*1 No. 21010. Dorothy Bustamonte People State Colorado.
(401 597) P.2d May May 3, Rehearing 17, 1965. Decided 1965. denied *2 plaintiff in Roger for E. A. Stevens, William Trine, error. Attorney
Duke W. General, E. Dunbar, Hickey, Frank Special Deputy, Assistant, Aurel M. defend- for Kelly, ant error.
En Banc. opinion Court. Justice Sutton delivered the
Mr. Dorothy Bustamonte, hereinafter error, Plaintiff defendant, de- called was convicted of second gree following shooting murder one M. Charles Dyson. ten was thereafter sentenced not than She less years imprisonment years more than at hard nor fifteen labor. urges grounds can
Defendant which five for reversal *3 be summarized as to-wit: follows,
(1) refusing erred in The trial court to submit to jury original numbered Instruction No. on self-de- which was fense later tendered and refused as defend- 1; ant’s Instruction No.
(2) in rebuttal, It was error to admit evidence on over objection, Bernal, one Frank to an al- as leged asserts that it in fact was similar event when she separate pres- a unrelated and distinct occurrence to ent issue;
(3) objection, admit, error evi- It was to over certain hearsаy, which what the labeled as consisted of dence Wolney, purportedly Joseph told friend, deceased had a morning shooting; Jr., the (4) impeach to error not allow defendant It was to Joseph Wolney, Jr.; a her witness witness hostile (5) charges of and error submit both first It was to allegedly degree evi- no second murder to support and the thereunder, dence a conviction existed directing acquittal. an court in not erred following pertinent viz: facts, record discloses the Dyson, dry aged years, wall con- and defendant, illegally cohabiting Colorado, Boulder, tractor, were 19, On December 1962 to December 1962. from June agreed couple quarrelled a result was and as 1962, the Dyson leave. This was later followed that she would ordering pack things he would “to her defendant formerly Longmont lived] the [where her she take packed evening, partially daj'.” her be- That she next longings Dyson On thе intoxicated. before came Dyson early morning his house left the 20th, Joseph Wolney, he defendant was sure friend Jr. After pack gone, a Mrs. and continued to until she arose reducing appeared Neptune demonstrate some Ruth apparently Dyson equipment. thereafter, returned soon upset. angry He de- He was somewhat intoxicated. Neptune him who manded that Mrs. let defendant see sitting partially in a chair in a was then disrobed at- machine was downstairs room where relaxacisor body. Dyson argument, her entered tached to After some sitting, shortly room in which defendant was the thereafter pulled began her; curse, strike and beat body towards the the machine from her and threw it standing. Being Neptune terrified door where Mrs. departed Neptune haste. behavior, at his Following soon Mrs. departure, Dyson de- at her threw suitcase slap again fendant and cursed her. then He stаrted grabbed his floor, hair, threw her to finally again. freed knee on her chest and beat her She by Dyson. upstairs pursued He then herself and ran from what chased continued beat her as fled she bedroom. is described as the north bedroom to the south *4 Dyson During upstairs, threatened the fracas to kill stage and at he went back defendant, one downstairs but guns know soon returned and demanded to where his appears were. a It that he was hunter and owned two — —pistol always kept latter loaded rifles and the weapons left which he had downstairs to but clean, which defendant had some time the 20th taken prior to upstairs the north bedroom closet for She storage. testified that all were loaded then but that weapons had unloaded she the rifles shell stuck in the leaving chamber of one harm from Fearing great rifle. Dyson when he downstairs, went she took and it pistol shirt, of the dresser under a in the top upstairs south When he returned, bedroom. told him that she closet in the north bedroom. at not Enraged having been able to locate it, he continued to strike her. She managed to to the south finally escape bedroom, after she which took and pistol hiding its ran place the room. As came into Dyson across the room after him she told but he stop; tauntingly threateningly continued to advance. then fired and the She bullet hit his just torso above the pelvis; however, it, without through went his or vital body striking any bone without part apparently any present effect on Dyson. Following shot, Dyson first said to “You defendant, crazy,” are turned and started down the which stairway in front of the just bedroom. Defendant testified she thought that because he was some get ob- ject with which attack her him she followed and fired when he was top stairway again about halfway down the stairs. The second shot, proved which in the fatal, hit bаck of the Dyson appears head. It time at the known to only weapon defendant which she bayonet had last seen downstairs in the kitchen; however, she did not where recall it was on this day. particular
After the shooting, without whether knowing Dy- dead, son was defendant fled her grandparents’ them Longmont told what had due happened. course she turned herself over police, cooperated fully in investigation gave them statements about the tragedy. undisputed testimony Mrs. Neptune was
defendant had no bruises on her nearly nude at the body
151 also of relaxacisor demonstration. was time There to the effect that she had undisputed and thigh, numerous fresh on her arms on one bruises chest, shooting. as well as a tender on her after spot With above in mind we turn to the alleged facts errors.
