People v. Pratt

(recognizing “family at 1541 values” as privacy and were violated of association ordinance). zoning infringed purpose of zoning valid ordinance because right choose not to upon their be mar- view, remanding my In the case to the inherent ele- They contend that an ried. district court for a determination of the right marry, see ment of a fundamental rights nature and extent of asserted County Dist. RE- Beeson v. Kiowa School appellants purpose and the behind the zon- P.2d 801 Colo.App. ing unnecessary and ordinance is creates relationship (decision marriage to create parties needless confusion for the and the grounded public right a fundamental Accordingly, trial court. I would reverse Colorado), the freedom to policy of purpose of deter- and remand the sole right. Ac- to exercise the choose whether mining availability zoning dis- other prohibiting cording appellants, by cohab- appellants tricts could cohabit as where couples, zoning of unmarried itation couple single-unit an unmarried dwell- impinges upon that fundamental ordinance ing. marry right. not to is not a If the decision say I am authorized to that Justice an ordi- right, assert that fundamental join in LOHR and Justice VOLLACK couples from prohibiting nance unmarried special concurrence. single-unit dwelling cohabiting in is un- minimal standard of constitutional under a Allen,

scrutiny. See Israel (1978)(statute prohibiting 577 P.2d 762 adopted

marriage between brothers under minimal

sisters unconstitutional view, scrutiny). my In

standard of appellants’ attacks bases constitutional Colorado, The PEOPLE of the State zoning on the ordinance are clear and do Plaintiff-Appellee, require further factual clarification on remand. PRATT, Olga Defendant-Appellant. Mae record, Based on the it is also unneces- sary to remand the case to determine the No. 86SA401. purpose zoning behind the ordinance. It is Colorado, Supreme Court of statutory interpre- axiomatic that issues of En Banc. tation and the concomitant determination purpose questions of a statute’s of law are July 1988. appellate courts. be resolved Rehearing Aug. Denied case, plain language In this zoning purpose of the ordinance and the Denver,

ordinance stated in Colo.Rev.Mun. unambiguously 59-1

Code establish § zoning promote ordinance is intended preserve family traditional values

encouraging in certain zon- families to live

ing throughout city districts of Denver. zoning districts delineated for families

prohibit property, uses of commercial crowds,

thereby creating areas free

parking problems, congestion. traffic Moore,

See 431 U.S. at 97 S.Ct. at 1936

(use zoning to reduce over- ordinance

crowding, congestion, parking traffic

problems legislative purpose); is valid Vil- Terre,

lage Belle 416 U.S. at 94 S.Ct.

678 Woodard, Gen., Atty. B.

Duane Charles Howe, Gen., Deputy Atty. Chief Richard H. Forman, Gen., Hutchins, Sol. John Milton Gen., Atty. Engle, First Asst. Clement P. Gen., Denver, Atty. plaintiff-ap- Asst. for pellee. Belstock, Denver, Jay

Lee William H. Kirkman, Jr., Springs, Colorado for defend- ant-appellant.

MULLARKEY, Justice.

The defendant of ac was convicted cessory conspiracy to crime and to commit crime, accessory pursuant sections 18-2-201, (1978), police eventually and Berzinis confessed to the 8 C.R.S. 18-8-105 pled guilty degree to third assault. years probation to four was sentenced part in she not condition that take with a subsequent to the events assault period of one nursing home affairs controversy were source of trial. prosecu- hold year.1 Because we registered Mary Wilburn nurse was defense cross-examined impermissibly tion Norton’s and a codefendant at trial. matters, concerning collateral we witnesses duty on supervising She was nurse and re- defendant’s conviction reverse the day of the assault. Wilburn testified a new trial. moaning coming case for mand the that she Ho- heard room, she entered the

