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People v. Clark

Court of Appeals of Colorado, Second Division

April 23, 2015

The People of the State of Colorado, Plaintiff-Appellee,
v.
Willie Clark, Defendant-Appellant

          City and County of Denver District Court No. 08CR10425, Honorable Christina M. Habas, Judge.

         Cynthia H. Coffman, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

         Samler and Whitson, P.C., Eric A. Samler, Denver, Colorado, for Defendant-Appellant.

         Graham and Vogt[*], JJ., concur.

          OPINION

         CASEBOLT, JUDGE.

          [¶1] Defendant, Willie Clark, appeals the judgment of conviction entered on jury verdicts finding him guilty of one count of murder (extreme indifference), one count of murder (after deliberation), sixteen counts of attempted first degree murder, two counts of second degree assault, sixteen counts of violent crime, and one count of possession of a weapon by a previous offender. He also appeals the trial court's denial of his motion for new trial. We affirm in part, reverse in part, and remand with directions.

         I. Background

          [¶2] Fifteen gunshots rang out through the streets of downtown Denver in the early morning hours of New Year's Day 2007. Those gunshots, aimed at an oversized limousine from a white Chevrolet Tahoe, left Darrent Williams, a member of the Denver Broncos football team, dead; two additional people wounded; and fourteen others uninjured but shaken.

          [¶3] The prosecution's evidence showed that the victims had celebrated New Year's Eve in the VIP section of a night club in the vicinity of the Golden Triangle area of downtown Denver. Defendant and his friend, Daniel Harris, were also in the VIP section that evening. Shortly before the clock struck midnight, someone opened a bottle of champagne and began spraying it throughout the VIP section. After being sprayed, defendant and Harris started a verbal altercation with the victims, and Harris began shouting " Eastside" and " Tre Tre Crips." Defendant and Harris were then removed from the VIP section.

          [¶4] Approximately two hours later, the club closed and the partygoers streamed into the street. There, some members of the victims' group engaged in another, largely verbal, altercation with several people, including defendant. During that altercation, someone continued to yell " Eastside" and " Tre Tre Crips." Some of the evidence presented suggested that Harris was the person doing the yelling. Eventually, the victims departed in a limousine.

          [¶5] Harris testified for the prosecution at defendant's trial after having secured immunity from prosecution in this case and several other cases. According to Harris, defendant was the driver of the Tahoe, and he followed the victims' limousine after it left the nightclub. Harris stated that he was riding in the rear passenger seat as the Tahoe overtook the victims' limousine, and he saw defendant lean across the front console and fire shots from the passenger side window into the side of the limousine. Harris testified that only one gun was used, but the evidence established that, of the shots that hit the limousine, some had been fired from a .40 caliber handgun, and others had come from a .45 caliber weapon.

          [¶6] Two security guards at the nightclub testified to their observations of a green SUV that evening. One saw an individual, perhaps matching Harris's description, get into the green SUV.

          [¶7] At trial, a person who lived at the Parkway Condominiums in the Golden Triangle area testified that he was on a deck outside his eleventh-floor apartment at around 2:15 a.m. on New Year's Day when he heard between eight and ten " pops." Shortly thereafter, he saw a green or brown SUV driving at a high rate of speed traveling on the boulevard next to his apartment complex.

          [¶8] The prosecution's theory at trial centered on the assertion that defendant was a member of the Tre Tre Crips gang and, on the evening of the incident, felt that he, his gang, or a fellow member of his gang had been disrespected by the victims. Because of his allegiance to the gang, the theory posited, defendant felt compelled to commit the shooting.

          [¶9] The prosecution presented evidence that defendant confessed his involvement in the shooting to Veronica Garcia, Vernone Edwards, Julian Vigil, and J.G. (a cellmate, while defendant was imprisoned pretrial). The prosecution also introduced a letter written by defendant appearing to acknowledge his role as the shooter.

          [¶10] Defendant posited that Harris had carried out the shooting from the green SUV. He argued that Harris had provided false information to secure a favorable plea deal from the prosecution.

          [¶11] A jury convicted defendant on all of the counts charged.

         II. Evidentiary Issues

          [¶12] Defendant contends the trial court erred in admitting or rejecting certain evidence. Specifically, defendant argues that the court: (1) erred by admitting evidence and testimony regarding his gang membership, as well as expert testimony about gang origin, structure, psychology, hierarchy, and presence in Denver; (2) erred by limiting his cross-examination of several witnesses; (3) erred by admitting Harris's prior consistent statement; and (4) erred by refusing to admit grand jury testimony of two witnesses who refused to testify at trial. We address and reject each contention in turn.

