Opinion
No. 75-937
Decided August 26, 1976. Rehearing denied September 16, 1976. Certiorari denied October 25, 1976.
In first-degree murder trial, after guilty plea of defendant was set aside on appeal, defendant was tried and convicted as charged. Defendant appealed.
Affirmed
1. CRIMINAL LAW — Trial — Defendant's Prior Statement — Injected Into Case — By Defense — Defendant May Not Claim — Statement Improperly Considered. Where the defendant in a first-degree murder trial, while testifying in his own defense, elected to inject into the case as a matter of trial strategy a statement made by him to a prison officer, which statement contrasted sharply with his testimony as to his involvement in the offense, the defendant is in no position to claim that the statement was improperly considered.
2. Prior Inconsistent Statement — To Authorities — Insufficient Miranda Warnings — Still Admissible — Impeachment Purposes. Prior inconsistent statements made to authorities under circumstances rendering the statements inadmissible to establish the prosecution's case-in-chief because of insufficient Miranda warnings are nevertheless admissible for purposes of impeaching the accused's credibility; thus, trial court in first-degree murder case correctly ruled that prior inconsistent statement made by defendant to prison officer relating details of committing the murder could be used by the prosecution for impeachment purposes.
3. Evidence — Remoteness Determination — Discretion of Trial Judge. The determination of whether evidence is too remote to be relevant is left to the discretion of the trial judge, and his discretion will not be reversed in the absence of clear proof of abuse of discretion.
4. Witnesses — Absent Hostility or Surprise — Not Subject to Impeachment — By Party Calling. Where witness in a first-degree murder trial was called by defense and there was no showing of hostility or surprise, witness' answers, especially on a collateral matter, were conclusive on, and not subject to impeachment by the party calling him.
5. Attorney and Client — Retained on Private Basis — Not Court-Appointed — No Use of Public Funds — Attorney's Compensation. Inasmuch as attorneys for defendant in the re-trial of a first-degree murder case were not appointed by court but appeared as privately retained counsel, and each attorney expressly stated his appearance to be not by court appointment but on a private retainer basis, there was no basis for use of public funds for the attorneys' compensation.
Appeal from the District Court of El Paso County, Honorable William E. Rhodes, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Robert C. Lehnert, Assistant Attorney General, for plaintiff-appellee.
Daniel B. Mohler, for defendant-appellant.
In 1970, defendant Murdock was indicted for first degree murder. He pled guilty and in 1971 was given a life sentence. Shortly after his imprisonment had commenced, he gave a statement to a correctional counselor at the penitentiary in which he related the details as to how he committed the murder. Thereafter, his guilty plea was set aside by the Supreme Court in People v. Murdock, 187 Colo. 418, 532 P.2d 43, as not having been entered voluntarily.
On rearraignment, he pled not guilty. He was tried in 1975 and was convicted. He appeals, claiming the trial court erred (1) in denying his motion to prohibit introduction of the statement made to the prison official, and (2) in disallowing evidence of intimidation of a witness by the man defendant claims intimidated him into his earlier guilty plea. We affirm.
I.
Prior to trial, the defendant moved to prohibit the introduction of any statements made by him in connection with his former plea of guilty, either as direct evidence or for impeachment purposes. The court denied the People the right to use any aspect of the guilty plea itself, including the factual basis statements made at the hearing thereon, or to use any statements made to any doctor during the course of any psychiatric examination incident to a previous sanity plea. However, it held that the statement to the correctional counselor on admission to the penitentiary was in a different category, and that, on proper offer of proof, that statement could be used for impeachment purposes.
At trial, the prosecution did not attempt to use the statement in proving its case. However, the defendant, while testifying on his own behalf and after first giving a version as to his involvement in the offense that contrasted sharply with what he had previously told the prison officer, testified both as to the statement and its contents and the fact of his prior guilty plea. He attempted to explain away their effect, mainly by claiming that he had to admit his guilt to prison officials in order to be eligible for later parole. Thereafter, without objection, the prosecution on cross-examination read the entire statement into the record.
[1] The defendant, having elected to inject the statement into the case as a matter of trial strategy, is in no position to claim that it was improperly considered. People v. Shackelford, 182 Colo. 48, 511 P.2d 19.
Moreover, the court's original ruling allowing the prosecution to use the statement only for impeachment put the defendant in the position of deciding whether the statement could be used at all. Only if his own testimony was inconsistent therewith could the statement be offered into evidence.
