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People v. Deherrera3/25/1985
JUSTICE QUINN delivered the Opinion of the Court.
The defendant, Richard DeHerrera, appeals his convictions for assault in the second degree, driving under the influence , and leaving the scene of an accident. He challenges the constitutionality of the second degree assault statute and raises other claims relating to jury instructions and prosecutorial comments during summation. We affirm the defendant's convictions.
I.
The defendant was charged in a multi-count information with the following offenses arising out of an episode which occurred on the evening of July 20, 1981, in Las Animas County, Colorado: four counts of assault in the second degree, based on the defendant's conduct in attempting to cause bodily injury to Robert Pearson, Carl Veltri, Ricardo Gonzales, and Robert Mooney; one count of criminal mischief involving damage to personal property of the city of Aguilar; one count of driving under the influence of intoxicating liquor; and two counts of leaving the scene of an accident.
The evidence at trial established the following sequence of events. On July 20, 1981, at approximately 7:00 p.m. the defendant knocked on the door of Vernon Borrego's home in Gulnare, Colorado, which is located a few miles southwest of the town of Aguilar. Borrego feared the defendant and immediately called the town marshal in Aguilar. When deputy marshals Mooney and Gonzales arrived at Borrego's home, they observed the defendant and Borrego facing each other. After exchanging a few words with Borrego, the defendant drove away in his car. Borrego at this time told the officers that he wanted to sign a complaint for harassment.
The officers drove after the defendant, but as they signaled him to stop he accelerated his car and drove away. Approximately twenty-five minutes later the officers observed the defendant's car, which was unoccupied, parked on a street in Aguilar. Somewhat later in the evening, while driving on Balsam Street in Aguilar, the officers observed the defendant's car accelerating directly toward them in their lane of traffic. Officer Gonzales, who was driving the police vehicle, attempted to swerve to the side of the road, but the defendant's car struck the police vehicle and sped away. Neither Gonzales nor Mooney was injured in the collision.
A few minutes later Deputy Sheriffs Veltri and Pearson, who were assisting the Aguilar marshals in attempting to find the defendant, saw the defendant's car traveling east on Linden Street in Aguilar toward their vehicle. The deputy sheriffs turned on their emergency lights and siren and drove slowly towards the defendant's car. The defendant at this time accelerated and drove directly toward their vehicle. As Pearson attempted to drive off the highway, the defendant drove his car into the driver's side of the sheriffs' vehicle and then drove away. Both Pearson and Veltri suffered back injuries in the accident.
The defendant's car was later found parked on Linden Street in Aguilar and the defendant, upon returning to the car, was arrested and taken to the Trinidad police station, where a state patrolman administered a field sobriety test and a chemical test of the defendant's breath. The defendant was initially hostile and uncooperative. As the patrolman was explaining the testing procedures, the defendant appeared confused and, according to the officer, " conversation was rambling." The defendant's attitude shortly changed, however, and in the officer's words, the defendant "felt sad, felt shaken over the circumstances." During the field test the defendant swayed to both sides and was unable to recite the alphabet or to perform other coordinative movements. The chemical test of t
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