People v. Cole, 79SA562

• Decision Date: 29 November 1982
• Docket Number: No. 79SA562,79SA562
• Citation: 654 P.2d 830
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Michael Lee COLE, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 830

654 P.2d 830

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Michael Lee COLE, Defendant-Appellee.

No. 79SA562.

Supreme Court of Colorado En Banc.

Nov. 29, 1982.

R. Dale Tooley, Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Guy Till, Deputy Dist. Atty., Appellate Div., Keith D. Johnson, Deputy Dist. Atty., Denver, for plaintiff-appellant.

Gregory Walta, State Public Defender, John M. Richilano, Deputy State Public Defender, Denver, for defendant-appellee.

LEE, Justice.

The People appeal two evidentiary rulings which were made during the Denver District Court trial of Michael Lee Cole on charges of first degree assault, section 18-3-202, C.R.S. 1973 (1978 Repl.Vol. 8). After a jury trial on the charges, the defendant was found not guilty. Although the constitutional prohibition of double jeopardy precludes a retrial of the defendant under these circumstances, the People have exercised their statutory right to appeal a question of law. See section 16-12-102, C.R.S. 1973 (1978 Repl.Vol. 8). We disapprove the evidentiary rulings of the trial court.

The assault charge stemmed from a disturbance in the Curtis Park Housing Project in Denver. Police officers Lopez, Hendricks, Selander, and Kier were summoned to the scene, where the defendant and another man, Leon McCoy, were allegedly involved in an altercation. Officer Lopez approached the defendant, asked him to raise his hands, and was proceeding to perform a "pat down" search for weapons when the defendant allegedly pulled a machete from his clothing and made a slashing motion toward Officer Lopez. Lopez received a cut on his right hand. The defendant was restrained and a further search of his person uncovered a five-inch hunting knife in addition to the machete. The defendant was charged with the assault on Officer Lopez.

At the trial the four officers who had responded to the scene of the disturbance testified for the People. On cross-examination of these officers, the defendant introduced evidence of two unrelated citizen complaints of the use of excessive force involving the same officers. Both incidents had been investigated by the Staff Inspection Bureau of the Denver Police Department (S.I.B.). ¹ The trial court permitted the introduction of this evidence of the two unrelated incidents, ruling that it bore upon the credibility of the witnesses.

The first reported incident, which occurred approximately nine months prior to the present case, involved an arrest in a bar during a routine inspection. The officers were exonerated of the use of excessive force after an S.I.B. investigation, and the defendant in that incident pled guilty to assaulting a police officer.

The later incident occurred two days after the case at bar and also concerned the improper use of force against a suspect. Officer Lopez admitted to having used force in order to subdue the suspect, and as a result of the S.I.B. investigation he was charged with a violation of RR-306 of the police regulations. Two defense rebuttal witnesses were permitted over objection to testify regarding the conduct of the officers in these unrelated incidents.

The defendant testified in his own defense regarding the events of the alleged assault on Officer Lopez. In the course of his testimony the defendant, in response to a direct question by defense counsel, denied that he had used a knife in the fight with Leon McCoy, who was the complainant in the original disturbance. At the close of the defendant's case, the People then sought to rebut this testimony with testimony from McCoy. The offer of proof indicated that McCoy would testify that the defendant had been the aggressor in their altercation, and as a result McCoy had been stabbed in the arm. The trial court excluded this testimony, ruling that it would be more prejudicial to the defendant than probative of the issues in the case.

The People have challenged both evidentiary rulings, arguing first that specific instances of conduct are not admissible in order to attack credibility, and second, that the court should have allowed the rebuttal testimony of McCoy, since it was in direct contradiction to the defendant's testimony regarding the events of that evening, and therefore would bear directly on the defendant's credibility as a witness.

I.

We first address the appellant's contention that the trial court erred in admitting evidence of the complaints made against the officers in unrelated cases. It is well established in this jurisdiction that trial courts have broad discretion in controlling the mode and extent of the presentation of evidence, and that, absent a clear abuse of discretion, rulings thereon shall not be disturbed on review. People v. Henry, 195 Colo. 309, 578 P.2d 1041 (1978); People v. Bynum, 192 Colo. 60, 556 P.2d 469 (1976).

