prevent constitutional injustice and to bring finality to judgment. See People v. Hampton, 187 Colo. 131, 133 , 528 P.2d 1311, 1312 (1974).
"Let it be emphasized at this point, however, that it by no means follows that a bare allegation such as that made in the case at bar automatically entitles a prisoner who has not appealed to what is in effect an appeal with the possibility of a new trial perhaps resulting in acquittal. Prison gates do not swing open so easily. The path to appellate relief by this route is steep and narrow. " (Emphasis added.)
Haines v. People, 169 Colo. 136, 142 , 454 P.2d 595, 597 (1969) (quoting Desmond v. *253 United States, 333 F.2d 378, 380-81 (1st Cir.1964) and addressing a postconviction claim that an indigent defendant was denied his right to appellate review of his conviction).
Although postconviction proceedings are intended to correct constitutional error, the right to bring such a proceeding is statutory, not constitutional. People v. Wiedemer, 852 P.2d 424, 438 (Colo.1993). Rodriguez exploits this statutory right through his exceedingly long and disjointed presentation of his case to both this court and the district court and thereby inhibits the goal of finality. See People v. Hubbard, 184 Colo. 243, 247 , 519 P.2d 945, 947-48 (1974) (holding same in context of successive postconviction motions). However, because a sentence of death is qualitatively unlike any other punishment, Lockett v. Ohio, 438 U.S. 586, 604 , 98 S.Ct. 2954, 2964-65 , 57 L.Ed.2d 973 (1978); People v. Rodriguez, 794 P.2d 965, 972 (Colo.1990) ( Rodriguez IV ), cert. denied, 498 U.S. 1055 , 111 S.Ct. 770 , 112 L.Ed.2d 789 (1991), and because a corresponding need exists for reliability in the death sentencing procedure, Rodriguez IV, 794 P.2d at 972, we will address the motion.
We have held that a petitioner may raise issues of constitutional error in a postconviction proceeding "although the same issues could have been effectively raised on [appeal]." People v. Bradley, 169 Colo. 262, 265 , 455 P.2d 199, 200 (1969). [20] See Sackett v. People, 176 Colo. 18, 20 , 488 P.2d 885, 886 (1971). The prosecution argues that, for Rodriguez to bring claims which he could have raised on direct appeal but did not, he must show special circumstances or justifiable excuse for his failure. However, the prosecution supports this argument with cases and standards relating to successive postconviction motions, as opposed to cases and standards relating to the initial postconviction motion following prosecution proceedings and, where taken, direct appeal. See, e.g., Turman v. Buckallew, 784 P.2d 774, 780 (Colo.1989) (affirming dismissal of claims raised in second habeas corpus petition because defendant failed to raise those claims in the first petition); People v. Billips, 652 P.2d 1060, 1063 (Colo.1982) (allowing defendant to bring a constitutional claim on a successive postconviction motion because the claim had not been fully and finally litigated in the previous postconviction proceeding); Hubbard, 184 Colo. at 249 , 519 P.2d at 948 (holding that, on successive postconviction motions, the court may summarily dismiss newly-asserted grounds absent sufficient excuse); ABA Standards for Criminal Justice: Postconviction Remedies § 22-6.2 at 22-67 *254 (2d ed. 1986) (regarding "[f]inality of a judgment in a postconviction proceeding; repetitive applications").
The prosecution contends that this court in People v. Bastardo, 646 P.2d 382 (Colo.1982), held that claims available on direct appeal may not be brought in a postconviction proceeding. This contention mischaracterizes the holding in Bastardo . In Bastardo , we affirmed the trial court's denial of postconviction relief on two grounds: (1) "the issues raised were available for review when the case was reviewed on the appeal" and postconviction review would have been "nothing more than a second appeal addressing the same issues on some recently contrived constitutional theory;" and (2) defendant's "claim of unconstitutionality was not well-founded." Id. at 383 . The prosecution focuses on the availability of the issues on appeal and fails to consider whether postconviction review would be "more than a second appeal" or whether Rodriguez' constitutional claims are well-founded.
Likewise, Rodriguez cites inapposite authority. See People v. Coyle, 654 P.2d 815, 818 (Colo.1982) (stating that "the convicted criminal defendant is assured not only of all of the avenues of direct appeal which the State provides as of right, but also of a means of post-conviction collateral review notwithstanding his failure to pursue a direct appeal," but holding that a criminal defendant charged with violation of a child custody judgment cannot collaterally attack the underlying adjudication or order).
In Issue 2, Rodriguez attempts to salvage the postconviction claims which he has not specifically reasserted on this appeal by placing them under the umbrella claim that he "did not forfeit his right to postconviction review by not raising the same claims on direct appeal." [21] Rodriguez' Opening Brief at 37. However, his reassertion of two-thirds of the "waived" claims and his abandonment of the rest indicates a conscious relinquishment of those claims not reasserted. Moreover, these claims will be unavailable for review on a subsequent application for postconviction relief. See Hubbard, 184 Colo. at 249-52 , 519 P.2d at 949-50 (interpreting Rule 35 in conformance with ABA Standard § 6.2 as it then existed); ABA Standard § 22-6.2(b) at 22-67; [22] see also McCleskey, 499 U.S. at 489-96 , 111 S.Ct. at 1467-71 .
We hold that Rodriguez has waived all alleged errors: (1) that do not rise to the level of constitutional error; or (2) which Rodriguez does not reassert on this appeal. [23]
Rodriguez claims numerous instructional errors which he did not pursue on direct appeal. "As a general rule, errors in jury instructions do not constitute fundamental error" sufficient to merit postconviction review. People v. Shearer, 181 Colo. 237, 244 , 508 P.2d 1249, 1253 (1973). But see part IX of this opinion (addressing constitutional issues relating to penalty phase jury instructions). On direct appeal, Rodriguez could have raised the following instructional claims which do not raise constitutional error. Instead, Rodriguez has attempted to evade the appellate process by bringing these claims through the use of Crim.P. 35: Issue 107 (alleging error in that the jury had to find Rodriguez not guilty of first-degree murder before considering the charge of second-degree murder); Issue 133 (alleging defects in the aggravated motor vehicle theft instructions); Issue 146 (alleging error in that the trial court instructed the guilt-phase jury not to consider the possible resulting penalties); *255 and Issue 147 (alleging error in court's refusal to orally give the anti-sympathy instruction). As such, Rodriguez has waived those issues of instructional error. Issues 120-122 and 125-128 allege instructional error in Rodriguez' convictions for felony murder, conspiracy to commit second-degree kidnapping, and conspiracy to commit aggravated motor vehicle theft. These issues are rendered moot by the trial court's vacation of those convictions and our affirmance of that vacation as discussed in part XIV of this opinion.
In Issues 57, 65, 80, and portions of Issue 99, Rodriguez claims that the trial court erred in limiting voir dire. Defense counsel does not have a constitutional right to voir dire, so long as the court's "examination allowed counsel to determine whether any potential jurors possessed any beliefs that would bias them such as to prevent [the defendant] from receiving a fair trial." People v. O'Neill, 803 P.2d 164, 169 (Colo.1990). Likewise, defense counsel does not have a constitutional or statutory right to unlimited voir dire. Id. We hold that the following issues do not raise constitutional error and do not require postconviction review: Issue 57 (alleging error in the trial court's refusal to videotape voir dire, although the court allowed stenographic transcription); Issue 65 (alleging preclusion of counsel from voir dire on hardships and publicity); [24] Issue 80 (alleging undue limitations on defense counsel's voir dire); [25] and Issue 99(A), (D), and (E) (alleging prejudicial limitations on defense counsel's voir dire).
Should Rodriguez attempt to bring a successive motion under Crim.P. 35(c) and reassert those issues which we hold that he either waived or insufficiently presented to the trial court, such reassertion will be subject to the affirmative defense of abuse of process. See Hubbard, 184 Colo. at 249-52 , 519 P.2d at 949-50 ; ABA Standard § 22-6.2(b) at 22-67. See also McCleskey, 499 U.S. at 489-496 , 111 S.Ct. at 1467-71 . Those claims which we hold to be of constitutional dimension, we address on their merits below, although the district court deemed them waived and did not address them substantively. [26]
We recognize that a party seeking postconviction relief pursuant to Crim.P. 35 is entitled to a prompt evidentiary hearing unless the motion, the files, and the record "`clearly establish that the allegations presented in the defendant's motion are without merit and do not warrant postconviction relief.'" People v. Trujillo, 190 Colo. 497, 499 , 549 P.2d 1312, 1313 (1976) (quoting People v. Hutton, 183 Colo. 388, 391 , 517 P.2d 392, 394 (1973)); see White v. Denver Dist. Court, 766 P.2d 632, 634 (Colo.1988). However, we also recognize that a hearing is not required under Crim.P. 35 where the motion and the record present only issues of law, People v. Velarde, 200 Colo. 374 , 616 P.2d 104, 105 (1980); People v. Triggs, 200 Colo. 107, 109 , 613 P.2d 317, 318 (Colo.1980); ABA Standards for Criminal Justice: Postconviction Remedies § 22-4.6, or where the motion fails to assert facts that, if true, would support a constitutional claim. White, 766 P.2d at 635 ; People v. Muniz, 667 P.2d 1377 (Colo.1983); Trujillo, 190 Colo. at 499 , 549 P.2d at 1314 . Furthermore, a defendant is not entitled to a hearing when the ground relied upon for *256 postconviction relief has been fully and finally resolved in a prior judicial proceeding. White, 766 P.2d at 635 ; Muniz, 667 P.2d at 1380 .
After reviewing both the issues on this appeal and the entire record of Rodriguez' case, we conclude that the issues presented are either: (1) issues which we may decide on the record without the benefit of a hearing at the district court level, see Velarde, 616 P.2d at 105 ; or (2) issues presented by Rodriguez' claims of newly discovered evidence and ineffective assistance of counsel upon which the district court conducted hearings. With regard to either class of issue, we conclude that the record is sufficient to allow us to address these issues here.
We address these issues in the interests of justice and of finality and in recognition that, upon review of a postconviction motion, "[a]n appellate court should exercise a broad scope of review so that all pertinent legal issues are considered on their merits insofar as possible, toward the end of a final determination of the entire case concerning the applicant." ABA Standards for Criminal Justice: Postconviction Remedies § 22-5.3(b) at 22-60 (2d ed. 1986).
V
Adequacy of the Information
In Issue 140, Rodriguez argues that the information inadequately charged seven of the offenses of which he was convicted. In Issue 108, Rodriguez alleges unconstitutional variance between the sexual assault charged in the information and the sexual assault upon which the jury was instructed. We perceive no merit to Rodriguez' arguments.
