People v. Ayala
| Decision Date | 19 October 1995 |
| Docket Number | No. 93CA1992,93CA1992 |
| Citation | 919 P.2d 830 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Levi AYALA, Defendant-Appellant. . V |
| Court | Colorado Court of Appeals |
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Lauren A. Edelstein, Special Assistant Attorney General, Denver, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, for Defendant-Appellant.
Opinion by Judge ROY.
Defendant, Levi Ayala, appeals the judgment of conviction entered upon a jury verdict finding him guilty of one count of distribution of cocaine. We affirm.
On May 18, 1990, a police officer, a police informant, and a liquor code enforcement officer entered a bar to discover whether there were any liquor law violations or illegal drug transactions occurring. The informant introduced defendant to the police officer indicating that defendant could provide the officer with cocaine. The police officer then allegedly purchased a gram of cocaine from defendant. Both the police officer and the informant testified for the prosecution in its case in chief.
I.
Defendant contends that the trial court erred in admitting reputation and opinion testimony of the police officer supporting the credibility of the police informant. We agree with respect to the reputation testimony, but conclude that the error does not require reversal, and we disagree with respect to the opinion evidence.
In general, evidence of a person's character or character traits may not be admitted to show that the person acted in conformity therewith. CRE 404(a); People v. Gaffney, 769 P.2d 1081 (Colo.1989). However, evidence in the form of reputation or opinion concerning a witness' character for truthfulness may be introduced to support the credibility of the person when the witness' character for truthfulness has been attacked. See CRE 404(a)(3); CRE 405(a); and CRE 608(a).
Specifically, CRE 608(a) provides:
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
A. Reputation Evidence
The prosecution called the police officer as a rebuttal witness, and he testified as to the reputation of the informant as follows:
Defendant contends that the police officer did not have an adequate basis upon which to testify as to the informant's reputation for truthfulness in a recognized community. We agree, but conclude that the error was harmless.
Reputation testimony may be based on what the witness has heard in the community regarding the person's character. See Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); People v. Erickson, 883 P.2d 511 (Colo.App.1994).
The "community" may encompass the person's neighborhood, work, or social community. See COLJI-Crim. No. 4:08 (1983); 1 J. Strong, McCormick on Evidence § 43 at 159 (4th ed. 1992) ().
The key requirement that may be drawn from these authorities is that reputation testimony must be based on opinion held generally in a broad community. Reputation is distinguished from rumor in that it must be established over a period of time. People v. Erickson, supra; 5 J. Wigmore, Evidence §§ 1611-12 (Chadbourn rev. 1974).
Several courts that have addressed the issue of whether a police officer may testify about the reputation of a witness who is associated with the criminal justice system have disallowed such testimony on the basis that the criminal justice system is not a recognized or general community. See State v. Lord, 117 Wash.2d 829, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856, 113 S.Ct. 164, 121 L.Ed.2d 112 (1992); Parker v. State, 458 So.2d 750, 754 (Fla.1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1855, 85 L.Ed.2d 152 (1985) ().
Here, the police officer's reputation testimony was based solely on the informant's role as a confidential informant for two police organizations. The informant, who was paid $3000 for his help, agreed to become a police informant to avoid prosecution for possession of eleven ounces of cocaine, and to avoid possible deportation. Thus, he had a strong incentive to cooperate with the police and to testify in support of the prosecution. In addition, under the circumstances, the police officer's opinion is not neutral, that is, the police officer has a powerful inducement to testify favorably concerning the informant's reputation.
We agree that, under these circumstances, the informant's association with the police organizations did not form a sufficient community upon which reputation testimony, which is general and established in nature, may be based. Therefore, we conclude that the police officer's testimony concerning the informant's reputation for truthfulness should have been excluded.
In this instance, however, the police officer's testimony concerning the informant's reputation was brief and conclusory. The defendant was permitted to cross-examine the police officer concerning a prior case in which the informant had participated and the defendant had been acquitted. The impact of the reputation testimony was minimized because, as more fully discussed below, the trial court did not err in permitting the police officer to testify regarding his opinion of the informant's general character for truthfulness. In addition, the testimony of both the police officer and the informant was generally consistent as to what transpired with respect to the transaction and what inconsistencies did exist did not go to identity or whether the transaction occurred.
Therefore, we conclude that the police officer's reputation testimony did not substantially influence the verdict or adversely affect the fairness of the proceedings. Hence, the error in admitting the testimony was harmless. See People v. Jensen, 747 P.2d 1247 (Colo.1987); People v. Gaffney, supra.
B. Opinion Evidence
The prosecution also elicited the police officer's opinion regarding the informant's character for truthfulness as follows:
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