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holding that, under CRE 608, inquiry on cross-examination into a witness' prior shoplifting was admissible to impeach that witness' testimony that she was "honest"
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No. 08SA164.
November 24, 2008.
Appeal from the District Court, Eagle County, Frederick W. Gannett, J.
Mark D. Hurlbert, District Attorney, Fifth Judicial District, Anne P. Francis, Deputy District Attorney, Eagle, Colorado, Attorney for Plaintiff.
Theodore G. Hess, Bill Schubert, Hess Schubert, LLP, Glenwood Springs, Colorado, Attorneys for Defendant.
In this original proceeding brought pursuant to C.A.R. 21, the defendant in a criminal case seeks review of the trial court's denial of his motion to dismiss on double jeopardy grounds. We issued a rule to show cause to the trial court and now make that rule absolute, holding that the trial court erred in finding evidence of a prior instance of shop-lifting inadmissible pursuant to CRE 608(b). Based on what occurred during the trial, there was no manifest necessity to declare a mistrial. Accordingly, the Double Jeopardy Clause prohibits retrial of the defendant.
I. Facts and Procedural History
Petitioner, Jose Palma Segovia (Palma), is charged with sexual assault on a child. He was brought to trial on February 4, 2008, where the prosecution's chief witness was the thirteen-year-old victim, T.L. Palma contended that T.L.'s allegations were fabricated, and was prepared to offer videotapes and call witnesses to support his theory of the case. After T.L. testified, she was cross-examined by defense counsel. The following exchange occurred:
Defense counsel and the court of appeals referred to Petitioner as Mr. Palma, rather than Mr. Segovia.
[Defense counsel]: Now, you have promised the Judge to tell the truth to this jury, haven't you?
[Witness]: Yes.
[Defense counsel]: And in order to tell the truth to the jury, that requires you to be honest, correct?
[Witness]: Yes.
[Defense counsel]: Okay. And — but you're not always honest, are you?
[Witness]: What do you mean?
[Defense counsel]: Well, I mean in mid-July, around July 15th of 2007, at your mother's store in Avon, you and Josh stole $100 from your mother's store, didn't you?
[Witness]: No.
At this point, the prosecutor objected and defense counsel asserted CRE 608(b) as grounds to allow the question.
Outside the presence of the jury, the trial court and the attorneys addressed the objection. The trial court ruled that the question about shoplifting was a prior bad act that was inadmissible pursuant to CRE 404(b) and was not properly noticed to the court and prosecutor. Additionally, the court held that defense counsel was attempting to attack T.L.'s truthfulness by extrinsic evidence, which was impermissible. The court also concluded the shoplifting incident would go to truthfulness only if counsel established "she was untruthful with regard to that issue when questioned by someone on that topic." Furthermore, the court held that the prosecution had not bolstered T.L.'s credibility on direct examination, so the witness's truthfulness was not at issue. Finally, the court concluded the error could not be corrected and sua sponte declared a mistrial.
Palma filed a motion to dismiss the charge on double jeopardy grounds. The trial court denied the motion and scheduled a second trial. Palma seeks review of that ruling.
An original proceeding is appropriate to prevent an excess of jurisdiction by a lower court where no other remedy would be adequate. Paul v. People, 105 P.3d 628, 632-33 (Colo. 2005). Because Palma may other-wise be forced to endure a second trial in violation of his constitutional rights, we exercise our original jurisdiction under C.A.R. 21. See id.
II. Analysis
Palma seeks to have the charge against him dismissed on grounds of double jeopardy. He argues the trial court erred in its evidentiary ruling that defense counsel's question about shoplifting was improper. Palma contends that, because the trial court erred in its evidentiary ruling, there was no manifest necessity to declare a mistrial. Accordingly, Palma asserts that subjecting him to a second trial would constitute double jeopardy.
A. Admissibility of Shoplifting Evidence
Trial courts are afforded considerable discretion in deciding evidentiary issues, so such decisions will not be disturbed absent an abuse of discretion. Masters v. People, 58 P.3d 979, 996 (Colo. 2002). However, a trial court necessarily abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence. People v. Wadle, 97 P.3d 932, 936 (Colo. 2004).
1. CRE 404(b) or CRE 608(b)
At the outset, we clarify some confusion in the trial court's ruling because it is not entirely clear under what rule the trial court found the question objectionable. The trial court merged its analysis of the evidence under two evidentiary rules: it found the substance of the shoplifting question objectionable pursuant to CRE 404(b) and found the method of proof objectionable pursuant to CRE 608(b). We first explain why the shoplifting question was properly at issue under rule 608(b), rather than rule 404(b).
