Opinion
No. 77-971
Decided March 15, 1979. Rehearing denied April 12, 1979. Certiorari granted July 23, 1979. Publication effected May 30, 1980, pursuant to C.A.R. 35(f).
Defendant appealed his conviction of first degree criminal trespass, possession of burglary tools, and defacing property, all of which charges arose from an attempt to break into an automobile.
Affirmed
1. CRIMINAL LAW — Prosecution — Attempt — Break into Automobile — Prospective Juror — Auto Broken Into — Satisfied Court — Impartiality — Denial — Challenge for Cause — Not Abuse of Discretion. In prosecution of defendant on charges arising from attempt to break into an automobile, trial court did not abuse its discretion in denying defendant's challenge for cause of a juror whose automobile had been broken into the previous week and who initially questioned her ability to render an impartial verdict but who, after further examination, satisfied trial court that she would be able to view the evidence fairly.
Appeal from the District Court of the City and County of Denver, Honorable John Brooks, Jr., Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Mary J. Mullarkey, First Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Thomas M. Van Cleave, III, Deputy State Public Defender, for defendant-appellant.
Defendant appeals his conviction of first degree criminal trespass, possession of burglary tools, and defacing property, all of which charges arose from an attempt to break into an automobile. We affirm.
Defendant contends that the trial court erred in denying defendant's challenge for cause of a juror whose automobile had been broken into the previous week. The juror initially questioned her ability to render an impartial verdict, but after further examination, the trial court was satisfied that she would be able to view the evidence fairly. The defense challenged the juror for cause pursuant to § 16-10-103(1)(j), C.R.S. 1973 (now in 1978 Repl. Vol. 8). The trial court denied the challenge, and the defense then removed the juror utilizing a peremptory challenge, and ultimately used all of its peremptory challenges.
[1] The determination of whether a potential juror holds "enmity or bias" toward one of the parties, is essentially a question of fact to be determined by the trial court. People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976). "If the trial judge is persuaded that the juror would fairly and impartially try the issue, his denial of a challenge for cause should not be disturbed, except where it is made to appear that his denial was clearly an abuse of discretion." Leick v. People, 136 Colo. 535, 322 P.2d 674, cert. denied, 357 U.S. 922, 2 L.Ed.2d 1366, 78 S.Ct. 1363 (1958). No abuse of discretion is apparent from this record. See People v. Buckner, 180 Colo. 65, 504 P.2d 669 (1972).
The defendant next contends that the evidence was insufficient to sustain his convictions. However, upon a review of the record in the light most favorable to the jury's verdict, People v. Medina, 185 Colo. 183, 522 P.2d 1233 (1974), we find that the evidence was clearly sufficient to support the jury's verdict.
Judgment affirmed.
JUDGE PIERCE concurs.
JUDGE KELLY dissents.