People v. Agado
964 P.2d 565
Colo. Ct. App.
1998
Check Treatment

*3 pull. trigger the The trial court overruled need not meet Res acknowledged trig- objection that the the in procedural requirements of evidence the pull different to each individ- ger would seem Before troduced jury subsequently permitted to ual. The was evidence, however, the admitting res gun during examine the deliberations. court must find that its value outweighed by danger the is motion for a mistrial was de- Defendant’s Rollins, prejudice. People unfair v. prejudice he nied. He claims that suffered (Colo.1995). P.2d 866 a demonstration result his inaccurate juror’s subjective and each examination Rules of Evidence The Colorado pull. persuaded. are not trigger the We evi strongly admission of material favor the dence, People Czemerynski, 786 P.2d 1100 in A trial has broad discretion court (Colo.1990), substantial and a trial court has mistrial, grant deny a deciding or whether concerning deciding questions in discretion and decision will not be disturbed its admissibility People v. Ibar of evidence. and appeal gross absent a abuse of discretion (Colo.1993). ra, 849 P.2d 33 is a prejudice to the defendant. A mistrial only if the remedy and warranted drastic Here, argument be evidence of cannot be remed prejudice to the defendant girlfriend on the defendant and his tween Abbott, by other means. ied jury shooting provided the night before the P.2d 1263 a fuller of the events surrounding crime. of evi The admission exclusion argument, Contrary to we defendant’s largely in experiment rests dence of court, weighing the that the trial after clude experiment An of the trial court. discretion it, did not abuse discre- evidence before solely it is not rendered inadmissible argument finding in the evidence disputed a reconstruction of is based on “part parcel” of the entire event. McCombs, to be and 629 P.2d crime. Thus, challenged properly 403, evidence was (Colo.App.1981). Pursuant admitted may required display witness be probative value of jury if the