         A. Evidence of Gang Affiliation

         1. Preservation and Standard of Review

          [¶13] The parties agree that defendant adequately preserved his arguments.

          [¶14] " A trial court has broad discretion in ruling on the admissibility of evidence." People v. Beilke, 232 P.3d 146, 149 (Colo.App. 2009). Thus, we review a trial court's evidentiary rulings for an abuse of discretion. Dunlap v. People, 173 P.3d 1054, 1097 (Colo. 2007). A trial court abuses its discretion when its evidentiary ruling " was manifestly arbitrary, unreasonable, or unfair." Yusem v. People, 210 P.3d 458, 463 (Colo. 2009).

         2. Law

          [¶15] " Evidence about gang culture is admissible if relevant to explain a circumstance of the crime, . . . to show a motive for the crime itself, or to understand a witness's change in statement or reluctance to testify." People v. James, 117 P.3d 91, 94 (Colo.App. 2004); see also People v. Webster, 987 P.2d 836, 840 (Colo.App. 1998) (" Evidence of the defendant's affiliation with a gang may be admitted when it is relevant to proving a motive for the crime." ); People v. Moya, 899 P.2d 212, 218 (Colo.App. 1994) (" [B]ecause [the] defendant's gang affiliation could have shown a motive to commit the crime, we conclude that such evidence was properly admitted." ); People v. Mendoza, 876 P.2d 98, 102 (Colo.App. 1994) (" Proof of intent to kill was a necessary part of the prosecution's case, and the evidence of the defendant's gang affiliation, which tended to prove the existence of a motive for killing the victim, was relevant for purposes of CRE 401." ).

          [¶16] " Still, because 'gangs are regarded with considerable disfavor by our society,' gang-related evidence must be 'admitted with care.'" People v. Trujillo, 2014 COA 72, ¶ 72, 338 P.3d 1039 (quoting People v. Morales, 2012 IL App. (1st) 101911, 966 N.E.2d 481, 492, 359 Ill.Dec. 160 (Ill.App.Ct. 2012)). " Hence, 'courts must be vigilant in guarding against the improper use of gang affiliation evidence as a backdoor means of introducing character evidence by associating the defendant with a gang and describing the gang's bad acts.'" Id. (quoting Gutierrez v. State, 423 Md. 476, 32 A.3d 2, 13 (Md. 2011)).

          [¶17] Evidence is relevant if it has any tendency to make the existence of a fact of consequence more or less probable. CRE 401. In criminal cases, evidence is relevant if the evidence makes it more or less probable that a criminal act occurred, the defendant was the perpetrator, or the defendant acted with the necessary criminal intent. People v. Cordova, 293 P.3d 114, 118 (Colo.App. 2011). All relevant evidence is admissible subject to certain constitutional provisions, statutes, and rules of evidence. Id.

          [¶18] " [R]elevant evidence can be excluded if . . . its probative value is substantially outweighed by the danger of unfair prejudice." Trujillo, ¶ 56 (citing CRE 403). Evidence is unfairly prejudicial if it has an " 'undue tendency to suggest a decision on an improper basis . . . such as sympathy, hatred, contempt, retribution, or horror.'" James, 117 P.3d at 93-94 (quoting Masters v. People, 58 P.3d 979, 1001 (Colo. 2002)). " In reviewing the trial court's determination, we assume the maximum probative value that a reasonable fact finder might give the evidence and the minimum unfair prejudice to be reasonably expected." Id. at 94.

          [¶19] Relevant evidence may also be excluded under CRE 404(b) if " it is used to prove the character of a person in order to show that he or she acted in conformity with that character on a particular occasion." Trujillo, ¶ 56 (citing Yusem, 210 P.3d at 463).

          [¶20] The distinction between admissible evidence of motive and inadmissible character evidence " 'is often subtle.'" Masters, 58 P.3d at 998 (quoting People v. Hoffman, 225 Mich.App. 103, 570 N.W.2d 146, 148 (Mich. Ct.App. 1997)). In certain situations, evidence that would be otherwise labeled inadmissible character evidence " 'establishes more than character or propensity'" because it " 'tends to show why the defendant perpetrated a seemingly random and inexplicable attack.'" Id. at 999 (quoting Hoffman, 570 N.W.2d at 149). Subject to CRE 403, this evidence is admissible because, without it, " 'the jurors may have found it difficult to believe . . . that [the] defendant committed the depraved and otherwise inexplicable actions.'" Id. (quoting Hoffman, 570 N.W.2d at 149-50).