First, as to defendant’s instruction on requested self-defense which the trial court refused. lengthy This instruction within its borders attempted encompass evidence. statements law to facts in many applicable It and verbatim assertedly obviously copied almost from an instruction which Justice in Mr. appeared in Winbern People, v. 136, Hilliard’s dissent 116 Colo. Winbern 152-53, 180 In P.2d 516 (1947). majority the court refused to review instruction on procedural this and did grounds; it not it. Justice certainly approve Mr. Hilliard set it forth in haec verba remarked correctly as to the final contained therein wording (i.e., letting itself in the jury place defendant) that it * is indefensible, * “* inexcusable, prejudicial, without He wholly precedent.” then discussed the in struction at some length out that pointed the last of it called for a part subjective test by jury not an objective test. In the instant case the trial court cor rect such an refusing instruction when tendered.
The court did, however, submit
its In
struction No. 13 in the statutory language
relating
In so
it
doing
self-defense.
commented in
it
effect
that
felt this
all it should give
in view of our decision in
Vigil
People,
v.
328,
So will be no future misunderstanding Vigil, we however, out point there a quoted instruction on given be was held to improp self-defense worded for erly reasons set forth and we com merely “* * * mented it has been stated be good rule to * * couch instructions in the language the statute only
We did not mean to is thereby imply in Leonard fact, is proper. instruction that typе it clear we made (1962) 149 Colo. 369 P.2d clarifica- that a defendant is to supplementary entitled are necessary adequate- tion when additional instructions *6 case; to inform a in a that instructions ly jury and, Young should be case tried. In geared being to the 352, 355, (1910) 107 274 we Pac. pointed out that a defendant “a constitutional to have right has a lucid, statement comprehensive accurate court subject to the law on the of self-de- * * fense from his if the standpoint Thus, statutory case, or, instruction a it is does not fit if particular given are needed to yet supplementary instructions state a then position, such, defendant’s when properly worded and tendered, should be submitted to the jury.
In the instant the defendant tendered case no sup plemental instructions deemed the ob necessary except one described jectionable court above. Since the had trial performed its of Instruction duty by giving No. and the jury thereby was instructed as to self-defense in manner, the applicable no error statutory appears as to this issue.
As to the second point for reversal dealing with Frank Bernal’s we a different testimony, face problem.
It that Bernal and defendant had appears once illicitly for together lived three approximately years Long- mont and that she him bore two children during rebuttal, On over period. objection, Bernal was per- mitted to testify months approximately twenty prior their shooting vacating was abode for good; and that when he came with relatives pick up his be- him longings, stabbed with a as he leaving. she knife was At the she stabbing time again pregnant, had no food in the and had a care apartment for. baby
This had been first offered in the People’s case in chief to show intent or rejected but motive, with the to renew right the offer at close defend- permitted by ant’s case. On rebuttal it court trial (under limiting jury) a admonishment for the purpose showing limited intent but no motive. Such showing important People’s of intent was be- case prior testimony by witnesses, cause of one defendant’s expert appeared Dean Plazak, Dr. James who as an practicing neuro-psychiatrist. Plazak Dr. had testified beginning that he had De- examined the defendant regard capable cember 22, 1962, to whethеr she was “forming design on December 20th of an intent or to kill Dyson.” Charles His conclusion was that defendant did ability not have the to form intent and such an that she compulsion.” “repetition suffered from what is termed a person Plazak Dr. stated that condition makes compelled repeat; response that it and, occurs in certain stressful circumstances which are similar to exactly person past like those to which the has in the repeаtedly exposed. been case, instant evi- dence is that defendant’s mother killed her father had child, defendant was a small and as defendant *7 grew up appears disciplined many she had been times by being day told that she too would some someone kill under the same circumstances. urges
Defendant
that there is no connection or simi-
larity between her
and,
two felonious
therefore,
assaults
testimony
general
Bernal’s
was inadmissible under the
prohibiting
E.g.,
rule
the use of such evidence.
Kostal v.
People,
(1960).
144 Colo. 505,
We
defendant. The
had the
right
attempt
alleged
capacity
to rеbut her
lack of
493,
specific
People,
form a
intent. Castro v.