In Issue 140, Rodriguez contends that the information insufficiently charged the following offenses: first-degree aggravated motor vehicle theft, second-degree kidnapping, aggravated robbery, and conspiracy to commit first-degree murder. Rodriguez makes similar arguments regarding first-degree felony murder, conspiracy to commit second-degree kidnapping, and conspiracy to commit first-degree aggravated motor vehicle theft. These latter arguments are rendered moot by our decision in part XIV of this opinion, upholding the vacation of those offenses.
In Issue 140, Rodriguez argues that the information was inadequate to charge first-degree aggravated motor vehicle theft, second-degree kidnapping, and conspiracy to commit first-degree murder because those counts did not allege the elements of their various predicate offenses. Rodriguez cites Martinez v. People, 163 Colo. 503, 506-07 , 431 P.2d 765, 766-67 (1967), in support of this proposition. The holding of Martinez cannot support Rodriguez' argument. In Martinez , we held that one count of an information can incorporate by reference another count by specifying that count or the offense charged therein by name. Id. That is, each count of an information need not enumerate the elements of a predicate offense, but must specifically and clearly incorporate by reference another count which does enumerate the essential elements of the predicate offense. Id. Each challenged count in the information specifically refers to the predicate offense or offenses by name; the elements of each predicate offense are set forth in other counts of the information; and the information adequately advised Rodriguez of the charges against which he must defend. See R., v. 1 at 3-4.
Rodriguez also contends, without elaboration, that the charge for aggravated robbery "fails to adequately allege a crime under that statute and further fails to provide adequate notice." Rodriguez' Opening Brief at 385. Our review of the information charging aggravated robbery reveals that the information tracked the appropriate statutory language, see §§ 18-4-301 to -302, 8 C.R.S. (1978), and reveals no error.
In Issue 108, Rodriguez contends that Instruction No. 25 unconstitutionally expanded upon the sexual assault charged in the information. We disagree.
In Colorado, a defendant may be charged by complaint, information, or indictment. § 16-5-101(1), 8 C.R.S. (1978). [27] "An *257 information is sufficient if it advises the defendant of the charges he is facing so that he can adequately defend himself and be protected from further prosecution for the same offense." Cervantes v. People, 715 P.2d 783, 785 (Colo.1986) (citation and internal quotation marks omitted). The prosecution cannot constitutionally require a defendant to answer a charge not contained in the charging instrument. See Schmuck v. United States, 489 U.S. 705, 717 , 109 S.Ct. 1443, 1451 , 103 L.Ed.2d 734 (1989).
Case law recognizes two types of variances between the charge contained in the charging instrument and the charge of which a defendant is convicted: (1) simple variance, which "occurs when the charging terms are unchanged, but the evidence at trial proves facts materially different from those alleged" in the charging instrument, United States v. Williamson, 53 F.3d 1500, 1512 (10th Cir.) (citation and internal quotation marks omitted), cert. denied, ___ U.S. ___, 116 S.Ct. 218 , 133 L.Ed.2d 149 (1995); and (2) constructive amendment, which changes an essential element of the charged offense and thereby alters the substance of the charging instrument. See id. With respect to a simple variance, "[c]onvictions generally have been sustained as long as the proof upon which they were based corresponds to an offense that was clearly set out in the indictment." United States v. Miller, 471 U.S. 130, 136 , 105 S.Ct. 1811, 1815 , 85 L.Ed.2d 99 (1985) (emphasis added). The constitution prohibits only amendments that "effectively subject a defendant to the risk of conviction for an offense that was not originally charged" in the charging instrument. United States v. Mosley, 965 F.2d 906, 915 (10th Cir.1992).
When on the trial of any ... information... for any offense there appears to be any variance between the statements in the ... information and the evidence offered in proof thereof ... in the name or description of any matter or thing whatsoever therein named or described, such variance is not grounds for the acquittal of the defendant, unless the court before which such trial be had finds such variance is material to the merits of the case or may be prejudicial to the defendant. No ... information ... shall be deemed insufficient, nor shall the trial, judgment, or other proceedings thereon be reversed or affected by any defect which does not tend to prejudice the substantial rights of the defendant on the merits.
§ 16-10-202, 8 C.R.S. (1978).
Rodriguez contends that Instruction No. 25 unconstitutionally expanded upon the sexual assault charged in the information because, at trial, the instructional definition of "sexual penetration" included cunnilingus, anilingus, and anal intercourse, as well as the acts of sexual intercourse and fellatio, which were specifically charged in the information. See R., v. 1 at 2; R., v. 3 at 577.
In Instruction No. 16, the trial court instructed the jury that first-degree sexual assault required the infliction of "sexual penetration on Lorraine Martelli," R., v. 3 at 577, and, in Instruction No. 25, the court recited verbatim the statutory definition of "Sexual Penetration:"
*258 "Sexual Penetration" means sexual intercourse, cunnilingus, fellatio, anilingus, or anal intercourse. Emission need not be proved as an element of any sexual penetration. Any penetration, however slight, is sufficient to complete the crime.
Compare R., v. 3 at 588 with § 18-3-401(6), 8 C.R.S. (1978).
We hold that Instruction No. 25 did not impermissibly amend the charges in the information. See People v. Torres, 701 P.2d 78, 79 (Colo.App.1984) (affirming conviction for first-degree sexual assault although definitional instruction included one method of committing the crime with which defendant was not charged). Count III of the information alleged the essential elements of first-degree sexual assault with sufficient specificity to "inform the accused of the specific offence, coming under the general description, with which he is charged." See Russell v. United States, 369 U.S. 749, 765 , 82 S.Ct. 1038, 1048 , 8 L.Ed.2d 240 (1962) (citation and internal quotation marks omitted); R., v. 1 at 2. The information also specifically alleged the date of the assault, the perpetrator, the victim, the location, and the accomplices. R., v. 1 at 2. The specification of the particular manner in which Rodriguez committed the element of sexual intrusion or sexual penetration represents further evidentiary details which the information need not state. See United States v. Martinez-Nava, 838 F.2d 411, 414-15 (10th Cir.1988).
The case before us differs from that in People v. Tucker, 631 P.2d 162 (Colo.1981). In Tucker , we held that an indictment for embezzlement was insufficient where the indictment tracked the statutory language, but failed to allege specifically how the embezzlement was accomplished. Id. at 164 . There, we stated that "[u]nlike other crimes, there are numerous ways in which embezzlement may be committed." Id. Unlike embezzlement, sexual assault can be committed in only a limited number of ways, each enumerated in the statute and each of which requires similar preparation for defense. Moreover, Count III of the information referred Rodriguez to the correct statutory citation for the offense of sexual assault which "provide[d] clarification" of the charges which Rodriguez would be required to meet. Cervantes, 715 P.2d at 787 ; see R., v. 1 at 1.
These facts also differ from those in Stirone v. United States, 361 U.S. 212 , 80 S.Ct. 270 , 4 L.Ed.2d 252 (1960). In that case, the defendant, Stirone, was indicted by a grand jury for unlawful interference with interstate commerce. Id. at 213 , 80 S.Ct. at 271 . Specifically, the indictment alleged that Stirone unlawfully obstructed importation of goods into the state of Pennsylvania. Id. The trial court permitted evidence and instructed the jury on both importation and exportation of goods. Id. at 214 , 80 S.Ct. at 271-72 . The Supreme Court held that this constructive amendment of the indictment was unconstitutional because the amendment struck at the heart of the federal courts' jurisdiction. The Court stated:
The charge that interstate commerce is affected is critical since the Federal Government's jurisdiction of this crime rests only on that interference. It follows that when only one particular kind of commerce is charged to have been burdened a conviction must rest on that charge and not another, even though it be assumed that under an indictment drawn in general terms a conviction might rest upon a showing that commerce of one kind or another had been burdened.
Id. at 218 , 80 S.Ct. at 274 . The amendment in Stirone concerned wholly different acts at different times and different places against which Stirone was required to defend. By contrast, any variance in this case between the facts set forth in the information and those on which the court instructed the jury concerned the same incident of assault, the same defendant, victim, and accomplices.
Rodriguez' case is also distinguishable from Hunter v. New Mexico, 916 F.2d 595 (10th Cir.1990), cert. denied, 500 U.S. 909 , 111 S.Ct. 1693 , 114 L.Ed.2d 87 (1991), in which the Tenth Circuit held that the indictment at issue had been constructively amended and reversed Hunter's conviction for criminal sexual penetration (CSP). Id. at 599. Count I of the indictment charged that Hunter committed CSP between January 1, 1974, and October 23, 1977, in that he "unlawfully *259 and intentionally engaged in sexual intercourse" with his step-daughter. Id. at 597. The trial court instructed the jury, however, that the relevant sexual act was either sexual intercourse or digital penetration. Id. The jury convicted Hunter of CSP, id. at 596, but the Tenth Circuit reversed the conviction, holding that the jury instruction constructively amended the indictment by adding another mode of sexual penetration. Id. at 599.
The court's holding was premised on legislative history: prior to June 1975, digital penetration supported a conviction only of fourth-degree sexual assault, whereas sexual intercourse supported a conviction for rape of a child. Id. at 597. A defendant convicted of fourth-degree sexual assault could be sentenced to five years' imprisonment, whereas a defendant convicted of either rape of a child or first-degree CSP could be imprisoned for life. Id. at 597-98. Under the jury instructions given, it was possible that the jury convicted Hunter of CSP based only on conduct which occurred before the statutory change and which was not actionable as a first-degree felony before the statutory change. Id. at 599. By contrast, the added modes of sexual penetration in this case do not change the applicable statute, sentence, or level of offense.
"Technical defects in an information do not require reversal unless the substantial rights of the defendant are prejudiced. The defendant is entitled to reversal if he was prejudiced, surprised, or hampered in his defense." People v. Albo, 195 Colo. 102, 106 , 575 P.2d 427, 429 (1978). The record before us indicates no prejudice of Rodriguez' "substantial rights," [28] nor does Rodriguez point to any. See § 16-10-202. Likewise, Rodriguez was neither surprised by the evidence at trial nor hampered in his defense. Rodriguez was convicted of first-degree sexual assault as charged in the information. We deny Rodriguez' challenge to that conviction.
VI
Jury Selection
Rodriguez raises numerous issues relating to the jury selection process, which generally fall within the following categories: (A) the state of the record regarding jury selection; (B) Rodriguez' alleged inability to make contemporaneous objections and preserve issues for appeal; (C) the trial court's cautionary instructions to prospective jurors; (D) hardship excusals; (E) excusals for cause; (F) the standard the trial court used to excuse jurors for cause due to their death penalty opinions; and (G) the death qualification of the jury.
