People v. Dore, 98CA0562.

• Citation: 997 P.2d 1214
• Decision Date: 16 September 1999
• Docket Number: No. 98CA0562.,98CA0562.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kerry S. DORE, Defendant-Appellant.
• Court: Colorado Court of Appeals

997 P.2d 1214

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kerry S. DORE, Defendant-Appellant.

No. 98CA0562.

Colorado Court of Appeals, Div. V.

September 16, 1999.

Certiorari Denied May 1, 2000.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, John Daniel Dailey, Assistant Solicitor General, Peter J. Cannici, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Janet Fullmer-Youtz, Lakewood, Colorado, for Defendant-Appellant.

Opinion by Judge TAUBMAN.

Defendant, Kerry S. Dore, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree kidnapping, crime of violence, menacing, and false reporting of explosives or weapons. We affirm.

Several years before the incident leading to defendant's conviction, he suffered a serious accident while working at the site of a new facility for Focus on the Family, a religious organization located in El Paso County. He obtained workers' compensation benefits for those injuries, but remained dissatisfied because he believed he and his family had not been provided for sufficiently.

On the day of the incident at issue here, defendant went to the Focus on the Family facility where he encountered two receptionists. He displayed a gun and what appeared to be a trigger mechanism for explosives, and demanded that one of the receptionists place a call to the workers' compensation office. Defendant allowed everyone to leave the building except the two receptionists. Two men remained in the reception area voluntarily.

The police obtained a negotiator who spoke with defendant during the incident and convinced him to release the receptionists. After several hours, defendant gave himself up to police, and the charges here at issue followed.

I. Evidence of Defendant's Prior Convictions

Defendant asserts that the trial court committed reversible error by taking judicial notice of his prior convictions for theft and conspiracy to commit theft. Under the circumstances of this case, we disagree.

During trial, defense counsel called defendant's psychiatrist to the stand and elicited out-of-court statements that defendant had made during treatment. The trial court determined that these statements were hearsay, and did not meet the criteria for being admissible as admissions of a party offered against that party, but that, nevertheless, they were admissible under CRE 803(4), which permits admissions of hearsay statements made for diagnosis or treatment.

A few days before the end of trial, the prosecution located defendant's criminal record, which contained evidence of his prior felony convictions for theft and conspiracy to commit theft. At that point, out of the presence of the jury, the prosecutor moved to admit evidence of defendant's prior felony convictions under CRE 806, which allows the credibility of a defendant to be attacked in certain circumstances. The trial court determined that the hearsay statements of defendant fell within the purview of CRE 806. It also rejected defense counsel's argument that the evidence was irrelevant and unduly prejudicial under CRE 403, and thereafter admitted the evidence of the former convictions in the form of a judicially noticed fact. It also gave a limiting instruction that the evidence was to be considered only for purposes of assessing defendant's credibility.

CRE 806 states in pertinent part:

When a hearsay statement, or a statement defined in Rule 801(d)(2), (C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness....

CRE 801 sets forth the definition of hearsay. CRE 801(d)(2) provides that non-hearsay statements include admissions of a party-opponent when offered against that party. CRE 801(d)(2)(A), a subsection not mentioned in CRE 806, provides that an admission by a party is not hearsay when such admission is his or her own statement made in an individual or representative capacity. In contrast, CRE 801(d)(2)(C), (D), and (E), which are specifically referred to in CRE 806, pertain to circumstances not applicable here.

Here, defendant chose not to testify at trial. Nevertheless, the defense elicited defendant's hearsay statements from his psychiatrist. The trial court admitted the statements under CRE 803(4), which, as noted, allows admission of hearsay statements made for purposes of diagnosis or treatment.

Contrary to defendant's contention, his statements to his psychiatrist did not come within the non-hearsay exception of CRE 801(d)(2)(A), because he introduced them on his own behalf. They were not offered by the prosecution against him. Thus, as the trial court determined, defendant's hearsay statements to his psychiatrist fell within the purview of CRE 806.

