People v. Segovia

Decision Date24 November 2008
Docket NumberNo. 08SA164.,08SA164.
Citation196 P.3d 1126
PartiesIn re The PEOPLE of the State of Colorado, Plaintiff v. Joel Palma SEGOVIA, Defendant.
CourtColorado Supreme Court

Mark D. Hurlbert, District Attorney, Fifth Judicial District, Anne P. Francis, Deputy District Attorney, Eagle, Colorado, Attorney for Plaintiff.

Theodore G. Hess, Bill Schubert, Hess & Schubert, LLP, Glenwood Springs, Colorado, Attorneys for Defendant.

Justice RICE delivered the Opinion of the Court.

In this original proceeding brought pursuant to C.A.R. 21, the defendant in a criminal case seeks review of the trial court's denial of his motion to dismiss on double jeopardy grounds. We issued a rule to show cause to the trial court and now make that rule absolute, holding that the trial court erred in finding evidence of a prior instance of shoplifting inadmissible pursuant to CRE 608(b). Based on what occurred during the trial, there was no manifest necessity to declare a mistrial. Accordingly, the Double Jeopardy Clause prohibits retrial of the defendant.

I. Facts and Procedural History

Petitioner, Jose Palma Segovia (Palma),1 is charged with sexual assault on a child. He was brought to trial on February 4, 2008, where the prosecution's chief witness was the thirteen-year-old victim, T.L. Palma contended that T.L.'s allegations were fabricated, and was prepared to offer videotapes and call witnesses to support his theory of the case. After T.L. testified, she was cross-examined by defense counsel. The following exchange occurred:

[Defense counsel]: Now, you have promised the Judge to tell the truth to this jury, haven't you?

[Witness]: Yes.

[Defense counsel]: And in order to tell the truth to the jury, that requires you to be honest, correct?

[Witness]: Yes.

[Defense counsel]: Okay. And—but you're not always honest, are you?

[Witness]: What do you mean?

[Defense counsel]: Well, I mean in mid-July, around July 15th of 2007, at your mother's store in Avon, you and Josh stole $100 from your mother's store, didn't you?

[Witness]: No.

At this point, the prosecutor objected and defense counsel asserted CRE 608(b) as grounds to allow the question.

Outside the presence of the jury, the trial court and the attorneys addressed the objection. The trial court ruled that the question about shoplifting was a prior bad act that was inadmissible pursuant to CRE 404(b) and was not properly noticed to the court and prosecutor. Additionally, the court held that defense counsel was attempting to attack T.L.'s truthfulness by extrinsic evidence, which was impermissible. The court also concluded the shoplifting incident would go to truthfulness only if counsel established "she was untruthful with regard to that issue when questioned by someone on that topic." Furthermore, the court held that the prosecution had not bolstered T.L.'s credibility on direct examination, so the witness's truthfulness was not at issue. Finally, the court concluded the error could not be corrected and sua sponte declared a mistrial.

Palma filed a motion to dismiss the charge on double jeopardy grounds. The trial court denied the motion and scheduled a second trial. Palma seeks review of that ruling.

An original proceeding is appropriate to prevent an excess of jurisdiction by a lower court where no other remedy would be adequate. Paul v. People, 105 P.3d 628, 632-33 (Colo.2005). Because Palma may otherwise be forced to endure a second trial in violation of his constitutional rights, we exercise our original jurisdiction under C.A.R. 21. See id.

II. Analysis

Palma seeks to have the charge against him dismissed on grounds of double jeopardy. He argues the trial court erred in its evidentiary ruling that defense counsel's question about shoplifting was improper. Palma contends that, because the trial court erred in its evidentiary ruling, there was no manifest necessity to declare a mistrial. Accordingly, Palma asserts that subjecting him to a second trial would constitute double jeopardy.

A. Admissibility of Shoplifting Evidence

Trial courts are afforded considerable discretion in deciding evidentiary issues, so such decisions will not be disturbed absent an abuse of discretion. Masters v. People, 58 P.3d 979, 996 (Colo.2002). However, a trial court necessarily abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence. People v. Wadle, 97 P.3d 932, 936 (Colo.2004).

1. CRE 404(b) or CRE 608(b)

At the outset, we clarify some confusion in the trial court's ruling because it is not entirely clear under what rule the trial court found the question objectionable. The trial court merged its analysis of the evidence under two evidentiary rules: it found the substance of the shoplifting question objectionable pursuant to CRE 404(b) and found the method of proof objectionable pursuant to CRE 608(b). We first explain why the shoplifting question was properly at issue under rule 608(b), rather than rule 404(b).

