People v. Lowe, 96CA2041

• Decision Date: 28 May 1998
• Docket Number: No. 96CA2041,96CA2041
• Citation: 969 P.2d 746
• Parties: 98 CJ C.A.R. 2714 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Barry L. LOWE, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 746

969 P.2d 746

98 CJ C.A.R. 2714

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Barry L. LOWE, Defendant-Appellant.

No. 96CA2041.

Colorado Court of Appeals Div. V.

May 28, 1998.

Rehearing Denied July 16, 1998.

Certiorari Denied Dec. 21, 1998.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Miles D. Madorin, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Multz, Salmon & Lipton, Donna A. Salmon, Grand Junction, Colorado, for Defendant-Appellant

Opinion by Judge TAUBMAN.

Defendant, Barry L. Lowe, appeals from the judgment of conviction entered on a jury verdict finding him guilty of criminal mischief and cruelty to animals. Defendant also appeals from the trial court's denial of his motion for a new trial. We affirm.

Defendant was tried and convicted on August 28, 1996, for crimes related to the slaying of a breeding stallion owned by defendant's mother-in-law. Defendant appealed those convictions. While that appeal was pending, he filed a motion for a new trial based upon newly discovered evidence. Pursuant to a limited remand, the trial court held a hearing on defendant's motion and then denied it.

I.

Defendant contends that, by allowing the prosecution to use his notices of alibi for impeachment purposes, the trial court violated his Fifth Amendment right against self-incrimination and the policies and purposes of Crim. P. 16 II(d). We disagree.

At the outset, we note the prosecution's contention that defendant waived the aforementioned objections at trial and that, therefore, we should review defendant's challenges under a plain error standard. Because we find no error, we need not address this contention.

A.

Defendant contends that the trial court violated his Fifth Amendment right against self-incrimination by allowing the prosecutor to impeach defendant with his notice of alibi. We disagree.

Under the Fifth Amendment, defendant had the right to refuse to take the witness stand in his or her own behalf. However, a defendant electing to take the stand is subject to cross-examination to the same extent as any other witness. Cross-examination in an effort to impeach the defendant does not violate his or her Fifth Amendment privilege against self-incrimination. People v. Thiery, 780 P.2d 8 (Colo.App.1989).

Further, when a defendant waives his or her right not to testify at trial, the defendant's credibility is placed in issue to the same extent as that of any other witness. Evidence of a prior inconsistent statement is therefore admissible against the defendant if not protected by any claim of privilege. People v. Lambert, 40 Colo.App. 84, 572 P.2d 847 (1977).

Statements by counsel regarding the general nature of the defense are within the scope of the attorney's employment. Therefore, such statements may be considered an admission by the attorney imputed to the defendant and, thus, are admissible to impeach a defendant's testimony. State v Dault, 19 Wash.App. 709, 578 P.2d 43 (1978); 4 J. Wigmore, Evidence § 1063 (1972).

Here, defendant knowingly waived his Fifth Amendment privilege and, therefore, was subject to cross-examination concerning the inconsistencies among his first notice of alibi, his amended notice of alibi, and his in-court testimony. Thus, we conclude that the trial court did not violate defendant's Fifth Amendment rights by allowing the prosecutor to use the notices of alibi for impeachment when defendant testified inconsistently with the information contained in such notices.

B.

Next, relying on People v. Hampton, 696 P.2d 765 (Colo.1985), defendant contends that the trial court violated Crim. P. 16 II(d) by allowing the prosecutor to use the notices of alibi to impeach defendant. We do not agree.

The purpose of Crim. P. 16(II)(d) is to prevent unfair surprise to the prosecution and enhance the overall reliability of the fact finding process. Early disclosure pursuant to the rule should not be used to abridge an accused's right to present evidence in his or her defense, nor punish a defendant for mere technical errors or omissions. People v. Hampton, supra.

In Hampton, the supreme court concluded that Crim. P. 12.1, the predecessor to Crim. P. 16 II(d), required the defendant to disclose to the prosecutor an intent to use an alibi as a defense at trial. The Hampton court, in its discussion of the reasonableness of the obligation of disclosure, concluded: "If [the defendant] elects to give notice and subsequently decides not to offer alibi evidence at trial, the notice of alibi may not be the subject of examination or comment at trial." People v. Hampton, supra, 696 P.2d at 777. It is this statement that defendant relies upon for his assertion that the trial court erred in allowing the prosecution to use the notices of alibi to impeach his credibility.

People v. Hampton, supra, is distinguishable from the circumstances present here. The Hampton court limited only the prosecution's ability to comment on information contained in the notice of alibi where the defendant disclosed an intent to comport with the notice of alibi requirements of Crim. P. 16 II(d) but ultimately did not offer any alibi evidence.

In contrast, here, defendant presented alibi evidence at trial and further opened the door to cross-examination concerning his version of the events when he testified in a manner inconsistent with his notices of alibi.

Thus, there was no error, much less plain error, in allowing the prosecutor to use defendant's notices of alibi as prior inconsistent statements to impeach his credibility. This conclusion is consistent with the purposes of Crim. P. 16 II(d) and does not punish a defendant for a mere technical error. As noted, notices of alibi are admissible only as a prior inconsistent statement when a defendant testifies at trial in a manner inconsistent with such notices.

II.

Defendant next contends the trial court erred in denying his motion to dismiss based on the prosecutor's failure to disclose that its expert had expanded his estimate of the time when the horse was stabbed. According to defendant, this failure to disclose violated Crim. P. 16 I(a)(1)(III), and resulted in unfair prejudice because he was unable to present alibi witnesses to account for his whereabouts for the periods not within the original estimate. Defendant likewise contends that the trial court erred in denying his motion for a new trial based upon newly discovered witnesses who were willing to testify to defendant's whereabouts for the periods not within the original estimate of when the crimes occurred. We disagree with both contentions.

A.

Crim. P. 16 I(a)(1)(III) requires that the prosecution make available to a defendant material within its control or possession, including any reports or statements of experts made in connection with a particular case. However, failure to comply with discovery rules does not require dismissal by the trial court absent a demonstration of prejudice to the defendant. Salazar v. People, 870 P.2d 1215 (Colo.1994).

Here, because we conclude there was no showing of prejudice, we need not decide whether the additional information which the prosecution expert, a veterinarian, gave to the prosecutor was discoverable.

At the preliminary hearing, a detective testified that the stabbing had occurred between 1:00 and 2:00 a.m. on July 31, 1995. The detective's estimate was based upon testimony that the horse had died at approximately 8:00 a.m. on July 31, 1995, and the veterinarian's opinion that it would have taken the horse about six hours to die from the wound.

However, shortly before trial, during an interview with the prosecutor, the veterinarian estimated that it would have taken the horse eight to twelve hours to die from the wound. It is undisputed that the prosecutor did not disclose this new time estimate to defense counsel prior to trial.

At trial, the veterinarian testified without objection that consistent with its wound, the horse would have survived between six and twenty-four hours, and most likely would have survived eight to twelve hours after the stabbing. Defense counsel did not cross-examine the expert witness regarding this newly-expanded estimate but, rather, after the prosecution rested, requested that the trial...