People v. Eggert, No. 93CA1025

Docket NºNo. 93CA1025
Citation923 P.2d 230
Case DateDecember 07, 1995
CourtCourt of Appeals of Colorado

Page 230

923 P.2d 230
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Walter C. EGGERT, Defendant-Appellant.
No. 93CA1025.
Colorado Court of Appeals,
Div. II.
Dec. 7, 1995.
Rehearing Denied Jan. 25, 1996.
Certiorari Denied Sept. 23, 1996.

Page 232

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Eric V. Field, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Beth L. Krulewitch, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Walter Eggert, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree assault and attempted second degree murder. On appeal, he contends that the trial court erred by refusing to grant his request for use immunity for portions of his and another witness' testimony, in admitting evidence of threats defendant made to a witness and of his flight before trial, and in holding that the asserted crime of attempted criminally negligent homicide is not legally cognizable in Colorado. We perceive no error in any of the court's rulings and, therefore, affirm.

During an argument concerning drugs, defendant shot the victim with a shotgun. Defendant contended that the shooting was an accident.

Before trial, defendant made threats to a witness. Thereafter, he failed to appear for his scheduled trial and was later apprehended. During the rescheduled trial, the trial court allowed the prosecution to introduce evidence of the threats and of defendant's flight as probative of consciousness of guilt.

At the close of the evidence, defendant requested that the jury be instructed on a lesser included offense of attempted criminally negligent homicide. The trial court rejected the proffered instruction.

I.

Defendant first argues that the trial court's refusal to grant his request for testimonial use immunity for himself and a witness denied him his constitutional right to present a defense and to testify in his own behalf. We disagree.

There are two separate and distinct types of witness immunity recognized by the law: transactional immunity and use immunity. Transactional immunity precludes prosecution for any transaction about which a witness testifies. Use immunity, however, acts only to suppress the witness' testimony and evidence derived directly or indirectly from that testimony in any prosecution of that witness. Wheeler v. District Court, 184 Colo. 193, 519 P.2d 327 (1974).

The applicable statute, § 13-90-118, C.R.S. (1987 Repl.Vol. 6A), adopted in its present form in 1983, provides only for use immunity. See People v. Lederer, 717 P.2d 1017 (Colo.App.1986). It states, in pertinent part:

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(1) Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information ... and the person presiding over the proceeding communicates to the witness an order as specified in subsection (2) of this section, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; except that no testimony or other information directly or indirectly derived from such testimony or other information may be used against the witness in any criminal case, except a prosecution for perjury or false statement or otherwise failing to comply with the order.

(2) In the case of any individual who has been or may be called to testify ... the district court ... may issue, upon request of any district attorney, attorney general, or special prosecutor of the state of Colorado, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in subsection (1) of this section.

Under a plain reading of this section, a trial court may grant the use immunity specified in subsection (1) only upon the request, under subsection (2), made by a district attorney, attorney general, or special prosecutor. The trial court possesses no authority to order the prosecutor to make such a request, nor does it have the authority to grant immunity on its own initiative. Harding v. People, 708 P.2d 1354 (Colo.1985); People v. Raibon, 843 P.2d 46 (Colo.App.1992).

We are not persuaded by defendant's argument that Harding v. People, supra, is distinguishable because it construed the former version of § 13-90-118, which granted transactional immunity as opposed to use immunity for a witness' testimony.

Before its amendment, the statute provided, in pertinent part, that:

Whenever in the judgment of any district attorney ... the testimony of any witness ... is necessary ... he may make application to the court that the witness be instructed to testify....

Colo.Sess.Laws 1972, ch. 99, § 154-1-18 at 574. As quoted above, the statute continues to make the grant of immunity by the court contingent upon the request by the district attorney. In both versions of the statute, therefore, immunity is available only upon the request of the prosecution.

Furthermore, a close reading of the language of Harding reveals that, while the court was most assuredly considering the predecessor statute which was promulgated in 1972, it also based its analysis upon the current statute as well and found the result as to both necessarily synonymous. The court stated:

The district court properly denied Harding's motion for the court to immunize [the witness].... The only immunity available to Harding's witnesses was under section 13-90-118, 6 C.R.S. (1973 & 1984 Supp.), which could only have been granted by court order on the request of the prosecution.

Harding v. People, 708 P.2d at 1358 (emphasis added).

