*1 No. 27162 Dikeman Terry v. the State Colorado (555 519) P.2d October Decided *2 Tooley, Dale District Attorney, P. Chief Casey, Thomas Appellate Deputy, for plaintiff-appellant. Zinn, P.C., Worsted,
Al R. David L. for defendant-appellee. En Banc.
MR. JUSTICE HODGES delivered opinion of the Court. brings The attorney district this appeal solely question on a lawof 16-12-102, to pursuant section C.R.S. A jury acquitted defend- first-degree ant of assault. The issue is court per- whether trial erred in mitting counsel defense to a witness called question by defendant de- when claim, fense counsel knew that the witness would the presence in of the jury, a valid not grounds to answer the question on the of self- incrimination. and Benning defendant Mark charged were with first-degree as- against
sault the person against of John Martinez. The charge Benning was lack of probable dismissed for a preliminary hearing cause after at the county court level. After began, defendant’s trial defense counsel an- nounced, the presence out of of the jury, his intention call Benning as a point, Benning’s witness. At this informed court attorney that he had advised his client to take the stand in instant case the basis of rights. Nevertheless, Fifth Amendment his defense counsel his reiterated Benning. desire to call court,
The trial circumstances, as is proper under such held in an camera hearing. Benning questioned determining was for the would, fact, whether he in Benning invoke his answered some regarding any questions but refused to answer inquiries preliminary grounds on the assault occurring evening alleged on the of the events might incriminate him. answers his him to ask Ben- permit the court to requested counsel then
Defense
attor-
jury.
in the
Over
district
presence ning
questions
the same
attorney
defense
would be al-
objection, the trial court ruled that the
ney’s
though
even
it was
Benning
jury
such
before
put
lowed to
Benning would refuse to answer and
privi-
evident that
would invoke his
making
In
its rul-
grounds
on the
of self-incrimination.
lege not to answer
192,
Benning evening alleged shooting of the of John transpired of what on the edge grounds might the he Predictably, he refused to answer on that Martinez. of theory Because defendant’s defense was that Ben- himself. incriminate Martinez, Benning’s claim of privilege clearly at John ning fired the shot he, defendant, not the committed the as- jury indicated to the that and showing contrary competent was to evidence that the sault. This indication did the shot. Defendant not take the stand. defendant fired a witness may rule that the defense not ask defense We now the witness will refuse to answer because of a va which it knows questions reject We overrule and O’Chiato v. testify. lid claim to a not to privilege regard. in this supra, People, many
For
been the
of law
that the
year, it has
rule
in Colorado
testify
jury
call a witness to
before the
if it knows
may prosecution
privilege against
will claim his
self-incrimination.
that
the witness
426,
374,
364 P.2d
86
1435
v.
147 Colo.
A.L.R.2d
DeGesualdo
Otherwise,
a
witness to answer certain
(1961).
prosecution
the refusal of
improperly prejudice
could
ground
on the
of self-incrimination
might
by
jury
implying
it
be
the
as
the
interpreted
the defendant because
374,
Scheidt, 182
Many against calling a witness who counsel the same prohibition and the defense 895, 2, Annot., See 24 A.L.R.2d and knows will invoke the § extending the to both prohibition cited therein. The reason for cases 4 Smith, the by is stated court State v. 74 2d
parties aptly Wash. (1968): 571 446 P.2d with
“Nearly dealing question all cases this involve the acts improper of attorneys, rather than co-defendants. It is prosecuting forbidden a witness, a prosecutor knowing to call that the witness will invoke privi- lege, having jury for the of see the witness exercise his consti- right. . . is no for distinguishing tutional . There reason these cases calling that party basis government. witness was the The funda- point privilege mental is the exercise is not evidence to be used any by party (Emphasis court.) in the case by ....
* * * *
claiming
“If the
is not evidence which
prosecutor
can
use,
is
reason
it
be
why
there
no
should
deemed to acquire probative value
codefendant
than
simply because a
rather
the state seeks
utilize it.”
Lacouture,
(5th
1974);
See also United States v.
Consistency requires now Colorado to adopt likewise same rule for the prosecution and for the deception defense. Identical can be in troduced into trial a if a defense counsel manipulate is allowed to a wit ness’ claim of privilege. It is a rudimentary proposition of law that a crimi nal trial must be a only fair trial not for the defendant but also for the Neither the People. prosecution nor the right defense therefore has the deliberately and unfairly any benefit from speculative inferences the jury might draw from simply a witness’ assertions of the privilege.
We note that the American Bar Association standards as the de- 7.6(c) fense function states in as follows: § lawyer “A should not a call witness who he knows will claim a valid privi-
lege not to testify, for the purpose impressing upon of fact jury the of the claim of instances, In some in as defined the Code of Professional Responsibility, doing unprofessional so will constitute con- duct.” parallel
A provision appears in the ABA pertaining standards to the prosecution’s 5.7(c). function. See §
We now hold in that rule is Colorado defense shall witness, a call when isit known that the witness will priv claim a valid ilege testify, not to impressing upon of fact jury the of of privilege. claim
Judgment disapproved.
MR. CHIEF JUSTICE PRINGLE dissents. MR. JUSTICE participate. KELLEY does not
5 MR. CHIEF JUSTICE PRINGLE dissenting: I respectfully dissent.
I think the rule 192, 404, in O’Chiato v. Colo. P. majority which the today, eminently overrules is correct. I believe that the right of the defendant to by jury a trial does include right have the jury present when propounded are to a witness which would in effect exonerate the if defendant answered as fairly defendant believes answered, they would be if were not exercised. out pointed
As Evidence, 402, Wigmore 2268 at the privilege § against refusal, option self-incrimination is “an of and not a of prohibition therefore, inquiry.” I would ruling judge. the trial approve
No. 26798 State Colorado v. William J. Mason (555 518) P.2d Decided October *5 MacFarlane, J. General, D. Attorney Jean Dubofsky, E. Deputy, Donovan, General, Edward G. Assistant, Tomazin, Solicitor Thomas J. J. Stephen Assistant, Phillips, for plaintiff-appellee. Rogers, Dumas,
Rollie Defender, Jr., R. State Public James F. Chief Deputy, R. Norman Mueller, Deputy, defendant-appellant.