A
As a preliminary matter, Rodriguez repeatedly complains that the initial jury questionnaires are not part of the record [29] and implies that the trial court has an affirmative duty to preserve those questionnaires. [30] Rodriguez makes this argument as an adjunct to the jury selection arguments he raises in Issues 53, 58, 65, 67-71, 73, 74, 76, and 81. Rodriguez has not demonstrated that the record before us is insufficient for the resolution of these issues or that the absence of the questionnaires from the record has prejudiced him in any way.
In Issue 53, Rodriguez challenges the timing of the oath taken by the potential jurors in relation to their completion of the jury questionnaires and notes that "[a]ll but a *260 very few of the questionnaires were apparently destroyed." Rodriguez' Opening Brief at 170-71 n. 44. In the relevant portion of Issue 58, Rodriguez alleges procedural defects on the first day of jury selection. In Issue 76, Rodriguez contends that the trial court erred in failing to excuse juror G.P. for cause and that G.P.'s questionnaire would "fully and independently support[ ] Mr. Rodriguez' claim." Rodriguez' Opening Brief at 212 n. 63. However, Rodriguez did not adequately raise Issues 53, 58, or 76 in his Crim.P. 35(c) motion before the district court, and the arguments presented in those issues are not properly before us. Moreover, G.P.'s questionnaire is part of the record before us, see R., v. 38 at 385-86, and reveals no basis for Rodriguez' claim of error.
In Issue 65, Rodriguez alleges that the trial court failed "to make adequate inquiry into the statements of the jurors in the questionnaires, and the manifest differences between those statements and those given in person." Rodriguez' Opening Brief at 203. In part IV of this opinion, we affirmed the summary dismissal of this portion of Issue 65 as inadequately supported with facts, record cites, or case law. Accordingly, we decline to address the issue here.
As discussed in part VI(E) of this opinion, regardless of the information contained in the jury questionnaires, Rodriguez cannot demonstrate prejudice arising from the errors alleged in Issues 67-71, 73, and 74, because he did not exhaust his peremptory challenges.
In Issue 81, Rodriguez contends only that the missing questionnaires would allow this court to determine the exact number of jurors who claimed hardships on the first day of jury selection. This information is neither crucial nor relevant to our discussion of Issue 81.
Rodriguez himself bears the responsibility to designate the record on appeal and to ensure its transmission to the appellate court. See People v. Velarde, 200 Colo. 374, 375-76 , 616 P.2d 104, 105 (1980). Where, as here, "no report of the evidence or proceedings at a hearing or trial was made, or ... a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection." C.A.R. 10(c). Rodriguez has not prepared such a statement nor provided this court with specific assertions of fact or error. We conclude that the record before us is sufficient to permit our resolution of the jury selection issues which are properly before us.
B
A criminal defendant has a fundamental right to trial before an impartial jury. People v. Collins, 730 P.2d 293, 300 (Colo.1986). Voir dire examination is intended "to enable counsel to determine whether any prospective jurors are possessed of beliefs which would cause them to be biased in such a manner as to prevent the [defendant] from obtaining a fair and impartial trial." Id. "The right to an impartial jury does not, however, require that counsel be granted unlimited voir dire examination. Nor is counsel entitled to voir dire the jury as a matter of constitutional law." [31] People v. O'Neill, 803 P.2d 164, 169 (Colo.1990).
The right to voir dire is set forth in Rule 24 of the Colorado Rules of Criminal Procedure. Crim.P. 24 provides counsel the right to question jurors, but also endows the trial court with the authority to reasonably limit the scope and extent of that questioning.
In Issue 51, Rodriguez argues that the trial court erred in ordering that Rodriguez submit to the court in writing any record of a juror's demeanor. See R., v. 3 at 421. The trial court's order did not impermissibly impede Rodriguez' ability to make a record on any objection he might have had to a juror's demeanor. The responsibility of assuring that jurors are fair and impartial is,
in the first instance, vested in the trial judge: It is the trial court which hears the questions put to the juror and the answers given, observes the juror's demeanor while being questioned, and discerns the truthfulness, the sincerity, and the dedication to *261 the high responsibility involved in being a fair and impartial juror.
People v. Abbott, 690 P.2d 1263, 1267 (Colo.1984) (citation and internal quotation marks omitted).
Absent an abuse of discretion, we will not disturb on appeal the trial court's decision to deny a challenge for cause. Id. Rodriguez had an adequate opportunity to make a record on any juror's demeanor which would be sufficiently egregious to satisfy this burden. The trial court did not err by requiring Rodriguez to submit any record of a prospective juror's demeanor in writing.
In portions of Issues 46, 58, 80, and 99, Rodriguez contends that he "cannot be faulted for any possible lack of a record on the actual effects of the court's time and subject matter restrictions, since he was ordered to not attempt to make such a record, and since the trial court unambiguously demonstrated its prejudgment of any such objections." Rodriguez' Opening Brief at 216. However, our review of the record reveals that the court stated that counsel could make contemporaneous objections [32] and that, subsequently, Rodriguez' counsel objected to the voir dire limitations both orally and in writing. R., v. 14 at 2-7, 15-19, 22-30; R., v. 3 at 489-92, 497-505. The trial court did not impermissibly impede Rodriguez' ability to make a record or to preserve the issues for appeal. Rather, Rodriguez' counsel objected on the record, filed written objections, preserved the alleged errors for appeal, then failed to appeal on those grounds. We perceive no merit to these portions of Issues 46, 58, 80, and 99.
C
In Issue 54, Rodriguez argues that the trial court erred in failing to instruct some prospective jurors not to discuss the case or to avoid any publicity concerning the case. Specifically, Rodriguez alleges that, on the first day of jury selection, the court did not appropriately caution the jurors who alleged hardship prior to their dismissal. [33]
However, those jurors did complete their juror questionnaires prior to their dismissal that first day. The cover sheet of the questionnaires instructed the jurors to "not discuss this case with any other prospective juror or anyone else" and to "not listen to or read any news accounts of this case." Am.R., v. 31 at 26. [34]
The jurors claiming hardships were ordered to return the following Monday. R., v. 14 at 11. After hardship voir dire, the court distributed those jurors who did not qualify for hardship excusal among the jury groups already assigned. See id. at 72-73, 109-110, 150-51. Each jury group was then asked whether any member had been exposed to publicity regarding the case. Any prospective juror who indicated publicity exposure *262 was questioned in chambers. See R., v. 14 at 154-196; R., v. 15 at 8-49, 140-182; R., v. 17 at 190-218; R., v. 18 at 2-54; R., v. 19 at 5-62; R., v. 20 at 6-97; R., v. 21 at 5-75; R., v. 22 at 194-262. After voir dire on pretrial media coverage and death penalty qualification, each panel was dismissed with cautionary instructions similar to the following:
Please let me instruct you not to discuss this case among yourselves or with any other potential jurors; not to discuss the case with anyone else; do not read any news accounts of the case in the newspaper or anyplace else; do not listen to any news accounts on the T.V. or radio.
R., v. 14 at 293; see R., v. 15 at 138; R., v. 16 at 83-84; R., v. 17 at 311; R., v. 18 at 142; R., v. 19 at 153; R., v. 20 at 179; R., v. 22 at 192, 334.
Although the trial court is best advised to issue oral cautionary instructions to the entire jury panel prior to their dismissal on the first day of jury selection, we conclude that the trial court adequately instructed the prospective jurors not to discuss the case and to avoid exposure to related publicity. The subsequent voir dire on media coverage would have uncovered any tainting of the jury pool by the failure to caution the jurors who alleged hardships, and the failure to instruct was adequately cured by the court's subsequent and repeated cautionary instructions. Rodriguez has failed to demonstrate any prejudice to his right to an impartial jury, and, accordingly, we deny Issue 54.
D
In Issues 61 and 81, Rodriguez asserts that the jury commissioner and the trial court "destroyed the randomness of the jury selection process" by dismissing some prospective jurors who claimed hardship without voir dire as to the validity of their hardship. Rodriguez' Opening Brief at 220.
In support of Issue 81, Rodriguez cites three United States Supreme Court cases, each of which relates to the systematic exclusion of certain groups from jury service. See Powers v. Ohio, 499 U.S. 400 , 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991) (systematic exclusion of black jurors); Duren v. Missouri, 439 U.S. 357 , 99 S.Ct. 664 , 58 L.Ed.2d 579 (1979) (systematic exclusion of women); Peters v. Kiff, 407 U.S. 493 , 92 S.Ct. 2163 , 33 L.Ed.2d 83 (1972) (systematic exclusion of black jurors). In this context, a claim of systematic exclusion requires that Rodriguez show purposeful discrimination by the state. See Cerrone v. People, 900 P.2d 45, 53 (Colo.1995) (involving composition of a grand jury). Rodriguez has not even attempted to make such a showing, and we decline to address the issue.
Likewise, in Issue 61, Rodriguez has alleged violations of the Uniform Jury Selection and Service Act, §§ 13-71-101 to -122, 6 C.R.S. (1973 & 1986 Supp.). Conduct which violates the requirements of the Jury Selection Act may also violate the Constitution if, for example, a defendant shows systematic exclusion of a particular class of jurors. See Cerrone, 900 P.2d at 52 n. 9 and accompanying text, 54. Rodriguez alleges conduct which, if true, would violate the Jury Selection Act, but which does not rise to the level of constitutional error. For example, Rodriguez alleges that the jury commissioner excused jurors who merely stated that they were students, were over sixty with medical problems, or who asserted vacation hardships without requiring a showing that jury service would cause "undue hardship, extreme inconvenience, or public necessity" as set forth in section 13-71-112(2). See People ex rel. Faulk v. District Court, 667 P.2d 1384, 1389 (Colo.1983) (stating in dicta that, under the statute, the court should not excuse a qualified juror "for any reason short of the statutory criteria ... set out in section 13-71-112(2)"). However, the allegations Rodriguez makes, although appropriate for review on direct appeal, do not rise to the level of constitutional error and, thus, do not merit review here.
E
In Issues 55, 62, 67-75, and 83-84, Rodriguez alleges trial court error relating to the excusal or non-excusal of prospective jurors for cause. The Colorado statutes provide for excusal for cause where the court finds:
*263 The existence of a state of mind in the juror evincing enmity or bias toward the defendant or the state; however, no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that he will render an impartial verdict according to the law and the evidence submitted to the jury at the trial[.]
