People v. Kruse, No. 91SC442

Docket NºNo. 91SC442
Citation839 P.2d 1
Case DateOctober 13, 1992
CourtSupreme Court of Colorado

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839 P.2d 1
The PEOPLE of the State of Colorado, Petitioner,
v.
Brian Scott KRUSE, Respondent.
No. 91SC442.
Supreme Court of Colorado,
En Banc.
Oct. 13, 1992.
Rehearing Denied Nov. 16, 1992.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Eric V. Field, Asst. Atty. Gen., Denver, for petitioner.

David F. Vela, State Public Defender, Karen Chilton Beverly, Special Deputy State Public Defender, Denver, for respondent.

Justice ERICKSON delivered the Opinion of the Court.

The court of appeals in People v. Kruse, 819 P.2d 548 (Colo.App.1991), reversed the judgments of conviction and the sentences imposed on Brian Scott Kruse for first degree assault and crime of violence and ordered a new trial. In addressing an issue raised for the first time on appeal, the court of appeals held that the district court committed reversible error in admitting testimony on admissions by Kruse that he intended to kill his victim, because the testimony was barred by section 16-8-107(1), 8A C.R.S. (1992 Supp.). We granted certiorari and now reverse and remand to the court of appeals with directions to reinstate the judgments of conviction and sentences imposed on Kruse by the district court.

I

Kruse was arrested and charged by information with first-degree assault, 1 first-degree criminal trespass, 2 and crime of violence (a predicate for mandatory sentence

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enhancement). 3 Following his arrest, Kruse voluntarily confessed that he and a friend had entered a number of cars around his apartment and had taken cassette tapes and money from the cars. Kruse also confessed to stabbing the assault victim who had grabbed and tackled him in an attempt to make an arrest.

Kruse entered a plea of not guilty by reason of insanity in accordance with section 16-8-103, 8A C.R.S. (1986). In compliance with section 16-8-105, 8A C.R.S. (1986), the district court ordered Kruse to undergo a sanity examination at the Colorado State Hospital pursuant to section 16-8-106, 8A C.R.S. (1986 & 1992 Supp.). While confined at the Colorado State Hospital, Kruse made incriminating statements to William Ortiz, a psychiatric service worker employed at the hospital. Following the sanity examination, Kruse withdrew his plea of not guilty by reason of insanity and entered a plea of not guilty to the charges.

Self-defense was the central issue in the trial and was asserted by Kruse as an affirmative defense to the assault charge. The evidence of Kruse's guilt was overwhelming and the jury convicted him on all counts. He was sentenced to twenty-eight years in prison for the assault and four years in prison for the trespass, with the terms to be served concurrently.

For the first time on appeal, Kruse alleged that the district court committed reversible error in admitting the testimony of Ortiz in violation of section 16-8-107(1). 4 Ortiz testified during the prosecution's case-in-chief as to an admission by Kruse, in a conversation with another patient and Ortiz, that Kruse intended to kill the assault victim. 5 The testimony was introduced to rebut Kruse's claim of self-defense.

II

A divided panel of the court of appeals held that the district court committed reversible error during the trial by admitting Ortiz's testimony. People v. Kruse, 819 P.2d 548 (Colo.App.1991). The majority held that Ortiz's testimony was barred under section 16-8-107(1) because it violated Kruse's privilege against self-incrimination. 6

Judge Van Cise, in dissent, said:

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Defendant's argument that the service worker's testimony was barred under the limited use provision of § 16-8-107(1), C.R.S. (1990 Cum.Supp.) is raised for the first time on appeal. His objection to the witness' testimony in the trial court was based on relevancy under CRE 401 and 403 and, alternatively, the witness' inability to recall clearly the defendant's statements.

Having failed to object in the trial court on the grounds now asserted, defendant is deemed to have waived the objection on appeal. CRE 103; People v. Watson, 668 P.2d 965 (Colo.App.1983).

Kruse, 819 P.2d at 551 (Van Cise, J., dissenting). We agree with Judge Van Cise.

The protection provided by section 16-8-107(1) should not have been addressed by the court of appeals. The general rule is that failure to make a timely and sufficient objection during the trial constitutes a waiver of that ground on appeal. Larkin v. People, 177 Colo. 156, 160, 493 P.2d 1, 3 (1972); People v. Browning, 809 P.2d 1086, 1088 (Colo.App.1990). 7 Kruse waived his objection to the admission of Ortiz's testimony under section 16-8-107(1) by failing to properly object at trial. People v. Watson, 668 P.2d 965, 966-67 (Colo.App.1983) (holding that appellate court could not consider objection to testimony when defendant objected at trial on different grounds).