         3. Application

          [¶21] The trial court denied defendant's motion in limine seeking to exclude evidence of gang affiliation, finding that the case " is permeated with gang references," and that " to excise any information about gang membership or the organization of gangs

          [¶22] . . . is not only impossible, but it's completely unsupportable," because the case and gang evidence involved " a huge deal about the respect issues [and] saving-face issues."

          [¶23] Defendant contends that none of the evidence regarding his affiliation with the Tre Tre Crips gang should have been admitted at trial. He argues that the shooting in this case was the result of a " bar fight" that had broken out when an individual became " upset about being sprayed with champagne." Therefore, he asserts, evidence of his affiliation with the gang was not relevant and was extremely prejudicial. We reject defendant's contention.

          [¶24] Two witnesses testified that defendant's gang affiliation had motivated him to participate in the shooting. J.G. testified that defendant had identified himself as a member of the Tre Tre Crips gang and had told him that the shooting occurred because the victims " weren't respecting Crip" and were " disrespecting the Eastsiders." Later, Julian Vigil testified defendant had told him that he had " dumped on" the victims because they were " disrespecting Denver Crips."

          [¶25] Given these facts, defendant's affiliation with the Tre Tre Crips gang " could have shown a motive to commit the crime[s]" charged requiring specific intent. See Mendoza, 876 P.2d at 103. Therefore, evidence of that affiliation was admissible under CRE 401 and CRE 403. Id.

          [¶26] Defendant also attacks the expert testimony of a police officer who testified concerning the origin of the Crips gang, its relationship with other gangs, the origin of the " sub-gang" to which defendant belonged, the hierarchy of the gang, and what it means to be " jumped in" as a member. He contends all of the expert's testimony was irrelevant, prejudicial, and constituted inadmissible evidence of bad character.

          [¶27] A division of this court recently held that the majority of a " gang expert's" testimony was inadmissible under CRE 401, 402, and 404(b). See Trujillo, ¶ ¶ 67-86. While we agree that such testimony must be " admitted with care," id. at ¶ 72 (internal quotation marks omitted), we nevertheless conclude that the factual circumstances present in Trujillo differ significantly from those presented here.

          [¶28] Importantly, the Trujillo division held that an expert's testimony regarding a gang's codes of respect, loyalty, and allegiance is admissible to prove a defendant's motive for committing the crime. See id. at ¶ 86.

          [¶29] The expert in this case testified that the Tre Tre Crips gang has a code of respect under which disrespect to one member translates to disrespect to the whole group. Thus, if one member is disrespected, the whole group must act to rectify that insult. If a member does not act, he or she stands to lose face because of cowardice. The expert also testified that loyalty and allegiance are the paramount expectations of any member of the Tre Tre Crips gang. Because this testimony explained defendant's potential motive for committing the crimes at issue, it was properly admitted. See id.

          [¶30] Relying on Trujillo, defendant asserts that the expert's testimony regarding the origin, locale, and structure of the Crips gang was irrelevant and unfairly prejudicial. Defendant also contends that the trial court erred by admitting photographs of his tattoos and allowing the expert to explain their significance. See id. at ¶ 77 (holding expert testimony about the organizational structure and size of the gang at issue, as well as the meaning of certain tattoos, was not probative of defendant's motive and therefore did not relate to a material fact).

          [¶31] However, " [m]aterial facts" may either be " 'ultimate facts'" (i.e. evidence defendant committed the crime, evidence of the requisite intent, or evidence of deliberation) or " 'intermediate or evidential facts, themselves probative of ultimate facts.'" Masters, 58 P.3d at 997 (quoting People v. Rath, 44 P.3d 1033, 1039-40 (Colo. 2002)).