Where a defendant does not testify at trial, but he or she elicits his or her own hearsay statements through another witness, CRE 806 authorizes the jury to hear impeachment evidence that would have been admissible if the defendant had testified. Prior felony convictions are admissible for this purpose. See United States v. Lawson, 608 F.2d 1129, 1130 (6th Cir.1979)

("By putting these statements before the jury, [defendant's] counsel made [defendant's] credibility an issue in the case the same as if [defendant] had made the statements from the witness stand."); see also King v. People, 785 P.2d 596, 602 n. 5 (Colo.1990) (discussing in dictum that when a defendant's out-of-court psychiatric testimony is admitted in his or her presentation of the case pursuant to CRE 803(4), the "credibility of the declarant is open to attack under CRE 806").

Since Fed.R.Evid. 806, at issue in Lawson, is identical to CRE 806, the Lawson holding may be considered persuasive in analysis of the Colorado rule. See Forbes v. Goldenhersh, 899 P.2d 246 (Colo.App.1994)

(when federal rule is similar to Colorado rule, court may look to interpretation of such federal rule).

Here, the trial court properly relied on United States v. Lawson, supra,

and King v. People, supra, to conclude that CRE 806 authorized the prosecution to impeach defendant with evidence of his prior convictions.

We view the Lawson analysis as applicable when a defendant elects not to testify, yet defense counsel elicits defendant's hearsay testimony (or non-hearsay testimony covered in CRE 806) in favor of defendant's position. In such circumstances, a defendant who elicits his or her own hearsay testimony at trial is in essence functioning as a witness on his or her own behalf. Therefore, the defendant's hearsay statements would be subject to impeachment under CRE 806, just as if the defendant had taken the stand. Such is the case here. Thus, we conclude the trial court did not err by admitting evidence of defendant's prior convictions.

Our conclusion in this regard is consistent with the policy that underlies a defendant's right to avoid self-incrimination by declining to testify in his or her own behalf.

When a defendant elects not to testify, the prosecution may neither cross-examine the defendant, nor present evidence of his or her prior convictions. See People v. Milton, 864 P.2d 1097, 1101 (Colo.1993)

(valid advisement concerning right to testify requires explanation that "in the event that defendant testifies," the prosecution has right to impeach credibility with evidence of prior felonies); see also People v. Blehm, 983 P.2d 779 (Colo.1999) (reaffirming requirement that court advise defendant of possibility of cross-examination and impeachment should defendant elect to testify).

However, a defendant who elects to testify in a criminal case subjects his or her credibility to question, like any other witness, and such defendant may therefore be examined on the matter of previous felony convictions. People v. Thompson, 182 Colo. 198, 511 P.2d 909 (1973); see § 13-90-101, C.R.S. 1998 (authorizing the admission, under certain circumstances, of evidence of prior convictions of a witness to impeach the credibility of that witness).

Here, because defendant proffered his own hearsay statements through his psychiatrist, our conclusion does not offend the general right of defendants to avoid self-incrimination by choosing not to testify.

II. Change of Venue

Defendant also contends that the trial court denied him the right to a fair trial by denying his motion for a change of venue based upon publicity surrounding the events at issue. We disagree.

Section 16-6-101(a), C.R.S.1998, provides for a change of venue "when a fair trial cannot take place in the county or district in which the trial is pending." However, the existence of extensive pretrial publicity, by itself, does not create a right to change of venue. People v. Bartowsheski, 661 P.2d 235 (Colo.1983). Where publicity is "massive, pervasive, and prejudicial," prejudice to the defendant can be presumed. People v. McCrary, 190 Colo. 538, 545, 549 P.2d 1320, 1326 (1976). However, absent such egregious publicity, a defendant must demonstrate that any publicity had an actual adverse effect on the jury. People v. Carrillo, 946 P.2d 544 (Colo.App.1997),aff'd on other grounds,974 P.2d 478 (Colo.1999).

A motion for a change of venue is within the sound discretion of the trial court, and its ruling will not be disturbed on appeal absent an abuse of discretion. People v. Coit, 961 P.2d 524 (Colo.App.1997).

Here, defendant maintains that a change of venue was mandated both because of the overwhelming extent of the publicity and because its adverse effect on the jury was demonstrated. We are not persuaded.

As the trial court noted regarding the extent of the publicity, the media coverage contained in the record was balanced. It was not sensational, and some of the newspaper articles conveyed sympathy towards defendant concerning his plight with his...