People v. Deroulet

• Decision Date: 08 June 2000
• Citation: People v. Deroulet, 22 P.3d 939 (Colo. App. 2000)
• Docket Number: 98CA0715
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Jesse A. DEROULET, a/k/a Jesse A. Proulet, a/k/a Jesse A. Peroulelt, Defendant-Appellant and Cross-Appellee.
• Court: Colorado Court of Appeals

22 P.3d 939

The PEOPLE of the State of Colorado, Plaintiff-Appellee and Cross-Appellant, v. Jesse A. DEROULET, a/k/a Jesse A. Proulet, a/k/a Jesse A. Peroulelt, Defendant-Appellant and Cross-Appellee.

No. 98CA0715.

Colorado Court of Appeals, Div. V.

June 8, 2000.

Rehearing Denied July 13, 2000.

Certiorari Granted January 16, 2001.

Ken Salazar, Attorney General, Matthew S. Holman, Assistant Attorney General, Denver, Colorado; Jeanne M. Smith, District Attorney, Gordon R. Denison, Deputy District Attorney, Colorado Springs, Colorado, for Plaintiff-Appellee and Cross-Appellant.

David F. Vela, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant and Cross-Appellee.

Opinion by Judge KAPELKE.

Defendant, Jessie A. Deroulet, appeals from the judgment of conviction entered on a jury verdict finding him guilty of first degree burglary, a class three felony; third degree assault, a class one misdemeanor; theft, a class three misdemeanor; harassment, a class three misdemeanor; and two counts of being an habitual criminal. By cross-appeal, the People challenge the legality of the sentence the court imposed following a proportionality review. We affirm.

The criminal charges against defendant stem from two incidents involving his former girlfriend. The second incident occurred while defendant was on bond following his arrest relating to the first incident.

I.

Defendant first contends that the trial court erred by allowing testimony regarding his having received a loan from the victim's best friend and having secured the loan with what he falsely represented to be crack cocaine. We perceive no basis for reversal.

On cross-examination of the victim by defense counsel, the following exchange took place:

Q: Isn't it true that you borrowed money from [the victim's friend] to help bail [defendant] out of jail in February [1997] when he was arrested for the [first incident]?

A: No. I believe that she might—no. No. That's not what the money was for.

Q: What was the money for, ma'am?

A: She borrowed money from him and in return he gave her what she thought was cocaine and it wasn't. It was—that's what the money was for.

Q: You were present during this discussion?

A: Uh-huh

Q: But yet you have never been with [defendant] how would you be present during this discussion?

A: This is not for the [first incident] that you think she lent money for. This is money before that.

Q: This is in February 1997 that we're talking about.

A: No. She has lent money before and we were still dating.

....

Q: I am talking about February 1997. Did you borrow $100 to use for his bail money from [the victim's friend]?

A: No.

(emphasis added).

On re-direct examination, the following colloquy ensued between the prosecutor and the victim:

Q: Does [the victim's friend] loan you money?

A: All the time.

Q: How much?

A: Well, depends on how much I need but normally like $20 she loans me all the time.

Q: Have you ever borrowed money in an amount to bond the [d]efendant out?

A: No.

Q: Okay. Was there money lent by [the victim's friend] to the [d]efendant at some point in time?

A: Yes.

Q: Was that before or after November of '96?

A: Before.

Q: Okay. And how much money was that?

A: $150.

Q: And exactly what was that for?

[Defense Counsel]: Object, Judge. It's not the question that was asked. I was directing my questions to February of 1997 time frame and we're getting into areas that are improper trying to—

[The Prosecutor]: Judge, he brought this area out. I think it's fair to explore it and explain it to the jury.

The Court: The objection is overruled. I think the topic is raised in cross-examination and accordingly I will allow this answer.

A: It was raised for drugs.

Q: Okay. Your friend ... thought she was going to give money to the Defendant for drugs?

A: Yes.

Q: And I think you said that the Defendant gave her something else instead? Soap?

A: Something of that sort. Something fake she told me.

Q: Okay. Uh, did you ever indicate to anyone that you bonded the Defendant out?

A: No.

(emphasis added).

Later, defense counsel presented testimony by two witnesses indicating that the victim had borrowed, or intended to borrow, money from her best friend to post bond for defendant.