ward’s and that room and in the bathroom found Howard I. sitting on the toilet. noted that his She left Pratt, defendant, Olga pri- is the eye him badly and asked what swollen nursing director of and the mary owner stated, happened. my eye.” had He “fist Nursing Home in Colorado Norton’s bed, then to his She transferred Howard charges in this case arose Springs. The him, icebag placed examined and on his 30, 1984,in on December out incident of an eye. Norton’s, employed orderly by which an that, following Berzinis the testified as- Berzinis, patient assaulted a Kenneth sault, he Howard from the bed to a moved Norton’s, nine- Howard. Howard was John portable toilet, and that he never moved the the as- ty-seven years old at time of This Howard the bathroom. was corrob- trial; testify daugh- did not his sault and by Hern, orated a former nurse of Janet however, testify. physician, ter did and his she Norton’s. She testified that when en- Testimony trial focused on when the shortly after the tered Howard’s room as- of the learned assault and defendant hap- had sault and asked Berzinis what police investi- whether she obstructed it; he “I lost I hit pened, replied him.” gation incident. of the by February on Hern was fired Norton’s 18, 1985. introduced into The defense evi- 30, 1984, Berzinis was the On December file, employment dence which doc- Hern’s rooms, charge orderly in of two one of incidents deficient umented various occupied by Ho- which was John Howard. dating performance by Hern back to work parties all as a ward described was April of 1984. causing patient, difficult often disturbances fabricating and stories about staff abuse. that, Hern testified Both Berzinis and on and Howard was unable to walk his own room although they in Howard’s fol- were leaving in Ber- needed assistance his bed. incident, they lowing never observed an that, day of at trial on the zinis testified icebag eye. Berzinis testified on Howard’s assault, “increas- Howard had become room when he was in Howard’s Wil- that cantankerous, demanding, unable ingly sitting and entered, that Howard was and burn satisfied,” behav- portable Jerry be and that Howard’s that time. toilet at on Berzinis testi- on Cain, janitor duty ior made him tense. further at Norton’s assault, he adjusting he the mattress and testified that had day fied that was pillows Howard while Berzinis was on Howard’s bed with entered room Howard’s that, so, there, doing “a fist discovered Howard’s while that he then bed peripheral injury, At that he informed Wilburn my seen off vision. was moment, testified that Howard injured.” injury. In re- Cain also the man was time, although he earlier sponse in bed at this questioning prosecutor, detectives that Howard police had stated to explained that he had hit Howard. Berzinis year. trial court was actually note that the one We court sentenced the defend- The trial imprisonment, authority impose sus years imprisonment without on each count ant to two sentence, impose probation. pend the and then suspended subject those sentences (Colo. Flenniken, People P.2d proba- conditions that the defendant remain on Court, action, 1988); see v. District years, pay tion for four the costs of the (Colo.1983). nursing part and not take home affairs for sitting portable on the toilet. The very Howard incident could have serious repercussions, including defendant and several other witnesses chal- charges criminal lenged against Berzinis, Hern’s and Berzinis’ account against a lawsuit Nor- by testifying nursing ton’s, higher rates, incident pub- insurance and bad portable licity nursing home did not have a toilet like for the home. Berzinis testi- that, described. meeting fied that he stated at this although totally he wasn’t clear as to what immediately telephoned Wilburn the de- happened, had he believed that he had hit discovering injury. fendant after Howard’s Howard, although the incident was “acci- she She testified that informed the defend- that, dental.” He although also testified that, injured ant that Howard had been any way he did not in imply that Howard although orderly Berzinis was the accidentally bathroom, fell the de- room, charge of not think Howard’s she did fendant stated at meeting responsible injury. he was for Howard’s public statements would tobe the effect speak The defendant asked to to Berzinis accidentally injured Howard was patient and told him that would not abuse the bathroom. tolerated, go that he was to home for day, that, and that he was to meet her The defendant testified while morning on the next to discuss the possibility charges incident. against criminal Ber- not, during Berzinis testified that he did zinis was meeting, poten- mentioned at the conversation, telephone repercussions tell the defend- nursing tial to the home Howard, although he brought up. ant that had hit he were never She further testi- that, claimed that he had although told Wilburn that he fied Berzinis did “I state injured him, have,” had When might Howard. confronted must have hit I after deposition being defense counsel with his testimo- jaw informed that Howard’s was bro- ny, Berzinis places, testified that he had stated ken in to two Berzinis also stated that “Mary, going Wilburn: I’m not to possibly lie to he couldn’t have done that. The you; hit, the man has I’m been but not defendant testified that no effort was made got sure how he hit.” anything Wilburn testified to do convince Berzinis but tell that Berzinis did not make concerning this statement the truth the incident. The de- any or indicating other statement that he fendant’s version of the December meet- had ing assaulted Howard. was corroborated at trial the testi- mony of the other staff members at the Following conversation, telephone this meeting. The defendant further testified the nursing defendant the went to home. falsely that she was concerned about accus- She testified that she was unable to locate ing Berzinis of the assault and that she did anyone anything had or who seen heard enough not she had believe information to concerning the assault. also She testified accuse Berzinis. that, although Hem at first told her that happened, she knew what Hem also told The agent defendant called her insurance her that she any- meeting, had not seen or heard this and after informed him that a thing. patient Hem testified that injured she told the was found in the bathroom. defendant that Berzinis agent and Howard had She also told the insurance that Ber- told her duty time, that Berzinis had assaulted Ho- on zinis was at the but that she ward, involved, but that the defendant told her to did not know he whether was “keep my I requested investigator mouth shut until found out that an be sent to going what nursing was on.” The defendant de- Testimony the home. of the insur- making nied agent this statement. ance confirmed the defendant’s testi- mony. meeting was held on December 31 among defendant, Berzinis, the January police investigators and other On two defendant, Testimony member, members of Norton’s staff. met with the a staff concerning meeting nursing attorney. this also was police conflict- and the home ing. Berzinis investigators testified that the defendant testified that the defendant opened meeting by stating that told them that Wilburn had found Howard bathroom, its intention that there was indicated to cross-examine injured Bishop regarding this happened prose- matter. The had doubt about what some nursing cutor that stated home had responsible, and that Berzinis was whether investigated by Department been state until conclu- suspended Berzinis concerning its book- Social Services investigation the insurance at which sion of keeping for various Medicaidaccounts. He he whether would be time she would decide Bishop accepted further that stated had The defendant and her or fired. retained responsibility improper full for ac- they had attorney testified that informed counting prosecutor although the conceded police investigators Decem- charges that no ever The de- were filed. meeting and Berzinis’ statements at ber produced Depart- fense a letter from the meeting, that there were several ru- that ment of Social Services addressed to Bish- regarding incident but no actual mors op acknowledging receipt of funds from witnesses, told and that Hern had her that nursing home to cover all cash short- police happened. The she knew what had ages, stating audit had been during testimony their investigators denied closed, thanking Bishop cooper- for his infor- they had received this additional objected ation. The this line defendant mation. questioning, arguing government that a January 7, Berzinis confessed On audit itself was indicative of truth- police that he had assaulted Howard. fulness. court The trial ruled that CRE degree pleaded guilty to third assault He permitted inquiry. July 608(b)provides CRE instanc charged The defendant was on Jan may, “in es of conduct of a witness uary accessory to third de court, probative of discretion of the if gree charge subsequently assault. This untruthfulness, inquired or truthfulness charge conspiracy amended add a into on cross-examination witness degree accessory to commit to third as concerning his character truthfulness for sault. defendant was convicted untruthfulness, (2) concerning charges, jury of both and was sentenced character for truthfulness or untruthful probation years on the four condition as charac ness of another witness to which part nursing she not home take being has ter witness cross-examined period year. affairs for a of one The de recognize we the testified.” While appeals her conviction.2 fendant now type to allow this decision whether is discretion cross-examination within the II. court, People Crawford, v. 191 of the trial The defendant claims that trial court 827, 507, (1976); 504, P.2d see 553 829 Colo. during in allowing prosecution, erred (Colo. 230, 647 234 People Raffaelli, P.2d v. witnesses, cross-examination of defense 1982), inquired into neverthe the conduct inquire several times into two incidents of truthfulness probative less must be agree alleged misconduct. We with Peo of the witness. See or untruthfulness contention and reverse the defendant’s con- 14, (Colo.App. Saldana, 15 ple v. 670 viction. 