Crider v. People, 06SC799.

• Decision Date: 02 June 2008
• Docket Number: No. 06SC799.,06SC799.
• Citation: 186 P.3d 39
• Parties: Gary CRIDER, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

186 P.3d 39

Gary CRIDER, Petitioner v. The PEOPLE of the State of Colorado, Respondent.

No. 06SC799.

Supreme Court of Colorado, En Banc.

June 2, 2008.

Rehearing Denied June 30, 2008.^*

Douglas K. Wilson, Colorado State Public Defender, Andrea R. Manning, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Colorado Attorney General, Wendy Ritz, First Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.

Justice COATS delivered the Opinion of the Court.

Crider sought review of the court of appeals' judgment affirming his convictions for attempted second degree murder and first degree assault. The court of appeals found that the district court erred in permitting the prosecuting attorney to refer to him during rebuttal closing argument as having lied to the jury in specific portions of his testimony. Under the circumstances of this case, however, it found the error to be harmless.

Although it is improper for an attorney to tell a jury that a witness has lied to them or to characterize the witness's testimony as a lie, the court of appeals applied the appropriate standard of review for harmlessness and correctly found that the error in this case did not warrant reversal. Its judgment is therefore affirmed.

I.

The defendant, Gary Crider, was charged with attempted first degree murder and first degree assault, for repeatedly striking his neighbor, Robert Gaudio, in the head with a hammer. He was acquitted of attempted first degree murder but was convicted of attempted second degree murder and first degree assault. He was sentenced to concurrent terms of eighteen years in prison.

The defendant and the victim both testified at trial and gave widely differing accounts of what transpired. In addition to the victim, the prosecution also presented the testimony of three witnesses to the latter part of the incident; several police officers, who responded to the emergency call, investigated the scene, and/or arrested the defendant; and the physician who provided emergency care for the victim.

The victim testified that the defendant, a neighbor in the same apartment complex with whom he had had only brief conversational exchanges in the past, came to his apartment asking to use his phone; and after chatting about golf and going into the kitchen for a glass of water, suddenly and without provocation attacked the victim with a hammer, striking him a number of times in the head. The victim described the two as wrestling around on the floor before he eventually managed to expel the defendant from the apartment, only to have him return and resume his attack as soon as the victim retreated to the kitchen to staunch the profuse bleeding from his head. According to the victim's account, he eventually managed to escape to the front lawn, where he fell and was forced to assume a fetal position in an attempt to ward off the barrage of hammer blows, which the defendant continued to inflict upon him.

One of the witnesses testified that he heard screaming and saw one man standing over another and continuously hitting him in the head with a hammer, with blood visibly flying into the air. When he yelled "police," the assailant fled, and although the witness initially gave chase, he quickly returned to assist the victim. At the same time, the witness's roommate called 911. A third witness testified to seeing the two figures from a distance, and when the one fled, the witness indirectly pursued him, cutting him off and tackling him, and unsuccessfully tried to return him to the scene. The witness testified that before the assailant got away, he demanded to know whether the witness had seen what the other man had done to him.

The victim was taken to the hospital and treated for multiple lacerations on his head and hands. His wounds required between sixty and seventy stitches, and the treating physician determined that he lost about eight percent of his blood volume. The defendant was arrested at his residence several days later, without having complained or otherwise reported the incident to the police. The arresting officer also testified that the defendant showed no signs of facial injuries, despite his testimony that the victim had initially struck him in the mouth with the hammer.

The defendant defended against the charges on grounds of provocation and self-defense. In sharp contrast to the victim, the defendant testified that he was in the victim's apartment at the victim's request, to be repaid money the victim had borrowed from him. He claimed that when the victim indicated his inability to repay the loan after all, and the defendant pressed him for repayment, the victim threatened the defendant with a hammer. After himself being struck in the mouth and finally wresting the hammer from the victim, the defendant admitted striking the victim with it several times, but only in the course of defending himself. The defendant explained the continuing struggle and the actions and movement of both men to the front lawn in terms of his own attempts to escape from the victim's unrelenting attack, and he further explained that only after he finally managed to gain the upper hand, did he "snap" and begin hitting the victim with the hammer. Although their descriptions differed widely, both men gave detailed accounts of the progress of the struggle and their respective positions, movements, and motivations.

