Opinion
No. 78-695
Decided August 30, 1979.
Convicted of first degree assault, defendant appealed.
Affirmed
1. CRIMINAL LAW — Trial — Called by Court — Matter — Within Its Discretion. It is within the discretion of the trial court when it shall call a witness for whom neither the prosecution nor the defense is willing to vouch and who appears to possess material evidence.
2. Witness — Called by Court — Subject To — Cross-Examination — Prosecution — Defense. A witness in a criminal prosecution called as the court's witness is subject to cross-examination by both the prosecution and the defense.
3. Evidence — Statements Made by Defendant — Subsequent to Assault — Admissible — Purposes Specified. In a prosecution for assault, evidence of a subsequent assault by defendant and of statements made during that assault was admissible to show motive, intent, identity, and guilty knowledge.
Appeal from the District Court of Eagle County, Honorable William L. Jones, Judge.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Anthony M. Marquez, Assistant Attorney General, for plaintiff-appellee.
Hugh R. Warder, for defendant-appellant.
Defendant Jimmy Esquibel was convicted of first degree assault as a result of the May 1977 beating and knifing of Armando Romero (the victim). Contending that the trial court made several evidentiary errors and that the evidence was insufficient to support the verdict, defendant appeals. We affirm.
I.
Defendant first contends that it was prejudicial error for the court, at the request of the prosecution, to call as the court's own witness one Junior Romero (not related to the victim), the brother-in-law of the defendant, who was present with the victim at the time of the assault, and to allow the People to cross-examine him by leading questions and to impeach him with prior inconsistent statements. We do not agree.
At an in camera hearing, the prosecution informed the court that Junior Romero was a necessary witness, but that the People were unable to vouch for his credibility because he had admitted on several occasions that he planned not to tell the truth if called. He had said previously that he had seen the defendant do part of the stabbing and had seen him, along with another assailant, dispose of the knife in the river. He said he was going to lie on the witness stand because he was related to the defendant and was afraid of him, and planned to put all the blame on the other assailant. The court ruled that Junior Romero would be endorsed as the court's witness, and both sides would be allowed to lead and cross-examine him.
At the time he was called as the court's witness, the court advised the jury that this was done so both parties could lead and cross-examine him. The court did not ask any questions of Romero; all interrogating was done by counsel for the prosecution and the defense. As indicated earlier, the witness admitted being at the scene but refused to implicate the defendant as a participant in the stabbing. He denied having previously told police officers that he had seen defendant stabbing the victim, or that he was afraid of defendant and would lie if called as a witness.
A police officer was then called by the People, and the court advised the jury that the admission of statements made by the witness Junior Romero to the officer was for the purpose of impeaching the court's witness by showing prior inconsistent statements. The officer then testified as to the earlier statements made to him by Junior Romero about his being at the scene and seeing defendant stab the victim and then throw away the knife, as well as his statements concerning the threats on his life and his fear of testifying.
[1] The authority of the trial court to call a witness in a criminal prosecution as the court's witness on its own motion or at the request of one of the parties has been recognized in all jurisdictions in which the question has been considered. See Annot., 67 A.L.R.2d 538. It is generally held that it is within the discretion of the court when it shall call a witness for whom neither the prosecution nor the defense is willing to vouch and who appears to possess material evidence. See, e.g., Young v. United States, 107 F.2d 490 (5th Cir. 1939); Estrella-Oretega v. United States, 423 F.2d 509 (9th Cir. 1970); State v. Rhodes, 112 Ariz. 500, 543 P.2d 1129 (1975); Scheel v. State, 350 So.2d 1120 (Fla.App. 1977). See also Fed. Rules of Evid. 614. Even in Illinois, where the rule is that a witness should not be called by the court except where it is shown that otherwise there might be a miscarriage of justice, it is proper procedure when the person called was an eyewitness to the transaction upon which the prosecution was based. See People v. Sciliano, 4 Ill.2d 581, 123 N.E.2d 725 (1954). We adopt the general rule, and conclude that here there was no abuse of discretion in the court's calling Junior Romero.
[2] Also, there is no dispute, in the cases that have passed on this issue, that witnesses called by the court are subject to cross-examination by both the prosecution and the defense. See, e.g., Smith v. United States, 331 F.2d 265 (8th Cir. 1964); Estrella-Oretega v. United States, supra.
Determinations as to the permissibility and form of leading questions are within the trial court's discretion and only in clear cases of an abuse of that discretion will this court overturn the trial court's ruling. Berger v. People, 122 Colo. 367, 224 P.2d 228 (1950). We find no abuse here.
Also, there was no error in allowing the use of the prior inconsistent statements not only for impeachment but also for the purpose of establishing a fact at issue. Section 16-10-201, C.R.S. 1973 (1978 Repl. Vol. 8).
II.
Defendant also contends that the court erred in permitting the introduction of evidence of a separate assault three days later involving defendant and the victim's brother. He claims that his evidence was irrelevant and highly prejudicial.
[3] Ordinarily such evidence is inadmissible. However, here the trial court was advised at an in camera hearing that the evidence to be offered included an admission by the defendant — "Your brother is lucky to be alive, because he burned [defendant's brother's house]" — and was also offered to show motive, intent, identity, and guilty knowledge, all of which are exceptions to the general rule. See People v. Borrego, 187 Colo. 217, 529 P.2d 639 (1974); Tanksley v. People, 171 Colo. 77, 464 P.2d 862 (1970).
When the witness was on the stand, the court gave a limiting instruction to the jury that the testimony was "not introduced to show a plan or design or propensity on the part of the defendant to commit this type of assault. It's solely introduced for the fact that he made the statement." The jury was later instructed to disregard any testimony from this witness except the statement made by the defendant.
The Court unnecessarily narrowed the testimony, but in no event was there any prejudice to the defendant.
III.
Defendant's final claims of error are that the evidence was insufficient to support the verdict or to justify instructing the jury on complicity. However, from our review of the record, we find these contentions to be without merit.
Judgment affirmed.
JUDGE STERNBERG concurs.
JUDGE SMITH concurs in part and dissents in part.