Thus, the court's analysis under both the predecessor and successor statutes negates the argument that, in amending the statute, the General Assembly intended to bestow power upon a court to grant witness immunity on its own initiative.

Here, the People did not request use immunity for defendant or the witness. Accordingly, the trial court had no authority to grant the defendant's request.

Likewise, we reject defendant's contention that the trial court's refusal to grant use immunity for his own testimony impermissibly chilled his constitutional right to testify.

Defendant asserts that his right to testify in his own defense under People v. Curtis, 681 P.2d 504 (Colo.1984) conflicts under these circumstances with his Fifth Amendment right not to incriminate himself because the immunity he requested here would have applied only to crimes relating to possession and dealing of drugs or weapons, not the offenses charged. However, we are not aware of any controlling authority that would

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constitutionally require the grant of use immunity under these circumstances.

Hence, we...

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22 practice notes
  • People v. Auman, No. 99CA0016.
    • United States
    • Colorado Court of Appeals of Colorado
    • 26 Septiembre 2002
    ...v. People, 962 P.2d 931 (Colo.1998). Trial courts enjoy broad discretion in ruling on the admissibility of evidence. People v. Eggert, 923 P.2d 230 (Colo.App.1995). We reverse only upon an abuse of discretion. People v. Garcia, 17 P.3d 820 A. Police Report The trial court admitted a one-pag......
  • People v. Samuels, No. 06CA1560.
    • United States
    • Colorado Court of Appeals of Colorado
    • 19 Noviembre 2009
    ...admissible to show that the defendant was conscious of guilt and, by further inference, committed the crime charged"); People v. Eggert, 923 P.2d 230, 234-35 (Colo. G. Cumulative Error Finally, because we have concluded that the district court did not err, we reject defendant's contention t......
  • People v. Smith, No. 02CA1515.
    • United States
    • Colorado Supreme Court of Colorado
    • 11 Octubre 2005
    ...sentencing, the prosecution conceded that "attempted criminally negligent homicide" was not an offense in Colorado, see People v. Eggert, 923 P.2d 230 (Colo.App.1995), and, thus, the court did not sentence defendant for that The trial court sentenced defendant to six years for vehicular ass......
  • People v. Forgette, Court of Appeals No. 16CA0441
    • United States
    • Colorado Court of Appeals of Colorado
    • 25 Febrero 2021
    ...when the fruits of that burglary were in the vehicle's trunk — is probative of Forgette's consciousness of guilt. Cf. People v. Eggert , 923 P.2d 230, 235 (Colo. App. 1995) ("Evidence concerning a defendant's flight and efforts by police to locate and return him or her may be relevant to sh......
  • Request a trial to view additional results
22 cases
  • People v. Auman, No. 99CA0016.
    • United States
    • Colorado Court of Appeals of Colorado
    • 26 Septiembre 2002
    ...v. People, 962 P.2d 931 (Colo.1998). Trial courts enjoy broad discretion in ruling on the admissibility of evidence. People v. Eggert, 923 P.2d 230 (Colo.App.1995). We reverse only upon an abuse of discretion. People v. Garcia, 17 P.3d 820 A. Police Report The trial court admitted a one-pag......
  • People v. Samuels, No. 06CA1560.
    • United States
    • Colorado Court of Appeals of Colorado
    • 19 Noviembre 2009
    ...admissible to show that the defendant was conscious of guilt and, by further inference, committed the crime charged"); People v. Eggert, 923 P.2d 230, 234-35 (Colo. G. Cumulative Error Finally, because we have concluded that the district court did not err, we reject defendant's contention t......
  • People v. Smith, No. 02CA1515.
    • United States
    • Colorado Supreme Court of Colorado
    • 11 Octubre 2005
    ...sentencing, the prosecution conceded that "attempted criminally negligent homicide" was not an offense in Colorado, see People v. Eggert, 923 P.2d 230 (Colo.App.1995), and, thus, the court did not sentence defendant for that The trial court sentenced defendant to six years for vehicular ass......
  • People v. Forgette, Court of Appeals No. 16CA0441
    • United States
    • Colorado Court of Appeals of Colorado
    • 25 Febrero 2021
    ...when the fruits of that burglary were in the vehicle's trunk — is probative of Forgette's consciousness of guilt. Cf. People v. Eggert , 923 P.2d 230, 235 (Colo. App. 1995) ("Evidence concerning a defendant's flight and efforts by police to locate and return him or her may be relevant to sh......
  • Request a trial to view additional results

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