People v. Bell

• Citation: 809 P.2d 1026
• Decision Date: 19 July 1990
• Docket Number: No. 88CA0084,88CA0084
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Otis Lee BELL III, Defendant-Appellant. . V
• Court: Court of Appeals of Colorado

Page 1026

809 P.2d 1026

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Otis Lee BELL III, Defendant-Appellant.

No. 88CA0084.

Colorado Court of Appeals,

Div. V.

July 19, 1990.

Rehearing Denied Aug. 30, 1990.

Certiorari Denied April 15, 1991.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Robert M. Russel, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge DAVIDSON.

Defendant, Otis Lee Bell III, appeals the judgment of conviction entered on a jury verdict finding him guilty of first degree sexual assault, second degree kidnapping, first degree burglary, second degree burglary, and several other counts arising from the same incident. We affirm in part and reverse in part.

The defendant and two companions, Glenn Jones and Travis Colvin, were arrested in early morning darkness close to the site where they had abandoned their crashed, stolen car after being chased by police. The police were responding to an earlier emergency report of a burglary, robbery, and sexual assault in progress at a nearby residence. Three men had been involved in the incident, and clothing and other items on the men corresponded to descriptions given by the couple who had been attacked.

The couple described an intrusion by three men who interrupted their sleep at about 12:30 a.m. by insistently ringing their doorbell, then breaking down the door, and threatening the couple with a gun. One man (person C) stayed outside while the others entered the house.

Inside, one of the two intruders (person B) took the husband to a back bedroom in search of money. The other (person A), who had the gun, took the wife to the couch and sexually assaulted her. Person B returned the husband to the living room where person A watched over both victims while person B searched the house. After giving B the gun with the request that he again take the husband to the back bedroom, A again sexually assaulted the wife. At moments when he was briefly left alone in the bedroom, the husband called the police.

The primary issue at defendant's trial was whether he was person A or person C. The prosecution conceded that it did not have sufficient evidence to prove that person C participated in or was even aware of the sexual assault of the wife or the kidnapping of the husband (taking him to the back bedroom) with the use of a deadly weapon.

Although the evidence consistently implicated Travis Colvin as person B, it showed some inconsistency as to the identities of A and C. At the preliminary hearing and motion to suppress (which all three suspects attended--their trials were later severed), the husband identified Glenn Jones as person A. However, the clothing found on Jones looked unfamiliar to the victims, and that found on the defendant matched the descriptions they provided concerning person A. As a sanction for violation of a sequestration order, the husband was not allowed to testify as to whom he would identify as A at the time of trial.

The jury found defendant guilty on all counts as person A, and the trial court entered judgment accordingly.

I.

Defendant first contends that the trial court violated his right to present a defense by not allowing him to bring Glenn Jones into the courtroom as an aid to him in his cross-examination of the husband and as an aid to the jury in its comparison of his appearance with that of the defendant. Jones' presence was denied on the ground that it would prejudice Jones in his upcoming trial in giving the husband another opportunity to look at him. We agree that denying defendant the opportunity to present Jones was in error, but conclude that the error was harmless beyond a reasonable doubt.

The right of an accused to present evidence in his defense is a fundamental component of due process of law. U.S. Const., amends. VI, XIV; Colo. Const. art. II, §§ 16, 25; Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988); People v. Pratt, 759 P.2d 676 (Colo.1988); People v. Kreiter, 782 P.2d 803 (Colo.App.1988); see People v. Provonost, 773 P.2d 555 (Colo.1989). "The exclusion of criminal defense evidence undermines the central truthseeking aim of our criminal justice system ... because it deliberately distorts the record at the risk of misleading the jury into convicting an innocent person." Taylor v. Illinois, supra (Brennan, J., dissenting).

However, not all exclusions are of constitutional magnitude. Before an exclusion reaches such proportions, the accused must make a plausible showing of how the evidence would have been both material and favorable to his defense. U.S. v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982). In addition, even exclusions of constitutional magnitude are not reversible error if they are harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); People v. Pratt, supra.