§ 16-10-103(1)(j), 8A C.R.S. (1986). A juror is appropriately excluded for cause if that juror would be unable "to set aside any bias or preconceived notion and render an impartial verdict based on the evidence adduced at trial and the instructions given by the court." People v. Drake, 748 P.2d 1237, 1244 (Colo.1988). A prospective juror's indication of concern or of the presence of some preconceived belief as to some facet of the case does not mandate exclusion of that person for cause. Id. at 1243 . Likewise, the fact that a juror answers voir dire questions in such a way that might indicate prejudice does not require excusal for cause. Abbott, 690 P.2d at 1267 . Rather, the trial court must consider all available facts, including the challenged juror's assurance of impartiality. Id.
At the time of voir dire, the burden was upon Rodriguez to "demonstrate, through questioning, that the potential juror lack[ed] impartiality." Wainwright v. Witt, 469 U.S. 412, 423 , 105 S.Ct. 844, 852 , 83 L.Ed.2d 841 (1985). We are deferential to the trial court in such matters because "the trial judge is the only judicial officer able to assess fully the attitudes and state of mind of a potential juror by personal observation of the significance of what linguistically may appear to be inconsistent or self-contradictory responses to difficult questions." People v. Sandoval, 733 P.2d 319, 321 (Colo.1987); see People v. Davis, 794 P.2d 159, 204 (Colo.1990), cert. denied, 498 U.S. 1018 , 111 S.Ct. 662 , 112 L.Ed.2d 656 (1991). We will set aside the trial court's decisions only if the record affirmatively demonstrates a clear abuse of discretion. People v. Rhodus, 870 P.2d 470, 477 (Colo.1994); see Davis, 794 P.2d at 204 ; Drake, 748 P.2d at 1243 . Rodriguez has not shown that either the procedure or the trial court's decisions were an abuse of discretion, nor does our review of the record reveal abuse.
In Issues 55, 70, 72, 74, and 75, Rodriguez alleges error in the trial court's refusal to excuse for cause prospective jurors who had been exposed to pretrial publicity and, as a result, either knew of Chris Rodriguez' conviction and sentence for the same charged offenses or had formed an opinion as to Rodriguez' guilt. However, Rodriguez did not exhaust his peremptory challenges, see R., v. 24 at 67, and, therefore, has shown no prejudice. See O'Neill, 803 P.2d at 173 ; People v. Silvola, 190 Colo. 363, 368 , 547 P.2d 1283, 1287-88 , cert. denied, 429 U.S. 886 , 97 S.Ct. 238 , 50 L.Ed.2d 167 (1976). Accordingly, we find no merit to these arguments. [35]
During jury selection, Rodriguez challenged jurors J.A., D.L., R.M., and K.G. for cause based on their death penalty views. The district court denied these challenges. In Issues 67, 69, 71, and 73, Rodriguez argues error in those denials. Again, however, Rodriguez failed to exhaust his peremptory challenges and has not demonstrated prejudice. See O'Neill, 803 P.2d at 173 ; Silvola, 190 Colo. at 368 , 547 P.2d at 1287-88 . We hold these arguments meritless.
In Issue 68, Rodriguez alleges error in the trial court's refusal to excuse for cause prospective juror J.B. based on his "clear bias." See Rodriguez' Opening Brief at 207. For the reasons discussed above, Rodriguez has shown no prejudice and we hold that Issue 68 does not merit postconviction relief.
F
In Issues 62, 83, and 84, Rodriguez challenges the standard used by the trial court to determine the inclusion or exclusion of prospective jurors based upon their death penalty opinions. Specifically, Rodriguez contends *264 that the trial court applied the wrong legal standard for exclusion which favored the prosecution and the death penalty, see Rodriguez' Opening Brief at 221, 228, and that the court applied this standard inconsistently to Rodriguez' detriment. See id. at 188.
In Issue 83, Rodriguez argues that the standard set forth in Wainwright v. Witt, 469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985), does not apply to this case "[b]ecause the standard in Colorado at the time of Mr. Rodriguez' trial was more lenient than the Witt standard." Rodriguez' Opening Brief at 221-222. [36] Rodriguez contends that the trial court should have applied the "standard" in Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968). In Witherspoon , the Supreme Court noted that jurors may be excluded for cause if they make it
unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.
Id. at 522-23 n. 21, 88 S.Ct. at 1777 n. 21. The Witherspoon statement is pure dicta. Witt, 469 U.S. at 422 , 105 S.Ct. at 851 .
Further, in its 1985 decision in Witt , the Supreme Court clarified its Witherspoon opinion. In Witt , the Court held that a juror may be excused for cause because of his views on the death penalty when those views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." 469 U.S. at 424 , 105 S.Ct. at 852 (footnote and internal quotation marks omitted); see Davis, 794 P.2d at 159 .
Jury selection for Rodriguez' trial began in November of 1986. The trial court appropriately concluded that the Witt standard for exclusion governed the jury selection in this trial.
In Issue 84, Rodriguez argues that, if Witt applies, Witt requires that the jurors be able to "`consider and decide the facts impartially and conscientiously apply the law as charged by the court.'" 469 U.S. at 420 , 105 S.Ct. at 850 (quoting Adams v. Texas, 448 U.S. 38, 45 , 100 S.Ct. 2521, 2526 , 65 L.Ed.2d 581 (1980)). Thus, Rodriguez argues that the court must rule on a challenge for cause while bearing in mind the law applicable to the case. Rodriguez concludes that, because Colorado law does not require that the death penalty be imposed in any particular case, a juror should not be excused for cause although that juror could never impose the death penalty. See Rodriguez' Opening Brief at 230. However, under Colorado law at the time of Rodriguez' trial, a capital sentencing jury was asked to determine whether death was the appropriate penalty. Thus, "it does not make sense to require simply that a juror not `automatically' vote against the death penalty; whether or not a venireman might vote for death under certain personal standards, the State still may properly challenge that venireman if he refuses to follow the statutory scheme." Witt, 469 U.S. at 422 , 105 S.Ct. at 851 . Rodriguez is not "entitled to a legal presumption or standard that allows jurors to be seated who quite likely will be biased in his favor." Id. at 423 , 105 S.Ct. at 852. The trial court in this case appropriately applied the Witt standard and concluded that, if a juror is unwilling to consider a death sentence where, under the law, such a sentence is appropriate although not required, that juror cannot "conscientiously apply the law" and is appropriately excused for cause. See Witt, 469 U.S. at 420 , 105 S.Ct. at 850 (citation and internal quotation marks omitted); O'Neill, 803 P.2d at 171 ; Davis, 794 P.2d at 207 .
In Issue 62, Rodriguez argues that the trial court applied the Witt standard inconsistently and that, accordingly, some jurors were dismissed because of their views on the death penalty although they were actually qualified to sit and some jurors were retained who should have been excused for cause. In support of this claim, Rodriguez cites to the voir dire transcript of six potential jurors, none of whom served on Rodriguez' *265 jury: D.G., R.M., Ru.M., W.V., E.B., and B.R.
1
Rodriguez argues that jurors D.G., R.M., Ru.M., and B.R. [37] were improperly retained although their "biases in favor of the death penalty left them impaired." Rodriguez' Opening Brief at 188. Although Rodriguez asserts that the trial court's decisions "skewed the jury panel for the state and against Mr. Rodriguez," id. at 190, the record does not bear this out. Further, Rodriguez has not "shown how he was prejudiced by the three jurors as they did not serve on the jury and since the defense did not exhaust its peremptory challenges." [38] O'Neill, 803 P.2d at 173 ; Silvola, 190 Colo. at 368 , 547 P.2d at 1287-88 .
2
Rodriguez argues that "[t]he court clearly indicated the standard it was applying regarding death-prone jurors when it granted the challenge to prospective juror [W.V.]." Rodriguez' Opening Brief at 189. We find no reversible error in the court's application of the Witt standard to this juror.
During voir dire, W.V. stated that she thought that a "life is worth more than twenty years," R., v. 16 at 39, but that she could impose life imprisonment if required by the court's instructions. Id. at 58. The following colloquy occurred:
EISNER: .... You're in a situation where you're facing the death penalty and the judge tells you that given the circumstances of the case, that the law would basically assure you that the person would die of old age in prison ... then would that make life imprisonment a more palatable choice for you?
W.V.: No.
EISNER: Even then, you wouldn't like it?
W.V.: I wouldn't like it, no. If you kill somebody, you deserve to lose your life, especially if it's a deliberate thing, you're talking First Degree Murder.
. . . .
EISNER: In your mind, if there's a First Degree Murder conviction after deliberation, then the person should die?
W.V.: Yes, sir.
Id. at 59-60. The court granted defense counsel's challenge for cause, stating that "I think that she was very clear in her position that she did not wish to consider anything but the death penalty." Id. at 82. After considering the entire transcript of voir dire, we conclude that the court's statement did not imply its adoption of the more stringent Witherspoon standard for challenges made by the defense as opposed to the Witt "substantial impairment" standard the court applied to the prosecution. Rather, the court's statement upon its dismissal of juror W.V. indicated its assessment of that particular juror. We perceive no error.
3
Rodriguez argues that the court erroneously excused juror E.B., "who expressed her belief in the death penalty, but merely expressed hesitancy about `signing' the verdict." Rodriguez' Opening Brief at 189. Our review of the record discloses more than a mere hesitancy about the death penalty. We conclude that, in excusing E.B. for cause, the trial court neither abused its discretion nor misapplied the Witt standard.
E.B. stated that she had mixed emotions and didn't know whether she could sign a death verdict. R., v. 18 at 77. E.B. stated that she had never been "totally clear" on the issue, but could "possibly" support the death penalty. Id. E.B. stated that she would be willing to follow the law in imposing a penalty, id. at 80-81, but expressed an unwillingness to impose the death sentence. The following colloquy occurred:
*266 LITTLE: [H]ypothetically, you have found aggravation that clearly outweighs mitigation; there is no question about it in your mind; the law instructs you that you're to weigh these and make a decision on what to do, ... would you be willing to sign a verdict and put your name down that would sentence Mr. Rodriguez to death?
E.B.: I don't know if I could.
Id. at 82.
LITTLE: .... Could you in the appropriate case sign a death penalty verdict?
E.B.: In theory, I could but my problem is that I think that if a juror says the death penalty, in fact, they're responsible for the carrying out of the death penalty, even though they wouldn't physically do that, and then I would have to live with that, and I don't know if I could. That's my problem.
