People v. Quintana

Justice ERICKSON

specially concurring in the result only:

In my view a number of errors occurred in the admission of evidence during defendant’s trial. However, the errors which occurred in this case, as I view them, were harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). 16 In People v. Quintana, No. 91CA1457, slip. op. (Colo.App. May 13, 1993) (not selected for publication) the court of appeals held that the trial court committed reversible error in admitting the statements of Anthony Joseph Quintana (defendant) under CRE 404(b). The court of appeals determined that the statements were inadmissible because the prosecution failed to articulate a precise evidential hypothesis for their admission. I agree with the court of appeals, but I do not agree that the errors committed by the trial judge in this case require reversal and a new trial.

The majority, in reversing the court of appeals, holds that defendant’s statements were admissible. I do not agree that a proper foundation was laid in the trial court for the admission of the statements or that the statements were properly admitted as evidence to show defendant’s intent to eliminate witnesses. I concur in the result because the evidence of defendant’s guilt was overwhelming and the admission of defendant’s statements could not have changed the jury’s verdict.

I

On May 29, 1989, Anthony Martinez (victim) drove defendant and two companions, Allen Eubanks (Eubanks) and Russel Eloyd (Eloyd), to a rural area outside of La Junta. While there, defendant and Eubanks stabbed, beat, and battered the victim with rocks. They then hauled the unconscious victim to a remote location, again assaulted him, and left him to die.

On June 19, 1989, defendant was charged with first-degree murder, 17 felony murder during kidnapping, 18 conspiracy to commit murder, 19 and crime of violence 20 (collectively “crimes”). Defendant pleaded not guilty and not guilty by reason of insanity at the time of the alleged commission of the offense. Defendant claimed his extensive drug use and his use of LSD on the evening of the murder made him incapable of determining right from wrong. A jury found defendant to be sane at the time that the crimes were committed.

Over objection, in the guilt phase of the trial the prosecution introduced testimony from Eloyd that defendant had made three statements (collectively “statements”) about committing future crimes. Defendant claims that the admission of this testimony constitutes reversible error. I agree that error occurred, but that reversal and a new trial is not required.

The first statement occurred after Eloyd refused to hit the victim with rocks. Eu-banks stated, “throw it or we’ll kill you.” After Eloyd threw the rock defendant stated, “Don’t worry about it, he’ll kill Troy Ket- *1377 chum.” Defendant then told Eloyd to kill Troy Ketchum. 21

Eloyd also testified that moments later defendant stated that he wanted to kill his former girlfriend “because she had his baby and she was a dike, and he didn’t want his baby to grow up around her.”

As the three drove back to town, Eloyd testified that defendant said, “Let’s go get some guns, and we’ll go kill Mr. — the Wileys for some guns in Las Animas.”

The thrust of defendant’s statements reflected his intent to commit future murders and did not relate to past acts or crimes.

II

The majority finds that “the court of appeals erred in restricting its analysis of the admissibility of the statements under CRE 404(b) to whether the statements were admissible to prove intent to eliminate witnesses.” Maj. op. at 1372. The majority determines that review of the trial court’s order was too narrow, and then considers whether the statements were properly admitted at trial. In making this determination the majority holds that “the three statements were legally admissible at trial as res gestae evidence.” Maj. op. at 1375. I disagree. The statements were not offered as paid of the res gestae. Res gestae was not an issue raised in the trial court.

A

Unless otherwise provided by constitution, statute or rule, all relevant evidence is admissible. CRE 402. Relevant evidence, however, may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.” CRE 403. The admissibility of relevant evidence is further limited by CRE 404(b), which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

For prior acts evidence to be admissible: (1) it must relate to a material fact, (2) it must be logically relevant (make the existence of a material fact more or less probable than it would be without the evidence), (3) its logical relevance must be independent of the prohibited inference that defendant has a bad character, and (4) its probative value must substantially outweigh the danger of unfair prejudice. People v. Spoto, 795 P.2d 1314, 1318 (Colo.1990). Here, the prosecution was required to establish each of these factors by a preponderance of the evidence. People v. Garner, 806 P.2d 366, 370 (Colo.1991). In addition, nearly all of the statements in issue relate to future rather than past acts, which do not provide a basis for admission under CRE 404(b).

Defendant asserts that because he had ingested LSD prior to contact with the victim he was incapable of forming the requisite intent to commit the crime charged. The prosecution claimed that the statements about committing future crimes were relevant to prove plan or intent to eliminate witnesses. The statements, however, were never offered to show culpable mental state for the crime charged.

