Merritt v. People

Decision Date23 November 1992
Docket NumberNo. 91SC597,91SC597
PartiesLeonard Roy MERRITT, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtColorado Supreme Court

David F. Vela, Colorado State Public Defender, David M. Furman, Deputy State Public Defender, Denver, for petitioner.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Cheryl A. Linden, Asst. Atty. Gen., David Lugert, Asst. Atty. Gen., Denver, for respondent.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari to determine whether, under the Confrontation Clause of the United States Constitution, the district court correctly refused to allow cross-examination of the prosecution's two essential witnesses concerning the fact that the court, at the prosecutor's request, had granted immunity to the witnesses requiring them to testify after each had asserted his Fifth Amendment right to refuse to testify. The court of appeals stated that "to allow such cross-examination would, in our view, have been proper," but it affirmed the trial court because it deemed the evidence to have been of "minimal relevance" and to have "had little probative value." We disagree with that conclusion, and, accordingly, we reverse the unpublished decision of the court of appeals and remand the case with directions ordering a new trial for the defendant.

I.

The defendant, Leonard Merritt, was tried together with his co-defendant, Dennis Phenis. Phenis testified at trial, but Merritt did not. The following facts were established by the evidence.

On September 4, 1988, 16-year-old Brian Busto was pushed into a car at a 7-Eleven convenience store and taken to a house where he was beaten. Earlier that evening, 15-year-old Jeff Emery and 17-year-old Richard Adams had entered the 7-Eleven on their way to a birthday party to see if they could buy some beer later on that night. Busto was working as a check-out clerk at the 7-Eleven at the time.

After leaving the 7-Eleven, Emery and Adams attempted to take a large marijuana plant growing in the backyard of the house of Dennis Phenis. Emery and Adams were cornered in the yard by Phenis' dog and apprehended by Phenis and the defendant, Leonard Merritt.

When asked who told them about the marijuana plant, Adams replied, "Brian Devitt," and said that he and Emery were supposed to meet "Brian" in Columbine Park. Merritt, Phenis, and the two juveniles drove to the park, where they waited for about fifteen minutes. When no one showed up, Emery said that "Brian" must still be at work at 7-Eleven. The four then drove to the 7-Eleven and during the drive, Phenis and Merritt threatened to beat or kill the two juveniles.

At the 7-Eleven, Brian Busto was waiting for his father to pick him up after work. Phenis lured Busto out of the store by asking him to help move something out of Phenis' car. Busto agreed, but when they arrived at the car, Merritt and Phenis pushed Busto inside, with Phenis choking and punching him. Phenis then drove to a friend's house.

The evidence is in dispute at this point. Adams and Emery testified that Merritt and Phenis agreed that if Adams and Emery beat Busto, they could leave. Busto was then taken to the basement of the friend's house and beaten by Adams and Emery. Busto testified that Emery and Adams said that he should not have set them up. Busto testified that Merritt was somewhere in the basement during the beating.

Phenis testified that after he drove to the friend's house, Adams and Emery requested to speak with Busto in private. Phenis testified that while Adams and Emery were talking to Busto, a fight broke out in which Busto was beaten. Phenis denied telling Adams and Emery to beat Busto. Merritt's statements to a police investigator, Detective Russell Boatright, are in accord with Phenis' testimony.

After the beating, the five drove back to Columbine Park, where Busto was released. He walked back to the 7-Eleven, and a co-worker called the police and Busto's parents.

Merritt was arrested and charged by information in the Jefferson County Court on October 27, 1988, with second degree kidnapping, 1 menacing, 2 and third degree assault, 3 along with Phenis. A joint trial was commenced on June 13, 1989, and concluded on June 16, 1989, with the jury finding Merritt and Phenis guilty as charged. Merritt was sentenced to a term of three years in the Department of Corrections for the kidnapping conviction, two years for the menacing conviction, and one year for the assault conviction, the sentences to run concurrently.

At trial, Adams and Emery testified against Merritt. Both juveniles had been charged in juvenile court for their roles in the events for which Merritt was charged. Both juveniles refused to testify, and asserted their Fifth Amendment right against self-incrimination outside of the hearing of the jury. Pursuant to § 13-90-118, 6A C.R.S. (1987), the prosecutor requested that the court grant the two juveniles "use immunity" for their testimony against Merritt. 4 The request was granted.

The court ordered that defense counsel could cross-examine the juveniles on the basis of their present pending juvenile charges but not as to the issue of the grant of immunity. The prosecutor was permitted to question the two juveniles as to whether any "deals" had been offered by the prosecution in return for their testimony. In response to these questions, both Adams and Emery answered that they had not. 5 In addition, the following colloquy occurred while Adams was being cross-examined by Phenis' counsel:

Q: Is it true that you're telling the jury that you don't believe you're going to get anything from your cooperation regarding your pending case?

A: I really don't understand what you're asking me.

Q: You don't think, for testifying, they might do something for you later after the trial is over?

A: I'm not for sure.

Emery was not similarly cross-examined.

The court of appeals, in an unpublished decision, affirmed Merritt's conviction. People v. Merritt, No. 89CA1508 (Colo.App. Aug. 15, 1991). The court of appeals held that allowing cross-examination on a grant of use immunity would have been proper. However, that court believed that because such questioning was of "minimal relevance" to show bias or motive for testifying, and had little probative value, any error in refusing to allow such cross-examination was de minimis and therefore not grounds for reversal. We conclude that the court of appeals misapplied the test to determine whether there was a Confrontation Clause error here. Under the proper test, there was error, and the error was not harmless beyond a reasonable doubt. Accordingly, the defendant's convictions must be reversed and remanded for a new trial.

II.

The first issue before the court is the determination of the proper standard of review in the instant case. The right of a criminal defendant to confront the witnesses against him or her is guaranteed by the United States Constitution. 6 Such confrontation is not satisfied simply by having the witnesses physically present in court, but requires that the defendant be given an opportunity for effective cross-examination. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); People v. Thurman, 787 P.2d 646, 651 (Colo.1990). Such an opportunity for effective cross-examination, however, does not mean unlimited cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431-1435, 89 L.Ed.2d 674 (1986); People v. Cole, 654 P.2d 830, 833 (Colo.1982). See also Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985) (opportunity for effective cross-examination does not mean that cross-examination must actually be effective). The scope and duration of cross-examination is under the control of the trial court subject to well-established rules. Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435.

Generally, unless excludable by some statute or rule of evidence, all relevant evidence should be admitted. C.R.E. 402. Relevant evidence should be excluded only if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. C.R.E. 403. The credibility of a witness may be attacked by any party, and the court may limit witness examination if necessary to assist the truth-finding process; to avoid wasting time; and to protect witnesses from harassment, undue embarrassment, or danger to his or her personal safety. Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931); Smith v. Illinois, 390 U.S. 129, 133-34, 88 S.Ct. 748, 751, 19 L.Ed.2d 956 (1968) (White, J., concurring); Thurman, 787 P.2d at 652; C.R.E. 607, 611. See also Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435.

Thus, a trial court has wide latitude, insofar as the Confrontation Clause is concerned, to place reasonable limits on cross-examination based on concerns about, for example, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation which is repetitive or only marginally relevant. Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435. On the other hand, the United States Supreme Court has stated:

We think a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby "to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness."

Van Arsdall, 475 U.S. at 680, 106 S.Ct. at 1435 (quoting Davis, 415 U.S. at 318, 94 S.Ct. at 1111). Accord People...

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