People v. Spoto

Decision Date09 July 1990
Docket NumberNo. 88SC611,88SC611
Citation795 P.2d 1314
PartiesThe PEOPLE of the State of Colorado, Petitioner, v. Vincent Joseph SPOTO, Respondent.
CourtColorado Supreme Court

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Clement P. Engle, Asst. Atty. Gen., Denver, for petitioner.

David F. Vela, Colorado State Public Defender and Kathleen A. Lord, Deputy State Public Defender, Denver, for respondent.

Justice LOHR delivered the Opinion of the Court.

We granted certiorari to review the judgment of the Colorado Court of Appeals reversing the conviction of defendant Vincent Joseph Spoto for first degree murder and a crime of violence. See People v. Spoto, 772 P.2d 631 (Colo.App.1988). The issue upon which review was granted is whether the district court erred in admitting evidence of a prior incident involving the defendant's use of a gun to rebut the defendant's evidence of accident and lack of deliberation. The court of appeals held that the trial court erred in admitting the prior incident evidence, reversed the defendant's conviction and remanded the case for a new trial. We agree that the trial court erred in admitting the evidence and therefore affirm the judgment of the court of appeals.


Spoto was tried to a jury in El Paso County District Court on charges of first degree murder, 1 conspiracy to commit first degree murder, 2 and crime of violence 3 arising out of the death of Roger Berg as a result of a gunshot wound inflicted by the defendant. The jury found the defendant not guilty of conspiracy but guilty of first degree murder and crime of violence. Spoto appealed, asserting among other things that the trial court erred in admitting evidence that he had used a gun on a prior occasion. The court of appeals reversed the conviction and we granted certiorari. To determine whether the prior transaction evidence was properly admitted, it is necessary to outline the evidence concerning the shooting of Roger Berg, the evidence concerning the earlier incident during which the defendant used a gun, and the trial court's instructions to the jury as to the limited purposes for which evidence of the prior incident could be considered.

In late November 1985, Spoto and his wife were living in a house with the defendant's friend David Bowman. On November 27, Bowman and Spoto went to the Candlelight Inn in Colorado Springs. Bowman spent some time talking with Melinda Deeringer, a dancer at the Candlelight with whom he was infatuated. The evidence indicated that Deeringer invited him to her apartment to spend the night. After leaving the Candlelight and dropping Spoto off at home, Bowman went to Deeringer's apartment. Deeringer's roommates admitted him and he waited for Deeringer to arrive from work.

Deeringer left the Candlelight with Roger Berg, a disc jockey at the establishment. When they got to her apartment, she told Bowman that she was spending time with Berg and that Bowman would have to leave. Bowman was upset. He left Deeringer's apartment, returned to his own residence and told Spoto what had happened. Spoto testified in his own defense and stated that after Bowman described his experience at Deeringer's, Bowman said that he wanted to go back there to pick up clothes that he had left and to find out where he stood with Deeringer. Spoto said he tried to discourage Bowman from returning but was unsuccessful. Spoto testified that he was concerned that Bowman would make a fool of himself and decided to accompany him to help keep the situation under control.

Bowman and Spoto then went to Deeringer's apartment in Bowman's vehicle, in which Spoto kept a .357 magnum pistol. According to Spoto, after they parked facing Deeringer's apartment, both got out of the truck and Spoto saw Bowman placing the gun in his pants. Concerned that Bowman was carrying the gun, Spoto persuaded him to turn it over. Spoto said that he went to put the gun back in the truck but found it locked, so he took the gun with him. Bowman and Spoto were then admitted by one of Deeringer's roommates. Bowman asked if Berg was still there and whether everyone was asleep. He was told that Berg was present and all were asleep. Bowman then entered Deeringer's bedroom and found her and Berg sleeping. He kicked the bed and told Berg to get up. While these events were transpiring, Spoto followed Bowman into the bedroom. The evidence was in conflict as to what happened next.

Deeringer gave the following account. Spoto directed Berg to get out of bed or he would kill him. Berg refused. Spoto then quickly walked to the foot of the bed on Berg's side and pulled a pistol from inside his jacket. Berg then reached for his own pistol, which was located at the head of the bed. Spoto grinned, walked forward on Berg's side of the bed, reached for the hand in which Berg was holding the gun and put his own gun to Berg's neck. Berg and Spoto struggled. Deeringer testified that "[t]heir hands just went together like this for a few minutes--not a few but a couple of seconds. And then all of a sudden, boom. [Spoto] shot Roger [Berg]."