1983) ruling pre trial (approving court’s prosecu venting cross-examination of trial, At the defense called Eddie past investigator as to his use tion’s Bishop, manager business Norton’s pro marijuana such is not evidence because nursing During home. its cross-examina untruthfulness). bative truthfulness tion, recess, prosecution asked for a Bishop, hearing During his cross-examination and an in was held at camera Bishop prosecutor questioned which the made offer of from improperly monies withheld proof concerning allegedly fraudulent ac that were Bishop explained the administrators, patients. tivity by nursing Medicaid home pursuant challenges case to section diction decide this 2. Because the the constitu- defendant statute, 13-4-102(l)(b), tionality juris- C.R.S. accessory 6A we have surrounding the audit and witness about an problems, circumstances arrest for tax any wrongdoing denied that had occurred. which arrest did not result in a conviction. evidence, There was no other than an audit 625 F.2d at 798. The court that civil held by Department, of the state Social Services problems regarded tax cannot be as indicat- activity Bishop. fraudulent To be ing a lack of truthfulness under Fed.R. 608, questions under CRE admissible 608(b), Evid. which is identical to CRE this sort must relate to the truthfulness of 608(b). 798; accord v. 625 F.2d at Shafer proof the witness. The offer of made Co., Employers’ American Ins. in camera prosecutor hearing at the F.Supp. (W.D.Ark.1982) (quoting Den- most, bookkeeping indicated errors at nis holding possible discrepancy that a Nevertheless, action. not fraudulent testimony between witness’ and his tax prosecutor’s insinuation of fraudulent con- probative returns was not of his truthful- despite jury, made clear to the duct was ness or untruthfulness and thus not admis- explaining efforts at the situa- defense’s 608(b)). sible under Fed.R.Evid. We be- tion. compara- lieve that the instant situation accusations, themselves, Dennis, Unproven do ble to that in hold we improper not raise an inference actions. trial allowing court abused its discretion in example, alone is not admissi- For an arrest Bishop. this cross-examination of E.g., credibility. impeach ble witness’ prosecution compounded wrong- its Labarbera, United States 581 F.2d ful action its cross-examination of two (5th Cir.1978); Ling, United States other witnesses called as character witness- Cir.1978); (4th United 581 F.2d prosecutor es for the defendant. The Hodnett, (5th States v. F.2d asked both witnesses whether were Cir.1976). “hap- This is because arrests Nursing that Norton’s aware Home had pen[ guilty.” to the innocent as well as the ] $15,000 wrongfully approximately retained Ling, Michelson (quoting 581 F.2d patients and Medicaid and whether States, v. United 335 U.S. they were aware that the defendant had 213, 222, (1948)). S.Ct. 93 L.Ed. 168 Total patient upright ordered that a be tied to an complete gen- exclusion of an arrest evening. every chair erally required probative “the because val- overwhelmingly ue of such is so evidence that, general, in We note first outweighed by tendency its inevitable quiry prior into the acts of a criminal de prejudice against jury inflame or is not allowed. A defendant on fendant Ling, 1121; see defendant.” 581 F.2d at trial for a offense should not be Labarbera, Similarly, 581 F.2d at 109. expected required anything to meet oth pending charge against criminal a witness specific accusation made er than the improper subject is an impeachment. E.g., People, Edmisten v. against her. Farid, United States v. 733 F.2d 262, 275, (1971); Stull Colo. (8th Cir.1984). By analogy, these con- People, apply siderations to the Social Services au- (1959). right An accused has dit of the defendant’s business and Bish- allegations against know the which she op’s in say role that audit. cannot We Colo, Edmisten, must defend. at in audit which results a settlement con- Colo, Stull, 64; 490 P.2d at at cluding with a letter of thanks from the partic P.2d at 458. These basic tenets are investigating probative agency is ularly applicable where the has person untruthfulness of the audited. questioning not demonstrated that the con Eighth Appeals The Circuit Court of wrongdoing. cerned incidents indicative reached a similar issue in United States v. Dennis, (8th Cir.1980). properly The defendant introduced F.2d 782 upheld rejection testimony concerning good reputation court the trial court’s her 404(a)(1) 406(a).3 attempt pursuant defendant’s to cross-examine a to CRE and CRE 404(a) provides pertinent part: person's 3. CRE or a trait of his “Evi- dence character routinely individuals who deal prosecution’s cross-examination nursing Colorado,” is con- witnesses character homes and that she defendant’s 405(a), inquiry allows question” which had “no CRE reason to ever the de- trolled instances of con- “relevant veracity. into fendant’s truth and duct.” Linton, As to character witness evi- prosecution’s cross- We address first the wrongdoing Bishop’s part dence on was re- of the character witnesses examination testimony unrelated to the Lin- offered garding whether were aware ton, which limited to the defendant’s Nursing wrongfully had Home Norton’s personal reputation veracity for truth and $15,000 approximately pa- from retained respect and afforded others in her a defendant and Medicaid. When tients nursing profession. See, e.g., home by offering in issue puts character her Fox, v. United States F.2d reputation testimony good as to her (D.C.Cir.1972)(prejudicial error com- concerning her charac- opinion testimony mitted the trial when court allowed ter, prosecution’s cross-examination prosecution to ask defense character wit- con- specific instances of limited to relevant questions concerning ness the defendant’s con- specific instances of duct. Relevant “[tjhere rape arrest for because nois obvi- related to character duct are instances relationship rape ous between and veraci- put E.g., in issue. United States trait Wooden, ty”); (holding 420 F.2d at 253 (3d Cir.1981); Curtis, 644 F.2d for that convictions drunkenness are Wooden, 420 F.2d States v. United reputation honesty and relevant to a Michelson, (D.C.Cir.1969)(quoting 252-53 integrity peace good and for order 222); 483-84, 69 S.Ct. State 335 U.S. conviction). The reversing the defendant’s Hinton, 500, 479 P.2d 206 Kan. allowing erred this trial court therefore Broun, Dix, generally K. G. E. See questioning. Meisenholder, Gellhom, Kaye, D. R. E. Harlan, Concerning character witness Roberts, Strong, Evi- J. McCormick on Bishop engaged had fraudulent business (3d 1984) (here- ed. dence at 568-69 § practices, conduct would relevant be McCormick); M. inafter 3 J. Weinstein & “im- Norton’s the witness’ assessment ¶ 608[06], Berger, Evidence Weinstein’s practices.” do not We business peccable Weinstein). (hereinafter 608-55 believe, however, that the offered evidence specific instances of conduct “[RJelevant prosecution, not establish by the which did accuracy only going are instances activity, to the “ac- was related fraudulent testimony.” the character Cur- witnesses’ testimo- curacy the character witness’ tis, (citation emphasis 644 F.2d at 268 Curtis, asked 644 F.2d at 268. ny.” When omitted). cross, Linton testi- about this conduct called, The first character witness unusual an audit was “not fied that such Virginia Harlan, that the defend testified nursing-home industry.” ... Nor reputation,” ant had a “fine and that recognize some “excellent,” we Nursing “very While Home was ton’s allowed cross-examination “impeccable courts have professional,” had busi concerning rumors character witnesses practices no theft.” The second ness [with] fact, grounded in may not Linton, may or witness, Arlene the exec character States, 352 see, e.g., v. United Shimon director of the Colorado Health Care utive (D.C.Cir.1965); Hohman Association, F.2d the defendant testified that (Alaska State, 1327 n. respect all of great amount of “has 405(a) in which provides: “In all cases CRE purpose for the character not admissible of a or a of character character trait evidence of conformity proving in therewith that he acted admissible, by proof may made be person is occasion, particular except ... [e]vidence on a testimony by reputation testimony or as to by pertinent a of his character offered trait cross-examination, opinion. On the form of an accused, prosecution to rebut the an same_" specific in- inquiry into relevant is allowable conduct." stances of 684 426-27, 125, (1973) (same).

