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People v. McNeely11/21/2002
JUDGMENT AND SENTENCE AFFIRMED
Davidson and Kapelke, JJ., concur
Defendant, Thomas McNeely, appeals the judgment of conviction entered on jury verdicts finding him guilty of second degree burglary, first degree criminal trespass, violation of a restraining order, third degree assault, harassment, criminal mischief, and resisting arrest. He also appeals his sentence as an habitual criminal. We affirm.
I.
Defendant first contends that the trial court erred in denying his motion for mistrial when the prosecution impeached his credibility with a suppressed conviction. We disagree.
The trial court held a hearing regarding defendant's collateral attack on five prior convictions, which were the basis for charging defendant under the habitual criminal statute, § 18-1.3-801, et seq., C.R.S. 2002 (formerly § 16-13-101). The trial court denied defendant's motion as to four of the convictions, but sustained it regarding a conviction for criminal impersonation because defendant had entered his guilty plea and been sentenced outside the presence of counsel.
Defendant chose to testify at trial. During cross-examination, the prosecution impeached him with the four convictions that had survived the collateral attack. Then, over defendant's objection, the prosecution impeached him with his conviction for criminal impersonation. After a hearing outside the jury's presence, the trial court instructed the jury to disregard the testimony regarding criminal impersonation.
Defendant moved for a mistrial. The trial court denied the motion.
A mistrial is a drastic remedy. The trial court has broad discretion to grant or deny a motion for mistrial. A reviewing court will not disturb a trial court's decision absent gross abuse of discretion and prejudice to the defendant. Moreover, a mistrial is warranted only where the prejudice to the defendant cannot be remedied by other means. People v. Abbott, 690 P.2d 1263 (Colo. 1984).
A reviewing court may not overturn a conviction if the remaining circumstances of the trial rendered the error harmless. Tevlin v. People, 715 P.2d 338 (Colo. 1986). For example, "a curative instruction is generally sufficient to overcome an evidentiary error, and an instruction is inadequate only when evidence is so prejudicial that, but for its exposure, the jury might not have found the defendant guilty." People v. Gillispie, 767 P.2d 778, 780 (Colo. App. 1988) . When a jury is instructed to disregard tendered evidence, the reviewing court must presume that it followed the instructions. People v. Goff, 187 Colo. 57, 530 P.2d 512 (1974).
Here, the trial court issued a curative instruction, stating, " hat felony conviction does not exist. So you are to disregard all testimony regarding that alleged conviction because it does not exist." We conclude that this curative instruction remedied any harm that may have resulted from reference to the invalid conviction. See People v. Abbott, supra.
The record shows that defendant was impeached by four valid convictions. We presume that the jurors ignored the invalid conviction as instructed, but considered the valid convictions giving them whatever weight they thought appropriate. Therefore, we conclude that defendant was not unduly prejudiced by the prosecution's improper reference to the invalid conviction because the remaining circumstances of the trial rendered the error harmless.
II.
Defendant next contends that the trial court erred in denying his due process right to a fair trial when it permitted the prosecution to impeach his credibility with a conviction that was pending on direct appeal. W
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