Id. at 103; see id. at 119-20. The prosecution challenged E.B. for cause based on her opinion on the death penalty. Id. at 138. The court granted the challenge. Id. at 141. Under the totality of the circumstances disclosed by the record, we discern no abuse of discretion in the trial court's excusal of E.B. for cause. See Sandoval, 733 P.2d at 322 . Given her responses to counsel's questions, the court could fairly have found that E.B. was "substantially impaired" in her ability to consider the potentially applicable penalties in this case. See Witt, 469 U.S. at 424 , 105 S.Ct. at 852 .
G
In Issues 49 and 50, Rodriguez asserts that the death qualification of the jury and the trial court's refusal to allow two juries, one death-qualified and one not death-qualified, violated his Sixth Amendment right to a jury drawn from a fair cross-section of the community and his rights under the Due Process and Cruel and Unusual Punishment Clauses of the federal and Colorado Constitutions. In Lockhart v. McCree, 476 U.S. 162 , 106 S.Ct. 1758 , 90 L.Ed.2d 137 (1986), the United States Supreme Court held that death qualification of a jury does not violate the fair cross-section requirement of the Sixth Amendment because the Constitution does not require that petit juries actually chosen reflect the composition of the community at large. Id. at 173-77 , 106 S.Ct. at 1764-67 . Rodriguez contends that his case presents distinct factual circumstances not addressed in Lockhart and urges this court to follow the dissenting opinion in Lockhart for the proposition that a court must provide two juries, one death-qualified and one not death-qualified. See id. at 204 , 106 S.Ct. at 1781 . We reject Rodriguez' attempts to circumvent the majority's holding in Lockhart and, accordingly, hold that Issues 49 and 50 are meritless.
VII
Trial Court Rulings Relating to Witnesses
A
In denying Rodriguez' Crim.P. 35(c) motion, the district court characterized five of Rodriguez' claims as attacks on the credibility of prosecution witnesses and held that, under Taylor v. People, 155 Colo. 15 , 392 P.2d 294 (1964), such claims did not allege errors of constitutional magnitude. In Issue 35, Rodriguez contends that the district court erroneously applied Taylor to dispose of claims which asserted constitutional questions and did not merely attack the credibility of the prosecution witnesses. In Issues 36, 37, 38, 39, and 40 Rodriguez individually reasserts five claims relating to the testimony of Patricia Thomas which the district court disposed of under Taylor . Rodriguez' claims allege that the trial court denied him his constitutional right to cross-examine and confront witnesses and assert more than a mere attack on the credibility of the prosecution witnesses. In part III of this opinion, we denied Issues 37 and 40 because Rodriguez failed to adequately specify the errors and grounds for postconviction relief. We address the substantive arguments contained in Issues 36, 38, and 39.
1
In Issue 36, Rodriguez contends that the prosecution and the trial court illegally granted Patricia Thomas absolute immunity *267 from prosecution. [39] A defendant lacks standing to contest the propriety of a grant of immunity to a witness. United States v. Trammel, 583 F.2d 1166, 1168 (10th Cir.1978), aff'd, 445 U.S. 40 , 100 S.Ct. 906 , 63 L.Ed.2d 186 (1980); United States v. Rauhoff, 525 F.2d 1170, 1178 (7th Cir.1975). Accordingly, we reject this claim.
2
In Issue 38, Rodriguez claims that the trial court's restriction on defense counsel's cross-examination and impeachment of Patricia Thomas violated his due process rights.
The trial court has discretion to determine the scope and limits of cross-examination, and, absent an abuse of discretion, the court's rulings will not be disturbed on appeal. People v. Walker, 666 P.2d 113, 122-23 (Colo.1983). Our review of the trial court's rulings on the scope of defense counsel's cross-examination of Patricia Thomas fails to reveal any abuse of discretion, and, accordingly, we reject Issue 38.
3
In Issue 39, Rodriguez claims that the trial court's granting of the prosecution's "Motion in Limine re: Proper Impeachment of Patricia Thomas" constitutes reversible error. The prosecution's motion in limine requested suppression of the following evidence: (1) Thomas' conviction in Denver County Court for second-degree motor vehicle theft; (2) Thomas' alleged recantation of a statement given to Denver Police in a juvenile burglary case; (3) the granting of a personal recognizance bond to Thomas when she was incarcerated for failure to appear on a traffic case; (4) Thomas' juvenile record; (5) Thomas' psychiatric background; and (6) an accusation by Rodriguez that Thomas stole jewelry from Lorraine Martelli. R., v. 3 at 471-73. The trial court granted the motion in limine as to evidence concerning Thomas' juvenile record and psychiatric background, subject to reconsideration if Rodriguez demonstrated either the relevance of such evidence at trial or bias on the part of the district attorney's office relating to Thomas. R., v. 4 at 128-29. The trial court denied each of the remaining requests for suppression. Id.
Here, Rodriguez contends that the district court's granting of the motion in limine prevented effective cross-examination and impeachment of Thomas and thereby prevented the jury from being apprised of her true motives and biases. However, he fails to show how the suppression of Thomas' juvenile record and psychiatric background substantially affected his fundamental right to cross-examine and confront Thomas. We therefore conclude that the trial court properly exercised its discretion in partially granting the prosecution's motion in limine. See People v. Snyder, 874 P.2d 1076, 1080 (Colo.1994) (stating that trial court's determination on admissibility of evidence will not be overturned absent an abuse of discretion).
B
In Issue 95, Rodriguez claims that the trial court committed prejudicial error by refusing to allow the jail psychiatrist, Dr. Kathy Morall, to testify. Defense counsel Eisner asked the court whether it would allow him to call Dr. Morall to testify as to the prescription drugs taken by Rodriguez at the time of trial, the effect of the drugs on Rodriguez' demeanor, and that she prescribed the drugs because Rodriguez was anxious. R., v. 34 at 145-148. [40] Id. The record contradicts Rodriguez' claim that the trial court refused to allow Dr. Morall to testify. Rather, the trial court stated: "I am not saying she can't testify, but I am just saying that [the prosecution] then [has] a right to cross-examine her." Id. at 147. We find no prejudicial error and reject Issue 95.
*268 C
In Issue 30, Rodriguez contends that the trial court unjustifiably refused to grant a continuance to allow Rodriguez to call David Martinez as a witness. We conclude that Rodriguez' argument is meritless.
On December 9, 1986, Rodriguez called Martinez as a defense witness. R., v. 29 at 109-112. Martinez invoked his Fifth Amendment privilege against self-incrimination. Id. The trial court released Martinez after being advised by Rodriguez' counsel that they did not want to further call him as a witness. See R., v. 30 at 108. Contrary to Rodriguez' misrepresentations on this appeal, the record shows that, subsequent to the time the court released Martinez, Rodriguez did not move the court for a continuance in order to allow Martinez to further testify. Accordingly, we reject Issue 30.
In Issue 31, Rodriguez asserts that the trial court erroneously denied his motion for a continuance to secure the attendance of Sam Cruz, who allegedly would have testified that the knife admitted into evidence as the weapon used to kill Lorraine Martelli was the same knife he gave Patricia Thomas as a birthday present. Rodriguez claims that Cruz would have impeached Thomas' testimony that she had never seen the knife before Rodriguez used it to kill Lorraine Martelli. Rodriguez subpoenaed Cruz as a witness, and Cruz failed to appear. See R., v. 30 at 98. Rodriguez moved for a continuance to secure Cruz' attendance and also requested that the trial court allow defense investigators to testify as to statements made by Cruz in the event the court denied the motion for continuance. Id. The prosecution objected to the motion for continuance on the ground that Cruz' testimony would be cumulative of the testimony presented by Mary Compos at trial. Id. at 100. On direct examination by Robin Desmond, Compos testified as follows:
DESMOND: [I]n September of 1984, did you attend a birthday party for Patricia Thomas?
COMPOS: Yes.
Id. at 57.
DESMOND: In September of 1984, did Patricia Thomas receive a knife for her birthday?
COMPOS: Yes. She did.
DESMOND: Did she show it to you?
COMPOS: Yes.
Id. at 58.
DESMOND: Mary, I am going to hand you what has been marked as People's Exhibit C-1. [41] Have you ever seen that knife before?
COMPOS: Yes.
DESMOND: Where?
COMPOS: At [Patricia Thomas'] party.
DESMOND: Who showed it to you?
COMPOS: She did.
DESMOND: How do you know that's the same knife?
COMPOS: By the name of it and what it looks like.
DESMOND: What do you mean by the name of it?
COMPOS: It says "Tiger" on it.
Id. at 59 (footnote added).
The prosecution also objected to defense investigators testifying as to Cruz' statements because such testimony would constitute hearsay. Id. at 99. The trial court denied Rodriguez' motion for a continuance and his alternative request to have the investigators testify as to Cruz' statements. Id. at 101.
The granting or denying of a motion for continuance lies within the sound discretion of the trial court and will not be overturned on appeal unless the record reflects a clear abuse of that discretion. People v. Wells, 776 P.2d 386, 389 (Colo.1989); Miller v. People, 178 Colo. 397, 399-400 , 497 P.2d 992, 993 (1972). Here, Cruz' testimony would merely have been cumulative to Compos' testimony at trial. Rodriguez fails to show that the trial court's denial of his motion for continuance prevented him from effectively impeaching Thomas, and, accordingly, *269 we conclude that the district court properly exercised its discretion.
Rodriguez also contests the trial court's denial of his request to introduce Cruz' statements through the testimony of defense investigators. The admission of evidence falls within the trial court's discretion and will not be disturbed on appeal absent an abuse of discretion. People v. Ibarra, 849 P.2d 33, 38 (Colo.1993). "To show an abuse of discretion, an appellant must establish that, under the circumstances, the trial court's decision to reject the evidence was manifestly arbitrary, unreasonable, or unfair." Id. Here, the trial court reasonably concluded that the introduction of Cruz' statements through defense investigators would violate the prohibition against hearsay, see C.R.E. 802, and, accordingly, we find no error.
D
In Issue 96, Rodriguez contends that the trial court erroneously refused his request to call District Attorney Mike Little as a witness. We reject this claim.
At trial, the prosecution introduced letters from Rodriguez to his girlfriend, Margie Marquez, another prisoner at the jail, in which Rodriguez admitted that he killed Lorraine Martelli. People v. Rodriguez, 794 P.2d 965, 970 (Colo.1990) ( Rodriguez IV ), cert. denied, 498 U.S. 1055 , 111 S.Ct. 770 , 112 L.Ed.2d 789 (1991). In 1985, Marquez had two separate felony theft cases pending and was represented by Deputy Public Defender David Joyce. Rodriguez v. District Court, 719 P.2d 699, 701 (Colo.1986) ( Rodriguez I ). Without Joyce's knowledge, Marquez met with Deputy District Attorneys Mike Little and Mike Kane and informed them that she had letters which incriminated Rodriguez in the murder and kidnapping of Lorraine Martelli. Id. At a hearing in connection with Marquez' felony theft cases, Little informed Joyce that a possible conflict of interest had developed between Marquez and the public defender's office because Marquez had initiated contact with the district attorney's office. Id. However, Little did not inform Joyce why Marquez had initiated the contact. Id. Joyce requested and was allowed to withdraw as counsel for Marquez in the theft cases. Id. Marquez later delivered the incriminating letters to the district attorney's office. Id.