In closing argument, both counsel relied on photographs of the scene to corroborate one or the other version of the events. During her closing argument, defense counsel attempted to demonstrate that the presence, and absence, of blood stains in various police photographs of the scene contradicted the victim's account, telling the jury that "pictures do not lie." The prosecutor's objection that the photographs had been excluded from evidence at the insistence of the defendant was overruled with the explanation that it would be sufficient for the prosecution to be given an opportunity to respond in its rebuttal argument. In his rebuttal closing, the prosecuting attorney did respond by arguing that particular blood spatter evidence visible in the photographs actually contradicted key portions of the defendant's, rather than victim's, testimony.

The prosecuting attorney went further, however, and expressly drew the inference for the jury that the defendant therefore lied to them. Over contemporaneous objections that his argument amounted to an expression of personal opinion, the prosecutor characterized the defendant as lying or as having lied, and portions of his testimony as being lies, with regard to a handful of statements the prosecutor asserted to be indisputably contradicted by the blood evidence. Defense counsel's objections were overruled by the trial court on the grounds that each of these characterizations by the prosecuting attorney was directly related to specific physical evidence and therefore could not have been misunderstood as an expression of his personal opinion about the defendant's veracity or a suggestion that he was privy to information of which the jury was unaware.

On direct appeal, the court of appeals found the prosecutor's argument improper and the trial court's ruling erroneous, although it considered both understandable in light of subsequently overruled case law in the jurisdiction. It concluded, however, that reversal was not warranted in this case because it was highly unlikely, in light of the overwhelming evidence of the defendant's guilt, that this argument affected the jury's verdict.

The defendant petitioned for a writ of certiorari.

II.

In this jurisdiction it is improper for a lawyer to use any form of the word "lie" in characterizing for a jury a witness's testimony or his truthfulness. See Domingo-Gomez v. People, 125 P.3d 1043, 1050-51 (Colo.2005). As we have recently made abundantly clear, such usage is disapproved for a number of reasons. It is prohibited not only because it poses a risk of communicating the lawyer's personal opinion about the veracity of a witness and implying that the lawyer is privy to information not before the jury, but also simply because the word "lie" is an inflammatory term, likely (whether or not actually designed) to evoke strong and negative emotional reactions against the witness. See id.; see also Colo. RPC 3.4(e) (barring counsel from offering "personal opinion, personal knowledge, or inflammatory comments").

Although the appellate courts of this jurisdiction have long criticized jury arguments including the word "lie" or related terms, see, e.g., Wilson v. People, 743 P.2d 415, 420 (Colo.1987); People v. Salter, 717 P.2d 976, 978 (Colo.App.1985); People v. Trujillo, 624 P.2d 924, 925-26 (Colo.App.1981); some case law in the jurisdiction had, until very recently, appeared to sanction the characterization of witness testimony as a lie, as long as the attorney's argument was related to specific evidence that tended to demonstrate that to be the case. See People v. Dashner, 77 P.3d 787, 792 (Colo.App.2003) (holding that prosecutor's argument that defendant lied on the stand was not error where prosecutor pointed to specific evidence refuting the defendant's testimony, which supported an inference that defendant was untruthful); see also People v. Kerber, 64 P.3d 930, 935 (Colo.App. 2002) (relying on other jurisdictions for proposition that prosecutors may refer to statements and testimony as a lie if the evidence supports that inference and the prosecutor relates the argument to specific evidence). As noted by the court of appeals, these precedents had not yet been overruled at the time of the trial in this case. While their continuing vitality at the time suggests why the prosecuting attorney carefully structured his argument as he did, and why the trial court overruled the defendant's objection to it, nevertheless permitting the use of the terms "lie," "lying," and "lied" was no less erroneous.

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