People v. Elie

Decision Date07 September 2006
Docket NumberNo. 04CA0940.,04CA0940.
Citation148 P.3d 359
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sheldon ELIE, Defendant-Appellant.
CourtColorado Court of Appeals

John W. Suthers, Attorney General, John D. Seidel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Dean Neuwirth, P.C., Dean S. Neuwirth, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Sheldon Elie, appeals the judgments of conviction entered upon jury verdicts finding him guilty of attempted first degree murder, a class two felony; first degree assault, a class three felony; and two counts of felony menacing, both class five felonies. Defendant also appeals his aggravated range sentence for one of the felony menacing convictions. We affirm the judgments of conviction, but remand for resentencing on the felony menacing conviction.

Victims Bellamy and Church, residents of Colorado Springs, arrived unannounced at defendant's Denver home, seeking to purchase marijuana. Defendant, who did not know the victims, told them to return an hour later. When they did so, they encountered defendant, an individual named JJ, and an unidentified third man, all of whom emerged from a back room of the house armed with handguns. The victims attempted to persuade the men that they were friends, but one of the three men abruptly shot Church in the ankle.

Defendant and JJ then forced the victims into the backseat of Church's car, telling them that they would show them to the highway to return home. Instead, they drove into an alley, ordered the victims out of the car, and after a brief exchange of words, began shooting at them. Church suffered four gunshot wounds and died from his injuries. Bellamy suffered two gunshot wounds, but escaped and survived.

Defendant was charged with first degree murder of Church, attempted first degree murder of Bellamy, and first degree assault of Bellamy. His defense was that JJ had been the shooter.

Defendant requested the trial court to instruct the jury on the lesser nonincluded offense of felony menacing. The jury convicted defendant of attempted first degree murder of Bellamy, first degree assault of Bellamy, and felony menacing of both victims, but found him not guilty of the first degree murder of Church.

The trial court sentenced defendant to forty-two years in the custody of the Department of Corrections for attempted murder, ten years for assault, and three years for felony menacing of Bellamy, to run concurrently, and six years for felony menacing of Church, to run consecutively. This appeal followed.

I.

Defendant asserts the trial court erred in admitting, as a prior consistent statement, a videotaped statement given by Bellamy, without viewing it beforehand. He also asserts the court should have admitted only those portions of the videotape that were consistent with Bellamy's direct examination testimony. We disagree.

A trial court has substantial discretion in deciding questions concerning the admissibility of evidence. Absent an abuse of this discretion, a trial court's evidentiary rulings will be affirmed. People v. Quintana, 882 P.2d 1366 (Colo.1994); People v. Ibarra, 849 P.2d 33 (Colo.1993).

A prior consistent statement is admissible nonhearsay evidence if the declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement is offered to rebut an express or implied charge of recent fabrication or improper influence or motive. CRE 801(d)(1)(B). A prior consistent statement is also admissible for rehabilitation after a witness has been impeached by a prior inconsistent statement. People v. Eppens, 979 P.2d 14 (Colo.1999); People v. Andrews, 729 P.2d 997 (Colo.App.1986).

The determination of how much of a prior consistent statement is admissible is based upon its relevance and probative use. People v. Halstead, 881 P.2d 401 (Colo.App. 1994). If the impeachment goes only to specific facts, then only prior consistent statements regarding those specific facts are relevant and admissible. People v. DelGuidice, 199 Colo. 41, 606 P.2d 840 (1979), disapproved of on other grounds by People v. Harlan, 8 P.3d 448 (Colo.2000). However, if the impeachment is general and not limited to specific facts, then the jury should have access to all the relevant facts, including consistent and inconsistent statements. People v. Tyler, 745 P.2d 257 (Colo.App.1987).

In People v. Halstead, supra, the division distinguished People v. DelGuidice, supra, where the impeachment upon cross-examination related to one specific statement, and concluded that the victim's statement was admissible because the cross-examination included over thirty references to the victim's statements to police, covered nearly every aspect of the crime, and thus was admissible in its entirety because the impeachment was a general attack on the victim's credibility.

