People v. T.R., 90CA2183

• Decision Date: 28 January 1993
• Docket Number: No. 90CA2183,90CA2183
• Citation: 860 P.2d 559
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee, v. In the Interest of T.R., a Child, and Concerning P.R., Respondent-Appellant. . IV
• Court: Colorado Court of Appeals

Page 559

860 P.2d 559

The PEOPLE of the State of Colorado, Petitioner-Appellee, v. In the Interest of T.R., a Child and Concerning P.R., Respondent-Appellant.

No. 90CA2183.

Colorado Court of Appeals Div. IV.

Jan. 28, 1993.

Rehearing Denied Feb. 25, 1993.

Certiorari Denied Nov. 1, 1993.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Katherine M. Clark, Asst. Atty. Gen., Denver, for petitioner-appellee.

James H. Chalat, P.C., Jonathan S. Willett, Denver, for respondent-appellant.

Opinion by Judge PLANK.

T.R., a juvenile, appeals the judgment adjudicating him to be delinquent entered upon a jury verdict finding that he committed acts that would constitute criminally negligent homicide if committed by an adult. He also appeals the court's order requiring him to pay restitution. We reverse.

With T.R. driving, he and two friends left their high school for lunch. T.R. spun the car around several times in the school parking lot and then pulled out onto the street without stopping. One passenger testified that the speedometer indicated 40 m.p.h. as they left the parking lot. T.R. continued to accelerate, and according to a passenger, when he passed a state patrol vehicle, he said that he was going to "outrun the cop." Both passengers estimated T.R. accelerated the car to a speed of 70-80 m.p.h.

Soon thereafter, the victim's car stopped at an intersection crossing T.R.'s direction of travel and then started to cross the street. T.R.'s vehicle hit the victim's car broadside, and the victim sustained multiple injuries which, after several weeks of hospitalization, proved fatal.

I.

T.R. first contends that the trial court erred by not instructing the jury on his theory of defense. We agree.

T.R. tendered the following instruction:

A driver is required to stop at a stop sign posted at an intersection with a highway. After stopping, the driver is required to proceed cautiously, yielding to vehicles that are not required to stop or yield and which are approaching so closely as to create an immediate hazard during the time the driver is moving across or within the intersection.

One of the passengers in T.R.'s car testified at trial that the victim was looking straight ahead and did not look at T.R.'s vehicle, and there was also evidence of clear visibility. Premised on this evidence, T.R. argued that the above instruction should be submitted as pertinent to his theory that the victim's alleged negligence in crossing the intersection caused the accident.

The trial court rejected the instruction because there was no evidence that the victim failed to stop at the intersection. The court did not, however, assist the juvenile in drafting a proper instruction encompassing his theory of the case, namely, that the victim had stopped at the intersection, but proceeded through without yielding to T.R.'s oncoming car. Thus, no jury instruction given encompassed this theory of the case.

It is for the jury, and not the court, to determine the truth of an accused's theory; therefore, a defendant (or, as here, a juvenile) is entitled to a theory of defense instruction if any evidence, even if improbable, supports the theory. People v. Fuller, 781 P.2d 647 (Colo.1989). As well, the trial court has an affirmative obligation to assist counsel in correcting a tendered instruction or incorporating the substance of the theory in an instruction drafted by the court. People v. Nunez, 841 P.2d 261 (Colo.1992).

If, however, an accused's theory of the case is only a general denial, no specific theory of the case instruction is required. People v. Dillon, 655 P.2d 841 (Colo.1982). As well, "the jury instructions setting forth the elements of the offense and the burden of proof, standing alone, can encompass, embody, or take the place of a defendant's theory of the case." People v. Nunez, supra at 265.

Here, T.R.'s theory of the case was more than a mere denial of the charge of vehicular homicide. Rather, his theory was that the victim failed to yield. No instruction was given to the jurors stating that they were to consider this defense; however, T.R. did present evidence, although minimal, that the victim failed to yield. Under the rule of Fuller, supra, the weight to be given this evidence, even if improbable, should be determined by the jury, and the trial court erred by not giving a theory of the case instruction on the defense once T.R. tendered such an instruction.

Further, we hold that such error mandates reversal. T.R. specifically requested such an instruction when he tendered the rejected instruction. Thus, the trial court was obligated to assist in preparing a proper instruction. See People v. Nunez, supra.

II.

