Opinion
No. 86CA0435
Decided June 16, 1988. Rehearing Denied July 21, 1988. Petition for Certiorari Withdrawn September 7, 1988 (88SC397).
Appeal from the District Court of El Paso County Honorable Matt M. Railey, Judge
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, for Plaintiff-Appellee.
Plaintiff, Arthur C. Clark (Clark), and third-party defendants, Robert Montoya (Montoya) and the City of Fountain, appeal judgments entered on jury verdicts in favor of defendant and third-party plaintiff, Gregory A. Buhring (Buhring). We affirm in part and reverse in part.
On June 14, 1981, Buhring and his parents were at a local V.F.W. hall in Fountain, Colorado. While playing a game of pool, Buhring became involved in a dispute with another patron. Although the dispute was resolved through mutual apologies, a bartender, who had observed the incident, summoned the police.
Officers Clark, Montoya, and Marsha Follett from the City of Fountain Police Department responded to the call. After speaking to the bartender, Clark approached Buhring and asked to see his identification. Buhring refused, and an altercation between the two ensued.
During the fight, Clark and Buhring exchanged blows and wrestled with one another on the floor. Clark subsequently was knocked unconscious after Buhring kicked him in the face.
During the incident, Buhring's parents prevented officers Montoya and Follett from rendering assistance. However, Montoya eventually freed himself and became involved in a fight with Buhring.
This altercation ended when Montoya shot Buhring with his service revolver.
Criminal proceedings were instituted against Buhring for felonious assault against Clark and Montoya. Although convicted of second degree assault against Montoya, Buhring was acquitted of all other charges.
Clark then filed this civil action seeking damages for assault and battery. Buhring counterclaimed for assault and battery and for deprivation of his civil rights. Buhring also filed a third-party claim against Montoya and the City of Fountain alleging negligence and deprivation of civil rights.
After trial on the matter, a jury returned a verdict in favor of Buhring and against Clark in the amount of one dollar. The jury also found against Montoya and the City of Fountain, and awarded Buhring $400,000 as damages. Judgment was entered accordingly.
I.
Appellants contend that the trial court improperly excluded evidence of Buhring's prior felony conviction for second degree assault against Montoya. We agree.
Section 13-90-101, C.R.S. (1987 Repl. Vol. 6A) provides, in pertinent part, that:
"In every case the credibility of the witness may be drawn in question, as now provided by law, but the conviction of any person for any felony may be shown for the purpose of affecting the credibility of such witness."
In the present case, Buhring's prior felony conviction arose out of the same circumstances upon which this civil action was brought. However, the statute itself makes no distinction between a conviction which arose from circumstances unrelated to the case at bar and a conviction which results from the same set of facts. Without such a legislative directive, we must construe the statute in accordance with its plain language. People v. Guenther, 740 P.2d 971 (Colo. 1987); People v. Horkans, 109 Colo. 177, 123 P.2d 824 (1942). Therefore, the trial court was without discretion to foreclose the use of Buhring's prior felony conviction, and accordingly, it was error to exclude it. See People v. Hubbard, 184 Colo. 225, 519 P.2d 951 (1974).
However, under the circumstances of this case, we find the exclusion of the evidence to be harmless error.
No error predicated upon the exclusion of evidence is grounds for setting aside a verdict, unless it affects the substantial rights of the parties or is inconsistent with substantial justice. C.R.C.P. 61; Cheney v. Hailey, 686 P.2d 808 (Colo.App. 1984). Error is not harmless if there is an indication that a different result might have been reached if the error had not been made. People in Interest of L.S.J., 490 P.2d 704 (1971) (not selected for official publication), cert. denied sub nom. Johnson v. Colorado, 407 U.S. 913, 92 S.Ct. 2450, 32 L.Ed.2d 688 (1972).
There is no indication that the exclusion of the evidence had any impact upon the outcome of the trial. Appellants concede that the only purpose for which the evidence was admissible was to impeach Buhring's testimony. However, although he did testify extensively as to his injuries, Buhring had only a vague and fragmented recollection of the incident with Montoya. Thus, Buhring's claim against Montoya and the City of Fountain was necessarily established through independent evidence; and therefore, because the impeachment evidence could not have affected the credibility of the independent evidence, any error in the exclusion of the prior felony conviction was harmless.
Furthermore, the independent evidence substantially refuted Montoya's version of the shooting. While Montoya testified that he shot Buhring in self-defense at point blank range, a forensic expert was able to opine from his investigation that Buhring was shot in the back from a distance of over six feet.
Also, Montoya testified that he fired two shots in rapid succession. However, several eyewitnesses testified that three to five seconds had elapsed between the shots. Thus, the record provides a strong basis for the jury's decision to disbelieve Montoya's version of the shooting; and therefore, because the impeachment evidence would have done nothing to bolster the testimony of Montoya, any error in excluding it did not contribute to the outcome of the trial. See People v. Rodgers, 756 P.2d 980 (Colo. 1988).
To the extent that Buhring did testify about the altercation with Clark, the testimony was cumulative of other eyewitness accounts. Therefore, although the excluded evidence was relevant to impeach Buhring's credibility, any error was also harmless as to the judgment against Clark.
II.
Appellants also contend that it was error to allow Buhring to amend his third-party complaint to include interest on the damage award after the verdict was returned but before judgment had been entered. We agree.
A demand for interest on a damage award must be made in the complaint. Section 13-21-101, C.R.S. (1987 Repl. Vol. 6B). When a party claiming damages for personal injury has failed to demand interest on damages prior to the entry of judgment, the right to such interest is waived. Clark v. Hicks, 127 Colo. 25, 252 P.2d 1067 (1953).
The record shows that the jury returned its verdict on December 13, 1985. Thereafter, on December 16, 1985, Buhring filed his motion to amend his complaint in order to include the demand for interest. Although the court also entered judgment on that same date, nunc pro tunc to December 13, 1985, the record does not support Buhring's contention that the amendment was made prior to the entry of judgment. Therefore, his right to such is deemed waived. See Clark v. Hicks, supra.
III.
Appellants' remaining contention regarding the rebuttal evidence is without merit. See Taylor v. Mazzola, 150 Colo. 553, 375 P.2d 96 (1962).
Accordingly, the award of interest is reversed, and the remainder of the judgment is affirmed.
JUDGE TURSI concurs in part and dissents in part.
JUDGE PLANK concurs in part and dissents in part.