          [¶32] Here, the prosecution had to establish defendant was a member of the Crips gang in order to establish that he may have possessed the motive provided by the code of respect. Thus, many aspects of the expert's testimony were intermediate facts which, in conjunction with the lay testimony offered, were probative to show that defendant was a Crips member. See id. For example:

o Several witnesses testified that someone at the night club was shouting " Eastside" and J.G. testified that defendant told him the victims were " disrespecting the Eastsiders." The expert testified that the Tre Tre Crips were centered in the east side of Denver.
o A police officer testified that defendant had admitted to writing a letter in which he used the phrase " death by dishonor" when referring to " the Rican" (Daniel Harris's nickname). The expert explained that the Crip gang enforces a code of silence.
o Defendant had a tattoo that spelled the word " stacc." The expert testified that the " cc" stood for " Compton Crip" which referred to the origins of the Crips gang in California.
o Defendant had tattoos that read " MOB," " 303," " Eastside" over stacks of money, and " Lett" with the " e" backwards to form a " 3." The expert explained that each of these tattoos referred to common phrases used within the Tre Tre Crips gang, or the geographic area in which the gang was centered.

          [¶33] Likewise, establishing motive required the prosecution to show that the code of conduct would have been triggered by events that transpired at the nightclub. Before the expert testified, Veronica Garcia had testified that defendant was a member of the Tre Tre Crips gang, whereas Daniel Harris was a member of the Grape Street Crips gang. The parties appear to agree that Harris was the man who was sprayed with champagne at the nightclub. Therefore, the expert's testimony regarding the structure of the sub-gangs that claimed allegiance to the broader Crips organization was material to establishing the relationship between defendant and Harris. See Masters, 58 P.3d at 997.

          [¶34] Notably, the lay witnesses and the expert in Trujillo had testified about several violent acts previously committed by members of the gang at issue in that case. See ¶ ¶ 34, 47, 48, 64. Neither the lay witnesses nor the expert in this case testified to any prior acts of the Tre Tre Crips gang or the broader Crips organization.

          [¶35] Unlike the evidence in Trujillo, the evidence in this case " was not offered to prove that the defendant was more likely to kill because he was a gang member; rather, it was offered to show that, because of his membership in a . . . gang, defendant was more likely to" have the motive to commit the crimes charged against victims who had disrespected the gang. Mendoza, 876 P.2d at 103. Therefore, the evidence was admissible, see id., because the prosecution's evidence provided a nexus between the crime and gang membership independent of any improper character evidence. And while " [w]e agree with defendant that this evidence was prejudicial," it was only prejudicial " in the sense [that] it was legitimately damaging to defendant's case." James, 117 P.3d at 94.

          [¶36] Therefore, the trial court did not abuse its discretion by admitting the gang evidence in question.

         B. Limits on Cross-Examination

          [¶37] Defendant asserts that the trial court abused its discretion by precluding certain lines of inquiry during his cross-examination of Daniel Harris, Vernone Edwards, and Julian Vigil. He also contends that the trial court's rulings violated his constitutional confrontation rights.

          [¶38] We conclude that the trial court did not abuse its discretion; hence, we also conclude there was no excessive limitation that violated defendant's constitutional rights.

         1. Preservation and Standard of Review

          [¶39] The parties agree that defendant adequately preserved his arguments with respect to these evidentiary rulings.

          [¶40] Again, we review a trial court's evidentiary rulings for an abuse of discretion. People v. Houser, 2013 COA 11, ¶ 57, 337 P.3d 1238. A trial court abuses its discretion if its decision was manifestly arbitrary, unreasonable, unfair, or based on an erroneous understanding or application of the law. Id.

         2. Cross-Examination of Daniel Harris

         a. Background

          [¶41] Daniel Harris testified that defendant was the shooter. During cross-examination, defense counsel questioned Harris extensively about specific instances of his untruthfulness, which included giving a policeman a false name and pleading guilty to providing false identification to a police officer.

          [¶42] Harris also acknowledged that, in 1995, he had pleaded guilty to two felonies arising from an incident in South Dakota: aggravated assault and discharge of a firearm from a moving vehicle into an occupied structure. The trial court also permitted defense counsel to question Harris about his interactions with police during his arrest for those crimes. Defense counsel then cross-examined Harris about the timing of his arrest, his flight prior to arrest, and the false statements he had made to police about his involvement in the crime and the gun that had been used.

          [¶43] Later, defense counsel asked Harris about meeting with investigators and the deputy district attorney concerning his testimony in this case. Counsel inquired whether they had asked him about the South Dakota incident. He confirmed that they had. Defense counsel then asked whether the investigators had the " reports that said the house had holes in it." The trial court sustained an objection by the prosecutor and told defense counsel he could make an offer of proof later.