An exception to the general rule exists, however, that permits an appellate court to address issues not raised below where plain error requires consideration of the issues. Larkin, 177 Colo. at 161, 493 P.2d at 3 (requiring serious prejudicial error); see also People v. Hampton, 746 P.2d 947, 953 n. 11 (Colo.1987) (noting that failure to object in district court on grounds asserted on appeal is deemed to waive the objection unless the alleged error rises to plain error); Dorador v. Cronin, 199 Colo. 85,...

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67 practice notes
  • Harris v. People, No. 93SC155
    • United States
    • Colorado Supreme Court of Colorado
    • January 17, 1995
    ...so undermines the fundamental fairness of a trial that it casts serious doubt on the reliability of the ultimate verdict. People v. Kruse, 839 P.2d 1, 3 (Colo.1992). See Wilson, 743 P.2d at 418-21; People v. Winters, 765 P.2d 1010, 1014 (Colo.1988). Prosecutorial misconduct amounts to plain......
  • People v. Cardman, Court of Appeals No. 14CA0202
    • United States
    • Colorado Court of Appeals of Colorado
    • September 22, 2016
    ...743, 749–50 (Colo. 2005) (reviewing for plain error the defendant's due process claim regarding instructional error), People v. Kruse , 839 P.2d 1, 3 (Colo. 1992) (applying plain error standard to Fifth Amendment argument and stating it is an exception to rule that claim must first be broug......
  • People v. Hinojas-Mendoza, Court of Appeals No. 03CA0645 (CO 7/28/2005), Court of Appeals No. 03CA0645.
    • United States
    • Colorado Supreme Court of Colorado
    • July 28, 2005
    ...hearsay to the informant's statements. We review for plain error because defendant did not raise this objection below. See People v. Kruse, 839 P.2d 1 (Colo. An interpreter serves as a language conduit for the declarant. Hence, admission of translated testimony is appropriate when the circu......
  • F.D.I.C. v. American Cas. Co. of Reading, Pa., No. 91SC592
    • United States
    • Colorado Supreme Court of Colorado
    • December 14, 1992
    ...exclusion's bar to coverage for derivative claims asserted by the FDIC violates the public policy of Colorado. See People v. Kruse, 839 P.2d 1, 3 (Colo.1992) (holding that claims not raised in the district court or court of appeals are not properly before the Supreme Court for review on cer......
  • Request a trial to view additional results
67 cases
  • Harris v. People, No. 93SC155
    • United States
    • Colorado Supreme Court of Colorado
    • January 17, 1995
    ...so undermines the fundamental fairness of a trial that it casts serious doubt on the reliability of the ultimate verdict. People v. Kruse, 839 P.2d 1, 3 (Colo.1992). See Wilson, 743 P.2d at 418-21; People v. Winters, 765 P.2d 1010, 1014 (Colo.1988). Prosecutorial misconduct amounts to plain......
  • People v. Cardman, Court of Appeals No. 14CA0202
    • United States
    • Colorado Court of Appeals of Colorado
    • September 22, 2016
    ...743, 749–50 (Colo. 2005) (reviewing for plain error the defendant's due process claim regarding instructional error), People v. Kruse , 839 P.2d 1, 3 (Colo. 1992) (applying plain error standard to Fifth Amendment argument and stating it is an exception to rule that claim must first be broug......
  • People v. Hinojas-Mendoza, Court of Appeals No. 03CA0645 (CO 7/28/2005), Court of Appeals No. 03CA0645.
    • United States
    • Colorado Supreme Court of Colorado
    • July 28, 2005
    ...hearsay to the informant's statements. We review for plain error because defendant did not raise this objection below. See People v. Kruse, 839 P.2d 1 (Colo. An interpreter serves as a language conduit for the declarant. Hence, admission of translated testimony is appropriate when the circu......
  • F.D.I.C. v. American Cas. Co. of Reading, Pa., No. 91SC592
    • United States
    • Colorado Supreme Court of Colorado
    • December 14, 1992
    ...exclusion's bar to coverage for derivative claims asserted by the FDIC violates the public policy of Colorado. See People v. Kruse, 839 P.2d 1, 3 (Colo.1992) (holding that claims not raised in the district court or court of appeals are not properly before the Supreme Court for review on cer......
  • Request a trial to view additional results

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