People v. Jones

• Citation: 675 P.2d 9
• Decision Date: 09 January 1984
• Docket Number: No. 81SC260,81SC260
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Bruce Wilson JONES, Jr., Respondent.
• Court: Supreme Court of Colorado

Page 9

675 P.2d 9

The PEOPLE of the State of Colorado, Petitioner, v. Bruce Wilson JONES, Jr., Respondent.

No. 81SC260.

Supreme Court of Colorado En Banc.

Jan. 9, 1984.

Rehearing Denied Jan. 30, 1984.

J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Morgan Rumler, Nathan B. Coats, Laura E. Udis, Asst. Attys. Gen., Denver, for petitioner.

Miller & Gray, P.C., William R. Gray, Boulder, for respondent.

QUINN, Justice.

We granted certiorari to review the decision of the court of appeals in People v. Jones, 635 P.2d 904 (Colo.App.1981), which reversed a second degree assault conviction ¹ against the defendant, Bruce Wilson Jones, Jr., and remanded the case for a new trial. The court of appeals concluded that the trial court did not adequately instruct the jury on self-defense in a multiple assailant situation, that the court unduly restricted defense counsel's cross-examination of the victim about bias, motive, or interest as well as about matters relating to the witness's direct examination, and that it erroneously prohibited defense counsel from offering evidence of specific instances of the victim's prior acts of violence on the issue of initial aggression. We affirm in part, reverse in part, and remand for a new trial.

I.

The information charged that the defendant, on September 21, 1978, in Larimer County, Colorado, with the intent to cause bodily injury to another, did cause or attempt to cause such injury to David G. Frisco by means of a deadly weapon, a blackjack. ² The defendant entered a not guilty plea and trial to a jury commenced on August 29, 1979, before the effective date of the Colorado Rules of Evidence. ³

Several days prior to the alleged assault, the defendant, who was a police officer in Longmont, Colorado, placed an ad in a newspaper offering to sell his 1970 Ford Maverick automobile. Frisco, who managed the Golden West Motors used car lot near Berthoud, Colorado, as well as a nearby convenience and sporting goods store, contacted the defendant and went to Longmont to look at the Maverick. On September 16, Frisco returned to Longmont for a second inspection of the vehicle and agreed to purchase it for $300. Frisco gave the defendant a $300 check purportedly signed by "Ronne Frisco," his mother. The defendant then delivered the Maverick, the car keys, and the title to Frisco. The car apparently developed mechanical problems several minutes later, and Frisco returned the vehicle to the defendant's residence and demanded the return of the $300 check. Upon the defendant's refusal, Frisco left the car at the defendant's residence and returned to Berthoud with the car keys and title. On September 18, Frisco telephoned the defendant, but the two failed to agree on an exchange of the check for the car keys and title.

On September 21, the defendant, with a blackjack and pistol on his person, ⁴ went to Frisco's place of employment to get the car keys and title from him. When the defendant arrived, Frisco was outside watching Gerry Kukus repair a truck with the help of his two adult sons, Craig and Kevin Kukus. After Frisco entered the store he and the defendant immediately started arguing over the Maverick. What precisely happened after this point is a matter of substantial disagreement between Frisco, the prosecution's principal witness, and the defendant.

According to Frisco, he had been pointing a finger in the defendant's face during the argument and the defendant, after first trying to bite Frisco's finger, drew a blackjack from behind his back and beat him on the head several times. Frisco struck back, and the defendant fired a round from his pistol. Both Frisco and the Kukuses then subdued the defendant, took the pistol from him, and called the police. ⁵

The defendant, on the other hand, offered a contrary version of the altercation. It was his testimony that Frisco initially prevented him from leaving the store by blocking his exit and then called to the Kukuses for assistance. At this point, according to the defendant, Frisco first pointed his finger into the defendant's face and then delivered a blow to the side of the defendant's face with his fist. Frisco and the Kukuses then attacked him. One of the Kukuses twisted the defendant's arm while someone else struck him in the side. The defendant drew out his blackjack to protect himself from the assailants and struck one of them on the head, but because he had lost his glasses in the fight he could not identify the person he hit. The defendant then lost his grip on the blackjack. One of the assailants at this point attempted to reach the defendant's belt area for his pistol, and as the defendant struggled with him over the gun, it accidentally discharged. Frisco and the Kukuses eventually forced the defendant out of the store, and he waited in his vehicle for the police.

