People v. Rincon, 03CA1748.

• Decision Date: 17 November 2005
• Docket Number: No. 03CA1748.,03CA1748.
• Citation: 140 P.3d 976
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Alberto B. RINCON, Defendant-Appellant.
• Court: Colorado Court of Appeals

Page 976

140 P.3d 976

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Alberto B. RINCON, Defendant-Appellant.

No. 03CA1748.

Colorado Court of Appeals, Div. II.

November 17, 2005.

Rehearing Denied January 12, 2006.

Certiorari Denied June 12, 2006.^*

COPYRIGHT MATERIAL OMITTED

John W. Suthers, Attorney General, Karen E. Lorenz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Samler and Whitson, P.C., Hollis A. Whitson, Denver, Colorado, for Defendant-Appellant.

DAILEY, J.

Defendant, Alberto B. Rincon, appeals the judgments of conviction entered upon jury verdicts finding him guilty of reckless manslaughter, first degree assault, second degree assault, and two counts of crime of violence. We affirm.

Defendant was convicted of killing a woman and wounding two other people in a drive-by shooting outside a bar.

The prosecution's primary witness testified that, three weeks before the shootings, she and defendant had approached one of the victims and purchased from him what defendant thought was cocaine but turned out to be flour. According to that witness, in the early morning hours following the shootings, defendant came to her hotel room and told her that he had "shot . . . the guy who burned [him]."

The prosecution also presented evidence that (1) a day after the shooting, defendant arrived with his wife and child at his brother's house in Garden City, Kansas, at four o'clock in the morning; (2) defendant admitted to his brother's roommate that "[he] f____ed up" and needed money to leave town; (3) defendant's silver-blue Lincoln Town Car, with its custom-made rims, was identified by witnesses to the shooting as being the same or similar to the car (and rims) used in the drive-by shooting; (4) defendant's car had gunshot residue on and in it; (5) unspent 9 mm ammunition was recovered from defendant's brother's house, in the bedroom where defendant had been sleeping; (6) the ammunition was of the same caliber as that used in the shootings, and the manufacturer's mark on the ammunition matched that on shell casings found at the scene; and (7) while in jail, defendant wrote to a fellow detainee, asking him to lie about several matters (namely, the features and color of the car used in the shooting, the number of occupants in the car, and the identity of the shooter as someone besides defendant), and to tell the prosecution's primary witness to either change her story or lie at trial.

Through various witnesses, defendant presented an alibi defense, namely, that he was at his own birthday party on the night of the incident. He argued that the prosecution's primary witness was to blame for the shooting and that he was nothing more than her scapegoat. He pointed, in this regard, to evidence that she had threatened one of the victims earlier that evening and she was identified by two witnesses as either having been in, or looking like one of the persons in, the car at the time of the shootings.

I. Other Bad Acts Evidence

Defendant contends that his convictions must be reversed because the trial court improperly admitted evidence of his other bad acts. We disagree.

Unless admitted pursuant to CRE 404(b), evidence of other bad acts unfairly exposes a defendant to the risk of being found guilty based on the defendant's bad character rather than on evidence relating to the charged offense. People v. Garner, 806 P.2d 366, 369-70 (Colo.1991).

Here, the prosecution asserted that defendant fled to Kansas to avoid apprehension. To refute this, defendant elicited, on cross-examination of a witness, testimony that defendant often went there to visit both his family and his wife's family. The witness had not, however, mentioned this family purpose to law enforcement as a possible reason for defendant's presence in Kansas; instead, the witness mentioned another reason, namely, that defendant came to Kansas every two weeks about drugs. On redirect examination, and over defendant's objection, the prosecution elicited from the witness an acknowledgment that he had told an investigator that he saw defendant in Garden City every two weeks about drugs.

As an initial matter, we reject the prosecution's assertion that the witness's acknowledgment did not qualify as evidence of other bad acts. Without more, the statement which the witness acknowledged making implied that defendant was involved on a regular basis in some form of illegal drug activity.

The prosecution does not assert that this evidence was admissible under CRE 404(b). Rather, it asserts that the evidence was properly admitted under the "opening the door" doctrine.