App.1983), we believe the better-reasoned 506 P.2d 126 require showing general principle approach applicable is to a from the This likewise impeaching party forming cross-examining that the acts the when character witnesses. e.g., occurred, actually questioning witnesses, basis for the rumor When character Curtis, (“The 2 644 F.2d at 268 n. matters counsel should not a random shot at “tak[e] reputation imprudently exposed is to asked about should a witness be [ask] judge’s groundless question first be established to the trial sat to waft an unwarrant events.”) (quoting Unit box.” Michelson jury ed innuendo into the isfaction as actual Lewis, States, 632, (D.C. 469, 481, ed States v. v. United 482 F.2d 639 335 69 U.S. Cir.1973)); Hinton, (trial 221, 213, (1948) (footnote 479 P.2d at 917 93 L.Ed. 168 S.Ct. establish, omitted). presence good required out court should of the faith basis is jury, question question concerning that “there is no as to character of the witnesses rumor, subject seemingly of the matter of the incidents at odds the fact is, arrest, previous conviction or the witnesses’ assessment of the defend Canniff, v. United States pertinent misconduct of the defend ant’s character. other State, 220, 565, (2d Cir.1975) Miller v. ant”); (“adequate 521 F.2d 573 denied, (same). generally See cert. (Okl.Crim.App.1966) required), basis” 423 U.S. Weinstein, 796, (1976); supra 11405[02], at 405-33 96 S.Ct. 46 L.Ed.2d 650 Beno, (1986) (“if 582, 588 the United States v. the court discovers that 324 F.2d (2d Cir.1963) put (“good required); question on cross is unfair —either be faith belief” Curtis, United States v. explained F.Supp. cause it is unfounded or can be Mickelson), (E.D.Pa.1980) away permit question” (quoting should not —it (3rd grounds, rev’d on (footnote omitted)). other prosecution asked 644 F.2d 263 Eli, People Cir.1981); if 66 Cal.2d both character witnesses were Nursing Cal.Rptr. (quoting that Norton’s Home had P.2d aware $15,000 holding Mickelson “kept money should trial courts about gone patients “scrupulously prevent must cross-examina have to either or Medicaid.” cert. de that, upon fantasy”), tion mere We hold because there was no basis based nied, questions, questions 389 U.S. 88 S.Ct. 19 L.Ed.2d fact for these improper. were good prosecutor no faith established prosecution’s We next consider the cross-examination; for this line of basis concerning alleged examination an order fact, only presented on the evidence patient

the defendant that a be tied in an denial of such an issue was the defendant’s upright every evening. chair also con We prosecutor asked the incident. Once inquiry improp clude that this line of jury clearly informed question, knowledge any er. The defendant denied an incident that the state believed that such during testimony. this incident her improper, had occurred and was without explained Character witness Linton showing prosecution of its by the basis procedure, doctors often order such a question or the relevance protec “poseying,” patient’s called for the incident. tion. 103(c) jury “In Questions impeaching provides: CRE directed toward conducted, cases, faith. See good proceedings shall witness must be asked Robles, 4, 6, prevent People v. practicable, extent so as 183 Colo. suggest (1973) being (questioning by inadmissible evidence from district at- means, jury by any such as mak torney regarding prior felony conviction ed to the asking proof or attorney ing or offers of which the district knew did not statements Thomp- questions error); hearing jury.” People exist is reversible son, 198, 200, to submit wishes When pursuant transaction evidence (questions prior felonies must similar 404(b), imposed obligation we have prosecuting attorney be asked in CRE Lewis, good faith); to obtain a favorable prosecutor on the Colo. prior attempt- question jury is is court to the unwarranted and the ruling from the trial Colo, Stull, 140 likely the to assume that the court not ing to admit evidence. would 458; 284, People v. permitted 344 P.2d at see to at have it be asked unless its 446, Scheldt, (footnote omitted)). Colo. predicate were true.” (1973); People, 177 Colo. Kurtz v. prosecutor case The in this made no ef- explained We ruling fort to obtain a from the trial court rule rationale for this Stull: the concerning prior asking questions to Bearing that of sim- in mind evidence incident, highly prejudicial may not which inhering damning innu- has it ilar acts question- This have even occurred. line of prejudice in the likely beget endo to clearly ing prejudicial may was have jurors, of and that such evidence minds jury testimony the to discredit the of led into a inject to collateral issues tends addition, character In as the witnesses. unlikely are to case criminal audit questions, with the there is no indica- astray it be- jury, and lead the confuse tion, occurred, if actually even the incident exigent courts the that observe comes improper. it that was We therefore doubt regard to fine balance in such evidence the questioning whether relevant. necessity of must exist between the that Thus, we hold the failed to prosecutor proof part on the good basis inci- establish faith that the the danger prejudice to the of unfair occurred, actually to dent and also failed defendant. questions. the of demonstrate relevance the Colo, (citations at P.2d at 458 Therefore, prosecutor’s the cross-examina- omitted). of character witnesses as to the tion both improper.4 reasoning applies alleged poseying to incident was believe the same We of character witnesses cross-examination argue that, if even The concerning other acts of the defendant. Bishop and the the cross-examination court courts have held a trial Other im character witnesses was defendant's propriety cross- rule on the of such should “it it was harmless error because proper, prior ques- attempt at examination truly fleet with matters which were dealt tioning. Curtis, 644 F.2d at 268 n. Lew- ing inconsequential when considered is, 639; Hinton, P.2d at F.2d at potatoes the meat and context 917; Miller, See agree errors We cannot that the trial.” McCormick, supra, generally § People con case were harmless. The (“As a precondition 569-70 to cross-exami- transcript con lengthy trial cede wrongs, prosecutor nation about other the inci of versions of tains a multitude reveal, hearing should outside to the conviction. gave rise dents which believing jury, what his is basis one, and a complicated trial was a The proposes he to ask rumors or incidents testimony amount substantial The should then determine about. court contradictory. Many of the presented was for the there is a substantial basis whether prior impeached with their were witnesses omitted)); 2 (footnotes cross-examination.” wit The trial turned on which (“If statements. Weinstein, 11405[02], supra, at 405-33 pros jury chose to believe. nesses attorney slightest has the doubt credibility of directly attacked ecution question he should propriety of the de important and another introducing the defendant prevent raise it at sidebar ques witness, Bishop, improper This fense unnecessary into the case. prejudice consistently ob tioning. counsel propo- Defense important because the particularly prosecution’s cross-examinat permit- jected generally is not nent of witness throughout prosecutor stressed bring proof ion.5 to show ted to extrinsic during objected times counsel several 5. Defense acts an individual 4. Evidence hearing cross-examination the in camera pur- prove her also be admissible character Bishop admis- grounds that it was not 404(b), argument no has been suant to CRE but subject of the that the under CRE sible applicable. presented that this section of truth- not indicative cross-examination 686 person.” 18-8-105(1), case turned closing argument that the assistance such