Both rule 404(b) and rule 608(b) permit admission of evidence that would otherwise be considered inadmissible character evidence for limited purposes. Rule 404(b) prohibits the use of evidence to show a person acted in conformity with a certain character, but does not preclude use of that evidence for other purposes, such as proof of motive, opportunity, intent, plan, or absence of mistake. People v. Kraemer, 795 P.2d 1371, 1377 (Colo.App. 1990). Rule 404(b) does not address the use of evidence for impeachment. Id.; see also CRE 404(a)(3) (explaining that evidence of a person's character is admissible as provided in rule 608). In contrast, rule 608(b) governs evidence used to impeach a witness's credibility. Thus, evidence of specific acts used solely for impeachment is governed by rule 608(b), rather than rule 404(b). Kraemer, 795 P.2d at 1377; People v. Harris, 892 P.2d 378, 382 (Colo.App. 1994) (suggesting that if the evidence is admitted solely for impeachment purposes, it is questionable whether a rule 404(b) analysis is required).
Here, defense counsel asked T.L. about the shoplifting act in order to impeach her credibility. This purpose is made apparent by counsel's foundational question: "But you're not always honest, are you?" The evidence was not offered for any of the purposes listed in rule 404(b), so the trial court erred when it applied that rule to the evidence.
2. CRE 608(b)
We next consider whether defense counsel's question was admissible under rule 608(b), starting with whether the question was the correct method of impeachment. Specific instances of conduct intended to impeach the credibility of a witness may not be proved by extrinsic evidence, but may be inquired into on cross-examination of a witness. CRE 608(b); People v. Cole, 654 P.2d 830, 832 (Colo. 1982). The rule provides:
Specific instances of the conduct of a witness, for the purpose of attacking or sup-porting the witness' character for truthfulness other than conviction of crime as provided in [section] 13-90-101 may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or un-truthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness. . . .
CRE 608(b). Extrinsic evidence is evidence not contained in the source before the court, but which is available from other sources. Black's Law Dictionary 597 (8th ed. 2004). Thus, where a witness is testifying, her answer to any question is intrinsic evidence, while the admission of any documents or calling of other witnesses constitutes extrinsic evidence. See People v. Taylor, 190 Colo. 210, 213-14, 545 P.2d 703, 705-07 (1976). Here, defense counsel inquired about an act of shoplifting during cross-examination, which is intrinsic evidence that complies with rule 608(b). Therefore, the trial court erred in concluding that asking the question on cross-examination was extrinsic evidence.
Because the question was not extrinsic evidence, we next consider whether an act of shoplifting is proper impeachment evidence under rule 608(b). If a witness takes the stand and testifies, she puts her credibility in issue. People v. Drake, 748 P.2d 1237, 1246 (Colo. 1988). Thus, the opposing party is entitled to impeach the witness's credibility. See id. Under rule 608(b), a witness may be asked about specific instances of conduct that are probative of a witness's character for truthfulness or untruthfulness. E.g., People v. Pratt, 759 P.2d 676, 680 (Colo. 1988). The rule does not explain how to determine if an act is probative of truthfulness, and there is no committee comment on the rule to guide our inquiry.
While it is prudent for counsel to seek a preliminary ruling as to the admissibility of a specific instance of conduct, see CRE 103(c), rule 608(b) does not require notice to the court or opposing counsel in this case. Nor does our holding in People v. Pratt, 759 P.2d 676 (Colo. 1988). In Pratt, we considered the impeachment of a character witness pursuant to CRE 608(b)(2) with a specific instance of the defendant's conduct. Id. at 681. We held that a prosecutor should obtain a favorable ruling from the trial court before cross-examining a character witness concerning other acts of the defendant. Id. at 685. We reasoned that inquiry into the prior acts of a criminal defendant is generally not allowed. Id. at 682. Thus, the prosecutor's obligations before asking a question about a defendant's prior instances of conduct were similar to the prosecutor's obligations under CRE 404(b). Id. (explaining that a prosecutor must obtain a favorable ruling from the trial court before attempting to admit rule 404(b) evidence). Moreover, the specific instances of conduct offered in Pratt were highly prejudicial because they were irrelevant to the defendant's veracity and had no basis in fact. Id. at 683-84. Pratt's holding is a narrow one and has not been expanded. Accordingly, our holding in Pratt did not require defense counsel to seek a preliminary ruling in this case.