It is undisputed that identity was the key issue at trial and that the validity of the husband's prior identification of Jones as person A was material to that issue. Hence, the jury's comparison of Jones and the defendant's appearance was also material.

In addition, although the photographs and descriptions of Jones and defendant in the record portray them as quite similar, we are willing to assume for our analysis that the presentation of Jones' person could have been favorable to defendant. This assumption is supported by the fact that defendant sought to suppress the photographs and to admit only Jones' person for the jury's comparison, and by the acknowledgement of the trial court, which had seen Jones in prior hearings, that Jones' person would be the "the best evidence" to cross-examine the husband on the credibility of his previous identifications. Consistent with such assumption, we conclude that the exclusion was of constitutional magnitude.

One person's constitutional rights may not be eclipsed by non-constitutional prejudice to another. See Government of Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980); cf. People v. Harding, 671 P.2d 975 (Colo.App.1983), aff'd 708 P.2d 1354 (Colo.1985). Although a person has the right under the Fifth Amendment not to speak on the ground that it may incriminate him, he has no constitutional right not to display his person. Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910); LeBlanc v. People, 161 Colo. 274, 421 P.2d 474 (1967).

Accordingly, it was impermissible for the trial court to sacrifice defendant's right to present his defense in favor of any right of Jones' to remain hidden from the husband. In any case, insofar as further exposure to the husband should turn out to create potential prejudice for Jones in his subsequent trial, the prosecution could then be restricted in its presentation of identification evidence by that victim. See generally Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv.L.Rev. 567 at 579-81 (1978). It was improper to impose the prejudice inherent in the situation on defendant.

Having found a constitutional error, we must now determine whether that error was, nevertheless, harmless beyond a reasonable doubt. See Chapman v. California, supra; Topping v. People, 793 P.2d 1168 (Colo.1990).

The excluded evidence would have allowed defendant to cross-examine the husband concerning the similarities between Jones and defendant that he remembered from his prior exposure to them. In addition, it would have allowed the jury to compare the physical characteristics of the two suspects live, so as better to judge whether the husband could have been mistaken in his initial identifications.

The evidence presented to the jury on this question included a comparison of the suspect's physique and facial characteristics by the husband, descriptions of the men by the arresting officers, photographs of both men (ultimately admitted by stipulation), and defendant's appearance in the courtroom. All of this evidence illustrates that the men did, in fact, look quite similar, with Jones of a somewhat larger build. The situation is, thus, unlike the reversible error arising from exclusion of evidence of a person because of a huge discrepancy between the victim's description and the defendant himself. E.g., State v. Sanders, 691 S.W.2d 566 (Tenn.Crim.App.1984) (error to deny defendant opportunity to stand and display his height where victim described assailant as "her mother's height," 5 ft. 1 inch, and the defendant was about 6 ft. tall).

In addition, evidence of the defense embodied in the presentation of Jones was not entirely excluded. See Honey v. People, 713 P.2d 1300 (Colo.1986) (error in disallowing opinion evidence on complaining witness' lack of truthfulness was harmless beyond a reasonable doubt where defendant was allowed to discredit witness in other ways); cf. People v. Green, 38 Colo.App. 165, 553 P.2d 839 (1976) (to deny defendant the right to present any independent corroborative testimony on a material issue must be considered prejudicial error). As stated, photographs--including mug shots of both Jones and Bell taken immediately after arrest and a somewhat later larger photo showing Jones from just above the knees--were admitted. Defendant refers us to no part of the record in which it is alleged or suggested that the photographs are inaccurate or misleading. He argues only that they are not the "best evidence" of the men's similarities, particularly of their relative bulk.

Finally, the evidence against defendant was overwhelming. While the wife could not identify the facial characteristics of any of the robbers, she testified that she was "absolutely certain" in identifying the brown leather coat found on defendant when he was arrested shortly after the incident as the jacket worn by...