Spoto testified to a different version of the events. He stated that Berg started to turn towards the headboard and reach for a gun that was visible there. Spoto said "David [Bowman], he's got a gun." Bowman said he didn't care. Spoto then moved to grab Berg's gun, took out his own pistol, and told Berg to "chill out." A struggle began, and Berg's pistol was pointed at Spoto. Spoto testified that he cocked his pistol in an effort to persuade Berg to calm down and told Berg to freeze. According to Spoto, his gun then fired accidentally in the course of the continuing struggle, killing Berg. Spoto denied knowing where his gun was positioned when it discharged.

The evidence was undisputed that Berg's death was caused by a bullet fired from Spoto's .357 magnum pistol when the muzzle of the gun was in contact with Berg's neck.

Bowman and Spoto fled and were thereafter located in New York and came back to Colorado to face charges resulting from Berg's death. Spoto was tried separately, and Bowman did not testify at Spoto's trial. Spoto defended on the basis that he acted in self-defense and that his pistol discharged accidentally while he was attempting to wrest Berg's pistol from him. In order to rebut the evidence of self-defense 4 and accident the prosecution sought to introduce evidence of a prior occasion during which Spoto brandished a pistol.

The prior incident occurred a few weeks earlier at Bowman's residence. At the time, Bowman lived with Spoto and two other persons, Brett DeWeese and Heidi Smith. Bowman and Spoto shared a bedroom, as did DeWeese and Smith. Spoto and DeWeese ultimately testified about the incident and offered somewhat different accounts. Spoto testified that he and Bowman returned home in the early morning hours and discovered the front door open and some things missing from their bedroom. Spoto and Bowman then entered the DeWeese-Smith bedroom at about 2:30 to 3:00 a.m. while DeWeese and Smith were asleep. According to Spoto, he and Bowman went into the bedroom to ask DeWeese and Smith if they had stolen the missing items. DeWeese and Smith denied the theft. Spoto testified that he then pointed an unloaded pistol at DeWeese and asked, "swear to God?" The incident ended when the parties heard noises from another part of the house and went to investigate. They discovered that a burglar was in the house and was escaping. In DeWeese's version of the events, Spoto woke him by poking him in the ribs with a gun, then pulled his left arm outward, pressed the gun to his head just below his left ear and asked him if he believed in God. DeWeese stated that he was groggy while being awakened.

The defendant first sought a pretrial ruling on the admissibility of evidence of the DeWeese incident. The district court heard the testimony of Smith and DeWeese and ruled, without elaboration, that the evidence would not be admissible. The court stated, however, that it would reconsider the ruling at the conclusion of the defendant's case in chief.

After Spoto testified and was cross-examined concerning the shooting, the prosecutor again requested permission to introduce evidence of the DeWeese incident. The court ruled:

THE COURT: Well, it's the Court's view that under the rule there are a limited number of prior transactions that are admissible. In this particular case and with the way the defendant has testified, coupled with the claim of self-defense, and the imprimatur of the gun up against the neck, we have a unique sort of act that fits some of the circumstances contemplated by the rule which would indicate intent, absence of mistake or accident. And under those circumstances, the Court is going to allow that prior transaction to be presented to the jury. So you may examine him on that particular area.

The jury was brought back in and the court instructed them as follows:

THE COURT: If you'll be seated. Ladies and gentlemen, I have a special instruction for you at this time. Certain evidence is about to be admitted for a limited purpose. You are admonished that it is not to be considered for or by you for any purpose other than the limited purpose for which it is admitted. The limited purpose for which such testimony is being admitted is to show intent, absence of mistake or accident.

Anything else, Mr. Aspinwall [the prosecutor]?

MR. ASPINWALL: Guilty knowledge and motive, Your Honor.

THE COURT: Guilty knowledge and motive.

The district attorney then cross-examined Spoto on the DeWeese incident.

In its rebuttal case, the prosecution called DeWeese to testify as to the incident. Before hearing testimony, the court instructed the jury as follows:

Ladies and gentlemen, certain evidence is about to be admitted for a limited purpose. As I instructed you earlier, this evidence is admitted, but it is...

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