Colorado courts have held that the following instances of conduct are probative of the witness's truthfulness: providing false information to a police officer, e.g., People v. Garcia, 17 P.3d 820 (Colo.App. 2000); intentionally failing to file tax returns, Kraemer, 795 P.2d 1371; and misrepresenting financial information to obtain a loan, People v. Distel, 759 P.2d 654 (Colo. 1988). In contrast, Colorado courts have excluded acts of violence, People v. Ferguson, 43 P.3d 705 (Colo.App. 2001); instances of drug use, People v. Saldana, 670 P.2d 14 (Colo.App. 1983); and bigamy, People v. Lesslie, 939 P.2d 443 (Colo.App. 1996), because those acts are not probative of truthfulness.
This court has never considered whether an act of shoplifting is probative of truthfulness or untruthfulness pursuant to rule 608(b). In People v. Jones, however, the court of appeals concluded that "although shoplifting obviously involves a form of dishonesty, a disregard of property rights of others is not probative of a propensity to be truthful or untruthful." 971 P.2d 243, 244 (Colo.App. 1998). We take this opportunity to decide whether shoplifting, an act that involves dishonesty, is probative of truthfulness.
To aid our analysis, we conducted a fifty-state and federal survey, which revealed the law is not well-settled. A majority of federal courts and some state courts have held that acts of theft are not probative of truthfulness or do not involve dishonesty. In contrast, a number of courts have concluded that theft is probative of truthfulness or dishonesty.
In our analysis, we found helpful cases that considered the definition of "untruthful" or "dishonest" pursuant to comparable rules of evidence. Courts that have addressed the question have interpreted two rules: a counterpart to FRE 608(b), which is identical to CRE 608(b), and a counterpart to FRE 609(a)(2), to which Colorado does not have a comparable rule. Compare § 13-90-101, C.R.S. (2008), with FRE 609. While FRE 608(b) allows impeachment by acts that are probative of truthfulness, FRE 609(a)(2) permits impeachment by non-felony convictions that involve dishonesty.
Rhodes v. State, 276 Ark. 203, 634 S.W, 2d 107, 110-11 (1982) (shoplifting is not probative of truthfulness); State v. Gollehon, 262 Mont. 1, 864 P.2d 249, 258 (1993) (theft); State v. Bashaw, 147 N.H. 238, 785 A.2d 897, 900 (2001) (petty theft); State v. Bell, 338 N.C. 363, 450 S.E.2d 710, 720-21 (1994) (larceny); State v. Woodfork, 454 N.W.2d 332, 335 (S.D. 1990) (shoplifting); Punches v. State, 944 P.2d 1131, 1138 (Wyo. 1997) (shoplifting).
United States v. Dunson, 142 F.3d 1213, 1215-16 (10th Cir. 1998) (shoplifting does not involve dishonesty); McHenry v. Chadwick, 896 F.2d 184, 188 (6th Cir. 1990) (shoplifting); United States v. Scisney, 885 F.2d 325, 326 (6th Cir. 1989) (shoplifting); United States v. Yeo, 739 F.2d 385, 387-88 (8th Cir. 1984) (theft); United States v. Ashley, 569 F.2d 975, 979 (5th Cir. 1978) (shoplifting); United States v. Dorsey, 591 F.2d 922, 934-35 (D.C. Cir. 1978) (shoplifting) superseded by statute, 18 U.S.C. § 924 (1993), as recognized in United States v. Fennell, 53 F.3d 1296 (D.C. Cir. 1995); United States v. Ortega, 561 F.2d 803, 806 (9th Cir. 1977) (shoplifting); State v. Sims, 526 N.W.2d 201, 202 (Minn. 1994) (shop-lifting).
United States v. Smith, 80 F.3d 1188, 1193 (7th Cir. 1996) (theft is probative of truthfulness); State v. Fields, 730 N.W.2d 777, 783 (Minn. 2007) (theft); Shumpert v. State, 935 So.2d 962, 971-72 (Miss. 2006) (theft); State v. Hurlburt, 132 N.H. 674, 569 A.2d 1306, 1307 (1990) (misappropriation); State v. Wyman, 96 N.M. 558, 632 P.2d 1196, 1197-98 (Ct.App. 1981) (theft).
