Kinney v. People, No. 06SC521.
| Decision Date | 30 June 2008 |
| Docket Number | No. 06SC521. |
| Citation | 187 P.3d 548 |
| Parties | James KINNEY, Petitioner v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
John W. Suthers, Attorney General Katherine A. Hansen, Assistant Attorney General Denver, Colorado, Attorneys for Respondent
In this case, we consider whether the court of appeals erred in People v. Kinney, 148 P.3d 318 (Colo.App.2006), when it upheld the trial court's admission under CRE 404(b) of testimony concerning two previous sexual assaults by the defendant James Kinney and the trial court's refusal to inform the jury that Kinney had been tried and acquitted of both prior sexual assaults.
We hold that prior act evidence is admissible despite the defendant's acquittal of committing those prior acts. Based on the facts of the case and the nature of the testimony presented, the trial court has discretion to determine whether the jury should be informed of the defendant's acquittal. Here, we conclude that evidence of the prior sexual assaults was admissible but the trial court abused its discretion by refusing to instruct the jury about the acquittals. Therefore, Kinney is entitled to be retried with proper jury instructions.
We also granted certiorari to review the court of appeals' affirmance of the trial court's refusal to allow a prosecution witness, E.S., to be questioned about a pending misdemeanor charge. Because this issue may arise at a new trial, we address it and determine that the court of appeals erred when it upheld this limitation on the cross-examination of E.S. Kinney should have been permitted to question E.S. about the misdemeanor charge that was pending when she testified in the December 2003 trial. The ongoing, significant help that the prosecutor's office had given to the witness when she faced another, earlier charge established that the witness may have been influenced to give testimony favorable to the prosecution because she had a promise of, or hope or expectation of, immunity or leniency with respect to the charges pending against her.
Kinney was charged with sexually assaulting three women in separate incidents: E.S., M.C., and R.B. The present case involves Kinney's conviction for sexually assaulting R.B. Before trial in this case, he was tried and acquitted in April 2000 of sexually assaulting E.S., and he was tried and acquitted in August 2003 of sexually assaulting M.C.
In the first case, E.S. accused Kinney of sexually assaulting her in February 1999 in Denver. E.S. did not report the crime until she was in jail on an unrelated matter in the summer of 1999. Kinney was charged with sexual assault, but was acquitted in a jury trial in April 2000.1
The other two alleged assaults occurred on the same day in December 2002. M.C. claimed that Kinney sexually assaulted her in the early afternoon at his apartment in Sheridan. M.C. then left Kinney's apartment, and used a phone at a neighboring apartment to call the police and report the sexual assault.
After M.C. left, Kinney met R.B. in Denver and they returned to his apartment. There, Kinney and R.B. had sex twice.
As Kinney and R.B. were leaving his apartment that evening, the Sheridan Police arrived on the scene to investigate M.C.'s complaint against Kinney. After the police arrested Kinney, R.B. told the police that she been sexually assaulted by him as well. Later that day, R.B. retracted her allegation and said that the sex had been consensual, a position that she has maintained ever since.
In August 2003, Kinney was tried and acquitted for sexually assaulting M.C. At the trial, the court allowed the prosecution to introduce CRE 404(b) prior act evidence, based on the allegations of E.S. and R.B., to show a common plan or scheme. The trial court ruled that the jury would not be informed that Kinney had been tried and acquitted of assaulting E.S.
In December 2003, Kinney was tried for sexually assaulting the third victim, R.B., which is the case at issue here. The prosecution again filed a motion seeking to introduce CRE 404(b) prior act evidence based on the allegations of E.S. and M.C. Kinney objected to the admission of the evidence and requested that he be allowed either to present evidence to the jury of his acquittals or otherwise to have the jury instructed about the outcome of the two previous cases.
The trial court precluded the parties from making any reference to the prior charges or trials. The court acknowledged that the jury might speculate that Kinney had been charged, tried, and convicted because the anticipated testimony included discussions of police involvement in the previous cases, and conceded that it might be advisable to instruct the jury not to speculate as to the circumstances of the other cases. However, the court declined to give a non-speculation instruction, reasoning that it would be sufficient to prohibit both sides from introducing any evidence to the jury that there had been previous charges, trials, or acquittals. Instead, the parties were directed to refer to any witness's testimony at a prior hearing or trial as testimony at a prior "proceeding."
At another pretrial hearing in the R.B. case, the trial court determined that Kinney could cross-examine E.S. about only one of the two cases that were pending against her. Cross-examination was allowed for vehicular eluding, a felony, which was pending in Douglas County. When E.S. testified for the prosecution in M.C.'s case in August 2003, that case was pending as a deferred judgment and sentence, and a bench warrant had been issued for her arrest because she failed to appear for a court date. After the trial in M.C.'s case concluded, representatives from the prosecutor's office accompanied E.S. to court to have the warrant vacated and a summons reinstated. The representatives also appeared on E.S.'s behalf in November 2003 after a second warrant was issued for her failure again to appear for a court date. Altogether, the prosecution's representatives appeared three times in court on E.S.'s behalf between August and December 2003, when R.B.'s case went to trial.