The "opening the door" doctrine "represents an effort by courts to prevent one party from gaining an unfair advantage by presenting evidence that, without being placed in context, creates an incorrect or misleading impression." People v. Melillo, 25 P.3d 769, 775 (Colo.2001). Application of the "opening the door" doctrine is subject to the considerations of relevance and prejudice required under CRE 401 and 403. People v. Melillo, supra.

Here, the prosecution could have elicited evidence that, although the witness had given a reason for defendant's presence in Kansas, "family" was not that reason. There was no need to further identify the reason given by the witness in the prior statement. Evidence of defendant's regular involvement in drug activity in Kansas had no tendency to demonstrate the prosecution's point that defendant fled to Kansas as a result of the shooting. If anything, it provided only another reason, wholly unrelated to the shooting, why defendant could have gone there. The evidence was not relevant to any issue in the case, and it impermissibly injected issues of defendant's bad character into the case. Consequently, we conclude that the trial court abused its discretion in admitting it.

Having found error, we must next determine whether it warrants reversal. We conclude that it does not.

Improper reference to a defendant's other bad acts is not per se reversible error. See Vigil v. People, 731 P.2d 713, 717 (Colo.1987)(improper reference to other bad acts evidence found harmless); People v. Vigil, 718 P.2d 496, 505-06 (Colo.1986)(improper reference to other bad acts evidence did not require mistrial).

Indeed, reversal is not warranted unless the error substantially influenced the verdict or affected the fairness of the trial proceedings. See Masters v. People, 58 P.3d 979, 1002-03 (Colo.2002)(evaluating the effect of inadmissible evidence of bad character under the test for assessing the harmlessness of nonconstitutional error). Under this test for harmless error, the issue is whether a reasonable probability exists that the error contributed to the defendant's conviction. Salcedo v. People, 999 P.2d 833, 841 (Colo.2000).

Here, the potential for prejudice to defendant was significant. The prosecution's primary witness related that defendant admitted shooting one of the victims because that person had recently "burned" him in a drug deal. The inadmissible evidence, however, was the only evidence that tended to corroborate this aspect of the primary witness's testimony: because defendant was the type of person who engaged in drug activity on a regular basis, it was more likely that the primary witness was telling the truth.

Nonetheless, we conclude that the error in admitting this evidence probably did not contribute to defendant's conviction.

The impermissible reference to defendant's drug activity was brief and was never mentioned again, much less relied upon, by the prosecution during the two-week trial.

In closing argument, the prosecution as much as admitted that its primary witness may have been involved in some manner in the shootings. However, it also pointed to numerous items of evidence, independent of that provided by the primary witness, inculpating defendant. This evidence included the following: (1) defendant's flight to, and incriminating statements in, Kansas; (2) defendant's car, which was linked to the shooting by various eyewitnesses and which was found to have gunshot residue on and in it; (3) the recovery from defendant's bedroom in Kansas of the same type of ammunition, made by the same manufacturer, as that used in the shootings; and (4) the letter in which defendant asked a fellow detainee to lie on his behalf and to tell the prosecution's primary witness to either change her story or lie at trial.

Viewing the evidence in its totality, we conclude that the prosecution's case against defendant, apart from the primary witness's testimony, was strong.

Under the circumstances — where there was but one, brief mention of defendant's drug activities, which the prosecution did not thereafter seek to exploit, and where a strong case of guilt was presented, apart from the primary witness's testimony — we find it unlikely that the jury was moved to convict defendant based on impermissible, other bad act considerations. Because the one impermissible reference to defendant's drug activities did not substantially influence the verdict or impair the fairness of the trial, we conclude that the error was harmless. See Masters v. People, supra, 58 P.3d at 1003-04 (erroneous admission of drawings and writings revealing defendant's violent and prejudiced nature was harmless, in light of the lack of emphasis given to them by the prosecution, the existence of other admissible evidence reflecting such nature, and the substantial evidence of defendant's guilt).

Accordingly, defendant is not entitled to a new trial on this ground.

II. Cross-Examination of Prosecution's Primary Witness

Defendant contends that the trial court violated his right to confront the witnesses against him and his right to due process by prohibiting him from cross-examining the prosecution's primary witness about her having lied to court officials during this case. We disagree.

Although the Confrontation Clause guarantees defendants the right to cross-examine...