Under the Spoto standard, the statements at issue must be logically relevant independent of the inference prohibited by CRE 404(b) that defendant had a bad character. “To be admissible, the prosecution must articulate a precise evidential hypothesis by which a material fact can be permissibly inferred from the prior act independent of the use forbidden by CRE 404(b).” Spoto, 795 P.2d at 1319 . See United States v. Hogue, 827 F.2d 660, 662 (10th Cir.1987) (In showing the relevance of other acts evidence the “Government must articulate precisely the evidentiary hypothesis by which a fact of consequence may be inferred from the evidence of other acts.”). 22

*1378 The reason for the requirement that the prosecution offer past similar act evidence for a particular purpose is to provide the defense with a fair opportunity to object to the admission of the evidence. If, as the majority states, an appellate court can search for a basis for the admission of the similar past acts evidence that was not presented to the trial court, the defense is deprived of the opportunity to object to the admission of the evidence. Here, the evidence offered by the prosecution to establish defendant’s intent to commit future crimes was limited by the prosecution’s offer. However, the trial judge admitted the evidence, contrary to Spoto , to show intent to commit the crime charged. The majority eliminates the requirement of the specific offer required by Spoto and admits the evidence for all purposes under the res gestae exception, which was never before the trial court.

The prosecution did not offer the statements to establish defendant’s intent to commit the crimes charged, but only to show defendant’s intent to eliminate witnesses. The statements only proved defendant’s bad character, and had no other probative value. Prejudice to the accused from the admission of the statements outweighed their probative value. Consequently, the prosecution failed to meet its burden of proof. The court of appeals did not err in restricting its inquiry to whether, under 404(b), defendant’s statements showed an intent to eliminate witnesses.

B

Relevant evidence may be excluded if “its probative value is substantially outweighed by the danger of unfair prejudice.” CRE 403. The majority concludes that the statements were “probative of intent to commit the crime charged” and “taken in context, these statements were not unduly inflammatory nor likely to prevent the jury from making a rational decision.” Maj. op. at 1374. Again, I disagree.

Relevant evidence is evidence having a tendency to make the existence of a fact in issue more probable or less probable than it would be without the evidence. CRE 401. However, a difference exists, which the majority does not recognize, between defendant’s ability to form an intent to commit other murders, and his intent to commit the victim’s murder in the present case.

Although defendant’s statements occurred contemporaneously with and shortly after the victim was murdered, they involved threats of future assaults against persons other than the victim. The statements were thus not probative of whether or not defendant committed the crime charged, but only relevant to prove that defendant could form the intent to commit murder.

In Stull v. People, 140 Colo. 278 , 344 P.2d 455 (1959), this court recognized the potential prejudice resulting from admitting prior bad act evidence:

Bearing in mind that evidence of similar acts has inhering in it damning innuendo likely to beget prejudice in the minds of jurors, and that such evidence tends to inject collateral issues into a criminal case which are not unlikely to confuse and lead astray the jury, it becomes exigent that courts observe the fine balance in regard to such evidence that must exist between the necessity of proof on the part of the prosecutor and the danger of unfair prejudice to the defendant.

Id. at 284 , 344 P.2d at 458 . Evidence of defendant’s bad character is excluded because “he may be found guilty on the present charge, not because he is believed to be guilty, but because his bad character may be *1379 thought by the jury to deserve punishment or to deprive an erroneous verdict of its moral injustice.” People v. Lucero, 200 Colo. 335, 343 , 615 P.2d 660, 665 (1980).

It is clear that defendant’s statements about his intent to commit other murders could have been used by the jury to infer bad character and to convince the jury that defendant committed the murder. The potential for prejudice was great.

C

After determining that defendant’s statements were not “other act” evidence under CRE 404(b), the majority concludes that the statements were properly admitted as res gestae evidence of the crime charged. Maj. op. at 1373. I disagree. Res gestae was not raised by the prosecution in the trial court or addressed by the trial judge.

Evidence of other offenses or acts that is part of the criminal episode or transaction with which defendant is charged is admissible to provide the fact-finder with a complete understanding of the events surrounding the crime and the context in which the charged crime occurred. People v. Czemerynski, 786 P.2d 1100, 1109 (Colo.1990). Res gestae evidence includes acts and words that are part of the transaction and allow for a proper understanding of the main fact. Woertman v. People, 804 P.2d 188 , 190 n. 3 (Colo.1991). Res gestae evidence is not subject to -the general rule that excludes evidence of prior criminality. Czemerynski, 786 P.2d at 1109 .