E.S. also had a second pending charge for criminal trespass, a misdemeanor, again filed in Douglas County. During a pretrial conference, the defense requested that it also be allowed to question E.S. about this second case. The prosecution argued that it had "made no promises or inducements" with respect to that case. The defense contended that the lack of a promise or inducement was not dispositive of the matter because the district attorney's assistance in the earlier case might cause E.S. to believe or perceive that her testimony favorable to the prosecution might also lead to a favorable disposition of her second pending case. However, the trial court ruled that the defense could not question E.S. about the pending criminal trespass charge because it was a misdemeanor and the district attorneys had not made E.S. any promises of leniency.
When the trial commenced, the prosecution began its casein-chief with the testimony of E.S. and M.C., the prior act witnesses, before putting R.B., the actual victim in the case, on the stand. Before E.S. and M.C. testified, the trial court instructed the jury, "This particular evidence may be used as evidence for the purpose of showing lack of consent, common plan or scheme, intent or knowledge, and you should consider it as evidence for no other purpose."
During E.S.'s testimony, she was asked three times about her testimony at a prior "proceeding." She also testified about calling the police regarding the alleged assault and having an investigator assigned to her case. Next, during the testimony of M.C., there were eight exchanges in which M.C. was asked about her testimony at a prior "proceeding." In addition, there was an exchange about whether she had spoken with the prosecutors before she testified in August at the "proceeding." M.C.'s testimony also included extensive discussion of her questioning by the Sheridan Police surrounding this incident, including her experience undergoing a rape examination by a police officer and an emergency room physician.
R.B. then testified. During her testimony, there were nine more exchanges in which her testimony at a prior proceeding was discussed. R.B. testified that the sex had been consensual, again recanting her initial allegations. She testified that she fabricated the accusation of sexual assault to avoid being charged with prostitution. Thus, the prosecution impeached her repeatedly with statements that she had previously made to the officer accusing Kinney of rape.
Later, the officer who arrested Kinney while responding to M.C.'s complaint was asked four times about his testimony at a prior proceeding. Kinney's neighbor, from whom M.C. borrowed a phone to call the police, was asked once about his testimony at a prior proceeding. In addition, a detective who investigated the assaults on M.C. and R.B. described obtaining a search warrant in connection with the sexual assaults.
Most of these references to testimony at a prior proceeding came in the form of impeachment of a witness with a prior inconsistent statement. For example, defense counsel in cross-examining M.C., had the following exchange:
To continue reading
Request your trial
-
People v. Abu-Nantambu-El
...People v. Bowman , 669 P.2d 1369, 1375 (Colo. 1983) ; see also Van Arsdall , 475 U.S. at 678-79, 106 S.Ct. 1431 ; Kinney v. People , 187 P.3d 548, 559 (Colo. 2008).¶ 141 A trial court has broad authority to limit the scope of cross-examination to avoid harassment, prejudice, repetition, mar......
-
State v. Jarman
...to commit the charged crime and whether the prejudicial effect of the evidence outweighs its probative value. See, e.g., Kinney v. People, 187 P.3d 548, 554 (Colo. 2008) ("Prior act evidence can be admitted even though the defendant was acquitted of the criminal charges arising out of the a......
-
People v. Houser
...Error ¶ 58 The right to confront and cross-examine witnesses is guaranteed by the federal and Colorado Constitutions. Kinney v. People, 187 P.3d 548, 558–59 (Colo.2008). Thus, while courts have wide latitude to reasonably limit cross-examination, id. at 559, they must “allow broad cross-exa......
-
State v. Yonkman
...trial courts have adopted a case-by-case approach in analyzing requests by the defendant for an acquittal instruction.” Kinney v. People, 187 P.3d 548, 555 (Colo.2008); see, e.g., Hess v. State, 20 P.3d 1121, 1125, 1127–29 (Alaska 2001); People v. Bedoya, 325 Ill.App.3d 926, 259 Ill.Dec. 24......
-
The Immortal Accusation
...other criminal acts for which he or she has been acquitted, the court should instruct the jury about the acquittal. See Kinney v. People, 187 P.3d 548, 555-56 (Colo. 2008) (noting that in cases analyzing the introduction by the prosecution of other act evidence for which the defendant had b......
-
§ 11.09 DOUBLE JEOPARDY AND COLLATERAL ESTOPPEL
...did not commit the crime, only that the People had not proved that he had beyond a reasonable doubt."). See also Kinney v. People, 187 P.3d 548, 554 (Colo. 2008) ("Prior act evidence can be admitted even though the defendant was acquitted of the criminal charges arising out of the act . . .......
-
§ 11.09 Double Jeopardy and Collateral Estoppel
...did not commit the crime, only that the People had not proved that he had beyond a reasonable doubt."). See also Kinney v. People, 187 P.3d 548, 554 (Colo. 2008) ("Prior act evidence can be admitted even though the defendant was acquitted of the criminal charges arising out of the act . . .......