before prejudicial impact. outweighs any II. (Colo. Martin, People v. See argues that the tri Defendant next App.1989). a mistri by refusing to declare al court erred jury’s because the consideration al jury’s Similarly, the access de by an unfair poisoned mens rea element was is within the discretion monstrative evidence by shooting demonstration of May the trial court. See weapon. jury’s experiment with own (1925). 432, Subject to P. 1022 Colo. have exceptions, exhibits which certain may used During into evidence cross- at trial. Defendant testified during examination, its deliberations. See jury demonstrate he asked Melanson, (Colo.App.1996). discharged. 937 P.2d gun he when it how had held Here, jury presented specific with evi- fidential nature communications malfunction, gun’s parent priva- dence of the defendant’s and child and inexperience gun, cy constitutionally with the and defendant’s in- protectable society). intoxication on the in family terest of the American friendly Defendant testified he had a privileges lightly Testimonial are creat- victim, relationship shooting construed, expansively they ed nor are accident, was an did not recall derogation of the search for truth. United pulled had trigger whether he when the Nixon, States 418 U.S. S.Ct. shot. victim was defendant’s demon- (1974). majority L.Ed.2d 1039 assessing stration assisted the jurisdictions adopting that have considered shooting contested issue of parent-child privilege so. have declined do *4 an accident. Davies, See United States 768 F.2d 893 v. (7th Cir.1985). agree we with the trial any prejudice flowing court that from defen C.R.S.1997, 13-90-107, Section trigger pull dant’s demonstration of the was statutory forth privi sets Colorado’s by explanation at ameliorated his trial and communications, leged a does include the cast on his visible hand to parent-child privilege. privileges are jury. construed, strictly proving of and burden circumstances, Under these we conclude a protected by privi communication is a that the trial court did not abuse its discre- lege upon person asserting privilege. is by proceeding with defendant’s demon- Court, ople 432 District Pe stration, allowing jury to examine the (Colo.1987). weapon, denying or defendant’s motion for adopt We decline defendant’s invitation to mistrial. parent-child Contrary a privilege. to defen- argument, dant’s we conclude that the trial III. court’s denial of defendant’s motion this as to Defendant also contends that tri impermissibly infringe upon issue did not his prohibit al court’s denial of his to motion rights. constitutional and common law testimony parents impermissi- his of at trial bly upon infringed his constitutional and IV. rights. common law Lastly, defendant contends the cumu- Claiming family a right constitutional lative of by effect the errors committed privacy parent-child a law privi- and common trial court denied him a fair trial. dis-We lege family as to confidential communica- agree. tions, sought prohibit evidence all parents statements he made his Contrary argument, to defendant’s we con- following hearing, After a clude compound. that there no error to trial court denied his motion as this issue. there no cumulative error in this People Roy, case. See parent-child Defendant concedes that a (Colo.1986). privilege has been created the General However, Assembly. contends that judgment The is affirmed. acknowledge trial court here failed to underpin “constitutional and common law CASEBOLT, J., concurs. nings” privilege, urges a of such and this J., BRIGGS, specially concurs.. adopt parent-child privilege court to a based upon reasoning Fitzgerald, BRIGGS, Judge, specially concurring. (1979) 101 Misc.2d N.Y.S.2d (parent-child privilege majority flows United I concur in the decision. I write Constitutions) States and New York In separately express and concern and caution (D.Nev.1983) Agosto, F.Supp. excluding re res evidence denominated as 404(b). (parent-child privilege is requirements based the con- from the CRE in time and circumstance. highly prejudicial nature Because Cf. 1997)(evi- 404(b), Fears, (Colo.App. P.2d 272 evidence established additional supreme court has dence admissible as res example, For procedural requirements. though the two events were “somewhat even time”). admissibility determine the trial court must remote in preliminary mat act other my only surprise is not concern risk of ter, exposed to the evi is before continuing forego compliance with the addition, give In must the court dence. 404(b) merely requirements CRE instruction, when the limiting both For evidence is denominated as jury re again when the introduced limiting required instruction is example, no Miller, final instructions. ceives of other acts admitted for evidence supra. How- gestae, see court, supreme pre in cases ever, giving limiting in- importance of evidence, dating adoption of our rules of struction, acts particularly when evidence was had determined in time simultaneous were not adhering proce to the admissible without circumstances, no than less when the required for admission dures otherwise is admitted under acts. of other crimes bad See cases, mentioned more recent While not *5 146, People, Colo. 499 P.2d Dickerson that, with supreme court has noted even the (1972). The exclusion has continued evidence, practice gestae it is the “better res discussion, the applied, be without since jury regarding the the limited to instruct of rules evidence. See Peo adoption our of it purpose the evidence at the time [is] of (Colo.1994); Quintana, ple v. Gladney, ...” 194 Colo. admitted (Colo. Czemerynski, 786 P.2d 1100 People v. (1977). 