his § (1978). 8 C.R.S. “Render assistance” is credibility of the witnesses and on the including “[b]y force, defined as intimi- chose to believe.6 jury which witnesses dation, deception, obstructpng] anyone or oc- say the errors which We cannot performance might of act which rights the substantial curred did not affect detection, discovery, apprehen- aid 52(a). See of the defendant. Crim.P. sion, conviction, prosecution, punishment or (where Wooden, 253 the deci- 420 F.2d at 18-8-105(2)(d), person.” of such 8 C.R.S. § jury is one of credibili- issue sive before (1978). argues The defendant that the defi- of the de- improper cross-examination ty, nition of the term “render assistance” not harm- fendant’s character witness was unconstitutionally vague makes the statute of defend- less error “evidence because [the and overbroad. reputation might well have good ant’s] favor; penal process if it statute offends due in his for evidence tipped the scales requires doing or an forbids of act standing may cre- good reputation alone vague persons terms so of common doubt”); Shimon, 352 ate a reasonable intelligence necessarily guess as must (character alone F.2d at 453 evidence meaning application. its and differ as to its (citing guilt) raise a reasonable doubt Co., E.g., Connally v. General Constr. 269 361, States, 164 U.S. Edgington v. United 385, 391, 126, 127, 46 70 U.S. S.Ct. L.Ed. (1896)). 72, there- 41 L.Ed. 467 We 17 S.Ct. (1926); Rowerdink, People 322 756 P.2d the defendant’s conviction. fore reverse 986, (Colo.1988); Moore, 990-991 following address the issues We also will (Colo.1984). 354, 674 P.2d 356-57 likely are to recur at the new trial. vagueness that a doctrine also demands provide clearly defined standards to statute III. arbitrary discriminatory en minimize accessory under which the statute of the laws and to inform a forcement provides that defendant was convicted jury “[a] a crime has been court and a whether if, person accessory is an to crime proved. E.g., People committed and v. Jen hinder, prevent delay, 276, (Colo.1982); intent to the dis- 278 Peo nings, 641 P.2d detection, apprehension, prosecu- Thatcher, 760, (Colo. covery, 638 P.2d 765 ple v. conviction, limit, however, tion, punishment 1981). another to the There crime, degree precision reasonably he renders that can be for the commission of a 533, 878, Co., fulness, prosecution Transp. Ariz. 642 P.2d had not estab and that the 52, McCormick, good questions. (1982). generally supra, lished a lowing faith basis for the Fol § See objections, judge one of these the trial (Requiring repetitious objections places at 118 "already object stated that defense counsel had objector semblance of a "in invidious required under the ed” and “that’s all that’s rules." Additional formal objector, and conduces to waste contentious objections in the courts, fraying patience. how- Most time and presence jury required. Up are not See ever, objector] is entitled to as- hold that [the Lab, Inc., Huntington tain v. judge to make the that the will continue sume (Colo.1986) during (objections motion 1330-31 repeat ruling not and that he need same contempo satisfy purposes limine (footnotes omitted)); Wright objection.” C. & K. rule). objection raneous Graham, § Federal Practice and Procedure objected prosecu counsel to the Defense also (”[U]nder traditional the better at 191 view, concerning alleged po- question tion’s first pre- objection will suffice to overruled Although seying did incident. defense counsel subsequently point all offered as to serve the specifically object questioning of the to the type; objector need same evidence of the concerning alleged mis character witnesses appropriation object time such evidence each not continue funds, questioning or to the (footnote omitted)). is offered." posey- regarding the second character witness ing, preserved we believe that the defendant 6. For instance, early stated previous objec appeal these issues for with her you’ve closing argument: “The evidence that his Talavera, E.g., F.2d tions. United States v. you going to down to who are looked at comes 978, 102 denied, (1st Cir.), U.S. cert. you’re one issue that That’s flat the believe. (1982); United States S.Ct. 72 L.Ed.2d 853 deciding jury going back there Brown, (5th Cir.1977), n. v. cert. 555 F.2d this whole case denied, And that’s what room.... U.S. 98 S.Ct. (1978); to.” comes down L.Ed.2d 494 Padilla v. Southern Pac. Dictionary New enactment. Row International legislative of a expected Garcia, erdink, 991; (1986). Thus, “might” People v. specu- even more be- “may,” the connection lative than pro- tween the defendant’s actions and the People Young, argue People The that more that hibited result is tenuous than (1976), 1160 Colo. which 192 in Hoehl. which condemned we challenge vagueness to the ac- rejected a effect, in controls our cessory statute then distinguish attempt The to Young relied on in this case. decision Self Hoehl by arguing accessory that stat the 292, 448 People, 167 P.2d Colo. elements, i.e., “intent ute contains other (1968), rejected vagueness a which also hinder, prevent” delay, to or and the use accessory stat- challenge applicable to the “force, intimidation, deception,” or which significant- interpreted a statute ute. Self ambiguity enough any are certain cure is- presently from one at ly different reject “might.” created use of We by the reason, sue, and, is not for that control- def argument; this the inclusion of several Young, in The at issue ling.7 statute in a cannot inite elements criminal statute 40-8-105, (1971 Perm.Supp.), 12 C.R.S. § deficiency solve the constitutional created respects in pertinent identical all was legislature a by the to define failure (2); particular 18-8-105(1) section critical of the statute suffi element with challenges, defendant language which the certainty. cient and, Young however, issue in was not at Hoehl, however, also held in We Young also is not thus, controlling. that, necessary, construe where we would in upon our decision The defendant relies degree of “may” importing greater a as Hoehl, 557, 568 P.2d People v. normally that attached certainty than (1977). interpreted the Hoehl we In word, the word and we construed 18-6-401(l)(a), statute, child abuse section probability “may” mean reasonable (1973), pertinent provided 8 C.R.S. which obtain. that the forbidden result would child if he part: person “A commits abuse Colo, Hoehl, P.2d at 486. at negligently, or knowingly, intentionally, such a construction We hold that excuse, or justifiable causes and without pur “might” appropriate is likewise [pjlaced in a permits a child to be: ... accessory statute. poses the criminal endanger life may the child’s situation argues that defendant further The Relying on a definition or health....” unconstitutionally is accessory statute degree likely,” we “may” as “be in some usually challenge construed, seriously broad. An overbreadth we held “[s]o legislative enactments applicable to ‘may’ whether in a criminal statute doubt fundamental exercise of prohibited which threaten description fair provides a rights. Rower express constitutional conduct, any virtually since conduct direct- Colo, Garcia, dink, 990; at possibility, how- at ed toward child has (1979). A statute also P.2d slim, life or at endangering the child’s ever Colo, con if, proscribing Hoehl, in addition to overbroad health.” prohibited under can be omitted). duct (citations The which defendant at 486 prohibit purports it police power, “might” in state’s argues that use of the word power. police not within the problems. conduct that accessory identical statute raises Sequin, Rowerdink, People v. 990; argu- agree the defendant’s We with (1980). Colo. “express[ing] “Might” as is defined ment. allege does not possibility defendant probability, permission, liberty, impinges upon a fundamen- at issue possi- statute past probability or in the ... or less constitutionally protected right Third tal or other may....” Webster’s bility than trate, person protects the or harbors statutory language as at issue Self guilty the crime.” person charged found accessory the fact is a "An after follows: who, 40-1-13, knowledge that a crime has a full 3 C.R.S. after Section committed, magis- it been conceals mation; fact, argues only interest; provid- has she that the informa- the defendant prevented preparing legitimate conduct tion her from a de- example no ed event, In The record by this statute. fense. demonstrates that is threatened problem quite in- any overbreadth defendant was aware of the nature of we hold that her, accessory prosecution’s charges against statute is cured herent was, fact, contested, the statute. limiting hotly construction of our the trial that the defendant failed to demonstrate request, The defendant did not any prejudice caused the information. give, special court did not instruction trial Thus, hold that the information we opin- in accordance with our views sufficient. reversing the defend- ion. Because we are grounds, need ant’s conviction on other we V. give whether the failure to not determine plain constituted error. the defendant’s conviction such an instruction We reverse Bubanowitz, 688 P.2d 231 the trial court People v. and remand the case to for See (Colo.1984). new trial. ROVIRA, J., joins opinion in the

