People v. King

• Decision Date: 26 June 1972
• Docket Number: No. 24774,24774
• Citation: 498 P.2d 1142,179 Colo. 94
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Larry Lynn KING, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1142

498 P.2d 1142

179 Colo. 94

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Larry Lynn KING, Defendant-Appellant.

No. 24774.

Supreme Court of Colorado, En Banc.

June 26, 1972.

Rehearing Denied July 17, 1972.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., David A. Sorenson, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Lutz & Gilbert, James L. Gilbert, Arvada, for defendant-appellant.

LEE, Justice.

Larry Lynn King, defendant-appellant, was convicted by a jury in the district court of Alamosa County of possession of narcotic drugs and sale of narcotic drugs in violation of C.R.S.1963, 48--5--2. We reverse the judgment of conviction.

The evidence supporting the conviction consisted primarily of the testimony of a paid informant who was brought into Colorado from New Mexico by the chief of police of the city of Alamosa for the purpose of obtaining information concerning drug traffic in and about the city. The informant, Douglas Vandenberg, had been used by the police department of Albuquerque, New Mexico, as an informant in similar cases and had been recommended for this purpose to the police department of Alamosa. The arrangement was that Vendenberg would be paid his board and room and other expenses, together with a fee of ten dollars for each 'buy.' The record shows that Vandenberg had succeeded in buying narcotic drugs on seven different occasions, one of which allegedly involved defendant King.

The evidence showed that on April 11, 1969, at about 7:45 p.m., Vandenberg approached the defendant in an Alamosa bar where they talked about the 'hash that was going around.' Vandenberg asked defendant if he had any and the defendant indicated that he did. Vandenberg then asked defendant to sell him a gram of hashish and the defendant agreed to do so, stating that he had it with him. They went into the rest room and defendant gave Vandenberg the hashish in exchange for ten dollars. They then parted company and Vandenberg went to his apartment where he prepared a 'buy report.' He contacted the police and arranged to turn over the narcotic material and the buy report to the chief of police. It was established by expert testimony that the material purchased was in fact hashish, a derivative of cannabis sativa L.

Thereupon, the charges were filed against defendant on May 9, 1969, to which he entered his plea of not guilty.

Defendant did not testify at the trial. His evidence consisted only of the testimony of three witnesses who sought to impeach the informant, Vandenberg, concerning his use of drugs.

The defendant asserts six grounds of error for reversal. The record establishes that prejudicial error occurred when the trial court refused to permit defendant to cross-examine the informant concerning pending charges against him in the state of New Mexico, offered to show the informant's bias and interest in the outcome of the case, thus impeaching the credibility of the principal witness.

On cross-examination of Vandenberg, objection was made to inquiry concerning the pendency of narcotics offenses in Albuquerque, New Mexico. At an In camera hearing, defendant offered to prove that Vandenberg had been charged with possession and sale of narcotics on January 15, 1968, and with the possession and sale of LSD on March 28, 1968. Further, counsel offered to show that Vandenberg had been charged with forgery, in two indictments, on January 22, 1969 and May 15, 1969. It was represented that all of the foregoing charges were still pending against Vandenberg and that they were being held over his head to insure his cooperation with the police department in Alamosa for the informant purposes. Counsel stated that his purpose was to prove that the witness had charges pending against him, and that the witness was afraid not to cooperate with the police. Implicit in this offer of proof was the suggestion that Vandenberg would find favor with the Albuquerque authorities and expect to gain benefits concerning the charges pending against him from his testimony against defendant. It was pointed out to the court that this information had come directly from the Alamosa chief of police and was within the knowledge of the district attorney's office.

The court denied the offer of proof on the basis of the general rule set forth in Tollifson v. People, 49 Colo. 219, 112 P. 794, that evidence of arrests and of pending charges against a witness before conviction are not admissible as bearing upon the witness' credibility. The general rule is embodied in C.R.S.1963, 154--1--1, and allows the showing only of felony convictions for the purpose of affecting the credibility of a witness. Significantly, this statute also contains the qualifying language, '* * * although in every case the credibility of the witness may be drawn in question, as now provided by law, * * *.' This rule was never intended to prohibit testimony tending to show motive, bias, prejudice or interest of a witness in the outcome of the trial. In Tollifson, supra, the Court stated:

'Great latitude is allowable and should always be given in the cross-examination of a witness in his connection with the subject-matter being tried, and about which he is called to testify, as whether it is of a nature to awaken in him a lively and possible interest in the outcome of the trial; and, as a general rule, the party against whom the witness is produced has a right to show everything which may affect his credibility. This...