Similarly, in People v. Eppens, supra, the defendant discredited the victim's trial testimony by highlighting several discrepancies between it and a prior statement she had given to police. On redirect, the prosecution sought to demonstrate that, with the exception of the few details highlighted on cross-examination, the victim's trial testimony was consistent with her prior statement. The court concluded that because the defendant had attempted generally to discredit the victim's trial testimony, the entirety of her prior statement was admissible to rehabilitate her.

A.

Here, at the start of cross-examination, defendant suggested that Bellamy had an improper motive to testify because the prosecution had promised to write a favorable letter to his parole officer. Defendant also implied Bellamy was a "professional witness" because he had testified in a number of other cases. Defendant's cross-examination of Bellamy then focused on three of his prior statements.

Bellamy had given a statement shortly after the shooting, while he was being treated for his injuries. Many details of that statement conflicted with his testimony on direct examination, and defendant impeached him extensively with the inconsistencies.

Bellamy had also given a second statement several days after the shooting in which he identified JJ from a photo lineup as the person who shot him. On direct examination, however, he testified that defendant had shot him. Defendant impeached Bellamy with this prior inconsistent statement as well.

Bellamy had given yet a third statement in a videotaped interview with a detective three months after the shooting, in which he clarified his account of the crime and explained that he could not get his "story straight" in the first statement because he was scared and upset from the shooting. He admitted on cross-examination at trial that he had said in the videotape interview that he had not been able to get his story straight in the first statement.

On redirect, the prosecution proffered the videotape as a prior consistent statement and to place the admission about Bellamy's inability to "get his story straight" in context. Defendant objected that it was unnecessary to show the videotape because Bellamy had agreed he could not get his story straight. The prosecution responded that such a characterization was incorrect, because defendant had pointed out numerous discrepancies between Bellamy's prior statements and his trial testimony, and the videotape was consistent with his trial testimony. The trial court ruled that the videotape was admissible as a prior consistent statement and allowed the entire interview to be played for the jury.

The next day, defendant moved for a mistrial, arguing that showing the videotape was tantamount to the wholesale introduction of hearsay. The trial court denied the motion and clarified its earlier ruling. The court stated that the cross-examination of Bellamy was a "blanket approach," in that defendant had called into question essentially every aspect of his trial testimony by the use of prior inconsistent statements. Therefore, it was proper for the jury to consider all the statements Bellamy had given in order to compare and contrast the differences among them. We agree with the trial court's determination.

Defendant cross-examined Bellamy on almost every aspect of his account of the crime, including how many men were at the house; who was arguing with whom; why he left the house the first time; who got in the car when he was forced into the backseat; who drove the car; who made the statement, "kill that fool," in the alley; who started shooting; where he was standing in relation to defendant and JJ when they started shooting; who shot him; and who he had identified in the photo lineup. Defendant also cross examined regarding Bellamy's motive for testifying and further implied that he was a "professional witness." Thus, the impeachment was not limited to specific facts but was instead a general attack on his credibility.

Accordingly, we find no error in the admission of the entire videotape.

B.

Defendant nevertheless contends that a prior consistent statement cannot be used, as here, to prove new points that were not covered in the witness's direct testimony. See Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 405, at 18182 (2d ed.2004) (the use of a prior consistent statement is not intended to enable a party to prove important details lying beyond that testimony merely because they are consistent with its general tenor); Lancaster v. State, 43 P.3d 80, 89 (Wyo.2002)("[M]aterial information presented for the first time to support a prior `consistent statement' has no antecedent with which to be consistent or inconsistent and is, therefore, inadmissible."). Specifically, defendant contends the videotape included new matters that were not consistent with any prior statement: (1) that defendant called a friend who was supposedly familiar with the victims, but who was unable to explain why the...

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