The evidentiary issues raised in this case center on the trial testimony of Frisco. In the course of his direct examination, Frisco admitted that he had previously pled guilty to burglary or theft and had been granted a deferred sentence on his plea. ⁶ This disposition, Frisco continued, would result in no criminal record as long as he remained "a law abiding citizen" during the period of deferral. Frisco also testified on direct examination that the $300 check given to the defendant had been drawn on his used car business account and that he stopped payment the day after he had issued it to the defendant.

Defense counsel, on cross-examination, established that Frisco also had been charged with two misdemeanor offenses as a result of his encounter with the defendant, ⁷ and sought to inquire about a recent conviction for misdemeanor menacing. ⁸ By offer of proof defense counsel made a showing that, based on Frisco's recent conviction for menacing, there was presently pending a prosecutorial motion to revoke his deferred sentence and to impose sentence for felony theft. It was defense counsel's contention that his proffered cross-examination would be probative of bias, motive, or interest on the part of Frisco to assist the prosecution in convicting the defendant in order to obtain favorable prosecutorial consideration on his own pending criminal matters. The trial court, however, prohibited any inquiry into the revocation motion other than to permit defense counsel to ask Frisco if he was testifying out of an expectation of favorable treatment by the prosecution. When so asked, Frisco denied any such expectation.

Defense counsel also sought to cross-examine Frisco about details relating to the $300 check--the account on which it was drawn, the status of the account, and whether Frisco or his mother signed the check and placed the stop payment order. Defense counsel advised the court outside of the presence of the jury that he was attempting to establish the following facts: that the checking account on which the $300 check was drawn was Frisco's mother's account; that it was the mother, rather than Frisco, who had stopped payment on the check; and that there were insufficient funds in the account to pay the check upon presentation. Defense counsel also informed the court that, if necessary, he was prepared to prove these facts through the testimony of a bank officer. It was defense counsel's contention that Frisco's admission of these facts might well explain his initial use of force against the defendant in order to secure the return of the check improperly issued by him in the first instance. The trial court prohibited defense counsel from cross-examining Frisco on these matters because, in its view, they were irrelevant to the issues of the case.

Defense counsel also attempted to cross-examine Frisco about specific instances of assaultive conduct, including the menacing conviction, in order to show that it was Frisco, not the defendant, who was the initial aggressor in the altercation. Defense counsel advised the court that he also intended to call several witnesses to prove these prior assaultive acts, in the event Frisco denied them on cross-examination, and also to show Frisco's reputation for violence in the community. The trial court prohibited cross-examination into the specific instances of Frisco's assaultive behavior and ruled that any evidence of Frisco's prior conduct or reputation for violence would not be admitted because there was no evidence showing the defendant's awareness of either the prior instances of violence by Frisco or his reputation for violence as of September 21, 1978, the date of the offense.

At the close of the evidence the defendant tendered the following instruction on self-defense:

"It is an affirmative defense to the crime of Second Degree Assault that the defendant used the physical force upon another person:

(1) In order to defend himself or a third person from what he reasonably believed to be the use or imminent use of unlawful physical force by David Frisco or his associates, and

(2) He used a degree of force which he reasonably believed to be necessary for that purpose."

The court refused the instruction, concluding that the defendant's right of self-defense was restricted to Frisco and did not extend to Frisco's associates. ⁹ Thus, the court's instruction on self-defense, to which the defendant objected, omitted any reference to the defendant's right to use force in order to defend against Frisco's associates.

The jury returned a guilty verdict to assault in the second degree. After the court of appeals reversed the defendant's conviction and ordered a new trial, we granted the People's petition for certiorari.

II.

The People initially contend that the trial court properly instructed the jury on self-defense and that the defendant's tendered instruction contained an incorrect statement of the law on self-defense. In reversing the defendant's conviction the court of appeals concluded: "According to the instruction which was given, any apprehension of injury...