          [¶44] Outside the presence of the jury, defense counsel proffered that, when Harris had been asked about the incident in South Dakota, he claimed to have shot in the air, not at the residence. Defense counsel argued that the presence of holes in the house in combination with Harris's statements to police were probative of his truthfulness or untruthfulness.

          [¶45] The trial court stated that it had sustained the objection under CRE 403, explaining that it had considered the cross-examination in its entirety and determined that defendant had " obtained as much probative value out of that particular instan[ce] as [he was] ever . . . going to." The court reasoned that the danger of unfair prejudice and confusion of the issues outweighed the probative value of any additional testimony on the topic.

         b. Law

          [¶46] " Under CRE 608(b), a witness may be cross-examined about specific instances of conduct that are probative of the witness's character for truthfulness or untruthfulness." People v. Knight, 167 P.3d 147, 153 (Colo.App. 2006). Providing false information to a police officer is probative of a witness's truthfulness under CRE 608(b). People v. Segovia, 196 P.3d 1126, 1131 (Colo. 2008) (citing People v. Garcia, 17 P.3d 820 (Colo.App. 2000)).

          [¶47] Nonetheless, " [a] trial court has discretion . . . to exclude CRE 608(b) evidence on CRE 403 grounds." People v. Wilson, 2014 COA 114, ¶ 34 (collecting cases). Under CRE 403, " [a] trial court should 'exclude evidence that has little bearing on credibility, places undue emphasis on collateral matters, or has the potential to confuse the jury.'" Id. at ¶ 36 (quoting Knight, 167 P.3d at 153); see also People v. Diaz, 644 P.2d 71, 72 (Colo.App. 1981) (" [W]hen impeaching a witness the relevancy of the impeaching evidence must be clear, must not raise collateral issues, and must be directed only at the witness' credibility, and not at the witness' moral character." ).

          [¶48] " A matter is considered collateral when it has no independent significance to the case and thus would not be independently provable regardless of the impeachment." Banek v. Thomas, 733 P.2d 1171, 1178 n.7 (Colo. 1986).

         c. Application

          [¶49] Here, the court's decision to preclude further questioning of Harris about the specific South Dakota incident in which he was allegedly dishonest was not an abuse of discretion. The trial court had properly permitted defense counsel to establish that Harris had been convicted of two felonies in South Dakota. See § 13-90-101, C.R.S. 2014 (felony convictions of a witness are admissible). Defense counsel also had properly questioned Harris as to the name, nature, and date of those offenses. People v. Huynh, 98 P.3d 907, 913 (Colo.App. 2004) (" [T]he scope of questioning . . . is generally limited to the name, nature and date of the offense for which the witness was convicted." (internal quotation marks omitted)). Exercising its discretion, the trial court additionally allowed defense counsel to question Harris about his dishonest behavior with police when he was arrested for those crimes. See People v. Cooper, 950 P.2d 620, 624 (Colo.App. 1997) (The scope of permissible inquiry regarding " the details of [the] prior offenses is committed to the trial court's discretion." ), rev'd on other grounds 973 P.2d 1234 (Colo. 1999).

          [¶50] Thus, defense counsel had already established that Harris had been dishonest with the police numerous times in the past. One additional instance of dishonesty arising in the context of preparation for his testimony in this case carried little probative force because the jury already had sufficient information with which to determine Harris's credibility. See People v. Sweeney, 78 P.3d 1133, 1137 (Colo.App. 2003) (" [T]he jury heard sufficient information about [the witness] to assess his credibility" despite the trial court's ruling that precluded inquiry into two specific instances of untruthful conduct.).

          [¶51] Allowing inquiry into " details that go beyond the face of the conviction may lead to wasteful collateral disputes requiring witness testimony about the way in which the [prior] crime was committed." Roger Park & Tom Lininger, The New Wigmore: Treatise on Evidence: Impeachment and Rehabilitation § 3.4 (2014). As a result, a trial court must make a pragmatic decision whether the probative value of the specific details is substantially outweighed by the policy considerations of CRE 403. See Kenneth S. Broun et al., 1 McCormick on Evidence § 49 (7th ed. 2013).

