People v. Miller, 91CA0235
| Docket Nº | No. 91CA0235 |
| Citation | 862 P.2d 1010 |
| Case Date | May 20, 1993 |
| Court | Court of Appeals of Colorado |
Page 1010
v.
Gary Lee MILLER, Defendant-Appellant.
Div. V.
Rehearing Denied June 24, 1993.
Certiorari Granted (People)
Nov. 29, 1993.
Cross-Petition forCertiorari Denied
Nov. 29, 1993.
Page 1011
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul Koehler, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, Colorado State Public Defender, David Furman, Deputy State Public Defender, Denver, for defendant-appellant.
Opinion by Judge ROTHENBERG.
Defendant, Gary Lee Miller, appeals from the judgment of conviction entered upon jury verdicts finding him guilty of possession of a controlled substance, distribution of a controlled substance, and aggravated distribution of a controlled substance. We reverse and remand for a new trial.
The charges at issue arose from a police investigation in which one person, following his own arrest for possession and distribution of cocaine, agreed to become a police informant and to purchase drugs for
Page 1012
police from his regular drug supplier. The police informant, acting under police surveillance, gave money to the drug supplier who, according to the supplier, then purchased cocaine from the defendant. Based upon this information and observations made by the police officers, arrests were made and search warrants were executed which led to the discovery of cocaine in defendant's home and truck.At trial, the defendant testified and denied selling cocaine to the supplier. He further denied knowledge of the cocaine found in his home or truck.
I.
Defendant first contends that the trial court erred in excluding the testimony of two character witnesses who would have testified regarding his character trait of truthfulness. We agree.
In its ruling disallowing the defendant's character evidence, the trial court relied upon CRE 608(a) which provides:
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (emphasis added)
Generally, the prosecution in a criminal trial is forbidden from initially introducing evidence of the defendant's bad character to imply that, being a bad person, he or she is more likely to commit a crime. However, CRE 404(a)(1) creates an exception which is more specific than CRE 608 and gives an accused the right to introduce evidence of a pertinent character trait. See generally People in Interest of E.Z.L., 815 P.2d 987 (Colo.App.1991) (In the event statutes conflict, effect shall be given to both, if possible. If not, the more specific provision shall prevail as an exception to the general rule).
CRE 404 provides:
(a) Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except :
(1) Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same.... (emphasis added)
In People v. Whitfield, 425 Mich. 116, 388 N.W.2d 206, 212 (1986), the Michigan Supreme Court discussed its rule which is identical to CRE 404(a)(1):
One of the exceptions to the general rule barring the use of character to prove conformance therewith on a particular occasion is the so-called mercy rule found in ... 404(a)(1), which allows a criminal defendant an absolute right to introduce evidence of his character to prove that he could not have committed the crime.... Once a defendant introduces [pertinent] character testimony, the prosecution can then rebut that testimony. (emphasis added)
CRE 404(a)(1) makes it clear that the character evidence which the accused seeks to admit must be pertinent to the issues presented at trial. For example, evidence offered by the accused which establishes his or her character as a law-abiding citizen is always pertinent because a law-abiding citizen presumably would not have committed any crime. See 1A J....
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People v. Miller, 93SC463
...delivered the Opinion of the Court. We granted certiorari to review the decision of the Colorado Court of Appeals in People v. Miller, 862 P.2d 1010 (Colo.App.1993), which reversed the judgment of conviction of Gary Lee Miller for offenses involving the possession and distribution of cocain......
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West Virginia v. Benny W., 18-0349
...404").22Page 31 It has been recognized that "an accused's character for ... honesty is not pertinent in every case." People v. Miller, 862 P.2d 1010, 1012 (Colo. App. 1993), rev'd on other grounds, 890 P.2d 84 (Colo. 1995). The issue of whether honesty is a pertinent character trait in a pr......
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State v. Benny W., 18-0349
...Rule 404").22 It has been recognized that "an accused’s character for ... honesty is not pertinent in every case." People v. Miller , 862 P.2d 1010, 1012 (Colo. App. 1993), rev’d on other grounds, 890 P.2d 84 (Colo. 1995). The issue of whether honesty is a pertinent character trait in a pro......
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People v. Meinerz, 92CA1749
...his credibility becomes pertinent. Evidence of his character for truthfulness is then admissible under CRE 404(a)(1). People v. Miller, 862 P.2d 1010 (Colo.App.1993). Consequently, we conclude that the trial court's refusal to admit such testimony was error, and thus, the question becomes w......
-
People v. Miller, 93SC463
...delivered the Opinion of the Court. We granted certiorari to review the decision of the Colorado Court of Appeals in People v. Miller, 862 P.2d 1010 (Colo.App.1993), which reversed the judgment of conviction of Gary Lee Miller for offenses involving the possession and distribution of cocain......
-
West Virginia v. Benny W., 18-0349
...404").22Page 31 It has been recognized that "an accused's character for ... honesty is not pertinent in every case." People v. Miller, 862 P.2d 1010, 1012 (Colo. App. 1993), rev'd on other grounds, 890 P.2d 84 (Colo. 1995). The issue of whether honesty is a pertinent character trait in a pr......
-
State v. Benny W., 18-0349
...Rule 404").22 It has been recognized that "an accused’s character for ... honesty is not pertinent in every case." People v. Miller , 862 P.2d 1010, 1012 (Colo. App. 1993), rev’d on other grounds, 890 P.2d 84 (Colo. 1995). The issue of whether honesty is a pertinent character trait in a pro......
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People v. Meinerz, 92CA1749
...his credibility becomes pertinent. Evidence of his character for truthfulness is then admissible under CRE 404(a)(1). People v. Miller, 862 P.2d 1010 (Colo.App.1993). Consequently, we conclude that the trial court's refusal to admit such testimony was error, and thus, the question becomes w......