IV. except for Part II. argues the informa- The defendant charging her was insufficient. We tion VOLLACK, J., part concurs in and reject argument. this part. dissents in if it An information is sufficient ERICKSON, J., joins in the charge defendant of the she is advises the and dissent. concurrence facing adequately can defend so that she VOLLACK, Justice, concurring in pros protected from further herself and be dissenting part part. and in E.g., People ecution for the same offense. 726, 481, 484, Moore, agree majority I of the 200 Colo. with Part IV Albo, (1980); opinion, upholds sufficiency People v. The amend I also concur in the result the information. language by majority on the constitution-

ed information tracked reached III, statute, day in specified ality accessory a sixteen statute Part accessory allegedly analysis to during offense I use a different period which the but would occurred, II princi as the result. I dissent to Part and named Berzinis reach that that the trial court pal involved.8 because I do not believe pros- permitting in abused its discretion vague upon relies The defendant of three wit- ecution’s cross-examination support her wording of the statute in defense. nesses for the argument argument. rejected We a similar Hoehl, also where the information I. statutory language, despite our tracked the court majority holds that the trial statutory language re- The holding that Colo, allowing certain abused its discretion quired limiting instruction. 193 682, and Hoehl, Bishop, at cross-examination of 487. As 568 P.2d at “compounded its prosecution failed to demonstrate defendant has wrongful its cross-examination allegedly vague infor- action with prejudice BERZIN- charge KENNETH WARREN accessory the informa- anee to the said 8. The to crime IS, obstructing by ‘Between December enforcement authorities tion read as follows: law 14,1985, intimidation, force, January others, with defendant] by [the 1984 and threat and and hinder, delay prevent the dis- intent covery, and might performance aid of acts which the discovery, conviction, detection, pun- prosecution, detection, prosecution, apprehension, apprehension WAR- of KENNETH ishment REN BERZINIS for the commission principal punishment of the said conviction defendant; of Second Revised violation of Colorado Elderly, Degree C.R.S. as defined Assault amended, 18-8-105(1) (2), Ac- as Statutes 18-3-209, amended, did know- as 18-3-203 cessory to Crime." unlawfully ingly, feloniously render assist- witnesses,” honesty ency his lack of or truth show two other [character] fulness; qualification being of the rule of the convictions. reversal requiring questioning him is party that the bound disagree these conclusions.1 684. I with At may him his answers and not contradict ” regard Simon United thereto.’ A. States, (4th Cir.), cert. 123 F.2d Bishop denied, Cross-Examination 314 U.S. S.Ct. 86 L.Ed. Hall, Co. Pullman (quoting permitted court trial (4th Cir.1932)). ques 55 F.2d Bishop witness to cross-examine tioning party permitted introduce agency state audit conducted in order to extrinsic evidence contradict $15,- misappropriation of possible revealed 608(b) (“Specific instances witness. CRE nursing Bishop in funds. was the witness, the purpose of the conduct of a ad- manager and assistant home’s business attacking supporting credibility, his ministrator, percent ten own- and was also proved by evi- ... not be extrinsic business; he was he testified that er dence.”). solely responsible for the financial affairs spe- nursing The trial court home. 608(b) inquiry Rule therefore “authorizes cross-examination, cifically ruled that into instances of misconduct on Bishop’s relevant which it held requires but cross-examination permitted under CRE credibility, would be ‘clearly probative of must be truthfulness ” Rule states: 608. That 3 J. Weinstein or untruthfulness.’ a instances the conduct Specific ¶ (1987) (footnotes 608[05], at 608-43 of of omit witness, attacking of or purpose for the ted) (hereinafter Weinstein). Misconduct credibility, than con- supporting his other to criminal convictions. Some limited 13-90-101, provided viction of crime as permit “inquiry into courts non-conviction proved may by extrinsic evidence. not be generally limit in misconduct” and however, They may, in the discretion of veracity or quiry “to relevant to conduct court, probative of if truthfulness honesty.” veracity Wein relevant to inquired on be into untruthfulness, (footnotes 608[05J, 608-42 omit stein if (1) the witness cross-examination of ted). purpose of rule is that for the “The concerning his character for truthful- he credibility of a witness impeaching the untruthfulness, ... ness or misconduct, may questioned as to even be 608(b), (emphasis matters, 7B tend CRE C.R.S. which has a as collateral added). provides: honesty CRE also his lack or truth ency to show of Hall, v. (b) F.2d fulness.” Pullman Co. Scope of cross-examination. Cir.1932). (4th be limited

Cross-examination should subject matter of the direct examina- scope and limits of as to the The decision credibili- affecting tion and matters case, cross-examination, criminal even ty the witness. may, The court of trial discretion is within the sound discretion, permit inquiry into exercise Williams, court. Denbow if on direct exami- additional matters as showing (Colo.1983). Absent nation. discretion, trial court’s of an abuse added). (1984) (emphasis 7B C.R.S. on review. rulings be disturbed will not 504, 507, 553 People Crawford, purpose rule is that for ‘“The question before The he P.2d credibility of a impeaching the witness judge the cross-ex misconduct, trial was whether even questioned as Bishop the audit was matters, a tend- amination which has as to collateral respect to with error that no reversible occurred majority make whether does not clear Bishop, no of witness the cross-examination cross-ex- error was committed reversible alone, respect cross-examina- error occurred Bishop the cross-exami- amination Linton, Harlan and witnesses Lin- tion of character of character witnesses Harlan nation alone, occurred. cumulative error hold no error. I would ton cumulative “affecting credibility impeachment purposes matter wit- on cross-exami- questioning in- ness” whether permissible subject nation are if the matter Bishop’s instances of con- volved question directly upon bears duct, going his “character for truthful- veracity of the in respect witness to the 608(b); ness or untruthfulness.” CRE issue involved the trial.” 221 F.2d at 611(b). appeal question on is whether (footnote omitted)); see also Pullman per- trial court abused its discretion in Hall, (4th Cir.1932). Co. v. 55 F.2d mitting this cross-examination. question The first is whether the trial jurisdictions have ruled that number court abused its permitting discretion in United questioning permissible. In such this cross-examination. on Based the rul- Holt, (7th Cir.1987), States 817 F.2d 1264 ings jurisdictions, I other conclude would permitted to cross-ex- that the trial court here did not abuse its amine a defense witness —the defendant’s judge may discretion. While another have regarding prior an incident of her wife— misconduct. The conclusion, judge arrived at a different cross-examination, evidence, here heard all of the observed the she had used checks focused whether witnesses, demeanor of the and made his stolen, reported that she later as was held decision in that context. His conclusion “probative credibility to be as a [her] witness,” relevant, therefore under FRE that this cross-examination was admissible 608(b). 817 F.2d at 1273. probative outweighed and that its value possible prejudice, his was within discre- This situation often arises when a de tion. fendant takes the An “ac witness stand. proceeding cused a criminal who takes if the Even trial court abused its discre subject the stand is to the same kind of tion, unnecessary that determination is un witness,” as cross-examination other showing less the defendant has made a and can therefore be cross-examined about that reversible error occurred. To be re Hug v. United non-conviction misconduct. versible, substantially must the error influ States, (6th Cir.), cert. 329 F.2d ence the verdict or affect the fairness of denied, 818, 37, 379 U.S. 85 S.Ct. 13 L.Ed. Quintana, proceedings. the trial (1964); Simon, (“It 2d 30 123 F.2d at 85 605, (Colo.1983). See United settled well ... that where a defendant Clemente, (2d Cir.), States F.2d 1069 elects to make may himself a witness he be denied, 820,102 102, cert. 454 U.S. S.Ct. such.”). United cross-examined as See (1981) (Questioning of the de L.Ed.2d Sullivan, 87, (3d States 803 F.2d 90-91 — filing appli fendant about his of false loan denied, Cir.1986), cert. U.S. -, permitted under FRE cations is but (1987) (Because S.Ct. 93 L.Ed.2d 841 applica the admission of fraudulent loan credibility the defendant’s was an issue case, it was not error for the trial court tions into evidence was erroneous because permit cross-examination of re Sullivan of conduct cannot specific instances garding replies his fraudulent on his in However, proved by extrinsic evidence. come tax forms and financial disclosure admitting the error extrinsic evidence forms.); Sperling, United States v. 1083.). Id. harmless. was held to be denied, (2d Cir.), cert. F.2d 69 467 U.S. Bishop’s testimony that he was sole- was S.Ct. L.Ed.2d ly responsible bookkeeping errors (“It proper government was for the ... audit, Pratt discovered in the and that was Sperling regarding cross-examine his false responsible for financial matters. He not applications general credit card to show a examination was rehabilitated on redirect credibility. acceptable lack of This is cross- Department the letter from of Social 608(b)(1).” examination under Fed.R.Evid. Bishop, This issue related to not Services. States, Id. 75.); Kitchen v. United trial, Bishop complete took re- Pratt. At denied, (D.C.Cir.1955), cert. F.2d 832 aspects fi- sponsibility for all of Norton’s U.S. 78 S.Ct. 2 L.Ed.2d 1374 (1958) (“Questions upon collateral issues nances. resulting Bishop reading misappropriation and the into record the he