          [¶52] Here, the factual details underlying the South Dakota incident were collateral matters. See Wilson, ¶ 39. Defendant has not established that the South Dakota incident or Harris's dissembling concerning it in this case had significance independent of its impeachment value. See id. at ¶ 37. Indeed, the police reports from South Dakota were not independently admissible. See People v. Inman, 950 P.2d 640, 644 (Colo.App. 1997) ( " [A] specific instance of conduct . . . cannot be proven by extrinsic evidence." ). And defendant could not have inquired into Harris's prior conduct in South Dakota as a part of his case-in-chief. People in Interest of K.N., 977 P.2d 868, 877 (Colo. 1999) (" [E]vidence was collateral, and therefore inadmissible, to the extent that the [cross-examiner] could not have inquired into [the] conduct as part of [its] case in chief." ); People v. Warrick, 284 P.3d 139, 143 (Colo.App. 2011) (" By its terms, CRE 803(8)(B) excludes from the public records exception [to hearsay] any matters observed by police officers and other law enforcement personnel." (internal quotation marks omitted)).

          [¶53] Furthermore, Harris testified that he had pleaded guilty to the felonies that he had committed in South Dakota and had served a six-year sentence. Thus, the acts associated with those felony convictions were not subject to the terms of his plea agreement with federal prosecutors and did not affect his motive to testify against defendant. See Wilson, ¶ 37; Huynh, 98 P.3d at 913.

          [¶54] Under these circumstances, the trial court's decision to preclude further inquiry regarding the South Dakota incident was not arbitrary, unreasonable, or unfair. See Cooper, 950 P.2d at 624. Accordingly, we conclude the trial court did not abuse its discretion. See People v. Hoover, 165 P.3d 784, 802 (Colo.App. 2006) ( " 'Discretion is abused only where no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken . . . then it cannot be said that the trial court abused its discretion." (quoting State v. Heywood, 245 Kan. 615, 783 P.2d 890, 894 (Kan. 1989); alterations omitted)).

         3. Cross-Examination of Vernone Edwards

         a. Background

          [¶55] Vernone Edwards testified to a conversation in which defendant took responsibility for the shooting. He also recounted that defendant had called him after the shooting and requested that he provide defendant a replacement weapon for the one that defendant had used in the shooting (which Edwards said defendant had disposed of). Edwards also testified to a conversation with Daniel Harris in which Harris recounted the shooting to him.

          [¶56] During his cross-examination of Edwards, defense counsel asked the witness whether he had previously engaged in a robbery that had involved three other prosecution witnesses. The prosecutor objected on CRE 404(b) grounds. During a bench conference, defense counsel stated that he was offering the testimony to show " [t]he relationship between" the four witnesses. The trial court allowed defense counsel to ask " one question" on the topic. Counsel asked the witness the question he had originally posed and Edwards responded by saying, " Yes."

          [¶57] When defense counsel attempted to ask a follow-up question, the trial court stated that it had instructed defense counsel to ask only one question and told counsel to move on.

          [¶58] Later, defense counsel attempted to question Edwards about his statements to police officers investigating defendant's case. At a bench conference, defense counsel indicated that he was attempting to question Edwards about " another robbery" in which he had injured his foot. According to defense counsel, a police officer had asked Edwards how he had injured his foot and, after " two or three . . . deceptions," Edwards admitted that he had injured himself by kicking a person in the head during a robbery. The trial court permitted defense counsel to ask two questions on that topic.

          [¶59] During the same bench conference, defense counsel also stated that Edwards had attempted to deceive " another person that was involved in" his drug organization. Counsel described the robbery as " an elaborate setup" designed to allow an unidentified person " that was in on the robbery . . . to pretend that he wasn't."

          [¶60] The trial court reasoned that this line of questioning was " far afield . . . of anything that's relevant" and that additional inquiry would confuse the jury. Pursuant to CRE 403, the court precluded defense counsel from asking any questions about the scheme.

         b. Law

          [¶61] Under CRE 404(b), " relevant evidence can be excluded if it is used to prove the character of a person in order to show that he acted in conformity with that character on a particular occasion." Yusem, 210 P.3d at 463. However, evidence of uncharged crimes or prior acts " is admissible if used for purposes independent of an inference of bad character." Id. (citing CRE 404(b)).

          [¶62] In People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990), the supreme court established a four-part test to determine the admissibility of uncharged crimes or prior acts. Relevant here, the fourth factor requires that " the probative value of the evidence [not be] substantially outweighed by the . . . policy considerations of CRE 403." People v. Sandoval-Candelaria, 328 P.3d 193, 199 (Colo.App. 2011), rev'd on other grounds, 321 P.3d 487, 2014 CO 21.

         c. Application

          [¶63] Defendant contends the trial court abused its discretion by precluding his counsel's inquiry into the specific circumstances of the two robberies. We disagree.