T.R. asserts a number of other instances of error, which for purposes of retrial we have considered. As to each, we either perceive no error, no abuse of discretion by the trial court, or conclude that they may be properly resolved on retrial.

First, we reject T.R.'s assertion that he was denied due process by virtue of the fact that, in examining the brakes on T.R.'s vehicle, a state trooper "de-adjusted" them. The trial court did not abuse its discretion in concluding that there had been no destruction of exculpatory evidence. Its finding in this regard, including its finding that there was no showing of bad faith on the part of the trooper, has evidentiary support. See People v. Enriquez, 763 P.2d 1033 (Colo.1988); People v. Wyman, 788 P.2d 1278 (Colo.1990).

Second, the trial court did not err in ruling that if T.R. asserted the defense of defective brakes, the People could admit rebuttal evidence that T.R.'s brakes were functioning properly at a high speed two hours prior to the accident. Such ruling was within the discretion of the trial court concerning the admission of rebuttal evidence. See People v. Rowerdink, 756 P.2d 986 (Colo.1988).

Third, in light of remarks and questioning by defense counsel that were aimed at creating an inference that the victim was at fault for the accident, the trial court did not err in permitting the prosecution to present testimony by the victim's husband of the victim's good driving habits. See CRE 406; Bloskas v. Murray, 646 P.2d 907 (Colo.1982); Perrin v. Anderson, 784 F.2d 1040 (10th Cir.1986).

However, in our view, a portion of the victim's husband's testimony was character, and not habit, evidence, and was, thus, improperly admitted.

As stated in McCormick on Evidence § 190 at 574-55 (3rd ed. 1984):

Character is a generalized description of a person's disposition in respect to a general trait, such as honesty, temperance, or peacefulness.... Habit is more specific. It denotes one's regular response to a repeated situation.... If we speak of character for care, we think of a person's tendency to act prudently in all varying aspects of life--in business, at home, in handling automobiles, and in walking across the street. A habit, on the other hand, is a person's regular practice of responding to a particular kind of situation with a specific type of conduct.... Thus, a person may be in the habit of bounding down a certain stairway two or three steps at a time, of patronizing a particular pub after each day's work, or of driving in his automobile without a seat belt.

Thus, while evidence that the victim drove through the intersection everyday and any cautions she habitually took while proceeding through this intersection were properly admitted as habit; testimony that she was a "cautious driver" is character evidence and must be treated under CRE 404, rather than CRE 406.

Fourth, we are not persuaded by T.R.'s argument that the trial court erred in admitting a photograph of the victim and her husband taken eight months before the accident for purposes of identifying the victim.

The trial court acted within its discretion in determining that the photograph was neither too inflammatory nor too unfairly prejudicial to be properly allowed into evidence. See People v. Viduya, 703 P.2d 1281 (Colo.1985).

Moreover, in light of the photograph being admitted for purposes of identification, T.R.'s stipulation that the victim died from injuries received in the accident did not affect its admissibility.

Fifth, a person with reasonable experience may express an opinion of the speed of an automobile or other moving objects coming under his observations without proof of further qualifications. Eagan v. Maiselson, 142 Colo. 233, 350 P.2d 567 (1960). Consequently, the trial court properly admitted the testimony of several eyewitnesses giving their estimate of the speed of T.R.'s car.

Sixth, we find no error in the trial court's admission of the passenger's statement reporting that T.R. had exclaimed that he intended to "outrun the cop." Whatever error there may have been in the court's characterization of the statement, it was not hearsay and was admissible as an admission of a party opponent. See CRE 801(d)(2). Also, inasmuch as the statement was not hearsay, on retrial, no instruction on the weight to be accorded out-of-court statements should be given.

III.

T.R.'s challenge to the restitution order presents a significant issue which we also address for guidance to the trial court in the event that retrial results in a reconviction.

T.R. claims the trial court erred in ordering him to pay restitution of $148,000. We agree in part.

T.R. first claims that restitution was improperly ordered because, since he served his full sentence of incarceration, it was not part of a conditional release, either parole or probation. We disagree.

Section 19-2-703(4), C.R.S. (1992 Cum.Supp.) provides in part the following:

If the court finds that a juvenile who ... is adjudicated a juvenile delinquent has damaged the personal or real property of a victim, that the victim's personal property has been lost, or that personal injury has been caused to a victim as a result of the juvenile's delinquent act, the court shall enter a...