140 Colo.
was not
testimony
Bernal’s
And,
The third issue is whether Joseph with deceased was conversations prior admissible. Wolney,
The record shows that the defendant called friends, as her was identified as one of best Dyson’s who after had first tes- own witness for a limited purpose he for On this direct People. tified another matter purchased examination he testified as liquor being morning and drunk others on the by Dyson 20th He stated that was not present. Dyson intoxicated; details. didn’t remember exact however, he He beer event which drinking stag himself was at this from No took defendant’s home. place away questions were asked on direct examination about quarrels defendant what had before. On night happened examination, nevertheless, over the objections cross the court defendant, permitted the People question be- elicit answers conversations Wolnеy concerning tween on the the 20th "Wolney Dyson morning of Dyson such as that was then “going out”; that “He had a be- night quarrel [defendant] fore”; and, that conversation he had was, argu- “The an ment night before, and that he had to slap Dorothy to take that she was loading away *8 that he was home and out.”
The about testimony quarreling, course, merely substantiated defendant’s own about the events testimony of the previous evening. Defendant, nevertheless, ob- jected coming Wolney to that evidence as well as hearsay. his statement about as testimony properly Was such admitted? it was Since testifying not a witness as to what he had heard either the decedent or defendant tell not de- other we need admissibility termine its on that Nor, basis. need we de- enough termine whether it was close as to be time so part gestae, urged by People. of the res Here court solely admitted the evidence to show the “mental state feeling hostility of the victim and ill between decedent expressly and defendant.” Its use also later so limited the court’s 18; Instruction No. and, de- admissibility termination largely as to its within the rejected discretion of trial court. To have the testi- mony purpose for the it was offered here would have been an abuse of discretion and would have resulted in e.g., Bershenyi error. See, 71 Colo. 432, 434, (1922). applicable Pac. 591 properly instruction here restriсted the use purpose. of the evidence to its limited predicated Wolney’s Thus, no error can be answers. ground alleged The fourth error concerns de attempt impeach Wolney fendant’s on re-direct exami nation after he had testified to the matters discussed un ground der third for reversal. request,
At the time of this counsel and the court left gave the court room and in chambers the trial court de- attorneys opportunity fendant’s full why tо demonstrate They, the witness was hostile. however, were not able they surprised by Wolney’s to show that were they prior calling had for known might him that he testify objection Their principally as he did. along
had told them or others this version with Wolney, different versions defendant’s remarks. course, was defendant’s witness. None his answers on objection direct examination were hostile. The is to the halting cross-examination and court’s the re-direct examination when it started as the cross-examination of *9 People correctly point out
defendant’s own The witness. “surprise” alleged counsel’s on this of error that writ the court but rather that elicited, not as was permitted to the facts alleged testify state- to known the witness abuse discretion ments of decedent. find no permission We impeach him. court refused the trial submitting jury Lastly, in was there error degrees murder? both first and second on instructions deny urged connection, this as in was it error Also, Acquittal; Fоr Verdict Of defendant’s Motion Directed judgment been Non Obstante have further, and, should contrary allegedly verdict was because entered assertedly weight result the evidence and assertedly by prejudice passion, is demonstrated or in evidence as contained the record? a review of the Here essence case what did would the true is jury intent as to defendant’s motive or in believe true Dyson firing at the second and fatal shot as hе was away and down stairs? it believed she from her If seeking Dyson her life and that still feared for weapon fray, bayonet or other to continue some way might well have had no retreat, she plea justified; her if, found of self-defense justified firing it she was not the sec- hand, believed Dyson fleeing, might was in fact ond shot because have degree guilty And, found first murder. in be- degree were tween these two extremes the second manslaughter charges properly which the court in- structed on.
From record we must conclude that it this was not only proper, necessary but also for the trial court to have degrees manslaugh- instructed on all the of murder and no self-defense, ter as well as on error occurred in regard. this judgment is affirmed. Day Justice Frantz dissent.
