People v. Pratt, 86SA401

Decision Date05 July 1988
Docket NumberNo. 86SA401,86SA401
Citation759 P.2d 676
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Olga Mae PRATT, Defendant-Appellant.
CourtColorado Supreme Court

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Milton Hutchins, First Asst. Atty. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Lee Jay Belstock, Denver, William H. Kirkman, Jr., Colorado Springs, for defendant-appellant.

MULLARKEY, Justice.

The defendant was convicted of accessory to crime and conspiracy to commit accessory to crime, pursuant to sections 18-8-105 and 18-2-201, 8 C.R.S. (1978), and was sentenced to four years of probation with a condition that she not take part in nursing home affairs for a period of one year. 1 Because we hold that the prosecution impermissibly cross-examined defense witnesses concerning collateral matters, we reverse the defendant's conviction and remand the case for a new trial.

I.

The defendant, Olga Pratt, is the primary owner and the director of nursing of Norton's Nursing Home in Colorado Springs. The charges in this case arose out of an incident on December 30, 1984, in which an orderly employed by Norton's, Kenneth Berzinis, assaulted a patient of Norton's, John Howard. Howard was ninety-seven years old at the time of the assault and did not testify at trial; his daughter and his physician, however, did testify. Testimony at trial focused on when the defendant learned of the assault and whether she obstructed the police investigation of the incident.

On December 30, 1984, Berzinis was the orderly in charge of two rooms, one of which was occupied by John Howard. Howard was described by all parties as a difficult patient, often causing disturbances and fabricating stories about staff abuse. Howard was unable to walk on his own and needed assistance in leaving his bed. Berzinis testified at trial that, on the day of the assault, Howard had become "increasingly demanding, cantankerous, and unable to be satisfied," and that Howard's behavior made him tense. Berzinis further testified that he was adjusting the mattress and pillows on Howard's bed with Howard in the bed and that, while doing so, "a fist was seen off my peripheral vision. At that moment, the man was injured." In response to questioning by the prosecutor, Berzinis explained that he had hit Howard. Berzinis eventually confessed to the police and pled guilty to third degree assault.

The events subsequent to the assault were a source of controversy at trial. Mary Wilburn was a registered nurse at Norton's and was a codefendant at trial. She was the supervising nurse on duty on the day of the assault. Wilburn testified that she heard moaning coming from Howard's room, and that she entered the room and found Howard in the bathroom sitting on the toilet. She noted that his left eye was badly swollen and asked him what had happened. He stated, "fist in my eye." She then transferred Howard to his bed, examined him, and placed an icebag on his eye.

Berzinis testified that, following the assault, he moved Howard from the bed to a portable toilet, and that he never moved Howard to the bathroom. This was corroborated by Janet Hern, a former nurse of Norton's. She testified that when she entered Howard's room shortly after the assault and asked Berzinis what had happened, he replied "I lost it; I hit him." Hern was fired by Norton's on February 18, 1985. The defense introduced into evidence Hern's employment file, which documented various incidents of deficient work performance by Hern dating back to April of 1984.

Both Berzinis and Hern testified that, although they were in Howard's room following the incident, they never observed an icebag on Howard's eye. Berzinis testified that he was in Howard's room when Wilburn entered, and that Howard was sitting on the portable toilet at that time. Jerry Cain, a janitor on duty at Norton's on the day of the assault, testified that he had entered Howard's room while Berzinis was there, that he then discovered Howard's injury, and that he informed Wilburn of the injury. Cain also testified that Howard was in bed at this time, although earlier he had stated to police detectives that Howard was sitting on the portable toilet. The defendant and several other witnesses challenged Hern's and Berzinis' account of the incident by testifying that the nursing home did not have a portable toilet like they described.