Although defendant’s statements were made contemporaneously with and shortly after the crime charged, their temporal relation to the crime is insufficient to categorize them as res gestae evidence. The statements fail to provide an understanding of the context in which the crime occurred or set a background for the events leading up to the victim’s murder. The statements related to defendant’s plans to commit future crimes against persons other than the victim. Defendant’s statements cannot properly be characterized as res gestae evidence and should not have been admitted under CRE 404(b). Therefore, the evidence was not admissible as part of the res gestae.

D

In determining whether error in a criminal trial is harmless, the proper inquiry “is whether the error substantially influenced the verdict or affected the fairness of the trial proceedings.” Tevlin v. People, 715 P.2d 338, 342 (Colo.1986). An error in a criminal trial is harmless “if there is not a reasonable possibility that the error contributed to the defendant’s conviction.” People v. Taylor, 197 Colo. 161, 164 , 591 P.2d 1017, 1019 (1979).

The proper analysis, when a constitutional issue is involved, requires the reviewing court to consider whether the error was harmless beyond a reasonable doubt. Key v. People, 715 P.2d 319, 323 (Colo.1986). Harmless error exists “only when a reviewing court can say with fair assurance that, in light of the entire record, the error did not substantially influence the verdict or impair the fairness of the trial.” Lybarger v. People, 807 P.2d 570, 581 (Colo.1991).

In Sullivan v. Louisiana, — U.S. —, 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993) the United States Supreme Court discussed the role of a reviewing court in harmless error analysis. The Court stated that Chapman “instructs the reviewing court to consider not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand.” Sullivan , — U.S. at —, 113 S.Ct. at 2081 , (citing Chapman, 386 U.S. at 24 , 87 S.Ct. at 828 ). “The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.” Sullivan , — U.S. at —, 113 S.Ct. at 2081 .

In the present case, the evidence of guilt was so overwhelming that the error was harmless beyond a reasonable doubt. Eloyd and Eubanks testified that defendant began stabbing the victim, and continued to stab him after the victim attempted to get away. The victim had eight stab wounds, one of which was to his throat. Eloyd further stated that the victim began to pray and defen *1380 dant responded by kicking him in the face, and striking him with rocks.

The admission of defendant’s statements did not affect the fairness of the trial or materially contribute to defendant’s conviction. The guilty verdict in this case was not attributable to defendant’s three statements about his intent to commit future crimes.

Accordingly, I concur in the result and would reverse the court of appeals and reinstate the judgments of conviction and sentences imposed by the trial court because the admission of defendant’s statements was harmless beyond a reasonable doubt in view of the overwhelming and unrefuted evidence in the record. Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).

I am authorized to say that Justice KIRSHBAUM and Justice SCOTT join in this special concurrence.

.The court of appeals analyzed the trial court's error as one of constitutional dimension. The defendant claims that the trial court's error denied him his constitutional right to a fair trial. The alleged error relating to the admission of the statements may not be of constitutional dimension.

If an error is of constitutional dimension, the error will require reversal unless it is harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24 , 87 S.Ct. at 828 . Errors in criminal trials that do not involve constitutional rights are harmless when the error does not "substantially influence the verdict or impair the fairness of the trial." Lybarger v. People, 807 P.2d 570, 581 (Colo.1991).

I have assumed for the purpose of this opinion that the errors in admitting the defendant’s statements would require reversal if the error was not harmless beyond a reasonable doubt.

. § 18-3-102, 8B C.R.S. (1986).

. § 18-3-102(l)(b), 8B C.R.S. (1986).

. § 18-2-201, 8B C.R.S. (1986); § 18-3-102, 8B C.R.S. (1986).

. § 16-11-309, 8A C.R.S. (1986).

. Troy Ketchum was a friend of defendant, Eloyd, and Eubanks.

. Here, the evidence was offered by the prosecution to show an intent to eliminate witnesses. However, the trial judge instructed the jury before the evidence was admitted that:

*1378 Certain evidence may be admitted for a particular purpose and no other. The testimony you are about to hear from this witness is such evidence. It may be used as evidence for the purpose of showing intent or absence of mistake or accident on the part of the defendant or for purposes of assessing credibility, and you should consider it as evidence for no other purpose.

The jury instruction also provided:

Instruction 24

The court admitted certain evidence for a limited purpose. At that time you were instructed not to consider it for any purpose other than the limited purpose for which it was admitted. You are again instructed that you cannot consider evidence admitted for a limited purpose except for the limited purpose for which it was admitted.