People v. Gutierrez

DUBOFSKY, Justice,

dissenting:

I respectfully dissent from part I of the majority opinion and therefore find it unnecessary to reach the issues considered in parts II, III, and IV. I concur in part V of the opinion.

I take issue with the majority’s application of the balancing test set forth as the third criterion in People v. Honey, Colo., 596 P.2d 751 (1979). Because I conclude that the admission of the Roybal testimony was more prejudicial than probative, I would reverse the defendant’s conviction of felony menacing and unlawful use of an incendiary device in the commission of a felony.

The Roybal testimony as presented in rebuttal had two aspects: (1) the testimony that the defendant and his brother appeared at the Roybal home sometime between midnight and 1:00 a. m. on August 3, and (2) the testimony implicating the defendant in the assault on Mr. Roybal. There is no question that the former was relevant to the Lopezes’ veracity. By contradicting an element of the alibi testimony about which the defendant’s witnesses would not have been mistaken had they been telling the truth, this testimony “pulled the linchpin” of the alibi and indirectly corroborated the Lopezes’ accusations. See McCormick, Evidence (2d Ed. 1972) § 47. The defendant did not challenge the admissibility of the neutral testimony on appeal, and it was proper rebuttal.

A more difficult issue is raised by the testimony implicating the defendant in the assault on Mr. Roybal. The testimony was relevant to the Lopezes’ veracity, People v. Honey, supra, but notwithstanding its relevance, its probative value, considering the other evidence which was relevant to the *561 issue, must outweigh the prejudice which would result from its admission. Id., Colo., 596 P.2d at 754 . Although the trial judge is allowed wide discretion when he weighs these matters, People v. Ihme, 187 Colo. 48 , 528 P.2d 380 (1974), my review of the record leads to the conclusion that the trial judge should not have admitted the evidence describing the assault on Mr. Roybal. The Lopezes’ testimony was believable. The evidence of their animus toward the defendant did not inexorably lead to the conclusion that they had concocted their accusations to “get” him. Defendant’s alibi witnesses, while not unworthy of belief, were cross-examined thoroughly and could easily have been disbelieved. Considering this evidence together with the rebuttal value of the Roybals’ non-prejudicial testimony that the defendant and his brother appeared at their door before 1:00 a. m. on August 3, I conclude that despite the limiting instructions given to the jury, the prejudicial impact of the Roybals’ graphic account of the defendant’s assault on Mr. Roybal and the evidence of the subsequent police investigation exceeded its value as proof of the Roy-bals’ credibility and, indirectly, of the Lo-pezes’ veracity.

Under any circumstances, evidence of other crimes suggests to the jury that the accused “is a depraved person who likely would commit the crime for which he is being tried.” Stull v. People, 140 Colo. 278, 284 , 344 P.2d 455, 458 (1959). In certain cases the risk that the accused will be convicted by “damning innuendo,” id., is countenanced because the evidence is not only highly probative of but “necessary” to prove some other fact material to his guilt or innocence. People v. Honey, supra, Colo., 596 P.2d at 754 . In other cases, however, the risk is too grave to be tolerated. I believe that this is one such case.

Not only was the account of the assault on Mr. Roybal unnecessary 1 to impeach the defendant’s alibi, but, equally significantly, its prejudicial tendency to convict the defendant of one crime by proof that he was guilty of another was aggravated by close parallels between the Lopez and Roybal incidents. 2 Both involved knife-wielding assaults on persons with whom the defendant or his brother Ramon had recently and heatedly quarreled over family matters. Ramon actively participated in both incidents. Both occurred within several hours of one another. Under these circumstances, the testimony describing the assault on Mr. Roybal and identifying the defendant as his assailant overwhelmingly suggested that defendant and his brother had embarked on a violent, night-long vendetta against their in-laws 3 — a vendetta which began with the attempted assault on Heriberto Lopez and the firebombing of the Lopezes’ duplex and culminated in the attack on Albert Roybal. Yet it is precisely this all too natural inference — that, on the night in question, the defendant possessed a marked propensity to engage in family related violence — that cannot be tolerated under our system of criminal justice.

Admission of other crimes is reversible error when, although relevant to prove the material issue for which it is offered, its probative value, considering the other evidence relevant to that issue, is outweighed by its prejudicial tendency to convict a defendant of one offense by proof that he is guilty of another. See People v. Honey, supra; People v. Lucero, Colo., 615 P.2d 660 (1980). I therefore dissent.

I am authorized to say that Justice QUINN joins me in this dissent.

. Had evidence describing the assault or the entry upon the Roybal residence been the only rebuttal evidence at the prosecution’s disposal, its probative value would have exceeded its prejudicial impact.

. The charges underlying the Lopez and Roybal incidents were severed to avoid this problem.

. Ramon’s relationship with the Roybals’ daughter is not clearly established by the record. At one point the record suggests that they were common-law spouses; at another they are described as boyfriend and girlfriend.