[2] Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, and Jorgenson v. People, 174 Colo. 144, 482 P.2d 962, are dispositive of this issue. In Harris, prior inconsistent statements made to the police under circumstances rendering the statements inadmissible to establish the prosecution's case in chief because of insufficient Miranda warnings were nevertheless held admissible for purposes of impeaching the accused's credibility. As stated therein:
"'It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.'
. . . .
"Having voluntarily taken the stand, [defendant] was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truthtesting devices of the adversary process."
See also Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570. The trial court correctly ruled that the prior inconsistent statement could be used by the prosecution for impeachment purposes.
II.
The defendant also contends the trial court erred in prohibiting the introduction of evidence concerning the intimidation of witness Duran by Kennard, the man defendant claims actually committed the murder. We do not agree.
Defendant testified that a man named Kennard committed the murder and frightened defendant into "taking the rap for him." Called by the defense, Kennard denied any knowledge of the killing, denied making any threats to defendant, and denied threatening Duran during a conversation in January of 1975. Duran was then called, and, out of the presence of the jury, testified to a 1975 conversation with Kennard about a matter completely unrelated to the Murdock case. According to Duran, Kennard threatened and intimidated him, as a result of which charges of tampering with and intimidating a witness were filed against Kennard and were still pending at time of defendant's trial. This testimony was offered to substantiate Murdock's claim that in 1970 and 1971 he also was intimidated. It was calculated to show the nature of Kennard as one who does intimidate persons, and to impeach Kennard's statement that he never intimidated either Murdock or Duran.
The court concluded this testimony was too remote, and refused to allow it to be presented to the jury. This ruling was proper.
[3] "The determination of whether evidence is too remote to be relevant is left to the discretion of the trial judge, and his decision will not be reversed in the absence of clear proof of an abuse of that discretion." People v. Geller, 189 Colo. 338, 540 P.2d 334. Under the circumstances here, there was no abuse.
[4] Also, the issue of Kennard's relationship with Duran in 1975 is a collateral issue that has no bearing on Kennard's relationship with Murdock in 1971. See Johnson v. People, 171 Colo. 505, 468 P.2d 745. Further, since Kennard was called by the defense and since there was no showing of hostility or surprise, his answers, especially on the Duran collateral matter, are conclusive on, and not subject to impeachment by, the party calling him. People v. Patterson, 187 Colo. 431, 532 P.2d 342.
III.
Defendant's counsel, Daniel B. Mohler, asks this court to order payment of fees and expenses for his representation of the defendant through the second trial and this appeal. This we decline to do.
The public defender represented defendant in the proceedings through the entry of his guilty plea and sentencing pursuant thereto. Then, on motion of the defendant pointing out a possible conflict of interest in having that office serve as his attorney in a Crim. P. 35(b) proceeding involving the voluntariness of his guilty plea, the trial court appointed Mr. Mohler to represent defendant "on his Rule 35(b) motion, and any subsequent actions." When that motion was denied, the court appointed Mr. Mohler to represent defendant "in all stages of the appeal." He was paid for his services through that appeal.
Following the setting aside of the guilty plea and vacating of the sentence, the public defender was reappointed to represent the defendant and so served through the initial stages of this renewed proceeding. Stating that he did not trust the public defenders, the defendant again requested that Mr. Mohler be appointed. The court turned down the request but authorized an arrangement whereby Mr. Mohler, at defendant's expense, could serve in an advisory capacity to the public defender. Apparently this was not feasible, so on July 16, 1975, the public defender withdrew, and Mr. Mohler entered his appearance. At that time he stated:
"It is my understanding that this is not a court appointment, this is on a private retainer basis."
Then on September 19, 1975, a few days before the trial, Richard P. Ranson entered his appearance as co-counsel with Mr. Mohler. The following exchange occurred between the court and Ranson:
"Mr. Ranson, you do realize that I trust that this is a non-appointed position. That there are no monies that will be paid by the state for any co-representation, as Mr. Mohler is aware of."
"Yes, sir, I'm fully aware of the financial situation and willing to accept that burden."
"Very well."
[5] Mr. Mohler and Mr. Ranson are to be commended for their representation of the defendant throughout these proceedings. However, inasmuch as they were not appointed by the court but appeared as privately retained counsel, there is no basis for the use of public funds for their compensation. See § 21-1-105, C.R.S. 1973.
Judgment affirmed.
JUDGE COYTE concurs.
JUDGE SMITH dissents.