People v. Estep, 75-723

• Docket Nº: No. 75-723
• Citation: 39 Colo.App. 132, 566 P.2d 706
• Case Date: March 17, 1977
• Court: Court of Appeals of Colorado

Page 706

566 P.2d 706 39 Colo.App. 132 The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Park Journee ESTEP, Defendant-Appellant. No. 75-723. Colorado Court of Appeals, Div. III. March 17, 1977.
Rehearing Denied March 31, 1977.
Certiorari Granted June 6, 1977.

[39 Colo.App. 133]

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J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., James S. Russell, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Thomson, Wylde & Nordby, Jack S. Nordby, Douglas W. Thomson, St. Paul, Minn., Richard L. Tegtmeier, Colorado Springs, for defendant-appellant.

BERMAN, Judge.

The defendant appeals his conviction of first degree murder, first degree arson, first degree assault, and aggravated robbery. We reverse.

On September 19, 1974, a man came to a massage parlor where two Korean women were working, Miss Lee and Miss Cousin. He left after several minutes, returning some half-hour later. He then produced a gun and took both women to a room where he had Cousin bind Miss Lee's hands. Thereafter he took Cousin to another room. Miss Cousin was later found dead, an autopsy revealing that she had died from a contact gunshot [39 Colo.App. 134] wound to the head. There were abrasions on her face, and first, second, and third degree burns on approximately one-half of her body, including the genital area. Miss Lee was also attacked that night, but she survived. She was stabbed in the neck, back, and chest, and the man apparently attempted to set her on fire.

The defendant was subsequently arrested based upon Miss Lee's pretrial identification and the identification of the defendant's truck by two other witnesses who said they saw the vehicle outside the massage parlor at the time the crimes were committed.

I.

Miss Lee described her assailant before and at trial as a clean-shaven man. The defendant, in his case in chief, produced several witnesses who testified that he wore a mustache on the date of the criminal episode.

Thereafter, the defendant called as a witness the Reverend Yoon Goon Kim, pastor of the First Presbyterian Church for Asian Committee in Colorado Springs. Kim is a Korean by birth who lived in his native land 40 years before coming to this country in 1972. He was educated in both Korea and the United States and was familiar with Korean culture. Kim was asked as to whether facial hair had any significance in Korean culture. The prosecution objected on the ground that Kim was not qualified as an expert and on the basis of relevancy. The trial court sustained the objection, ruling in effect that the line of inquiry was irrelevant.

In the subsequent offer of proof, the defendant offered Kim's opinion as a native Korean that facial hair is culturally significant as a mark of dignity, age, and respect in Korea, that it was a "folkway" in Korea, and that Miss Lee, as a Korean, would have paid particular attention to a mustache had one been worn by her assailant.

It should be noted that Miss Lee arrived in this country from Korea less than four months before the incident.

Any evidence which is helpful in getting at the truth of a material issue is relevant, even though it is only a link in the chain of facts which must be proved to

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make the proposition at issue appear more or less probable." 1 C. Torcia, Wharton's Criminal Evidence § 151 (13th ed. 1972); see also Federal Rules of Evidence, Rule 401. The proffered testimony was clearly relevant as tending to show that Miss Lee was accurate in her assertion that her assailant did not have a mustache, which, in turn, would have made the defendant's guilt appreciably less probable. The testimony was particularly important since it was obviously for the purpose of impeaching the identification of the defendant by the prosecution's key witness. Absent Miss Lee's eyewitness identification, the...