Mr. Justice Mr. Mr. Justice Frantz dissenting: Wolney from the witness
Certain elicited People damning, being, my view, in- chronology involving requires A admissible, reversal. necessary er- in order understand that witness is respect *10 ror in facets. witness had this several pur- prosecution Wolney for the sole had called pose having identify his testi- him the In deceased. mony, Wolney acquaintanceship the de- told of his photographs the latter certain ceased identified Wolney which admitted in further testi- were evidence. body had at the mor- fied that he tuary. seen the deceased’s of cross-examination, the defendant cоurse the Wolney questions concerning asked certain activities of prior Wolney day the deceased and on the the death. objection questions ground they An to these on that the beyond scope were the of the direct examination was suggested sustained. The trial court if that, defendant wanted introduced, this she should later call evidence Wolney as her witness. suggestion,
Pursuant the the defendant did call Wolney making ques- as her her defеnse, witness concerning drinking tioned him amount of and the the places frequented by morning him and deceased the the tragedy. the Defense counsel admonished the witness interrogation, any- at the “Please don’t refer to time thing prose- [deceased] stated.” On cross-examination the objection, go sought beyond cution, over defendant’s scope Wolney. the of defendant’s direct examination of Notwithstanding objection, permitted quеs- the the court relating quarrels tions and answers between the de- night ques- fendant on before, and the deceased the tions and answers substance the of conversations Wolney morning between and the deceased the tragedy, part of which shows that the deceased said he “going put [the defendant] was then home to out”; that night argument an “the conversation had was, he slap [defendant] to take before, and that he had to loаding away that that she was put her court admitted out.” The theory testimony on “mental it showed feeling hostility of the victim and ill between state decedent and defendant.” attempted examination,
On redirect the defense mitigate damage asking Wolney testimony by of this about other inconsistent he had made on statements prosecution’s same matter. court The trial sustained objection theory Wolney on the was a defense wit- impeached showing ness and he could not be without the surprise. It will be noted from has what been said that the trial applied limiting court rule, cross-examination to that gone which had been into on direct examination, to the Wolney defendant’s effort to cross-examine when he apply testified for and that the court did not principle Wolney same was called aas defense *11 operate is witness. It submitted rule should People alike for the and for thе defendant. What is sauce goose gander. for the sauce is for the Ordinarily, cross-examination of a witness must be scope confined the the to of examination chief, in any thereby other evidence elicited is and should be subject treated new as matter. Such new matter is to produced cross-examination, since it evidence constitutes by original People, the cross-examiner. Carter v. 119 People, 204 P.2d 147; Colo. Smith 342, v. 120 39, 206P.2d 826. analogous A case which involved an situation to the
present 139, is that of State v. Board, one 135 Mont. 337 pithily may 924. the Court P.2d There said: “You not sharpened parry expect only in blade cross and sheathed blade return.” Here, in relation to cross- permitted People examination, the court to use the sharpened conversely, blade; it disarmed the defendant.
159 right unquestionably The cross-examination is right, unwarrantably results valuable limit its use prejudicial errоr. cross-examines a one wit- “Where adversary by beyond ness called to matters the di- his rect own, examination thus makes the his witness party right called who witness has cross- 342, examine him as to such new matter.” 58 Jur. Am. § Witnesses. 618,
Again, using quote Witnesses, 58 Am. Jur., we investigation § page judicial 611, 340,as follows: “In a right of a mere cross-examination is and not absolute, privilege support . . .” text writer cites in of this 51 statement United 282 States, 687, v. U.S. S. Ct. Alford Fahey 624; 75 L. 218, Clark, Ed. v. 125 3 A.2d 44, Conn. 313, 120 517; 296, A.L.R. Utah Zolantakis, State 70 259 54 1044, Pac. A.L.R. 1463.
Thе late Justice v Mr. Hall declared in Archina right P.2d 8, Colo. 307 1083,that “the of cross-exami- right guaranteed nation is a valuable constitutional to all right A defendants.” constitutional of cross-examination hardly right. can less than an be absolute having bearing present A case situational on the case Stoehr, is that United States v. F.2d 276,33 A.L.R.2d language regarding 836. the Court Note the de- velopment new matter: new “Where evidence is opened up opposing pаrty redirect examination, right given must be of cross-examination on the new (Emphasis supplied.) reading matter . .” . Here a testimony Wolney cold, stark record as reveals the difficult, in chambers discloses a resistive, and inconsist- drinking prior ent who admitted had witness been testifying. prejudice presented jury. This was never His credibility never, were therefore, sub- jected safeguards accuracy fundamental and truth- § fulness cross-examination. Am. Jur. 610. *12 properly Did the triаl court admit the Wolney in which he that the had in- stated deceased morning formed him that that deceased and the de- and that night before, fendant “had an argument loading that she had to slap Dorothy take and put and that he was away show admitted to out”? Was such testimony properly hostility the “mental the victim and ill or feeling state of are questions between decedent and defendant?” These answered in the negative.
I that this is an improper application would hold known as rule, exception hearsay utterances hearsay the mental of a it was person; clearly show state de- insofar as it showed “ill between feeling hostility mind, On cedent and defendant.” of state of question the trial court inverted the rule. concerned de-
We are not
with the mental state
not a fact
in
in this
ceased; his mental state was
issue
At
not an issue until and unless the
least,
case.
such.
Bershenyi
defendant made it
For the reasons herein opinion. majority Day Justice this dissent. joins Mr.