At the guilt phase of Rodriguez' trial, Marquez testified that Rodriguez wrote her the letters and that, in doing so, he intended to give Marquez the opportunity to present the letters to Little in exchange for the reduction or dismissal of the theft charges pending against her. R., v. 30 at 69-73. The record reflects the following exchange on cross-examination of Marquez by Silverman:
SILVERMAN: You know this lady over here, Ms. Robin Desmond?
MARQUEZ: Yes.
EISNER: Can we approach the bench?
THE COURT: Yes.
(Whereupon, the following was had at the bench between the Court and counsel.)
EISNER: I anticipate he is trying to go into the fact David Joyce and Robin Desmond are public defenders and work in the same law firm. I don't think, Your Honor, that is relevant.
SILVERMAN: I will not bring up the fact they're public defenders, but I will bring out the fact they work together at the same law firm.
THE COURT: Do you have any objection?
EISNER: No.
Id. at 128-29.
During further cross-examination of Marquez, Silverman did not bring out the fact that Joyce and Desmond were both public defenders. Id. at 129. After the trial court excused Marquez as a witness, defense counsel Desmond told the court that she wanted to call Little as a witness to rebut the prosecution's insinuation that Joyce and Desmond impermissibly colluded to form a theory which explained why Rodriguez wrote the incriminating letters to Marquez. Id. at 164-65. Desmond sought to elicit testimony from Little that Marquez' counsel did not know that Marquez arranged to turn the letters over to the district attorney's office. Id. The trial court told Desmond that it would *270 deny any attempt to call Little as a witness. Id.
In our view, the record does not support Rodriguez' contention that the prosecution created a false impression of collusion between Desmond and Joyce. Silverman merely elicited testimony from Marquez that Desmond and Joyce worked in the same law firm, and Eisner explicitly stated that he had no objection to such a question. Id. at 129. Furthermore, Silverman specifically asked Marquez whether Joyce had knowledge of the plan between Marquez and Rodriguez to turn Rodriguez' incriminating letters over to Little to secure a reduction or dismissal of Marquez' theft cases; Marquez answered that her attorney did not know of such a plan. Id. Finally, Rodriguez had the opportunity on redirect examination to elicit testimony from Marquez rebutting any inference of collusion which had been created by the prosecution, but failed to do so. We conclude that the trial court's refusal to allow Rodriguez to call Little as a witness did not affect Rodriguez' substantial rights.
VIII
Exculpatory Evidence
In Issues 27 and 28, Rodriguez collectively asserts that the state's destruction of exculpatory evidence violated due process of law and requires that his death sentence and convictions be vacated. We disagree.
The Due Process Clause of the Fourteenth Amendment mandates that the state disclose to criminal defendants favorable evidence which is material to either guilt or punishment. See California v. Trombetta, 467 U.S. 479, 485 , 104 S.Ct. 2528, 2532 , 81 L.Ed.2d 413 (1984); Brady v. Maryland, 373 U.S. 83, 87 , 83 S.Ct. 1194, 1196-97 , 10 L.Ed.2d 215 (1963); People v. Sheppard, 701 P.2d 49, 51 (Colo.1985). In People v. Greathouse, 742 P.2d 334, 338-39 (Colo.1987), we adopted the standard set forth in Trombetta for determining the value of exculpatory evidence in a due process claim. In Greathouse , we held that a defendant must first show that the state suppressed or destroyed constitutionally material evidence. 742 P.2d at 339 . "When evidence can be collected and preserved in the performance of routine procedures by state agents, the failure to do so is tantamount to suppression of the evidence." Id. To meet Trombetta's standard of constitutional materiality, the evidence must: (1) possess an exculpatory value that was apparent before the evidence was destroyed; and (2) be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Trombetta, 467 U.S. at 489 , 104 S.Ct. at 2534 ; Greathouse, 742 P.2d at 338-39 .
In Issue 27, Rodriguez alleges that the prosecution destroyed exculpatory photographs taken by the police which showed bruises and cuts on David Martinez' body and that these photographs would have proven that Martinez sexually assaulted and killed Lorraine Martelli. [42]
In our view, the record is inconclusive as to whether the police ever took photographs showing cuts and bruises on Martinez' body. Detective George Kennedy, who took part in the arrest of Martinez and transported him to police headquarters, testified that he did not photograph or physically examine Martinez while Martinez was unclothed. R., v. 27 at 79. Sergeant Robert Nichols testified that police disrobed Martinez at police headquarters and took some photographs, but did not conclusively state whether those photographs showed bruises and cuts on Martinez' body. Id. at 159-60. After Nichols' testimony, defense counsel Eisner told the district court that Rodriguez had not received the photographs Nichols described. Id. at 160. In response, prosecutor Silverman stated that he believed Nichols was confused and that "as far as I know David Martinez was never stripped down." Id. at 161.
Assuming that such photographs were taken and had exculpatory value that was apparent before their alleged destruction by the state, Rodriguez fails to satisfy the *271 second prong of Trombetta —that he could not obtain comparable evidence by other reasonably available means. Detective Raymond Estrada testified that he took Martinez to police headquarters and had Martinez remove his clothes. R., v. 28 at 150. Estrada stated that he examined Martinez' naked body and saw no fresh injuries, except for the cuts on Martinez' hands. Id. at 151. Estrada further testified that he took a video of an interview with Martinez at police headquarters. Id. at 155-57. In that video, Martinez took off his shirt and close-up shots were taken of a bruise on his elbow and discoloration of his bicep. Id.
At trial, Eisner cross-examined Estrada regarding the videotape. R., v. 28 at 155-56. Rodriguez offered no evidence to establish that the videotape failed to accurately show the bruises and cuts contained in the photographs at issue. Accordingly, we conclude that the videotape contained comparable evidence of cuts and bruises on Martinez' body and that the destruction of exculpatory photos, if they existed, did not violate Rodriguez' due process rights.
In Issue 28, Rodriguez contends that the state destroyed an exculpatory photograph showing bruises and cuts on Patricia Thomas' chest. On direct examination by the prosecution, Officer Jody Roblez testified that she physically examined Thomas and observed welt marks and a bruise in the middle of Thomas' chest. R., v. 27 at 124. Roblez stated that the police took a photograph of these injuries. Id. Roblez further testified that she noted these injuries in her written report. Id. The prosecution stipulated that the photo lab personnel inadvertently failed to properly develop the photograph. Id. at 125. Defense counsel Eisner stated to the court that he wanted to make a record on the destruction of the photograph as exculpatory evidence and that he intended to bring in the photo lab personnel to testify. Id. at 25. However, Eisner did not call the photo lab personnel to present evidence relating to the photographs.
Rodriguez did not make a motion for relief after learning that the photograph of Thomas' injuries had been destroyed, and the court entered no order regarding the destruction of such evidence.
Here, Rodriguez claims that the destruction of the photograph violated due process because the photograph would have impeached Thomas' testimony in which she denied any involvement in the abduction, rape, and murder of Lorraine Martelli. We hold that the destruction of the photograph at issue does not amount to a violation of due process because comparable evidence was available. Roblez testified that she observed a bruise and welts on Thomas' chest, id. at 124, and Eisner cross-examined Roblez regarding the nature of these injuries. Rodriguez also had the opportunity to impeach Thomas by introducing Officer Roblez' notes describing Thomas' injuries, but failed to do so. Given the existence and availability of Officer Roblez' testimony and notes, we reject Rodriguez' contention that the destruction of the photograph denied him due process.
IX
Jury Instructions
Rodriguez claims unconstitutional deficiencies in the guilt phase jury instructions on first-degree sexual assault, second-degree kidnapping, aggravated robbery, aggravated motor vehicle theft, conspiracy to commit first-degree murder after deliberation, and complicity.
A defendant can be convicted only upon proof beyond a reasonable doubt of every element of the crime charged. Chambers v. People, 682 P.2d 1173, 1175 (Colo.1984). Thus, a court must instruct a jury on each essential element of every crime charged "to enable them to assess whether every element of an offense has been proved beyond a reasonable doubt." Id. at 1175-76 . A failure to do so is plain error. Id. at 1176 .
A
Issues 109, 110, 111, and 132 allege deficiencies in the following portion of Instruction No. 16, the guilt phase jury instruction on sexual assault in the first degree:
*272 INSTRUCTION NO. 16
The elements of Sexual Assault in the First Degree are:
(1) That the Defendant,
(2) in the City and County of Denver, State of Colorado on or about November 14, 1984,
(3) knowingly,
(4) inflicted sexual penetration on Lorraine Martelli, and
(5) caused submission of Lorraine Martelli,
(6) through the actual application of physical force or physical violence, and
(7) the Defendant was physically aided or abetted by one or more persons in the commission of the act or the Defendant was armed with a deadly weapon or that Lorraine Martelli suffered serious bodily injury.
R., v. 3 at 577.
Rodriguez claims the following deficiencies: (1) Paragraph 7 did not modify the phrase "the Defendant was armed with a deadly weapon" with "and used the deadly weapon to cause submission of the victim;" (2) the instruction did not specify that the deadly weapon was "a knife;" [43] (3) Paragraph 7 did not specify that its alternative elements must have occurred "in the commission of the sexual assault;" (4) the instruction did not specify that the mental state of "knowingly" applied to each element of the offense; and (5) the instruction did not require jury unanimity on either the mode of sexual penetration or on the alternative elements in Paragraph 7.
Instruction No. 16 adequately instructed the jury on the requisite mens rea because the term "knowingly," when offset from other elements, modifies all succeeding conduct elements. See People v. Bossert, 722 P.2d 998, 1011 (Colo.1986); People v. Freeman, 668 P.2d 1371, 1377-78 (Colo.1983).