This court has consistently recognized the general limitation of admissibility of character evidence, holding that "while the character of a witness for truth and veracity may be shown, impeachment may not be accomplished by attacking the general character of the witness." People v. Taylor, 190 Colo. 210, 214, 545 P.2d 703, 706 (1976); People v. Couch, 179 Colo. 324, 500 P.2d 967 (1972). Moreover, although limited inquiry into specific instances of prior conduct is permissible on cross-examination of the witness if related to his character for truthfulness or untruthfulness, as a general rule specific instances of prior conduct may not be proven by extrinsic evidence to impeach the credibility of the witness. People v. Taylor, supra. ²

Other transaction evidence which tends to show bias or prejudice of witnesses may be inquired into on cross-examination, and to a limited extent proven by extrinsic evidence. People v. Taylor, supra; People v. Key, 185 Colo. 72, 522 P.2d 719 (1974); People v. Simmons, 182 Colo. 350, 513 P.2d 193 (1973). Nevertheless, the trial court must "exercise its sound discretion to preclude inquiries that have no probative force, or are irrelevant ... or which would have little [bearing] on the witness' credibility, but would substantially impugn his character." People v. Taylor, 190 Colo. 210, 212-13, 545 P.2d 703, 705 (1976). People v. Couch, supra.

People v. Taylor, supra, like the present case, involved a prosecution for assault on a police officer. The complaining officer, on cross-examination, denied that he was racially prejudiced. This court held that the defendant was entitled to present extrinsic evidence to prove the racial bias of the complaining officer for the purpose of impeachment, but held that the trial court erred in permitting broad inquiry into the details of the prior arrests made by the police officer. In commenting on the admission of testimony relating the details of other arrests, the court in Taylor said:

"Such questions were aimed not merely at impeaching the credibility of the officer, but at maligning his character and official conduct generally. To routinely allow this sort of questioning could greatly delay the trial and in effect make the officer the defendant in a series of mini-trials dealing with the manner in which he arrested countless other persons at other times." 190 Colo. 210, 214, 545 P.2d 703, 706.

In the instant case, the evidence of the first incident involving the officers' routine inspection of a barroom, which occurred more than nine months prior to the arrest of the defendant and resulted in a guilty plea by the complaining witness, is totally irrelevant to the issues under consideration. Such evidence has little or no bearing on credibility of the officer as a witness, and serves only to improperly attack the general character of the officer.

With regard to the second incident, Officer Lopez admitted the use of force, and that fact was further confirmed by the commander of the S.I.B. when he testified regarding the official investigation. Under the circumstances, in view of the officer's admission, detailed questioning of the witness regarding the facts of the incident was an abuse of discretion. It was also an abuse of discretion to permit the two other witnesses to testify in rebuttal regarding the conduct of the officers in the unrelated incidents since such evidence could not be properly used to impeach the credibility of the officers. Such evidence opens the door to improper considerations and lends to the confusion of the jury by placing undue emphasis on collateral matters. ³

The defendant would have us recognize an absolute right on the part of the defendant to impeach prosecution witnesses on cross-examination and rebuttal. The defendant relies upon the sixth amendment right of confrontation as applied in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), and Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). In Davis, the United States Supreme Court held that the accused's sixth amendment right of confrontation prevailed over a state policy of concealing the witness' prior juvenile delinquency adjudications which could be linked to the witness' possible bias, prejudice, or ulterior motive for testifying. However, an accused's right to confront and to cross-examine witnesses is not absolute and may be limited "to accommodate other legitimate interests in the criminal trial process," but the competing interests are to be carefully scrutinized. Chambers v. Mississippi, supra, 410 U.S. at 295, 93 S.Ct. at 1046.

In People v. Taylor, supra, this court cited Davis for the proposition that cross-examination should be liberally extended to permit a thorough inquiry into the motives of witnesses, but recognized that cross-examination related to credibility could be limited consistent with an accused's right of confrontation. ⁴

We therefore hold that it was not proper to admit cross-examination and rebuttal testimony regarding the unrelated arrests and citizen complaints of the use of excessive force. The trial court erred in...