Richardson v. State, 579 P.2d 1372, 1376-77 (Alaska 1978) (shoplifting involves dishonesty); Webb v. State, 663 A.2d 452, 461 (Del. 1995) (shoplifting); State v. Page, 449 So.2d 813, 816 (Fla. 1984) (petty theft); People v. Spates, 77 Ill.2d 193, 32 Ill.Dec. 333, 395 N.E.2d 563, 568 (1979) (theft); State v. Grover, 518 A.2d 1039, 1041 (Me. 1986) (theft); Jaramillo v. Fisher Controls Co., 102 N.M. 614, 698 P.2d 887, 895-96 (Ct.App. 1985) (shoplifting); State v. Brown, 85 Ohio App.3d 716, 621 N.E.2d 447, 454 (1993) (theft); Cline v. State, 782 P.2d 399, 400-01 (Okla.Crim.App. 1989) (theft); State v. Gallant, 307 Or. 152, 764 P.2d 920, 923 (1988) (petty theft); Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120, 123 (1987) (theft); State v. Shaw, 328 S.C. 454, 492 S.E.2d 402, 404 (Ct.App. 1997) (shoplifting); State v. Butler, 626 S.W.2d 6, 11 (Tenn. 1981) (shoplifting); State v. Ray, 116 Wash.2d 531, 806 P.2d 1220, 1228 (1991) (theft).
These cases can be grouped into three categories, based on their view of the definition of truthfulness or dishonesty: broad, middle, and narrow. 3 Christopher B. Mueller Laird C. Kirkpatrick, Federal Evidence § 6.33 (3d ed. 2007). The broad approach would allow testimony of any indication of weak or bad character as probative of veracity. Id, This approach improperly subjects a witness to questioning about almost any event in her past. Almost no modern decisions adopt this view. Id.
In contrast, the narrow approach requires the act to have an element of false statement or deception, limiting the inquiry to acts such as perjury, false statement, criminal fraud, embezzlement, or false pretense. Id. A majority of federal courts take this view.
See federal cases cited supra note 5.
The middle view incorporates the narrow view but also suggests that conduct seeking personal advantage by taking from others in violation of their rights reflects on dishonesty or truthfulness. Id. In our view, the middle approach strikes the appropriate balance, as it acknowledges that some acts that do not involve false statement or misrepresentation are nonetheless probative of truthfulness. See id.; United States v. Manske, 186 F.3d 770, 775 (7th Cir. 1999). Therefore, we decline to follow the courts that have reasoned that only acts that have an affirmative element of misrepresentation or false statement are probative of truthfulness, because these holdings create an unduly narrow category of acts that reflect on one's character for truthfulness.
We are most persuaded by those courts that have taken the middle approach and have concluded theft is probative of truthfulness or dishonesty. "Dishonest" is a synonym for "untruthful." Webster's New College Dictionary 1568 (2005). It is illogical to conclude that an act which involves dishonesty is at the same time an act that is not probative of truthfulness. Moreover, common experience informs us that a person who takes the property of another for her own benefit is acting in an untruthful or dishonest way. See Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967) ("[A]cts of . . . stealing, for example, are universally regarded as conduct which reflects adversely on a man's honesty and integrity."); see also State v. Shaw, 328 S.C. 454, 492 S.E.2d 402, 404 (Ct.App. 1997). Such behavior reflects on one's truthfulness because a person who stole from another may be more inclined to obtain an advantage for herself by giving false testimony. Varhol v. Nat'l R.R. Passenger Corp., 909 F.2d 1557, 1567 (7th Cir. 1990). There-fore, we hold that shoplifting is a specific instance of conduct that is probative of truthfulness pursuant to CRE 608(b). To the extent Jones, 971 P.2d 243, is contrary to our holding, we overrule it.
See cases cited supra notes 6 and 7.
We note that a prior act of shoplifting does not always mean a witness will testify untruthfully. This is especially true where there are facts that lessen the blame attached to the act, e.g., the act is committed at a young age, as a result of peer pressure, or involves property of minimal value. However, such considerations generally go to the weight given the evidence by the jury, rather than to its admissibility.
Additionally, our holding does not restrict admissibility considerations under CRE 403 and other applicable evidentiary rules. See, e.g., People v. Lesslie, 939 P.2d 443, 452 (Colo.App. 1996) ("[I]t is well within [the court's] discretion to exclude [CRE 608(b) evidence] as being more prejudicial than probative."). Therefore, a trial court could exercise its discretion to exclude an act of shoplifting if it found the act inadmissible for other reasons.
The trial court in this case did not engage in a discretionary analysis under CRE 403.
Furthermore, our holding in no way suggests a misdemeanor conviction for shoplifting is probative of truthfulness. Rather, only the underlying circumstances surrounding the act are admissible pursuant to rule 608(b). E.g., Drake, 748 P.2d at 1246; People v. Robles, 183 Colo. 4, 7, 514 P.2d 630, 631 (1973); People v. Garcia, 17 P.3d 820, 829 (Colo.App. 2000); People v. Armstrong, 704 P.2d 877, 880 (Colo.App. 1985).
Because the trial court erroneously determined CRE 404(b) applied to the evidence and incorrectly interpreted CRE 608(b), we hold that the trial court abused its discretion in finding defense counsel's question improper.