This letter Department received from the of present Social May and of 1983 was audit in June indicating Services Audit Settlement Office Bishop’s con ed as a instance thanking Bishop resolution of the audit and context, duct, permissible in this cooperation.3 for his presented, evidence was not but extrinsic ques 608. The complying with CRE thus record, Based on the clear it is that by the and tioning party is bound answers has not defendant established that contradiction; present not evidence substantially cross-examination influenced re was followed here.2 On that limitation the verdict or affected the fairness of her examination,. reasons, defense counsel was direct trial. For these I would conclude Bishop, given opportunity to rehabilitate no error occurred in the that reversible Bishop.4 Part consisted cross-examination that rehabilitation explanation why you following exchange place during your say interested in 2. The took no, that not Bishop: that did occur. cross-examination of A in view of the facts Because that —The attorney] going Q I’m to direct [district they apply are rules they’re approved, that if for Medicaid and your specifically attention back they apply that must all first after May June of the months and 1983—and toward care. of their income their And before, specifically June of that and but personal And all $29 receive funds. my Is it not true that monies everything monies and was substantiated and example have monies should first —the back to proportion And accounted for. that was application for paid been patient due the or due the State refunded. paid In were not back Medicaid. Medicaid fact, fact, might It been after the but it was have pay not back to the Norton’s—Or did it certainly kept And we have it refunded. kept money from families. Norton’s in Norton’s. kept money families Norton’s following testimony was heard 3. The Medicaid. jury: Let’s make a clarification here. A Q And these—Did the question. [defense counsel] asking yes Q or no I’m you state of send a letter? Colorado A No. Yes, [Bishop] sir. Q That not done? finally Q it resolved how was accord- And A No. ing to the letter? Okay. during Q time Is not true it Bishop: says, is to A It "Dear Mr. This period— acknowledge the closure of the above-refer- Honor, he’s Your I think [defense counsel]: receipt on December enced Audit now, question it’s answer- been asked $4,991.61. your the state due to amount ed. $15,- shortage personal needs Your cash going through attorney]: I’m [district your payment 684.71 has been resolved with examples. three by my adjustments as on-site to all confirmed Objection is COURT: overruled. THE inspection of December 6. May attorney] Q In June of [district personal returned "Remember pa- money have that should been—If forwardfed] needs be disbursements out, money tient was deceased or moved that money over for dis- monies turned to paid Medicaid should have been back to that patients. regarding in-the-home bursement paid Medicaid for the remain- was not back to ledg- proper posting prospective all “The kept money. that der of the month. Norton’s your be- assure next audit er cards will say I would no. A you your gins clear slate. I thank for with a money Q not that should Is it true that audit, settling cooperation and I trust security against offset social have been your audit be much to next will easier again? kept Norton’s accounting following practic- the new resolve No. es. explanation. you Q said an You had "Sincerely, Bryan, Mike Audit Settlement right. A All I have letter. Office, Investigations and Audits.” Q a letter. I don’t want to know about 9th, So That dated December the I think that he’s asked [defense counsel]: audit, ten-year considering that that was a question; it. went over he’s answered We percent defi- one half of one that’s less than it in chambers. anybody ciency, see felt so I can’t where Objection COURT: is overruled. THE anybody anything gain from it. had to question evi- not it’s is whether or extrinsic (8th Dennis, F.2d cross him. v. He’s to examine 4. United States dence. allowed Cir.1980), Employers’ v. may proceed. American You Shafer (W.D.Ark.1982), Co., F.Supp. 1067 attorney] Q I’m interested Insurance not [district majority, upon by not do I’m the cases relied of ’83. letters received December 253, 797, (1924) (“When B. P. a wit- reputation, ness has testified to no cross- Cross-Examination examination can pre- be effective which Witnesses Character inquiry an cludes into what the witness has character testifies as to When a witness upon heard and which his conclusions must based.”). good reputation provides: character or a defendant’s CRE 405 (a) community, the state can cross-ex Reputation opinion. In all as to the witness’ famil cases in amine the witness which evidence of character or a person trait character of a is knowledge of the admissi- iarity with and defendant ble, proof may by testimony be made as put who has his character into issue. reputation by testimony in the form Cross-examination should be limited to opinion. cross-examination, of an On in- specific “those acts the accused demon quiry specific is allowable into relevant strably probative veracity.” Weinstein instances of conduct. 11608[06], inquiry an at 608-54. Such (1984).5 7B C.R.S. permitted “not because it is relevant is, course, defendant’s character ... but because it is This cross-examination sub- ject general 403, to the credibility limitations of CRE relevant to the [charac requires the exclusion of evidence if witness, testing as a means of his ter] probative substantially its value is out- familiarity qual the defendant and his weighed by resulting the chance of confu- express opinion ifications about ¶ prejudice. 405[02], sion or Weinstein reputation.” to his accused or attest Wein 405-31. There are other limitations: added) 11608[06], (emphasis stein at 608-54 prosecutor impeachment ques- must ask omitted); see Shimon v. United (footnote faith, good tions but the determination States, 352 F.2d 449, (D.C.Cir.1965); 453-54 good of whether faith exists is discretion- Couch, People 324, see also 179 Colo. judge. People Thomp- ary with the trial 329, 967, (1972) (impeachment 500 P.2d son, 198, 200, 182 Colo. 511 P.2d credibility, must be directed to a witness’ Lewis, (1973); People v. 180 Colo. 426- character). “Once the defendant has (1973); State v. Sam- opened the door to a discussion of his char ple, (Mo.App.1984) 673 S.W.2d by calling acter character witnesses.... (“[CJross-examination of character witness- cross-examination, prosecution may ask faith, ought good es to be done in and the defendant’s character witnesses whether inquired ought apoc- crimes not to be they have heard about or know about ryphal, existing along in the fertile [sic] acts committed defendant Also, fancy public prosecutor.”). of a knowledge order to test this and standards proper questioning form for such must be good reputation.” 2 J. Weinstein People, used. Romero v. Colo. ¶ 405[02], (footnotes at 405-22 -23 omit In Futamata, ted); People, see Brindisi v. 140 Colo. 343 P.2d 1058 proposition questioning substantially stand for the ness about his civil tax a wit- 5. CRE 405 is identical to the Feder- problems Rule, language under Rule except al for the in subsection 608(b) creates a In reversible error. Dennis the (b): “except as limited 16-10-301.” Eighth Appeals Circuit Court of held that a trial One commentator has stated: properly court excluded of a evidence tax-relat- determining par- The same tests for when conviction, ed arrest that did not result in a but person qualified speak ticular was silent on the issue of whether admission reputation applied witness' should be under would create a reversible error. 625 F.2d at reputation being Rule as when is used to 608 Shafer, 798. In the trial court refused to order prove pursuant except to character Rule plaintiff personal injury produce in a case to testimony that the Rule 608 must relate to the plaintiff evidence of The income tax returns. reputation witness’ at the time of trial —rather convicted, arrested, had never been in- or even acts than at the time he committed the vestigated regard. only in this not The court charged to truthful- must be relevant was on the of of silent issue whether admission —and error, other character trait. ness—rather than to such evidence would create a reversible it 608[03], (foot- Weinstein at 608-21 to -22 inquired 3 J. ¶ stated that the evidence could be the into if omitted). plaintiff My tied a chair at times. many, many years. to be reputation aunt had reason, character witness’ answers. This I would hold that no error cross-examination “does during occurred the cross-examination appear not unnecessarily ... to have been the character witnesses.9 Hohman, emphasized or drawn out.” P.2d at 1328. Because I believe the record II. shows that the cross-examination at issue permitted conducted, Turning to correctly I the issue of the constitutional- ity 18-8-105, do not find an (1986), abuse discretion.8 For of section 8B C.R.S. attorney] night Q long? [district All A I have been made aware that there was my knowledge, $15,- A Not to no. But performed when an audit and that there was a handle, she became difficult to that was the 000 restitution —reimbursement made. That only way is, add, was restraint. might happen I not unusual to give you Q opinion Does that a different nursing-home industry. reputation? about her Q they required pay And were back A None. approximately patients. you Q Were aware that in Norton's A I don’t know. I don’t know I that. Nursing May year Home in and June of that many patients don’t know how there were. $15,000 kept approximately patients $15,000 Q patients significant to 35 they kept? shouldn’t have much, money to them because don’t earn nothing A I know about that. is that correct? Involving Q patients? about 35 Would ten-year A I understand it was a audit. change your opinion Nursing of Norton reputation? Home’s change your Q opinion Does that of her A I don't know how true it is. reputation? Q If it was true? Absolutely A not. A I don’t think it would. I don’t think Q reputation? Or the home’s that— Absolutely A not. attorney]: ques- [district I have no further supported by 8. This conclusion is further tions of this witness. objection During found in the record. Cross-examination of Linton was as follows: Harlan, Q attorney] [district You talked cross-examination of objected dent, defense counsel about Mrs. reputation. you questioning poseying Pratt’s Were aware that in about the inci- patient staying object questioning there was a at Norton’s but did not about the Carolyn Gray supra the name of and that Caro- audit. See note 6. Defense counsel did lyn Gray go object questioned was someone who liked to out not when Linton was about incident, night upon poseying and drink at so that Mrs. Pratt’s the audit or about the nor did orders, Carolyn Gray sit-up type object questioned he tied when Harlan was about night appears chair for the entire on a consistent ba- audit. It thus that if there was error, subject sis? plain it would be to the error standard, except questioning A I would assume that she was for the [Linton] of Harlan no, probably posied. poseying 52(b), But I'm not aware of about the incident. See Crim.P. (1984). that situation. 7B C.R.S. something you Q Is that would do with a error, defect, "Any irregularity, patient? variance rights does not affect substantial shall be Many A Based on doctor’s orders. times 52(a), (1984). disregarded." 7B you Crim.P. C.R.S. patients do have to restrain for their own Impeachment of the character witnesses protection. was for usually And that’s a decision that purpose assessing completeness patient-care planning is made committee Pratt, witness’ information about input physician. whether from the And it is not allegations chair;' were tying true. poseying them to a it’s them to a releasing error, chair and them on a routine inquiry basis. To assess reversible Q night, But not substantially the—not for an entire whether the error influenced the nights on end. pro verdict or affected the fairness of the trial hap- ceedings, A I don’t know that that situation not whether there was sufficient evi pened. support People Quinta dence to na, the verdict. case, Q change your opinion— (Colo.1983). Does that In this change my opinion. A majority Does not I believe the should have determined Q Olga reputation? testimony —of No, Pratt’s whether the at issue had a substantial because I don’t know that that’s effect or influence on the verdict before revers ing true. the defendant's convictions. v. Han son, you Q Were aware that in it was May discovered that in and June of I would conclude that the cross-exami $15,000 Nursing kept Norton’s Home nation of the character witnesses neither sub verdict, money gone pa- stantially that should have to either influenced the nor affected tients or proceedings. Medicaid? the fairness of the trial