Thereafter, the prosecutor informed the court that she intended to call the victim's friend in rebuttal to testify that she had not made a loan to the victim or to the defendant for the purposes of posting defendant's bail, and that the only loan she had made to defendant was one for which he had given her what he falsely claimed to be cocaine as collateral. The court allowed the testimony over defense counsel's objection that the prejudicial effect of the testimony would substantially outweigh its probative value.

The court stated that "the existence of this loan and whether the money went to bail or not to bail has become one of the credibility issues in the case," and that "in fairness ... the context of the loan has to be explained."

The following colloquy took place during defense counsel's cross-examination of the victim's friend:

Q: You testified about ... loaning some money to [defendant] in October.

A: Before I went to rehab.

Q: When did you go to rehab?

A: October 12, 1996.

Q: And you met him when?

A: Some[thing] like January or February of '96.

Q: Okay. So but the loan of money supposedly took place around right before you went into the rehab?

A: Somewhere, in there, yes.

Q: September, October time frame?

A: Somewhere in there.

Q: So you had a drug problem ... and you wanted some drugs apparently as you took [the substance] as collateral?

A: I — no. I feel that's definitely misunderstood.

Q: Okay.

A: I didn't really even want it. Coke — crack cocaine was not my forte.

Q: What was your forte?

A: I like honestly crystal meth. I was quite addicted to it.

....

Q: And the amount of money that you are saying [defendant] borrowed from you was $150, correct?

A: Yes.

Q: And you [were] doing this as a favor for [the victim], correct.

A: And him.

Q: And if [the victim] told stories that she borrowed $150 from you to help bail out [defendant] that would be a lie?

A: I would say other people ...

Q: Tell the jury.

A: I would say other people could easily lie about that themselves.

Q: Just answer the question, ma'am. Would that be a lie if she told other people that she borrowed $150 from you to help bail out [defendant]. Would that be a lie?

A: Yes, it would.

If one party offers evidence that would create a false or misleading impression, the other party may explain or contradict that impression through evidence that might otherwise be inadmissible. See People v. Rollins, 892 P.2d 866 (Colo.1995).

Here, defense counsel asked the victim during cross-examination if she had borrowed money from her best friend to "help bail [defendant] out of jail in February when he was arrested for the first incident." The victim indicated that had not been the purpose of the loan. It was in response to defense counsel's follow-up question as to the purpose of the loan that the victim referred to the friend's having made a loan to defendant which had been secured by what the victim's friend purportedly believed to be cocaine.

Rather than moving to strike the victim's testimony as nonresponsive and requesting that the jury be instructed to disregard it, defense counsel explored the issue further by asking the victim how she could have known about the purported transaction when, according to her earlier testimony, she was no longer romantically involved with defendant at the time.

To have precluded the prosecution from further questioning on the issue might have created a false impression for the jury, particularly in light of the testimony defendant adduced from other witnesses to the effect that either this or some other loan had in fact been made to secure defendant's release on bond following his arrest in connection with the first incident. The prosecution was entitled to show the context and particulars of the loan that had in fact been made to defendant by the victim's friend, and to demonstrate that the loan had not been made for the purpose of posting defendant's bail.

Defendant also argues that evidence concerning the alleged loan transaction was improperly admitted because it was evidence of prior misconduct, which could be allowed only upon compliance with the procedural requirements set forth in People v. Spoto, 795 P.2d 1314 (Colo.1990).

However, because it was the defense that initially adduced the evidence, the trial court was not required to comply with the procedural requirements under CRE 404(b) or Spoto. See People v. Rollins, supra.

Also, under the circumstances, we reject defendant's assertion that the evidence was inadmissible because its probative value was substantially outweighed by its unfair prejudicial effect.

II.

Defendant next contends that the trial court erred by admitting evidence of the alleged violent character of certain defense witnesses who had testified as to defendant's own nonviolent character. Again, we perceive no basis for reversal.

Three defense witnesses testified that defendant was nonviolent by nature. Later, in its direct examination of the victim's best friend, the prosecution asked her if she knew several individuals, including the two witnesses who had opined as to defendant's nonviolent character. The following dialogue then occurred:

[Prosecutor]: Okay. And do you have an opinion as to the nature of that group as far as whether or not they were known to threaten people or be violent?

[Defendant]: Yeah, uh?

[Prosecutor]: Okay.

[Defense Counsel]: I object, Judge. I fail to see how this is relevant at all.

The Court: Why is this relevant with regard to the group described and identified?

[Prosecutor]: Because each of them testified what their belief of the [d]efendant's violence is. And if they themselves are violent it changes what their perception of the [d]efendant

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