B. Declaration of Mistrial
Double jeopardy is a constitutional guarantee prohibiting retrial of a defendant who has previously been tried for the same offense. People v. Berreth, 13 P.3d 1214, 1216 (Colo. 2000). The Fifth Amendment of the United States Constitution provides that no person "shall . . . be subject for the same offense to be twice put in jeopardy. . . ." U.S. Const, amend v. Similarly, the Colorado Constitution provides that no person "shall . . . be twice put in jeopardy for the same offense." Colo. Const. art. II, § 18. Double jeopardy prevents the government from repeatedly trying to obtain a conviction against an accused, but also protects a defendant's right to have a verdict returned by a particular jury. Berreth, 13 P.3d at 1216.
There is no question that jeopardy has attached to the charge against Palma because the jury was sworn before the mistrial was declared. See People v. Berreth, 13 P.3d 1214, 1216 (Colo. 2000).
The Fifth Amendment applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).
Where the first trial is terminated — without a defendant's consent — before the case is decided by the jury, double jeopardy bars a retrial unless the trial court had sufficient legal justification to declare a mistrial. Id The trial court is justified in declaring a mistrial where the circumstances amount to "manifest necessity," or where the trial court in a "scrupulous exercise of judicial discretion [reaches] the conclusion that the ends of public justice would not be served by a continuation of the proceedings." United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); see also Berreth, 13 P.3d at 1216. Manifest necessity includes those circumstances, "substantial and real, that interfere with or retard `the administration of honest, fair, even-handed justice to either, both, or any, of the parties to the proceeding.'" People v. Castro, 657 P.2d 932, 942 (Colo. 1983) (quoting Brown v. People, 132 Colo. 561, 569, 291 P.2d 680, 684 (1955)). The General Assembly has listed a number of circumstances where a mistrial is justified. § 18-l-301(2)(b), C.R.S. (2008). While the list is not exhaustive, Paul, 105 P.3d at 633, the statute and case law clearly establish that manifest necessity arises where circumstances are serious and outside the control of the trial court. Berreth, 13 P.3d at 1217. Finally, a mistrial is justified only where other reasonable alternatives are no longer available. Paul, 105 P.3d at 633.
Section 18-l-301(2)(b) states:
Termination is not improper . . . [if the] trial court finds that: (I) The termination is necessary because it is physically impossible to proceed with the trial in conformity with the law; or (II) There is a legal defect in the proceedings that would make any judgment entered upon a verdict reversible as a matter of law; or (III) Prejudicial conduct has occurred in or outside the courtroom making it unjust either to the defendant or to the state to proceed with the trial; or (IV) The jury is unable to agree upon a verdict; or (V) False statements of a juror on voir dire prevent a fair trial.
We conclude the trial court was not faced with manifest necessity to declare a mistrial. As discussed above, CRE 404(b) did not apply, and defense counsel's question was proper in substance and form pursuant to CRE 608(b). Thus, there was no error in the proceedings. Without error, there was no reason to declare a mistrial.
We recognize the trial court did not have the benefit of our holding that shoplifting is probative of truthfulness. However, even assuming the question was improper under CRE 608(b), the circumstances still did not amount to manifest necessity. First, T.L. answered the question in the negative, denying she stole any money from her mother. Thus, there was no evidence before the jury that the witness had engaged in a prior instance of shoplifting. Moreover, T.L.'s credibility was already impeached by testimony that she hated Palma and wanted him out of her life. Thus, the shoplifting question was not an isolated incident of impeachment. Additionally, any concern about prejudice caused by the question itself could have been resolved with a curative instruction reminding jurors that only answers to questions, and not the questions themselves, are evidence. See People v. Harlan, 8 P.3d 448, 473 (Colo. 2000) ("Absent evidence to the contrary, we presume that a jury follows the trial court's instructions."). However, the trial court summarily dismissed any curative instructions, so the court failed to exhaust other reasonable alternatives.
Based on these facts, we hold that any error in the proceedings — as perceived by the trial court — was insubstantial and did not rise to the level of interfering with the administration of justice. Thus, there was no legal justification for declaring a mistrial, and double jeopardy bars retrial of Palma on this charge.
III. Conclusion
We conclude it was proper for defense counsel to inquire, on cross-examination, about the witness's prior act of shoplifting, and therefore the trial court was not justified in declaring a mistrial. Without manifest necessity to declare a mistrial, double jeopardy bars retrial of Palma. We make the rule absolute and order the trial court to dismiss the charge.
Justice EID dissents, and Justice COATS joins in the dissent.