Both rule 404(b) and rule 608(b) permit admission of evidence that would otherwise be considered inadmissible character evidence for limited purposes. Rule 404(b) prohibits the use of evidence to show a person acted in conformity with a certain character, but does not preclude use of that evidence for other purposes, such as proof of motive, opportunity, intent, plan, or absence of mistake. People v. Kraemer, 795 P.2d 1371, 1377 (Colo.App.1990). Rule 404(b) does not address the use of evidence for impeachment. Id.; see also CRE 404(a)(3) (explaining that evidence of a person's character is admissible as provided in rule 608). In contrast, rule 608(b) governs evidence used to impeach a witness's credibility. Thus, evidence of specific acts used solely for impeachment is governed by rule 608(b), rather than rule 404(b). Kraemer, 795 P.2d at 1377; People v. Harris, 892 P.2d 378, 382 (Colo. App.1994) (suggesting that if the evidence is admitted solely for impeachment purposes, it is questionable whether a rule 404(b) analysis is required).

Here, defense counsel asked T.L. about the shoplifting act in order to impeach her credibility. This purpose is made apparent by counsel's foundational question: "But you're not always honest, are you?" The evidence was not offered for any of the purposes listed in rule 404(b), so the trial court erred when it applied that rule to the evidence.

2. CRE 608(b)

We next consider whether defense counsel's question was admissible under rule 608(b), starting with whether the question was the correct method of impeachment. Specific instances of conduct intended to impeach the credibility of a witness may not be proved by extrinsic evidence, but may be inquired into on cross-examination of a witness. CRE 608(b); People v. Cole, 654 P.2d 830, 832 (Colo.1982). The rule provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness other than conviction of crime as provided in [section] 13-90-101 may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness. . . .

CRE 608(b). Extrinsic evidence is evidence not contained in the source before the court, but which is available from other sources. Black's Law Dictionary 597 (8th ed.2004). Thus, where a witness is testifying, her answer to any question is intrinsic evidence, while the admission of any documents or calling of other witnesses constitutes extrinsic evidence. See People v. Taylor, 190 Colo. 210, 213-14, 545 P.2d 703, 705-07 (1976). Here, defense counsel inquired about an act of shoplifting during cross-examination, which is intrinsic evidence that complies with rule 608(b). Therefore, the trial court erred in concluding that asking the question on cross-examination was extrinsic evidence.

Because the question was not extrinsic evidence, we next consider whether an act of shoplifting is proper impeachment evidence under rule 608(b). If a witness takes the stand and testifies, she puts her credibility in issue. People v. Drake, 748 P.2d 1237, 1246 (Colo.1988). Thus, the opposing party is entitled to impeach the witness's credibility. See id. Under rule 608(b), a witness may be asked about specific instances of conduct2 that are probative of a witness's character for truthfulness or untruthfulness. E.g., People v. Pratt, 759 P.2d 676, 680 (Colo. 1988). The rule does not explain how to determine if an act is probative of truthfulness, and there is no committee comment on the rule to guide our inquiry.

Colorado courts have held that the following instances of conduct are probative of the witness's truthfulness: providing false information to a police officer, e.g., People v. Garcia, 17 P.3d 820 (Colo.App.2000); intentionally failing to file tax returns, Kraemer, 795 P.2d 1371; and misrepresenting financial information to obtain a loan, People v. Distel, 759 P.2d 654 (Colo.1988). In contrast, Colorado courts have excluded acts of violence, People v. Ferguson, 43 P.3d 705 (Colo.App. 2001); instances of drug use, People v. Saldana, 670 P.2d 14 (Colo.App.1983); and bigamy, People v. Lesslie, 939 P.2d 443 (Colo. App.1996), because those acts are not probative of truthfulness.

This court has never considered whether an act of shoplifting is probative of truthfulness or untruthfulness pursuant to rule 608(b). In People v. Jones, however, the court of appeals concluded that "although shoplifting obviously involves a form of dishonesty, a disregard of property rights of others is not probative of a propensity to be truthful or untruthful." 971 P.2d 243, 244 (Colo.App.1998). We take this opportunity to decide whether shoplifting, an act that involves dishonesty, is probative of truthfulness.

To aid our analysis, we conducted a fifty-state and...

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