Opinion
No. 77-952
Decided July 6, 1978. Rehearing denied August 3, 1978. Certiorari granted October 10, 1978.
Convicted of second degree assault, defendant appealed.
Affirmed
1. CRIMINAL LAW — Information Filed — After Preliminary Hearing — Defendant Bound Over — Not "Direct" — Trial Court Permission — Superfluous — — Not Error. Where defendant had a preliminary hearing on county court complaint and, as a result thereof, was bound over for trial, but an information was thereafter filed in the district court, that information was not a "direct" information, and thus it was not necessary for the district attorney to obtain the trial court's permission to file it; consequently, the court's action in permitting the filing was superfluous and could not have been error.
2. Cross-Examination — To Show Bias — Generally Wide Latitude — Absence of Prejudice — Erroneous Limitation — Not Reversible. As a general rule, defendants are permitted wide latitude in cross-examining prosecution witnesses with respect to the witness' bias or prejudice, and this includes situations where the witness has a pending or contemplated civil action against the defendant; however, in the absence of abuse or manifest prejudice, the erroneous limitation of cross-examination is not reversible.
3. Issue — Assault Perpetrated — Blackjack or Fists — Immaterial — Refusal of Cross-Examination — Weapon Issue — Harmless Error. Where the jury found defendant guilty of second degree assault based on the fact that serious bodily injury had occurred, and not on the alternative ground that the assault was accomplished by the use of a deadly weapon, the question of whether a blackjack or fists were used in the assault was immaterial, and thus the trial court's refusal to permit cross-examination relative to the weapon issue was harmless error.
4. Verdict — Surrounding Circumstances — Jury's Intent — Demonstrated — — Omission — "Serious" — Verdict Form — Reconstitution of Jury — Unnecessary — No Reversible Error. Where circumstances surrounding the jury's deliberations demonstrated beyond a reasonable doubt that the jury intended to convict defendant of second degree assault with intent to cause serious bodily injury, rather than first degree assault, third degree assault, or a different form of second degree assault, the fact that the verdict form erroneously omitted the word "serious" did not render the verdict impermissibly ambiguous or uncertain, and thus the trial court's reconstitution of the jury to ascertain its intent was unnecessary and did not constitute reversible error.
Appeal from the District Court of Pueblo County, Honorable Phillip J. Cabibi, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, David Schwartz, Assistant Attorney General, for plaintiff-appellee.
R. D. Jorgensen, for defendant-appellant.
Defendant, Edward Kreiser, appeals his jury conviction of second degree assault, and we affirm.
The victim of the alleged assault, Nelson Burch, testified that while driving home from a local tavern one night, he was followed by another car. The car eventually accelerated past him and forced him to stop. The driver of the other car, whom Burch later identified as the defendant, opened the door on Burch's car and beat him with a blackjack.
Defendant was charged with third-degree assault (§ 18-3-204, C.R.S. 1973) and reckless driving (§ 42-4-1203, C.R.S. 1973). A preliminary hearing was held in county court pursuant to Crim P. 5(a)(4). The court found probable cause as to the assault charge, defendant pled not guilty, and the case was set for trial.
The district attorney subsequently withdrew the county court complaint and filed a "direct information" in district court, charging defendant with first degree assault (§ 18-3-202, C.R.S. 1973). Defendant was tried on the first degree assault charge, and a jury convicted him of the lesser charge of second degree assault with intent to cause serious bodily injury (§ 18-3-203(1)(a), C.R.S. 1973).
I.
Defendant argues that the direct information should have been dismissed for failure to comply with Crim P. 7(c). We disagree. Although the district attorney denominated his information as a "direct" information, and proceeded as if he were filing the action pursuant to Crim. P. 7(c), under the facts of this case his authority for filing this information was Crim. P. 7(b)(3)(II) which provides:
"An information may be filed, without consent of the trial court having jurisdiction, for any offense against anyone who has . . .
. . . .
"(II) Had a preliminary hearing and has been bound over by the county court to appear in the court having trial jurisdiction." See 6 T. Borrillo, Colorado Practice § 346 (1971).
[1] Therefore, it was not necessary for the district attorney to obtain the trial court's permission to file the information, and the court's action in permitting the filing was superfluous and could not have been error.
II.
Defendant also contends that the trial court erred when it refused to permit him to cross-examine Burch about a civil assault complaint which Burch had filed against defendant. Specifically, defense counsel wished to question Burch about the fact that the complaint stated that defendant had beaten Burch with his hands, and not with a blackjack. While we believe that the trial court erred in so limiting the cross-examination, we rule that such error was harmless.
[2] As a general rule, defendants are permitted wide latitude in cross-examining prosecution witnesses with respect to the witness' bias or prejudice, and this includes situations where the witness has a pending or contemplated civil action against the defendant. Annot., 21 A.L.R.2d 1078 (1952). See People v. Simmons, 182 Colo. 350, 513 P.2d 193 (1973); People v. Persky, 167 Cal. App. 2d 134, 334 P.2d 219 (1959).
[3] However, in the absence of abuse or manifest prejudice, the erroneous limitation of cross-examination is not reversible. People v. Schuemann, 190 Colo. 474, 548 P.2d 911 (1976). Here, there was neither abuse nor prejudice. The jury found defendant guilty of second degree assault based on the fact that serious bodily injury occurred, and not on the alternative ground that the assault was accomplished by the use of a deadly weapon. See § 18-3-203(1)(a) (b), C.R.S. 1973. Therefore, the question of whether a blackjack or fists were used was immaterial. The court's failure to permit cross-examination on this evidence was therefore harmless. Crim. P. 52(a). See Walker v. People, 175 Colo. 173, 489 P.2d 584 (1971).
III.
After the jury was discharged, an error in the verdict form was discovered. Though the jury had been properly instructed as to second degree assault with intent to commit serious bodily injury, the word "serious" had inadvertently been left out of the verdict form. Nine of the jurors were still on the premises when the mistake was discovered, and they were immediately returned to the jury room. The three that had left were located and returned within an hour and a half. The jury was recalled to the jury box, and polled as to its intentions with respect to the verdict. Each juror indicated that he intended to convict defendant of second degree assault with intent to commit serious bodily injury, and the court directed the foreman to sign a corrected verdict.
Defendant urges us to reach the question of whether the reconstitution of the jury was improper. However, we rule that the original verdict was, under the circumstances, sufficient to convey beyond a reasonable doubt the meaning and intentions of the jury. The reconstitution was therefore unnecessary, and did not constitute reversible error.
The jury was presented with five alternatives on a special verdict form. It could have found the defendant: (1) innocent; (2) guilty of first degree assault; (3) guilty of second degree assault with intent to cause (serious) bodily injury; (4) guilty of second degree assault with a deadly weapon; or, (5) guilty of third-degree assault. The jury was fully and properly instructed as to each element of each alternative. When it checked the third alternative, it must have intended to find defendant guilty of second degree assault with intent to commit serious bodily injury, since assault with intent to commit only bodily injury is third-degree assault — an alternative the jury rejected. See § 18-3-204, C.R.S. 1973.
[4] Under these circumstances, the fact that the form omitted the word "serious" does not render the verdict impermissibly ambiguous or uncertain. See Yeager v. People, 170 Colo. 405, 462 P.2d 487 (1969).
Judgment affirmed.
JUDGE KELLY and JUDGE STERNBERG concur.