People v. Couch, 24870

• Decision Date: 05 September 1972
• Docket Number: No. 24870,24870
• Citation: 500 P.2d 967,179 Colo. 324
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael E. COUCH, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 967

500 P.2d 967

179 Colo. 324

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael E. COUCH, Defendant-Appellant.

No. 24870.

Supreme Court of Colorado, En Banc.

Sept. 5, 1972.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Richard G. McManus, Jr., Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, C. Phillip Miller, Deputy State Public Defender, Denver, for defendant-appellant.

PRINGLE, Chief Justice.

The appellant in this action, Michael Couch, was convicted of forgery after making certain purchases with another person's credit card. From that conviction he brings this appeal. He will hereinafter be referred to by name or as appellant.

The following facts were elicited at Couch's trial. The co-owner of the Commerce Town Liquor Store in Adams County testified that appellant purchased liquor from the store with a Bankamericard bearing the name of Michael Atkins. The liquor store owner stated that appellant signed the sales draft with the name Michael Atkins. The owner of this Bankamericard and the complaining witness here, Michael Atkins, testified that he had never authorized Couch to use his Bankamericard.

During cross-examination of Atkins, defense counsel attempted to inquire as to whether the relationship between Atkins and Roger Johanssen, Couch's roommate, was a 'natural' one. While the trial judge sustained an objection to this line of questioning, he did allow the following offer of proof in chambers:

'Mr. Quinn: . . . I would offer to show through Michael Atkins that he had a homosexual relationship with Roger Johanssen, and that because of this relationship, . . . the defendant made attempts to discourage Roger Johanssen from pursuing this relationship with Michael Atkins. That as a result of (the defendant) attempting to prevent the relationship with Michael Atkins, Michael Atkins, out of bias and prejudice, made a complaint to the police department with respect to these charges.'

The court then reiterated its ruling sustaining the objection on the grounds that such testimony was purely an attempt to prejudice and discredit Atkins by showing that he had homosexual tendencies.

At a subsequent In camera hearing, Roger Johanssen testified as to the details of a homosexual act between himself and Atkins. He also testified that Couch had in fact advised him to stay away from Atkins, and that Atkins had later acknowledged that he was pressing charges against Couch to 'get even' with Couch for telling Johanssen not to see Atkins. The court ruled that all this testimony would be admissible except that specifically relating to Atkins' homosexual activities. During subsequent direct examination in the presence of the jury Johanssen repeated the above testimony showing Atkins' bias without alluding to any homosexual relationship between him and Atkins.

After both sides rested, appellant moved to dismiss on the basis that he should have been prosecuted under C.R.S.1963, 40--14--21, which specifically deals with the crime of fraudulent misuse of credit cards, rather than the more general forgery statute, C.R.S.1963, 40--6--1. After this motion was denied by the court, appellant objected to the jury's instructions on the presumption of innocence, general intent, specific intent, reasonable doubt, and the definition of forgery.

Appellant raises four issues for our consideration in this appeal. He claims (1) that he should not have been charged with forgery when Colorado has a more specific statute dealing with the fraudulent use of credit cards; (2) that since no standards existed to guide the prosecutor in deciding whether to charge appellant under the forgery statute, a felony, or the credit card statute, a misdemeanor, appellant was denied due process and equal protection of the law; (3) that the trial court erred in refusing to allow questions of prosecution and defense witnesses about homosexual relations between the complainant, Michael Atkins, and Roger Johanssen; and (4) that the trial court improperly instructed the jury on the presumption of innocence, intent, reasonable doubt, and the definition of forgery. We find no merit in any of these contentions and affirm.

I.

The first two issues raised by appellant--whether one fraudulently using a credit card can be charged forgery in spite of Colorado's more specific credit card statute, and, whether there need to be guides and standards to aid the prosecutor in choosing between filing charges under the forgery or credit card statute--were recently before this Court in People v. James, Colo., 497 P.2d 1256. In James we held that since the credit card and forgery statutes have as their subject matter two different kinds of criminal transactions, the existence of the specific credit card statute did not proclude prosecution under the state's general forgery statute. See also, Hucal v. People, Colo., 493 P.2d 23. We also held that in such a situation it was the proper discretional function of the prosecutor to elect to proceed under the felony rather than the misdemeanor statute. Frink v. People, 103 Colo. 172, 83 P.2d 774. See also, People v. McKenzie, 169 Colo. 521, 458 P.2d 232.

II.

Appellant's next contention is that he was denied his constitutional right to confront and cross-examine witnesses when the trial judge rules that he could not question the complainant, Michael Atkins, about Atkins' homosexual relationship with appellant's roommate, Roger Johanssen. Two possible purposes would be served by allowing appellant to cross-examine Atkins regarding his homosexual relationship with Johanssen. First, such testimony would have revealed that Atkins had personal feelings about the appellant, as well as a strong interest in the outcome of the lawsuit he initiated. If the only way in which this bias could have been demonstrated would have been by delving into Atkins' sexual relationship with Johanssen, it would ordinarily have been admissible. As appellant points out in his brief to this Court, Colorado law is quite clear in upholding the defendant's...