Wilburn immediately telephoned the defendant after discovering Howard's injury. She testified that she informed the defendant that Howard had been injured and that, although Berzinis was the orderly in charge of Howard's room, she did not think he was responsible for Howard's injury. The defendant asked to speak to Berzinis and told him that patient abuse would not be tolerated, that he was to go home for the day, and that he was to meet with her on the next morning to discuss the incident. Berzinis testified that he did not, during this telephone conversation, tell the defendant that he had hit Howard, although he claimed that he had told Wilburn that he had injured Howard. When confronted by defense counsel with his deposition testimony, Berzinis testified that he had stated to Wilburn: "Mary, I'm not going to lie to you; the man has been hit, but I'm not sure how he got hit." Wilburn testified that Berzinis did not make this statement or any other statement indicating that he had assaulted Howard.

Following this telephone conversation, the defendant went to the nursing home. She testified that she was unable to locate anyone who had seen or heard anything concerning the assault. She also testified that, although Hern at first told her that she knew what happened, Hern also told her that she had not seen or heard anything. Hern testified that she told the defendant that Berzinis and Howard had told her that Berzinis had assaulted Howard, but that the defendant told her to "keep my mouth shut until I found out what was going on." The defendant denied making this statement.

A meeting was held on December 31 among the defendant, Berzinis, and other members of Norton's staff. Testimony concerning this meeting also was conflicting. Berzinis testified that the defendant opened the meeting by stating that the Howard incident could have very serious repercussions, including criminal charges against Berzinis, a lawsuit against Norton's, higher insurance rates, and bad publicity for the nursing home. Berzinis testified that he stated at this meeting that, although he wasn't totally clear as to what had happened, he believed that he had hit Howard, although the incident was "accidental." He also testified that, although he did not in any way imply that Howard accidentally fell in the bathroom, the defendant stated at the meeting that any public statements would be to the effect that Howard was accidentally injured in the bathroom.

The defendant testified that, while the possibility of criminal charges against Berzinis was mentioned at the meeting, potential repercussions to the nursing home were never brought up. She further testified that, although Berzinis did state "I must have hit him, I might have," after being informed that Howard's jaw was broken in two places, Berzinis also stated that he couldn't have possibly done that. The defendant testified that no effort was made to convince Berzinis to do anything but tell the truth concerning the incident. The defendant's version of the December 31 meeting was corroborated at trial by the testimony of the other staff members at the meeting. The defendant further testified that she was concerned about falsely accusing Berzinis of the assault and that she did not believe she had enough information to accuse Berzinis.

The defendant called her insurance agent after this meeting, and informed him that a patient was found injured in the bathroom. She also told the insurance agent that Berzinis was on duty at the time, but that she did not know whether he was involved, and requested that an investigator be sent to the nursing home. Testimony of the insurance agent confirmed the defendant's testimony.

On January 7, two police investigators met with the defendant, a staff member, and the nursing home attorney. The police investigators testified that the defendant told them that Wilburn had found Howard injured in the bathroom, that there was some doubt about what had happened and whether Berzinis was responsible, and that Berzinis was suspended until the conclusion of the insurance investigation at which time she would decide whether he would be retained or fired. The defendant and her attorney testified that they had informed the police investigators about the December 31 meeting and Berzinis' statements at that meeting, that there were several rumors regarding the incident but no actual witnesses, and that Hern had told her that she knew what had happened. The police investigators denied during their testimony that they had received this additional information.

On January 7, 1985, Berzinis confessed to police that he had assaulted Howard. He pleaded guilty to third degree assault on July 11, 1985.

The defendant was charged on January 15, 1985, with accessory to third degree assault. This charge subsequently was amended to add a charge of conspiracy to commit accessory to third degree assault. The defendant was convicted by a jury of both charges, and was sentenced to probation for four years on the condition that she not take part in nursing home affairs for a period of one year. The defendant now appeals her conviction. 2

II.

The defendant claims that the trial court erred in allowing the prosecution, during cross-examination of defense witnesses, to inquire several times into two incidents of alleged misconduct. We agree with this contention and reverse the defendant's conviction.

At trial, the defense called Eddie Bishop,...

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