72, 231, 1990). addition, another act In evidence of part the of evidence admissible merely it falls because sometimes just not evidence of gestae res now includes of even the definition res within acts simulta- other that were easily The limita- though be it excised. the in time and circumstance with neous that res tion under CRE 403 of charged. It includes evidence crime also probative admitted if its value should not be if up charged, leading to the crime “substantially outweighed” by risk the of the explain setting, so that needed provid- always has not prejudice or confusion charged crime occurred context which protection from misuse ed sufficient Quintana, may People v. be understood. Brauser, E. generally supra; doctrine. See supra; People Czemerynski, supra. Imwinkelried, Uncharged Misconduct Evi- 404(b)’s procedural recognize I CRE (1994). dence, §§ 6:28-6:30 a pre-trial deter- requirements of notice important theoretically less mination are concept can Finally, very part of other acts is when the evidence Colorado, the term has problematic. In be reasoning is that the “close gestae. defined, consistently compare Peo- been charged link” the evidence and (Colo.1995) Rollins, ple give sufficient to notice the evidence crime is and, gener- supra, more generally may at trial. See be introduced has confounded counsel and ally, the doctrine Brauser, The Con- “Intrinsic or Extrinsic”: courts, tending to create much often Inextricably In- fusing Distinction Between generally Brau- as clarification. See fusion Evi- Evidence and Other Crimes tertwined Imwinkelried, Uncharged ser, E. supra; i-0í(b), 88 U.L.Rev. Rule Nw. dence Under Evidence, supra. when Even Misconduct (1993-94). 1582,1614 defined, uniformly it is difficult the term is keep the analytically to determination not all evi- least in relevant distinct closely evidence is gestae is so dence denominated part of For it is risk whether to avoid the linked to the crime case, ques- example, in this the evidence not linked surprise particularly — independent charged. had crime relevance show See Callis v. motive, (Colo.1984)(references prior intermediate inference of as well as P.2d 1045 intent, ultimate inference of and was criminal conduct in an accused’s custodial therefore admissible under CRE independent has statement that no relevance bearing that has no on whether the evidence signifi if should be eliminated it would not gestae of of the res the crime. cantly impair substantive content parts those statement otherwise ad solution address con One these would missible); Imwinkelried, generally E. see require cerns would that all be Evidence, Uncharged supra, Misconduct acts, including “intrinsic” res § 6:30. well, evidence as as other evi “extrinsic” dence, subject requirements Third, trial courts apply should continue to approach CRE is even more Hence, separately if CRE even appropriate now the “clear and convinc excised, evidence were earlier it could be ing” previously applied standard under if excluded value were substan- common law for evidence of other tially outweighed by danger of unfair replaced has under acts our rules of prejudice or confusion. See v. Gar- “preponderance” lower stan ner, supra. Garner, dard. See 806 P.2d (Colo.1991)(clear convincing existing pre- stan Such test is consistent with dard “was a common law rule of evidence and existing cedent and would reduce confusion. controlling longer time, is no ... standard At the same courts retain Evidence”); under Colorado Rules of see authority showing, to introduce evidence (under Brauser, generally supra lower motive, example, identity, under intent standard, applying the rationale for not rule 404(b), compliance test would 404(b) gone). is now appreciable any not lead to in ad- reduction *6 missible evidence. meantime, In the we must be cautious in gestae use of the doctrine to insure Further, regardless applied of the test the exception does not swallow determine that evidence of other crimes or when, here, particularly as the two acts rule — part bad acts can as be admitted of the res do not occur aat simultaneous charged, gestae of the crime trial courts circumstances, In' time. trial courts prac- continue to should follow “the better apply three-part evidentiary should test. giving limiting tice” of instruction when First, require trial courts should that the requested People Gladney, to do so. See part leading up other act have of events been supra. “inextricably to and intertwined with” the case, In this the outer of res boundaries charged. crime This means the were being are strained. our re merely prelude more than determining is limited to view Rather, of the crime. the events characterizing closely have so must connected to trial court abused its discretion. provide episode they criminal Moore, (Colo.App.1994), aff'd necessary understanding text for a full of the grounds, Moore v. Czemerynski, supra. crime. Cf. Second, require trial courts should other act itself be “inextrica- Evidence of display defendant’s violent bly anger night killing argu- intertwined” those events. before'the admissible, ably part the evidence would not be least at viewed of the context neces- sary unless its absence would awk- to a full of the crime. wardly artificially remaining explains sanitize the The evidence lingering the source of evidence, thereby of, creating anger genesis an unfair risk the criminal example, negatively impacting episode, might the credi- the absence of leave bility testifying leaving of the witness killing defendant’s actions on the of the impression inexplicable except with a concerning false as an accident. is close and While the issue scope of CRE also fall within the

would say cannot the trial court abused I the evidence as

discretion charged, crime existing precedent.

least under admissibility of court determined trial, and defendant does evidence before limiting complain of the lack of a instruc-

tion. I therefore concur. of the State of PEOPLE

Plaintiff-Appellee, Defendant-Appellant. PARGA,

John W. 96CA1425.

No. Appeals, Court of

Colorado

I.Div.

Feb. *7 Rehearing Modified on Denial of

As 5, 1998.

March Denied Oct.

Certiorari