The requirement of a unanimous jury was not compromised by Paragraph 4 of Instruction No. 16. Rodriguez' theory of defense focused not on whether the sexual assault occurred, but on whether he or David Martinez committed the assault. See People v. Rodriguez, 794 P.2d 965, 970 (Colo.1990) ( Rodriguez IV ), cert. denied, 498 U.S. 1055 , 111 S.Ct. 770 , 112 L.Ed.2d 789 (1991). "[W]hen the evidence does not present a reasonable likelihood that jurors may disagree on which acts the defendant committed, the prosecution need not designate a particular instance," Thomas v. People, 803 P.2d 144, 153 (Colo.1990), nor, in the case of sexual assault, a particular mode of sexual penetration. Likewise, the instruction need not specify the type of deadly weapon which Rodriguez used. [44]
We conclude, however, that Paragraph 7 is constitutionally deficient and cannot support a conviction for first-degree sexual assault as a class 2 felony. Paragraph 7 attempts to summarize the three alternative factors which convert first-degree sexual assault from a class 3 felony into a class 2 felony. See § 18-3-402(2), 8 C.R.S. (1978). Section 18-3-402(2) provides for enhancement of the felony class if:
(a) In the commission of the sexual assault the actor is physically aided or abetted by one or more other persons; or
*273 (b) The victim suffers serious bodily injury; or
(c) The actor is armed with a deadly weapon and uses the deadly weapon to cause submission of the victim.
§ 18-3-402(2). The presence of any one of these three alternatives is the only difference between first-degree sexual assault as a class 2 felony and first-degree sexual assault as a class 3 felony.
Paragraph 7 instructed on all three alternative factors, but inadequately instructed as to alternative (c) of section 18-3-402(2). Under the instruction as given, the jury could have convicted Rodriguez of the higher class of felony based only upon his possession of the knife during the sexual assault, rather than upon his possession and use of the knife during the sexual assault. Record evidence supports either of the other two alternatives. However, because the jury returned only a general verdict, the prosecution must have proved each alternative beyond a reasonable doubt. See James v. People, 727 P.2d 850, 853 (Colo.1986). The jury was not instructed on both elements of alternative (c) and could not have assessed whether the prosecution had proven each element of that alternative beyond a reasonable doubt. See Chambers, 682 P.2d at 1175-76 . This deficiency constitutes plain error.
However, other than this deficiency, the instruction tracked the language of both the sexual assault statute and the model jury instruction. See § 18-3-402(2)(c); CJI-Crim. 12:04. The instruction adequately apprised the jury of the essential elements of first-degree sexual assault as a class 3 felony, and the jury unanimously found each of those elements.
We remand Rodriguez' conviction for first-degree sexual assault as a class 2 felony to the district court with directions to vacate that judgment and enter a judgment and sentence for the lesser included offense of first-degree sexual assault as a class 3 felony. See § 18-1-408(5), 8B C.R.S. (1986); People v. Henderson, 810 P.2d 1058, 1062-63 (Colo.1991) (discussing enhancement of second-degree kidnapping conviction).
In Issues 112 and 142, Rodriguez alleges insufficient evidence to support the enhancement of his conviction for first-degree sexual assault from a class 3 to a class 2 felony. In light of our holding here, these issues are rendered moot.
B
In Issues 113 and 114, Rodriguez alleges constitutional deficiencies in the following guilt phase instruction:
INSTRUCTION NO. 18
The elements of the crime of Kidnapping in the Second Degree are:
(1) That the defendant,
(2) in the City and County of Denver, State of Colorado on or about November 14, 1984,
(3) knowingly,
(4) forcibly, or otherwise, seized and carried Lorraine Martelli from one place to another,
(5) without her consent, and
(6) without lawful justification, and
(7) Lorraine Martelli was the victim of a sexual assault.
R., v. 3 at 579 (quoted in relevant part).
Rodriguez argues two deficiencies in this instruction: (1) the instruction did not specify that the mental state of "knowingly" applied to each element of the offense; and (2) Paragraph 7 did not articulate the essential elements of sexual assault.
Instruction No. 18 adequately instructed the jury on the requisite mens rea because the term "knowingly," when offset from other elements, modifies all succeeding conduct elements. See Bossert, 722 P.2d at 1011 ; Freeman, 668 P.2d at 1377-78 .
As stated in part IX(A) above, Instruction No. 16 adequately advised the jury of the essential elements of first-degree sexual assault as a class 3 felony. The trial court need not repeat these elements in Instruction No. 18. The failure to do so did not affect any of Rodriguez' substantial rights and, therefore, was harmless. See Crim.P. 52; *274 People v. Mozee, 723 P.2d 117, 129 (Colo.1986).
C
In Issues 115 and 116, Rodriguez alleges error in the guilt phase instruction for aggravated robbery, which read, in relevant part, as follows:
INSTRUCTION NO. 19
The elements of the crime of Aggravated Robbery are:
(1) That the defendant,
(2) in the City and County of Denver, State of Colorado, on or about November 14, 1984,
(3) knowingly,
(4) took anything of value,
(5) from the person or presence of Lorraine Martelli,
(6) by the use of force, threats, or intimidation, and
(7) during the act of robbery or the immediate flight therefrom,
(8) knowingly,
(9) put the person robbed, or any other person, in reasonable fear of death or bodily injury,
(10) by the use of force threats or intimidation,
(11) with a deadly weapon.
R., v. 3 at 580.
Specifically, Rodriguez contends that: (1) Paragraph 11 did not specify that the deadly weapon was "a knife;" and (2) the instruction did not specify that the mental state of "knowingly" applied to each element of the offense. We find these arguments wholly without merit.
The instruction need not specify the type of deadly weapon which Rodriguez used. "[W]hen the evidence does not present a reasonable likelihood that jurors may disagree on which acts the defendant committed, the prosecution need not designate a particular instance," Thomas, 803 P.2d at 153 , nor, in the case of aggravated robbery, a particular type of deadly weapon.
Instruction No. 19 adequately instructed the jury on the requisite mens rea because the term "knowingly," when offset from other elements, modifies all succeeding conduct elements. See Bossert, 722 P.2d at 1011 ; Freeman, 668 P.2d at 1377-78 .
D
In Issues 117 and 118, Rodriguez contends that the following portion of Instruction No. 17 inadequately instructed the jury on the essential elements of first-degree aggravated motor vehicle theft:
INSTRUCTION NO. 17
The elements of the crime of First Degree Aggravated Motor Vehicle Theft are:
(1) That the defendant,
(2) in the City and County of Denver, State of Colorado, on or about November 14, 1984,
(3) knowingly,
(4) obtained or exercised control over a motor vehicle,
(5) belonging to Lorraine Martelli,
(6) without authorization or by threat,
(7) and the defendant did use the motor vehicle in the commission of Murder In The First Degree or Sexual Assault In The First Degree or Second Degree Kidnapping.
R., v. 3 at 578.
Rodriguez claims two errors: (1) the instruction omitted the elements of the predicate offenses of first-degree murder, first-degree sexual assault, and second-degree kidnapping; and (2) the instruction did not specify that the mental state of "knowingly" applied to each element of the offense.
As stated above, the term "knowingly," when offset from other instructional elements, modifies all succeeding conduct elements. See Bossert, 722 P.2d at 1011 ; Freeman, 668 P.2d at 1377-78 . Thus, Instruction No. 17 adequately instructed the jury on the requisite mens rea.
The instructions, taken together, adequately advised the jury of the essential elements of first-degree murder, first-degree *275 sexual assault, and second-degree kidnapping. The trial court need not repeat these elements in Instruction No. 17. The refusal to do so did not affect any of Rodriguez' substantial rights and, therefore, was not harmful error. See Crim.P. 52; Mozee, 723 P.2d at 129 .
E
In Issues 123, 124, and 129, [45] Rodriguez contends that the following portion of the guilt phase instruction on conspiracy to commit first-degree murder was constitutionally deficient:
INSTRUCTION NO. 20
The elements of the crime of Conspiracy To Commit Murder In The First Degree (after deliberation) are:
(1) That the defendant,
(2) in the City and County of Denver, State of Colorado, on or about November 14, 1984,
(3) with the intent to promote or facilitate the commission of the crime of Murder In The First Degree (after deliberation),
(4) agreed with another person or persons that they, or one or more of them, would engage in conduct which constitutes Murder In The First Degree (after deliberation) or an attempt to commit Murder In The First Degree (after deliberation), and
(5) the defendant, or a person with whom the defendant conspired, has performed an overt act in pursuance of such conspiracy.
R., v. 3 at 581.
Rodriguez alleges the following errors: (1) Instruction No. 20 does not include all the elements of conspiracy to commit first-degree murder; (2) Instruction No. 20 did not list the elements of first-degree murder; and (3) the court did not instruct the jury on the meaning of "attempt."
The essential elements of a conspiracy are: (1) an agreement (2) between two or more persons (3) to commit or attempt to commit a crime. § 18-2-201(1), 8 C.R.S. (1978); Young v. People, 180 Colo. 62, 64 , 502 P.2d 81, 82 (1972). The essential elements are all present in Instruction No. 20.
Instruction No. 20 need not repeat the elements of first-degree murder after deliberation, as Instruction No. 13 adequately advised the jury of those elements. See R., v. 3 at 573. The instructions, taken as a whole, informed the jury of the elements of conspiracy to commit first-degree murder after deliberation and did not prejudice Rodriguez' substantial rights.
Finally, although "a criminal attempt is not readily understandable to a person of ordinary intelligence without some further explanation by the court," People v. Leonard, 673 P.2d 37, 42 (Colo.1983) (discussing same in context of entry of plea), the trial court's failure to instruct on "attempt" here was harmless error, as the jury specifically found Rodriguez guilty of first-degree murder after deliberation. Thus, although Instruction No. 20 is no model of precision, the jury's verdict on first-degree murder after deliberation enables this court to determine upon which theory the jury based its verdict, but cf. James, 727 P.2d at 853 , and to uphold Rodriguez' conviction for conspiracy to commit first-degree murder after deliberation.
F
In Issues 130 and 131, Rodriguez asserts constitutional error in the following guilt phase jury instruction on complicity:
INSTRUCTION NO. 12
A person is guilty of an offense committed by another person if he is a complicitor. To be guilty as a complicitor, the following must be established beyond a reasonable doubt:
1. A crime must have been committed
*276 2. Another person must have committed all or part of the crime
3. The defendant must have had knowledge that the other person intended to commit all or part of the crime
4. The defendant did intentionally aid, abet, advise, or encourage the other person in the commission or planning of the crime.
R., v. 3 at 572.
Rodriguez argues the following errors: (1) Paragraph 4 did not adequately advise the jury of the requisite mens rea ; (2) the inclusion of the word "encourage" in Paragraph 4 expanded upon the statutorily prohibited conduct; and (3) the "all or part" language of Paragraphs 3 and 4 is contrary to the complicity statute. [46]
The relevant statute states: "A person is legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he aids, abets, or advises the other person in planning or committing the offense." § 18-1-603, 8 C.R.S. (1978).
