Opinion
No. 28089
Decided June 19, 1978.
Petition by the People for a writ in the nature of prohibition to prohibit respondent judge from giving at second trial for offense of vehicular homicide one of the jury instructions he gave at the first trial. Rule to show cause issued.
Rule Discharged
1. CRIMINAL EVIDENCE — Prior Inconsistent Statements — Use — Substantive Proof — Impeachment — Witness' Credibility — Statute. When the statutory foundation requirements of section 16-10-201, C.R.S. 1973, are met, this section explicitly provides that the prior inconsistent statements may be used both as substantive proof and as impeachment of a witness' credibility.
2. INSTRUCTIONS, CRIMINAL — Prior Inconsistent Statements — Foundation — Statute — Instruction — Not To Be Given — Use — Substantive Proof. If the People satisfy each of the statutory foundation requirements of section 16-10-201, C.R.S. 1973, then Colo. Jury Instructions (Crim.) 4:8 should not be given because it directs the jury to consider the prior inconsistent statements only for impeachment purposes, hence, since section 16-10-201 expressly allows use of these statements as substantive proof as well, Instruction 4:8 should not be given in such circumstances.
3. CRIMINAL EVIDENCE — Inconsistent Statements — Proper Foundation. In the interest of avoiding confusion in the presentation of evidence of inconsistent statements, a proper foundation should be laid for the use of such statements.
4. INSTRUCTIONS, CRIMINAL — Second Trial — Miranda Rights — Proper. Even though reviewing court agrees that pattern Jury Instruction 4:8 should not be given in instant circumstances, nonetheless, court does not prohibit all use of Instruction 4:8 in defendant's second trial since it retains vitality in certain important situations, for example, Instruction 4:8 may be appropriate if statements are obtained from a defendant in violation of his Miranda rights, and are used by the prosecution for impeachment purposes, then Instruction 4:8 would be a proper instruction.
5. WITNESSES — Inconsistent Statement — In Camera Hearing — Offer of Proof — Statutory Foundation — Impeachment — Instruction — Limitation. When an inconsistent statement is offered for the purpose of establishing the truth of the fact to which the statement relates, it is appropriate for the party offering such statement to indicate to the court his intention to do so and that an in camera hearing be conducted on the offer of proof to establish the statutory foundation requirements; if the court concludes that the prior inconsistent statement may not be offered for the truth of the fact to which it relates, but still may be used for limited purpose of impeachment, then Instruction 4:8 should be given contemporaneously, thus limiting the jury's consideration of the specific evidence to impeachment of the witness.
Original Proceeding
Dale Tooley, District Attorney, O. Otto Moore, Assistant, Brooke Wunnicke, Chief Appellate Deputy, for petitioner.
Honorable Gilbert A. Alexander, pro se.
The People petition this court pursuant to C.A.R. 21 for a writ in the nature of prohibition. We issued a rule to show cause and now discharge the rule.
Defendant Raymond Swain was tried in Denver District Court for the offense of vehicular homicide. Section 18-3-106, C.R.S. 1973. The jury was unable to reach a verdict, a mistrial was declared, and the case was set for retrial. The following instruction was given to the jury at the first trial:
"Evidence that on some former occasion, a witness made a statement or statements that were inconsistent with his testimony in this trial, may be considered by you only for the limited purpose of testing the credibility of the witness. Testimony of such inconsistent statements must not be considered by you as evidence of the truth of the facts as stated by the witness on such former occasion."
This instruction is taken from Colorado Jury Instructions (Criminal) 4:8. The People seek to prohibit the respondent judge from giving this same instruction at the defendant's second trial.
[1] The pertinent statute concerning the use of prior inconsistent statements reads as follows:
"(1) Where a witness in a criminal trial has made a previous statement inconsistent with his testimony at the trial, the previous inconsistent statement may be shown by any otherwise competent evidence and is admissible not only for the purpose of impeaching the testimony of the witness, but also for the purpose of establishing a fact to which his testimony and the inconsistent statement relate, if:
"(a) The witness, while testifying, was given an opportunity to explain or deny the statement, or the witness is still available to give further testimony in the trial; and
"(b) The previous inconsistent statement purports to relate to a matter within the witness's own knowledge." (Emphasis added.) Section 16-10-201, C.R.S. 1973.
When the statutory foundation requirements are met, this section explicitly provides that the prior inconsistent statements may be used both as substantive proof and as impeachment of the witness' credibility. See People v. Mulligan, 193 Colo. 509, 568 P.2d 449; People v. Bastardo, 191 Colo. 521, 554 P.2d 297.
[2] Apparently, either the defendant or a witness for the defense, or both, made prior statements on noncollateral matters which were inconsistent with testimony they gave at trial. This situation is likely to recur in the defendant's second trial. Both parties now concede that if the People satisfy each of the statutory foundation requirements of section 16-10-201, then Colorado Jury Instructions (Criminal) 4:8 should not be given because it directs the jury to consider the prior inconsistent statements only for impeachment purposes. Since section 16-10-201 expressly allows use of these statements as substantive proof as well, we agree that Instruction 4:8 should not be given in such circumstances.
[3] Nonetheless, we are not prohibiting all use of Instruction 4:8 in the defendant's second trial because it retains vitality in certain important situations.
The following are examples when the use of Instruction 4:8 may be appropriate: If statements are obtained from a defendant in violation of his Miranda rights, and are used by the prosecution for impeachment purposes, then Instruction 4:8 would be a proper instruction. See Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1; Jorgenson v. People, 174 Colo. 144, 482 P.2d 962. If a defendant makes an in-court statement in connection with a subsequently withdrawn guilty plea, then this statement is admissible for impeachment purposes and Instruction 4:8 would be a proper limiting instruction. See People v. Cole, 195 Colo. 483, 584 P.2d 71.
[4,5] It may develop during the second trial that the giving of Instruction 4:8 would be appropriate as to certain inconsistent statements offered for impeachment purposes only. We believe that, in the interest of avoiding confusion in the presentation of evidence of inconsistent statements, a proper foundation should be laid for the use of such statements. In People v. Bastardo, supra, this court stated that an in camera hearing was not statutorily necessary as a predicate to the introduction of an inconsistent statement offered under section 16-10-201. Although reversal was not required because of the failure to hold such an in camera hearing, the better practice would be to hold such a hearing. It is, therefore, appropriate that, when an inconsistent statement is offered for the purpose of establishing the truth of the fact to which the statement relates, the party offering such statement should indicate to the court his intention to do so and that an in camera hearing be conducted on the offer of proof to establish the statutory foundation requirements. If the court concludes that the prior inconsistent statement may not be offered for the truth of the fact to which it relates, but still may be used for the limited purpose of impeachment, then Instruction 4:8 should be given contemporaneously, thus limiting the jury's consideration of the specific evidence to impeachment of the witness.
The rule is discharged.
MR. JUSTICE GROVES and MR. JUSTICE ERICKSON dissent.