concluding that exclusion of evidence did not violate defendant's constitutional rights where defendant failed to make a plausible showing of how the evidence would have been both material and favorable to her defense
How later courts described this case
- concluding that exclusion of evidence did not violate defendant's constitutional rights where defendant failed to make a plausible showing of how the evidence would have been both material and favorable to her defense
- reviewing the defendant's contention that evidence was admissible as a prior consistent statement for plain error where that argument was not raised at trial
- “Under the rule of completeness, when one party introduces part of a written or recorded statement, the opposing party can introduce other parts of that statement. . . . However, self-serving hearsay declarations made by a defendant may be excluded because there is nothing to guarantee their trustworthiness.”
- any error in refusing to admit statement against interest was harmless because the evidence was cumulative
Written by the judges who cited it.
The opinion
Judge CONNELLY
specially concurring.
I write separately because my analysis of the statutory issue involving the interplay between the criminal and liquor codes differs from that of the lead opinion. I concur in the result on that issue, and concur in the remainder of the opinion.
On its face, the criminal code provision under which defendant was convicted undeniably covers her conduct. Defendant argues she should have been prosecuted for a misdemeanor offense under the liquor code rather than for a felony offense under the eriminal code. This normally would be a losing argument: where two criminal statutes apply to the same conduct, the "general rule" allows prosecutions under either statute. People v. Stewart, 55 P.3d 107, 118 (Colo.2002) (applying the "general rule" that "the prosecution has discretion to determine what charges to file when a defendant's conduct violates more than one statute"). But two cases decided prior to 1997 construed the liquor code, as it then existed, to displace this general rule. See People v. Bagby, 734 P.2d 1059 (Colo.1987) People v. O'Donnell, 926 P.2d 114 (Colo.App.1996)
In 1997, the Colorado legislature unequivocally reinstated the general rule allowing persons providing alcohol to minors to be charged under either the liquor code or the criminal code. This express authorization lapsed from 2005 when the legislature created a new subsection until 2007 when it recognized and corrected the drafting error.
To me, the issue is whether defendant may be prosecuted under a criminal code provision plainly covering her conduct during a gap period when the liquor code did not expressly allow the prosecution. Should we apply the general rule allowing prosecution under either of two applicable statutes, or the Bagby-O'Donmell construction of the pre-1997 liquor code?
*733 I would apply the general rule. The 1997 legislature made clear its intent to allow prosecutions in cases like this under either the criminal or liquor code. While this express authorization inadvertently lapsed from 2005-2007, there is no indication the legislature intended to displace the criminal code during that period. Accordingly, while Bag-by and O'Dommell construed the pre-1997 liquor code implicitly to displace the eriminal code, those analyses of pre-1997 legislative intent do not control after 1997.
Defendant therefore may be prosecuted under a criminal code provision that plainly covers her conduct. We need not construe the 2005-2007 liquor code to authorize prosecution under the criminal code; instead, we need only hold it did not preclude such a prosecution.