695 Randall, statute, People v. agree adopted. I accessory 689, with the 711 P.2d disposition its is not con- majority (Colo.1985). 692 People Young, v. holdings in by our trolled provides pertinent Section 18-8-105 in 65, (1976), and 555 P.2d 1160 192 Colo. Self part: People, 292, Colo. 448 P.2d 619 v. 167 (1) person accessory is an to crime (1968).10 accessory has statute been if, hinder, delay, intent to prevent with or decided, significantly since altered Self discovery, detection, apprehension, Young is language and the examined prosecution, conviction, punishment or of disagree case. I with the at issue crime, for the of another commission a “might” can construed as majority that be renders he assistance person. to such Nevertheless, probability.” “a reasonable given (2) I the statute can be a believe “Renders assistance” to: means interpretation, and therefore constitutional majori- in the result reached concur (d) force, intimidation, By deception, or ty- anyone performance in the obstruct of principles correctly those In addition to might discovery, in the act which aid enjoys majority, a a recited statute detection, apprehension, prosecution, con- constitutionality, and the presumption of viction, punishment per- or of such prov challenging has of party it the burden son. ...

ing unconstitutionality beyond a reason its added).11 (1986) (emphasis 8B C.R.S. Orsinger Outdoor Advertis doubt. able contemplate (2)(d) Sections Highways, ing, Department Inc. v. 752 persons: interaction of at least three a (Colo.1988); People v. 55, McBur 61 P.2d accessory, principal perpetrator, an 916, (Colo.1988). ney, 750 P.2d 920 If a person. accessory An third renders assist- capable of alternative construc statute constitutional, principal perpetrator ance to the under sec- tions, one then of which when, by force, intimidation, interpretation (2)(d) or must tion the constitutional (A] majority person “renders criminal assistance” this case on 10. Because the decides when, delay prevent, grounds improper questioning intent hinder or of witnesses cross-examination, discovery apprehension person of ... or it has no need discuss constitutionality accessory or has committed a who he knows believes statute. 103, crime, See, 108, Zwickler, e.g., he: U.S. ... Golden v. 394 obstructs, by 959, (1969); 956, or means 22 L.Ed.2d Hutch Prevents 89 S.Ct. 113 force, anyone 875, (Colo. 1987) deception, intimidation or People, v. 742 P.2d inson J., Bossert, might (Vollack, dissenting); performing act aid in which v. 998, (Colo.1986); apprehension person or discovery of such People Lybarger, v. Davis, charge against (Colo.1985); lodging of a criminal 700 P.2d Ricci (Colo. 1981); 627 P.2d Board Coun him.... Denver, added). practice (Emphasis commentaries ty City County Comm’rs & (1977); provide “divulging infor- 571 P.2d to section 205.50 Colo. Div., example prosecutor" of con- Colo. is an Friedman Motor Vehicle mation to a (1977); designed Tyler v. to crimi- School duct that subsection four 188, 189-90, 1,No. Dist. nalize. (1972). interpretation Consequently to Colorado have its states addition Several 8—105(2)(d) viewed as mere Mod- adopted section must be the New York modification 18— including "might” word dictum. el Penal Code "rendering of what constitutes their formulation contrast, By issue I I must reach this because 242.3, § Penal Code See Model assistance." prosecution’s cross-examina- conclude that the (1980); Ark.Stat. 235-36 & n. 53 comment 4 at created re- tion of defense witnesses no three 5-54-105(a)(3) (1987); Conn.Gen.Stat. Ann. § versible error. (1987); § Ann. tit. Del.Code § 53a-165 1985); (Michie (1987); Ky.Rev.Stat.Ann. 520.110 in sec- 11. The definition of "render assistance” 17-A, (1983); § tit. 753.1.E 18-8-105(2)(d) represents Me.Rev.Stat.Ann. tion a modification (1987); 45-7-303(2)(d) N.H. “hindering §Ann. Mont.Code Model definition of Penal Code (1986); 642.3(I)(d) N.J.Rev.Stat. § apprehension tion, prosecution.” This modifica- Rev.Stat.Ann. 29-3(a)(5) (1982); Or.Rev.Stat. statutory expansion 2C: represents § 162.325(l)(d) word Whether accessory liability, originated § common law unconstitutional, “might” however, these renders statutes New York. (McKinney York Penal Law section 205.50 New 1975) never decided. provides: has been deception, person she obstructs a third in with the requisite specific intent, he performing any act which has some tend- “causes permits or (a) a child to be: discovery, detection, aid in the ency ap- to [pjlaced in a situation that may endanger conviction, prehension, prosecution, pun- or child’s life or health....” principal perpetrator. of ishment 18-6-401(l)(a), (1973) 8 C.R.S. (emphasis § added). The child abuse imposed statute speculation guess It is sheer what culpability criminal upon the defendant not effect information that was never transmit- accessory as an but as perpetrator ted would on the have had listener. An recognized that, crime. We when the accessory escape culpabili- cannot criminal “may” given word meaning its normal ty because the information that a third as to in degree “be some likely,” the child party attempted provide to the authori- abuse statute probably provide would a not, parties ties or other third would to a description fair prohibited conduct, of the probability, reasonable have aided in the virtually “since any conduct directed to- detection, discovery, apprehension, prosecu- ward a child possibility, has the however tion, conviction, punishment prin- or of the slim, endangering the child’s life or cipal perpetrator. interpretation This Colo, Hoehl, health.” (2)(d) P.2d recognizes section that fact. More (citations omitted). case, at 486 In this importantly, interpretation recognizes however, prohibited conduct is the act legislative determination that informa- obstructing from transmitting another tendency tion which has some to aid detection, might information which discovery, aid in apprehension, prosecu- discovery, detection, tion, conviction, apprehension, prosecu- punishment or prin- of the tion, conviction, cipal punishment or perpetrator prin- is so proof valuable that cipal perpetrator. beyond a reasonable doubt of its obstruc- both force, by intimidation, tion cases still proving bears the burden of deception, or be- requisite intent, yond made a specific with the reasonable sub- doubt the defendant jects particular the defendant to committed culpability specific criminal act with a accessory as an to crime and intent. obstructor of See, justice. e.g., Scott, W. LaFave & A. view, my In a defendant “renders assist- 6.9, (2d Criminal Law 599-600 § principal perpetrator ance” to a and be- 1986); Torcia, ed. 4 C. Wharton’s Crimi- accessory (1) comes an to crime when she (14th 1981). Thus, nal Law ed. §§ obstructing per- commits the act of a third a defendant can guilty rendering providing son information about the principal assistance to a perpetrator under perpetrator force, intimidation, principal 8—105(2)(d) section by obstructing 18— deception or with the intent to transmission of police, information to the hinder, delay, prevent discovery, or de- authorities, regulatory prosecutors, or oth- tection, apprehension, prosecution, convic- persons, er third even persons these if tion, punishment or principal perpe- disregarded would have to re- refused Although trator. the statute does not

spond information, to the with the result place duty persons an affirmative that the information would not have aided apprise parties police third such as the discovery, detection, apprehension, might capture information aid prosecution, conviction, punishment criminals, it does treat someone who principal perpetrator. apprising obstructs another from them of interpretation This problem accessory avoids the this information as an to crime. such, created the child abuse statute in I Peo- As believe that section 18-8- ple Hoehl, 105(2)(d) gives description Colo. a fair of the con- statute, prohibited statute, Under that defendant duct and is not if, would guilty vague.12 have been of child unconstitutionally abuse that, majority "might" acquired through 12. The states under the dictum of word has case law. At Rubanowitz, special Rubanowitz, jury (citing People instruction would be required explain (Colo.1984) meaning (“may” "reasonably the full that the means reasons, I affirm the would For these

trial court. ER- say Justice

I am authorized dis- joins in this concurrence and

ICKSON I of

sent, joins Part ROVIRA and Justice and dissent.

this concurrence and Anne C. MOELLER

Edward Petitioners, Moeller, REAL ESTATE

COLORADO

COMMISSION, Respondent. 86SC199.

No. Colorado,

Supreme Court

En Banc.

July 1988.

As Modified Denial

Rehearing Aug. jury special require a majority, interpret I would not probable")). I do not Because given. “might” instruction to be in the fashion construed word made loss of income an issue at notes F.Supp. trial. 535 at 1069. Lehman, (1959), standards Arizona v. Ariz. court described the (The prosecutor P.2d type of cross-ex- proper form for this cross-exam- and specific ined the character witness “about amination. instances of con- violent [the defendant’s] prelimi- trial court should conduct [T]he duct or violent behavior.” The Arizona presence of nary inquiry of the out Supreme upheld Court this cross-examina- (a) alleged jury as to insure that so tion because “a character witness actual; (b) it is is that reason- misconduct asked on cross-examination about subject of ably likely that it was conduct, provided they instances of rel- are community; (c) it is in the that rumor 66.) Id. at evant.” P.2d that it was of the same too remote and The as act on trial. trial character prosecution can The cross-examine char- see it that the judge should also ... to acter witnesses “about whether had formed, is, that question properly is allegations considered misconduct” jury you heard?” that “Have to the accused that relate his character for as at the time to the limited instructed veracity. State, truth and Hohman v. inquiry. purpose (Alaska App.1983). As the noted, the Alaska court state “does not 236-37, (citing P.2d at 1060 State Id. true, prove allegations have that the are Steensen, N.J.Super. A.2d purpose inquiry is to ascer- since the (1955)). tain the witness considered the whether faith, may, good prosecution The ask forming allegations opinion his or her witness, whether a defense character —who veracity.” truth about [the accused’s] he testified that had known the defendant 1327 n. 10. Id. at years that the defendant fifteen fully here reputation for The cross-examination at issue good had a truth and veraci- requirements limits ty complied heard that defendant with the rumors —has The bought property. questioning. defendant called or received stolen Sam- such brought her ple, (applying plain error these character witnesses and 673 S.W.2d at standard). questions Knowledge of rumors own character into issue.6 such knowledge presented proper in the form.7 held that were to be relevant because impermissi- attempt did not would with witness’ as- be inconsistent challenge good reputation. bly evidence to enter extrinsic sertion of defendant’s right. you Q tell the Court All And will 6. Character witness Linton testified as Pratt’s jury reputation is? reputation: and the what home, nursing Excellent. Excellent A Now, in'your dealings Q counsel] [defense my experience very professional. And it was agencies all the state in the state of with nursing elderly aunt in the home have an Colorado, you have discussed with members months, experienced it so I firsthand. for 11 agencies reputation of Mrs. those Pratt Nursing and Norton Home? reputation right. you Q Do know the All Yes, A I have. [Linton] veracity? truth and Mrs. Pratt for you reputation Q And will tell us what my knowledge, just no there’s To best A state in the of Colorado? it, integrity. Complete question about I feel. Colorado, through the A In the state of legislative body, Olga agencies, questioned on cross-examination state 7. Harlan great respect following from all holds—has a amount of manner: routinely who talking the individuals deal attorney] Q You were [district nursing way homes Colorado. way run and the Norton’s was about Pratt, your knowledge Q you of Mrs. things. And from Were aware Pratt handled Mrs. your opinion and veraci- patient what is ty? her truth Pratt Mrs. had go Carolyn Gray out at liked to who name drink, question it. I have reason to ever Pratt night A no so that Mrs. to bars and upright Harlan chair Character witness testified: be tied in an ordered she you you every evening? Q have talked aware that? counsel] And Were [defense Honor, going people Mrs. Pratt as well as Your I’m counsel]: with yourself? who know [defense words, you object In have talked to to this. other Objection people is overruled. Mrs. Pratt? THE COURT: other this. I did not know about Pratt’s fine THE WITNESS: I have known Mrs. [Harlan]

Case Details

Case Name: People v. Pratt

Court Name: Supreme Court of Colorado

Date Published: Jul 5, 1988

Citation: 759 P.2d 676

Docket Number: 86SA401

Court Abbreviation: Colo.