People v. Griffin, 91CA1763

• Decision Date: 20 May 1993
• Docket Number: No. 91CA1763,91CA1763
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dion R. GRIFFIN, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 27

867 P.2d 27

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dion R. GRIFFIN, Defendant-Appellant.

No. 91CA1763.

Colorado Court of Appeals Div. V.

May 20, 1993.

As Modified on Denial of Rehearing

July 1, 1993.

Certiorari Denied Jan. 31, 1994.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Laurie A. Booras, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge BRIGGS.

Defendant, Dion Griffin, appeals the judgment entered and sentences imposed on jury verdicts finding him guilty of two counts of first degree assault, two counts of attempted aggravated robbery, and four counts of crime of violence. We affirm as to all convictions except those for attempted aggravated robbery, vacate the convictions for attempted aggravated robbery and remand for resentencing, and vacate the period of parole imposed.

The record reflects that defendant and four other young men decided to take money from someone so that they could pay the cover charge at a bar. They parked in a restaurant parking lot, and defendant and two others got out and stood near the car.

Four youths left the restaurant and approached their vehicle, which was parked next to where defendant and his two companions were standing. One of the three standing by the car asked the four youths for money. All four refused. As the last of the four got into the car, he commented: "Do I look generous?"

One of the three in defendant's group responded that they were going to take the money, reached into the car, and stabbed two of the occupants. The assailant, however, did not succeed in taking anything from the victims.

I.

Defendant first contends his state and federal constitutional rights of confrontation were violated because the trial court did not permit him to reveal to the jury through cross-examination that a witness was in custody in New Mexico on unrelated charges. We disagree.

At the time of trial the witness was a juvenile from New Mexico and in custody in that state on an unrelated pending auto theft charge. The juvenile was also on probation in New Mexico for unrelated charges.

Initially, the People had filed charges against the witness for theft by receiving because the car he was driving at the time of the robbery had been stolen. At a pre-trial hearing the prosecutor stated that the reasons why these charges were dropped were that there was a lack of evidence to support them; the juvenile was expected to remain in New Mexico with his family where unrelated charges were pending; and it was not worth the state's resources to extradite and transport the witness to Colorado and then hold him in custody.

The court found that the witness' custody status was irrelevant to the issues in the case. However, it concluded it would permit defendant to question the witness about the fact that he was on probation in New Mexico during the time of his testimony and that there were new charges pending in New Mexico which might bear upon the status of his probation.

At trial, defense counsel questioned the witness extensively about juvenile adjudications for which he was on probation unrelated to this case, and other juvenile matters pending in New Mexico. The jury was also informed that the witness had been granted use immunity so that his statements could not be used against him, that otherwise the witness would not have testified, and that while in Colorado testifying he was granted immunity from service of process and arrest. Finally, the jury learned that the witness could still be prosecuted to the extent of his involvement in the incident.

The right of confrontation requires that the defendant have an opportunity to conduct an effective cross-examination of the witnesses against him, but this opportunity does not mean unlimited cross-examination. The scope and duration of the cross-examination are under the control of the trial court. Thus, a trial court has wide latitude to place reasonable limits on cross-examination based on concerns about, for example, interrogation which is repetitive or only marginally relevant. Merritt v. People, 842 P.2d 162 (Colo.1992).

A trial court nevertheless cannot limit excessively a defendant's cross-examination of a witness regarding the witness' credibility, especially questioning concerning the witness' bias, prejudice, or motive for testifying. Merritt v. People, supra; see CRE 611(b).

[A] trial court should allow broad cross-examination of a prosecution witness with respect to the witness' motive for testifying, especially where such witness is charged with or threatened with criminal prosecution for other alleged offenses not connected with the case in which he testifies, and where his testimony against the defendant might be influenced by a promise of, or hope or expectation of, immunity or leniency with respect to the pending charges against him, as a consideration for testifying against the defendant.

People v. King, 179 Colo. 94, 98, 498 P.2d 1142, 1144-45 (1972).

Here, the trial court permitted extensive cross-examination which addressed the witness' possible ulterior motives for testifying. Defendant, however, argues that Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968) and Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931) stand for the proposition that it is fundamental to the right of confrontation to establish where the witness is currently residing and that prejudice necessarily ensues from a denial of this right. Thus, he contends, the trial court's restriction was improper. We do not agree.

The witness in Smith v. Illinois, supra, had testified to drugs purchased from the defendant with money provided by police officers. After the witness admitted on cross-examination that he had given a false name, defense counsel asked the witness for his correct name and address. The trial court did not permit these questions.

The Supreme Court concluded the trial court's ruling constituted reversible error. However, it did not conclude that the address of a witness must without exception be revealed to a jury. Only this witness and the defendant testified to the crucial events surrounding the transaction. "The only real question at the trial, therefore, was the relative credibility of the [defendant] and this prosecution witness." Smith v. Illinois, 390 U.S. at 130, 88 S.Ct. at 749, 19 L.Ed.2d at 958. The Supreme Court reasoned that it was essential to "place the witness in his proper setting" by asking questions relating to where he lived and what he did, so that the jury could examine his credibility. Smith v. Illinois, 390 U.S. at 132, 88 S.Ct. at 750, 19 L.Ed.2d at 959.

In Alford, the Supreme Court reversed a federal mail fraud conviction because the trial court denied the accused the opportunity to elicit the place of residence of an important prosecution witness. The defendant sought to elicit this testimony because he believed the witness was in federal custody for reasons the defendant was not aware.

In reversing, the Supreme Court emphasized the exploratory nature of the defendant's question. Under those circumstances the need for counsel to articulate the purpose for which the testimony was being elicited did not apply. The purpose for allowing the testimony was to put the weight of the testimony and the credibility of the witness to the test. The testimony might have been relevant:

to show by such facts as proper cross-examination might develop, that his testimony was biased because given under promise or expectation of immunity, or under the coercive effect of his detention by officers of the United States, which was conducting the present prosecution.... Even if the witness were charged with some other offense [unrelated to this case] ... [defendant] was entitled to show by cross-examination that his testimony was affected by fear or favor growing out of his detention.

Alford v. United States, 282 U.S. at 693, 51 S.Ct. at 220, 75 L.Ed. at 628-629.

Here, defendant was provided ample opportunity to impeach the witness' credibility by showing ulterior motives for his testimony. Under these circumstances, the excluded testimony would have been of little or no probative force and cumulative. Hence, the trial court neither abused its discretion nor violated defendant's right of confrontation by prohibiting questioning about the one additional fact that the witness was in custody. See CRE 403.

II.

Defendant also asserts that the court gave an inadequate advisement under People v. Curtis, 681 P.2d 504 (Colo.1984). Defendant argues that as a result his decision not to testify was not voluntarily, knowingly, and intelligently made. We again disagree.

It is undisputed that the defendant had no prior felony criminal convictions. He did, however, have prior juvenile adjudications. The court did not inform the defendant in the Curtis advisement that these adjudications could not be used to impeach him if he chose to testify, and this omission forms the sole basis of defendant's argument.

It is the duty of the trial court to ascertain whether a defendant's decision to testify or remain silent is made voluntarily, knowingly, and intelligently. The defendant must be aware that he has a right to testify, knows of the consequences of testifying, and is cognizant that he may take the stand notwithstanding the contrary advice of counsel. People v. Curtis, supra.

In a pre-trial hearing with the defendant and his counsel present, the court acknowledged that the defendant had no prior felony criminal convictions, but did have juvenile adjudications. The court concluded the People would not be permitted to impeach the defendant if he chose to testify by questioning him in regard to these prior juvenile adjudications. The propriety of this ruling is not...