          [¶64] There is no evidence in the record to suggest that Edwards was convicted of either of the robberies at issue. Therefore, the admissibility of evidence regarding each robbery is subject to the requirements of CRE 404(b). See Yusem, 210 P.3d at 463. And even if we assume, without deciding, that the evidence regarding each robbery satisfied the first three Spoto factors, we conclude that the trial court did not abuse its discretion in determining that it did not satisfy the fourth factor.

          [¶65] Defense counsel offered evidence of the first robbery to establish " [t]he relationship between" the four witnesses. The court permitted counsel to inquire about it, and the witness acknowledged the relationship. Any additional evidence on the topic had marginal probative value and the trial court did not abuse its discretion in determining that any additional evidence was needlessly cumulative. See People v. Saiz, 32 P.3d 441, 446-47 (Colo. 2001) ( whether a trial court abuses its discretion depends on the offer of proof before the trial court and once the purpose for which the evidence is offered has been established, any additional evidence on the topic becomes needlessly cumulative).

          [¶66] According to defense counsel's proffer, evidence of the second robbery was offered to show Edwards's character for untruthfulness. But before addressing the second robbery, defense counsel had elicited admissions from Edwards that he had led a life of deception, had been convicted of three prior felonies, and believed criminals would deceive police officers to get out of trouble. Furthermore, the trial court permitted defense counsel to question Edwards about his untruthful statements to police regarding his role in the second robbery.

          [¶67] Because this testimony " made defendant's point clear," we conclude the trial court's ruling disallowing evidence of the elaborate robbery scheme " did not violate CRE 403." People v. Underwood, 53 P.3d 765, 767 (Colo.App. 2002). As Edwards had already admitted past deceptions, additional inquiry regarding the elaborate robbery scheme would have, at most, provided one additional specific instance of conduct. See People v. Rodriguez, 209 P.3d 1151, 1161 (Colo.App. 2008) (presentation of additional evidence would have had no purpose other than to inflame, distract, or confuse the jury; hence, it was excludable under CRE 403). Thus, the trial court's determination that this line of questioning would have been " largely cumulative" and stood to confuse the jury was reasonable. Id.

          [¶68] Accordingly, we conclude the trial court did not abuse its discretion in precluding additional questioning regarding the circumstances surrounding the robberies.

         4. Limits on Cross-Examination of Julian Vigil

         a. Background

          [¶69] Vigil testified that, on the morning following the shooting, defendant confessed to the shooting and inquired of Vigil how to contact a criminal defense attorney with whom Vigil was acquainted. Vigil testified that when he drove defendant to the lawyer's home, defendant explained that the victims' group had " disrespected Denver Crips," and that he was in the white Tahoe when the shooting occurred.

          [¶70] Defense counsel questioned Vigil about a prior felony conviction for theft by deception. In response, Vigil admitted that he had pleaded guilty to theft because he had purchased a vehicle using his grandmother's name without her permission.

          [¶71] Counsel then asked the witness whether he had tried to do the same thing a second time. Vigil replied by saying, " No." Counsel persisted and asked whether " [i]t was a 2002 Tahoe in March of 2005." Again, Vigil responded by saying, " No." Counsel then asked whether Vigil had taken " the finance manager to [his] grandmother's nursing home." The prosecutor objected under CRE 403 and the trial court sustained the objection.

          [¶72] Later, outside the presence of the jury, defense counsel argued that he should have been permitted to ask Vigil about the second, uncharged incident, because it was probative of his character for truthfulness or untruthfulness. The trial court ruled that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice.

         b. Law

          [¶73] " [W]hile the character of a witness for truth and veracity may be shown, impeachment may not be accomplished by attacking the general character of the witness." People v. Taylor, 190 Colo. 210, 214, 545 P.2d 703, 706 (1976). Thus, a trial court " must . . . exercise its sound discretion to preclude inquiries that . . . have little effect on the witness' credibility but would substantially impugn his moral character." Id. at 212-13, 545 P.2d at 705. Accordingly, a trial court should not permit broad inquiry into the details of prior acts where such inquiry has little probative force, it may direct the jury's attention away from the case under consideration, and it constitutes a direct attack on the general character of the witness. People v. Cole, 654 P.2d 830, 834 (Colo. 1982).

         c. Application

          [¶74] Defendant asserts that the trial court abused its discretion by limiting defense counsel's inquiry into the details ...


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