People v. Garcia, 96CA2108

• Decision Date: 10 December 1998
• Docket Number: No. 96CA2108,96CA2108
• Citation: 981 P.2d 214
• Parties: 98 CJ C.A.R. 6110 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William J. GARCIA, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 214

981 P.2d 214

98 CJ C.A.R. 6110

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William J. GARCIA, Defendant-Appellant.

No. 96CA2108.

Colorado Court of Appeals Div. II.

Dec. 10, 1998.

Rehearing Denied Jan. 14, 1999.

Certiorari Denied July 26, 1999. ^*

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Kathleen M. Byrne, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Anthony Viorst, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, William J. Garcia, appeals the judgment of conviction entered upon a jury verdict finding him guilty of possession of a controlled substance. We affirm.

Contraband was found in defendant's car when he was stopped for a traffic violation. Under the floor mat on the driver's side an officer found a syringe filled with a liquid that contained cocaine. Under the floor mat on the passenger side of the car the officer found a spoon with burn marks and a moist cotton ball, and under the front passenger seat the officer found some new syringes, a bottle of water, and a small piece of plastic with white residue on it. The officer testified that such implements could be used to ingest cocaine.

During the stop, defendant told an officer that all of the items found in the car belonged to him. Also, one of the officers noticed recent "track marks" on the defendant's arms, while another officer testified that defendant's demeanor was consistent with someone who was under the influence of cocaine.

Testifying on his own behalf at trial, defendant acknowledged during direct examination that he had four prior felony convictions, including two for cocaine possession. And, he acknowledged that, during the stop, he had admitted ownership of the items. He testified, however, that the contraband items were not his, and that he did not know that they were in the car, nor did he know how they got there.

I.

Defendant contends the trial court erred in not instructing the jury that his prior felony convictions could be used only to impeach his credibility, even though he did not request such an instruction. We find no reversible error.

A.

Relying upon People v. Garner, 806 P.2d 366 (Colo.1991) and other cases that require a limiting instruction when "other transaction" evidence is admitted under CRE 404(b), defendant first asserts that the court's failure to give a limiting instruction concerning the use of his prior felony convictions was per se reversible error. We disagree.

When a criminal defendant testifies as a witness in his or her own behalf, he or she is subject to the general rules of examination applicable to other witnesses, including examination on matters that bear on credibility. People v. Renstrom, 657 P.2d 461 (Colo.App.1982).

A previous felony conviction of any person testifying as a witness may be shown for the purpose of affecting the credibility of that witness. Section 13-90-101, C.R.S.1998.

When evidence of a previous felony conviction is introduced to impeach the credibility of a testifying defendant, a limiting instruction should be given. See People v. Goldsberry, 181 Colo. 406, 509 P.2d 801 (1973). Such an instruction informs the jury that the conviction may be used only to impeach the defendant's credibility. See People v. Chavez, 853 P.2d 1149 (Colo.1993).

Similarly, in cases involving other transaction evidence admitted under CRE 404(b), evidence that the accused committed some other crime is not admissible to prove that he or she acted in conformity with that character or character trait in committing the crime charged. Rather, it may be admitted, if otherwise relevant, for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Thus, an instruction limiting the use of the evidence to that latter purpose should be given. See People v. Garner, supra.

However, when a limiting instruction is not requested for other transaction evidence, it is not per se reversible error to fail to give one. See People v. Gladney, 194 Colo. 68, 570 P.2d 231 (1977).

Here, because defendant did not request an instruction regarding the permissible use of his convictions by the jury at the time the evidence was introduced, or at the conclusion of the trial, we reject his contention that reversible error per se occurred. See People v. Gladney, supra; People v. Ned, 923 P.2d 271 (Colo.App.1996) (because defendant did not request cautionary instruction, no reversible error occurred when trial court admitted evidence concerning prior bad acts).

B.

We reject defendant's corollary contention that, because a trial court's failure properly to advise a defendant regarding the right to testify constitutes reversible error per se, see People v. Curtis, 681 P.2d 504 (Colo.1984), a trial court's failure to instruct the jury concerning use of previous felony convictions must also merit automatic reversal.

In our view, Curtis does not require a trial court, sua sponte, to give instructions to the jury absent a defendant's request therefor. See People v. Curtis, supra, 681 P.2d at 514 ("if the felony conviction is disclosed to the jury then the jury can be instructed to consider it only as it bears upon the defendant's credibility" (emphasis supplied)).

Indeed, there may be strategic or tactical reasons for a defendant's choice not to request a limiting instruction. See People v. Gladney, supra (a defense attorney has an opportunity to consider and determine in advance whether it is in the defendant's best interest to request a contemporaneous cautionary instruction, and may conclude that such an instruction would be more harmful than beneficial, for example, by giving the evidence greater emphasis than it would otherwise receive). Cf. Hansen v. State Farm Mutual Automobile Insurance Co., 957 P.2d 1380 (Colo.1998) (trial court's general duty to instruct on the law cannot be construed to require it to craft appropriate instructions when party's counsel declines to do so).

C.

We also reject defendant's related argument that the trial court's failure to instruct the jury concerning the limited use of the prior convictions constituted a breach of the trial court's "promise" to do so as embodied in the Curtis advisement, thereby constituting a violation of his due process rights.

Here, during the Curtis advisement, the trial court stated, in part:

If the felony convictions are disclosed to the jury, then the jury would be instructed to consider any convictions only, and I emphasize only, as it bears upon your credibility and for no other purpose.

In our view, a Curtis advisement should not be construed as a promise to give an instruction limiting a jury's consideration of previous convictions. Rather, it is an advisement of defendant's right to testify that also functions to draw a defendant's attention to his or her right to request that a limiting instruction be given. But, a defendant cannot take this simple advisement to mean that he or she is excused from following proper procedure and excused from making a request for such an instruction.

We accordingly reject defendant's due process claims. For the same reasons, we reject defendant's contention that his testimony was rendered involuntary because of the trial court's failure to give such an instruction.

D.

Assuming, without deciding, that a plain error analysis is applicable here, we reject the contention that the alleged failure to instruct the jury constitutes plain error.

The failure of defense counsel to object to an instruction given, or the failure to request an instruction at trial, limits a defendant's claim on appeal to whether the alleged error constitutes plain error. Woertman v. People, 804 P.2d 188 (Colo.1991).

Plain error occurs when, after review of the entire record, we can say with fair assurance that the asserted error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Wilson v. People, 743 P.2d 415 (...