Merritt v. People

Justice ERICKSON

dissenting:

I agree with the dissent of Justice Vol-lack, but write separately to emphasize my view that the trial court did not err. All limitations on cross-examination do not constitute a violation of a defendant’s constitutional right to confront witnesses testifying against him and are not always reversible error. See Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); People v. Taylor, 190 Colo. 210, 545 P.2d 703 (1976).

It is the function of the trial judge to channel the admission of evidence in a criminal case so as to prevent prejudice to both the prosecution and the defense. Standard 6-2.3 of the American Bar Association Standards for Criminal Justice provides: “The trial judge should permit reasonable latitude to counsel in the examination and cross-examination of witnesses, but should not permit unreasonable repetition or permit counsel to pursue clearly irrelevant lines of inquiry.” Standards for Criminal Justice § 6-2.3 (2d ed. 1986 Supp.).

Reversible error would have occurred if the prosecution or defense called either Adams or Emery as a witness to force them to invoke their right against self-incrimination. DeGesualdo v. People, 147 Colo. 426, 364 P.2d 374 (1961). Here, the district attorney, after being advised that Adams and Emery would invoke their right against self-incrimination if called as witnesses by the prosecution, sought and obtained use immunity for both Adams and Emery. Adams and Emery were not consulted or advised that the prosecution would seek to compel them both to testify against Merritt. The trial court, in its sound discretion, granted defense counsel wide latitude in the cross-examination of both witnesses, including questions directed at pending charges and their past juvenile records. Cross-examination by defense counsel established that both witnesses had lied in the past and were presently facing charges for the same criminal episode that caused the charges to be filed *171against Merritt. Adams and Emery admitted that the prosecution had made no promises or concessions to obtain their testimony. Both juveniles had the option of testifying or being held in contempt of court if they refused to testify.

Cross-examination on the granting of use immunity was not relevant and was properly limited by the trial judge in his sound discretion. People v. Taylor, 190 Colo. 210, 545 P.2d 703 (1976). If the trial judge permitted defense counsel to inquire about the granting of use immunity, the jury would have been exposed to collateral issues that were not germane to the issues of bias or credibility. People v. Rubanowitz, 688 P.2d 231, 243 (Colo.1984); People v. Walker, 666 P.2d 113, 122-23 (Colo.1983).

In People v. Walker, 666 P.2d 113 (Colo. 1983), we said:

Cross-examination by questions which focus on the motive of a witness is liberally permitted. People v. Taylor, 190 Colo. 210, 545 P.2d 703 (1976). The scope of the cross-examination permitted enabled [sic] defense counsel to explore the officer’s self-interest, motive, and bias as factors which affected his credibility. The ruling of the trial court properly prevented the sideshow from taking over the circus. See People v. Taylor, 190 Colo, at 213, 545 P.2d 703. The scope and limits of cross-examination for impeachment and general credibility are within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. People v. Crawford, 191 Colo. 504, 553 P.2d 827 (1976); People v. Cushon, 189 Colo. 230, 539 P.2d 1246 (1975); People v. Evans, 630 P.2d 94 (Colo.App.1981). The trial court did not abuse its discretion in this case.

Id. at 122-23.

I do not identify the issue in this case as being of federal constitutional dimension and disagree with the majority’s analysis of the issue under the harmless error standard set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See United States v. Atwell, 766 F.2d 416, 420 (10th Cir.) (finding no abuse of discretion in limiting cross-examination under CRE 403 to avoid confusion of the jury), cert. denied, 474 U.S. 921, 106 S.Ct. 251, 88 L.Ed.2d 259 (1985); United States v. Nunez, 668 F.2d 1116, 1122-23 (10th Cir.1981) (finding the denial of the admission of acts which might infer bias will not constitute a confrontation violation when sufficient evidence is before the jury to permit a discriminating appraisal of the witnesses’ credibility).

Accordingly, I dissent and join Justice VOLLACK in his dissent.