Rodriguez asserts that the court should have instructed the jury using Paragraph 4 of his proposed jury instruction:
Having this knowledge, the defendant did intentionally aid, abet, advise, or encourage the other person in the commission or planning of the crime.
R., v. 3 at 597 (emphasis added). Rodriguez argues that the effect of this omission was "to require a guilty verdict even though the actions of Mr. Rodriguez which aided or abetted the commission of the murder after deliberation were done without knowledge that the actual perpetrator intended to commit the murder. " Rodriguez' Opening Brief at 351-52.
The instruction as given adequately advised the jury of the requisite mens rea. As stated above, the mens rea term, when offset from other instructional elements, modifies all succeeding conduct elements. Bossert, 722 P.2d at 1011 ; see Freeman, 668 P.2d at 1377-78 . Further, "[s]ince complicity is not a substantive crime, the statutory definitions of mens rea do not apply." People v. R.V., 635 P.2d 892, 894 (Colo.1981). It is sufficient if the instruction informs the jury that the accused is a complicitor "if, with the intent to promote or facilitate the commission of the offense, he aids, abets, or advises [the person who commits the offense] in planning or committing [that] offense." See § 18-1-603; R.V., 635 P.2d at 893-94 . The instruction as given was adequate in that respect.
The inclusion of the word "encourage" does not expand upon the statutorily prohibited conduct because "[t]he plain meaning of `abet' includes `encourage.'" Alonzi v. People, 198 Colo. 160, 166 , 597 P.2d 560, 564 (1979).
Finally, Rodriguez contends that the "all or part" language of Paragraphs 3 and 4 violates due process because it allowed the jury to convict Rodriguez of first-degree murder committed by a principal, even if he were aware only of the principal's intent to commit or commission of a lesser offense. [47] That is, the jury could convict Rodriguez of the first-degree murder of Lorraine Martelli even if he only agreed to her assault. Although the instruction given followed the model jury instruction, see CJI-Crim. 6:04, we agree that the inclusion of the language "all or part" was erroneous. We conclude, however, that the error was harmless.
Record evidence supports Rodriguez' conviction for first-degree murder after deliberation as either a complicitor or a principal. Patricia Thomas testified that Rodriguez said *277 that they would have to kill Lorraine Martelli because Martelli had seen their faces. R., v. 25 at 200. Thomas also testified that Rodriguez alone stabbed and killed Martelli. Id. at 210 ; R., v. 26 at 20. The forensic serologist confirmed the presence of Martelli's blood on Rodriguez' underwear, jacket, and jeans after his arrest. R., v. 28 at 193-97.
Furthermore, in returning a guilty verdict on the charge of conspiracy to commit first-degree murder after deliberation, the jury necessarily found that Rodriguez specifically intended to promote or facilitate the first-degree murder of Lorraine Martelli. See Rodriguez IV, 794 P.2d at 989-90. This finding indicates the jury's unanimous belief that Rodriguez agreed to the commission of first-degree murder in its entirety, rather than intending commission of part of the offense or of a lesser included offense. The instructional error as to Rodriguez' complicity did not affect his substantial rights nor prejudice his defense. The error is harmless. See Crim.P. 52.
Instruction No. 19 adequately advised the jury of the essential elements of aggravated robbery, and Rodriguez' conviction on that count must stand.
G
In Issues 134, 136, 137, 138, and 139, Rodriguez collectively asserts that the "crime of violence" instructions in the guilt phase of his trial impermissibly tainted the jury's decision to impose the death penalty.
By information, the prosecution charged Rodriguez with a violation of section 16-11-309, 8A C.R.S. (1986), which requires a mandatory sentence for one convicted of a crime of violence. A crime of violence is "a crime in which the defendant used, or possessed and threatened the use of, a deadly weapon during the commission or attempted commission" of certain statutorily enumerated crimes. § 16-11-309(2)(a)(I). The crime of violence statute is a sentencing provision and does not create a separate substantive offense. Brown v. District Court, 194 Colo. 45, 47 , 569 P.2d 1390, 1391 (1977). A conviction under section 16-11-309 requires a judge to sentence a defendant "to a term of incarceration greater than the maximum in the presumptive range, but not more than twice the maximum term, provided for such offense." § 16-11-309(1)(a).
The jury convicted Rodriguez of five mandatory sentencing counts for crimes of violence. R., v. 3 at 554-558. However, the record reveals that the trial court never imposed sentence on these jury verdicts. The trial court entered a "Judgment of Conviction: Sentence: and Order to Sheriff (Mittimus)" which failed to include the jury's guilty verdicts on Rodriguez' crime of violence charges and did not impose the mandatory sentence for those convictions. R., v. 4 at 804-07.
The trial court's failure to impose mandatory sentences on the crimes of violence convictions moots Rodriguez' claims that his sentences for the crime of violence convictions should be vacated. [48] We also refuse to vacate Rodriguez' death sentence because that sentence was not based on his crime of violence convictions. Rather, the jury imposed the death sentence based on its finding that the prosecution proved the existence of statutory aggravating factors and that these factors outweighed any mitigating factors. See Rodriguez IV, 794 P.2d at 986-87; R., v. 4 at 746-53. The aggravating factors found by the jury did not require the jury to determine whether Rodriguez committed a crime of violence, and neither the prosecution nor the defense presented evidence at the penalty phase that the jury convicted Rodriguez of crimes of violence.
H
In summary, Rodriguez' arguments regarding the guilt phase jury instructions on crime of violence are moot. The instructions on second-degree kidnapping, aggravated robbery, and aggravated motor vehicle theft were not erroneous. The instructions on complicity and conspiracy to commit first-degree *278 murder after deliberation contained only harmless error. The instruction on first-degree sexual assault was erroneous, and that error requires that we remand Rodriguez' conviction for first-degree sexual assault as a class 2 felony to the district court with directions to vacate that judgment and enter judgment and sentence for the lesser offense of first-degree sexual assault as a class 3 felony.
X
Guilt Phase Closing Arguments
In Issue 106, Rodriguez challenges his convictions and death sentence, claiming that the prosecution's closing arguments at the guilt phase of his trial violated the Due Process Clauses of the federal and Colorado Constitutions, his constitutional right to trial by jury, and the prohibition against cruel and unusual punishment. [49] We reject this argument.
"[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial." United States v. Young, 470 U.S. 1, 11 , 105 S.Ct. 1038, 1044 , 84 L.Ed.2d 1 (1985). The closing arguments of counsel are not evidence and the jury in Rodriguez' case was properly instructed on the function and limitations of closing argument. See R., v. 3 at 560. Closing arguments must be considered in light of the objections, the rulings, and the record in a particular case. We address claims of prosecutorial misconduct in closing argument on a case-by-case basis. See Harris v. People, 888 P.2d 259 , 267 n. 7 (Colo.1995).
In People v. Rodgers, 756 P.2d 980 (Colo. 1988), we concluded that, during closing argument, the prosecution improperly commented on the defendant's exercise of his constitutional right to a jury trial. Id. at 983 . We set forth the following standard for evaluating the prejudicial effect of an improper argument on a defendant's conviction:
[I]f the asserted error is of constitutional dimension, reversal is required unless the [reviewing] court is convinced that the error was harmless beyond a reasonable doubt. If there is a reasonable possibility that the defendant could have been prejudiced the error cannot be harmless beyond a reasonable doubt.
Id. at 984 (citations and internal quotation marks omitted); see People v. Davis, 794 P.2d 159, 189 (Colo.1990). [50]
In Rodgers , we determined that the prosecution's improper comment did not warrant reversal of the defendant's conviction because the evidence against the defendant was "overwhelming." Id. at 984 . We concluded that:
The evidence at this trial was sufficient in both quantity and quality to support the conclusion that the jury could not have arrived at a verdict other than guilty. In this context, the prosecutor's conduct "was *279 not so offensive as to require reversal of the defendants' convictions." People v. Plotner, 188 Colo. 297, 302 , 534 P.2d 791, 794 (1975) (prosecutor's statement during closing argument regarding his personal opinion of the defendant's guilt was improper, but not reversible error). Where it appears that no other verdict could have been properly rendered, prosecutorial misconduct is not reversible error. Hillen v. People, 59 Colo. 280, 284 , 149 P. 250, 252 (1915).
In light of the overwhelming evidence presented at trial against the defendant, we conclude that the prosecutor's improper remark during closing argument was harmless beyond a reasonable doubt.
Id. at 985 (emphasis added); see also Harris, 888 P.2d at 268 (stating that "the sufficiency of the evidence presented at trial will be considered on appeal when evaluating claims of prosecutorial misconduct"); Grandbouche v. People, 104 Colo. 175, 185 , 89 P.2d 577, 581 (1939) (holding that "[t]he rule is that where the guilt of an accused is evident, incidental improper action upon the part of the prosecuting officer may be overlooked"); Miller v. People, 70 Colo. 313, 317 , 201 P. 41, 42 (1921) (same as Grandbouche ).
In his postconviction motion, Rodriguez asserts for the first time that the prosecution's closing arguments at the guilt phase of his trial require reversal of his convictions. After reviewing the record, we conclude that certain parts of the arguments made by the prosecution were improper. Although the evidence of guilt in this case is overwhelming, we do not condone the prosecution's arguments which extended into opinion, the integrity of the police and the prosecution, and to matters that did not comply with the American Bar Association Standards relating to prosecutorial closing arguments. See American Bar Association Standards for Criminal Justice: Prosecution and Defense Function, § 3-5.8 at 106 (3d ed. 1993). [51] Although the prosecution's arguments in some instances were overzealous and improper, these arguments did not rise to the level of reversible constitutional error in this case.
Here, the prosecution's arguments do not constitute reversible error because "[t]he evidence at ... trial was sufficient in both quality and quantity to support the conclusion that the jury could not have arrived at a verdict other than guilty." Rodgers, 756 P.2d at 985 . In Rodriguez IV, we expressly stated: "We have reviewed the record in this case with great care. We conclude that there was overwhelming evidence of the defendant's guilt and personal participation in the kidnapping, sexual assault and murder of Lorraine Martelli." 794 P.2d at 991 (emphasis added); see also infra part XVIII(C) (detailing evidence against Rodriguez). We conclude that, in light of the massive and overwhelming evidence against Rodriguez, "the jury could not have arrived at a verdict other than guilty," Rodgers, 756 P.2d at 985 , and the prosecutor's closing arguments at the guilt phase, though improper, could not have influenced th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1129992. Public record. Not legal advice.