People v. Ayala

919 P.2d 830, 1995 Colo. App. LEXIS 289, 1995 WL 611365
CourtColorado Court of Appeals
DecidedOctober 19, 1995
DocketNo. 93CA1992
StatusPublished
Cited by7 cases

This text of 919 P.2d 830 (People v. Ayala) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Ayala, 919 P.2d 830, 1995 Colo. App. LEXIS 289, 1995 WL 611365 (Colo. Ct. App. 1995).

Opinion

Opinion by

Judge ROY.

Defendant, Levi Ayala, appeals the judgment of conviction entered upon a jury ver-[832]*832diet finding him guilty of one count of distribution of cocaine. We affirm.

On May 18, 1990, a police officer, a police informant, and a liquor code enforcement officer entered a bar to discover whether there were any liquor law violations or illegal drug transactions occurring. The informant introduced defendant to the police officer indicating that defendant could provide the officer with cocaine. The police officer then allegedly purchased a gram of cocaine from defendant. Both the police officer and the informant testified for the prosecution in its case in chief.

I.

Defendant contends that the trial court erred in admitting reputation and opinion testimony of the police officer supporting the credibility of the police informant. We agree with respect to the reputation testimony, but conclude that the error does not require reversal, and we disagree with respect to the opinion evidence.

In general, evidence of a person’s character or character traits may not be admitted to show that the person acted in conformity therewith. CRE 404(a); People v. Gaffney, 769 P.2d 1081 (Colo.1989). However, evidence in the form of reputation or opinion concerning a witness’ character for truthfulness may be introduced to support the credibility of the person when the witness’ character for truthfulness has been attacked. See CRE 404(a)(3); CRE 405(a); and CRE 608(a).

Specifically, CRE 608(a) provides:

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

A. Reputation Evidence

The prosecution called the police officer as a rebuttal witness, and he testified as to the reputation of the informant as follows:

Q: Detective ... with respect to [the informant], your testimony earlier — and you correct me if I’m wrong — was that you had worked with him on at least ten separate occasions as his supervising agent, if you will; and that he had worked both for the Thornton Police Department and for the North-Metro Drug Task Force; is that correct?
A: Yes, I did.
Q: If you know, can you tell the jury what [the informant’s] reputation is for truthfulness, among those organizations?
A: [The informant] has been a very fine informant. He’s well-thought of with—
[Defense Counsel]: Your Honor, I object to that.
THE COURT: Sustained as to the — the question—
Q: [Prosecutor] The question is, what is his reputation among those agencies, if you know, for truthfulness?
A: He has a very good reputation.
Q: For truthfulness?
A: That’s correct.

Defendant contends that the police officer did not have an adequate basis upon which to testify as to the informant’s reputation for truthfulness in a recognized community. We agree, but conclude that the error was harmless.

Reputation testimony may be based on what the witness has heard in the community regarding the person’s character. See Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); People v. Erickson, 883 P.2d 511 (Colo.App.1994).

The “community” may encompass the person’s neighborhood, work, or social community. See COLJI-Crim. No. 4:08 (1983); 1 J. Strong, McCormick on Evidence § 43 at 159 (4th ed. 1992) (“[T]oday it is generally agreed that proof may be made not only of the reputation of the witness where he lives, but also of his repute, as long as it is ‘gener[833]*833al’ and established, in any substantial community of people among whom he is well known, such as a group with whom he works, does business or goes to school.”).

The key requirement that may be drawn from these authorities is that reputation testimony must be based on opinion held generally in a broad community. Reputation is distinguished from rumor in that it must be established over a period of time. People v. Erickson, supra; 5 J. Wigmore, Evidence §§ 1611-12 (Chadbourn rev. 1974).

Several courts that have addressed the issue of whether a police officer may testify about the reputation of a witness who is associated with the criminal justice system have disallowed such testimony on the basis that the criminal justice system is not a recognized or general community. See State v. Lord, 117 Wash.2d 829, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856, 113 S.Ct. 164, 121 L.Ed.2d 112 (1992); Parker v. State, 458 So.2d 750, 754 (Fla.1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1855, 85 L.Ed.2d 152 (1985) (“[W]e do not agree that the criminal justice system is either neutral enough or generalized enough to be classed as a community or that an officer in that system is equipped to provide an unbiased and reliable evaluation of an inmate’s general reputation for truth-telling.”).

Here, the police officer’s reputation testimony was based solely on the informant’s role as a confidential informant for two police organizations. The informant, who was paid $3000 for his help, agreed to become a police informant to avoid prosecution for possession of eleven ounces of cocaine, and to avoid possible deportation. Thus, he had a strong incentive to cooperate with the police and to testify in support of the prosecution. In addition, under the circumstances, the police officer’s opinion is not neutral, that is, the police officer has a powerful inducement to testify favorably concerning the informant’s reputation.

We agree that, under these circumstances, the informant’s association with the police organizations did not form a sufficient community upon which reputation testimony, which is general and established in nature, may be based. Therefore, we conclude that the police officer’s testimony concerning the informant’s reputation for truthfulness should have been excluded.

In this instance, however, the police officer’s testimony concerning the informant’s reputation was brief and conelusory. The defendant was permitted to cross-examine the police officer concerning a prior case in which the informant had participated and the defendant had been acquitted. The impact of the reputation testimony was minimized because, as more fully discussed below, the trial court did not err in permitting the police officer to testify regarding his opinion of the informant’s general character for truthfulness.

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Cite This Page — Counsel Stack

Bluebook (online)
919 P.2d 830, 1995 Colo. App. LEXIS 289, 1995 WL 611365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-ayala-coloctapp-1995.