and County of Denver District Court No. 08CR10425, Honorable
Christina M. Habas, Judge.
H. Coffman, Attorney General, John T. Lee, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee.
and Whitson, P.C., Eric A. Samler, Denver, Colorado, for
and Vogt[*], JJ., concur.
[¶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
[¶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
[¶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
[¶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
[¶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
[¶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.
[¶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.
Evidence of Gang Affiliation
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).
[¶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.
[¶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
[¶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).
[¶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
[¶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
[¶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
[¶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
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
[¶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
Preservation and Standard of Review
[¶39] The parties agree that defendant
adequately preserved his arguments with respect to these
[¶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.
Cross-Examination of Daniel Harris
[¶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.
[¶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
[¶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).
[¶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
[¶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)).
Cross-Examination of Vernone Edwards
[¶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.
[¶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
[¶63] Defendant contends the trial court
abused its discretion by precluding his counsel's inquiry
into the specific circumstances of the two robberies. We
[¶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
Limits on Cross-Examination of Julian Vigil
[¶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.
[¶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).
[¶74] Defendant asserts that the trial court
abused its discretion by limiting defense counsel's
inquiry into the details ...