People v. Davis

312 P.3d 193, 2010 WL 2105878, 2010 Colo. App. LEXIS 695
CourtColorado Court of Appeals
DecidedMay 27, 2010
DocketNo. 07CA1320
StatusPublished
Cited by357 cases

This text of 312 P.3d 193 (People v. Davis) 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. Davis, 312 P.3d 193, 2010 WL 2105878, 2010 Colo. App. LEXIS 695 (Colo. Ct. App. 2010).

Opinion

Opinion by

Judge GRAHAM.

The defendant, Cameron Chad Davis, was convicted of reckless manslaughter as a lesser-included offense of a first-degree murder charge, accessory to a crime, and reckless endangerment for his participation as a driver in a drive-by shooting. He appeals his convictions, arguing that the trial court erred in admitting statements by witnesses con[195]*195cerning other witness' veracity and arguing that the prosecutor unfairly remarked about defendant's Fifth Amendment right to silence. We affirm. .

IL - Background

It was undisputed at trial that defendant was the driver in a drive-by shooting; that defendant's girlfriend, E.W., was the owner of the car; and that his friend, "Smoke," was the shooter. As the prosecutor stated during his final closing argument, "the issue that remain[ed] for [the jury's] consideration [was], did the defendant know what was going to happen?"

The prosecutor argued that there were "three areas of evidence that clearly showl[led] the defendant's knowledge of what was going to happen" on the morning of the shooting: (1) the fact that defendant made a U-turn while driving E.W.'s car, thus driving back toward the victim; (2) the testimony of W.C. that defendant called him earlier that evening and asked him if he wanted to "ride on some fools," which according to the testimony, meant defendant was asking W.C. if he wanted to shoot some gang members; and (8) the testimony of E.W. that she overheard defendant having a conversation with Smoke about "getting some Oops," which according to the testimony, meant getting into an altercation with members of the gang known as the "Bloods."

Thus, the testimony of W.C. and E.W. was important to the prosecution's case in proving defendant's deliberation and knowing participation in the shooting.

II. Evidentiary Issues

Defendant argues that a number of the trial court's evidentiary rulings were in error. We review a trial court's evidentiary rulings for an abuse of discretion. People v. Stewart, 55 P.3d 107, 122 (Colo.2002). A trial court abuses its discretion when its ruling is "manifestly arbitrary, unreasonable, or unfair" People v. Ibarra, 849 P.2d 33, 38 (Colo.1993). Because defendant preserved each issue for review with a contemporaneous objection, we review for harmless error and consider whether the error, in light of the entire record of the trial, substantially influenced the verdict or impaired the trial's fairness. Stewart, 55 P.3d at 124.

A. Comments on Witness Veracity

Defendant first argues that the court erred in admitting statements by witnesses commenting on other witnesses' veracity. We conclude that because the veracity comments were elicited to explain police officers' investigative techniques and to rebut the defense's arguments, the trial court did not err.

Defendant challenges four instances in which the trial court admitted testimony that commented on witnesses' truthfulness: (1) a detective testified that she became confrontational in an interview with a witness, E.W., because she did 'not believe E.W.; (2) the detective testified that she followed certain leads because she did not necessarily believe what defendant told her on the telephone; (8) she did not obtain W.C.'s phone records because his information had proven credible; and (4) a detective's comments in a videotaped interview suggested that he thought the witness was not telling the truth.

The determination of the credibility of witness is "solely within the province of the jury." People v. Gonzales, 666 P.2d 123, 128 (Colo.1988). "Were they lying" questions are categorically improper, because (1) they offer little or no probative value, (2) they ignore numerous alternative explanations for evidentiary discrepancies that do not involve lying, (8) they infringe upon the province of the fact-finder, and (4) they are argumentative. Liggett v. People, 185 P.3d 725, 781-82 (Colo.2006) - While CRE 608(a)(1) permits a witness to express her opinion regarding another witness' character for truthfulness, it does not allow a witness to testify that another witness is testifying truthfully on a particular occasion. See People v. Hall, 107 P.3d 1078; 1078 (Colo.App. 2004).

Additionally, "evidence referencing victim eredibility only to describe a device to interrogate a suspect and to explain the context in which a suspect's statements are made is admissible." Compare People v. Lopez, 129 P.3d 1061, 1066 (Colo.App.2005), [196]*196with People v. Oliver, 745 P.2d 222, 225 (Colo.1987) (holding that investigator could not opine that he believed a child victim when the testimony did not relate to investigatory techniques). These statements by investigators are also admissible as part of the give-and-take of an interrogation. Lopez, 129 P.3d at 1066 (citing State v. Palmes, 964 S.W.2d 241, 243-44 (Mo.Ct.App.1998)).

B. Opening the Door

We first address an issue which we believe to be determinative of several challenges to the testimony and appears to be one of first impression in Colorado: whether defense counsel may open the door to questions concerning the method of interrogation by detectives and the motives of witnesses to change their testimony by raising those issues in an opening statement. Defendant contends that because opening statements are not evidence, statements made therein do not open the door. We agree with the People that defense counsel's opening statements may open the door.

"It is widely recognized that a party who raises a subject in an opening statement 'opens the door' to admission of evidence on that same subject by the opposing party." United States v. Chavez, 229 F.3d 946, 952 (10th Cir.2000) (allowing admission of hearsay statements referred to in opening by defense). See United States v. Croft, 124 F.3d 1109, 1120 (9th Cir.1997) (permitting the bolstering of testimony of a witness who was branded as a "liar" in opening statement). Cf. People v. Renfro, 117 P.3d 43, 46 (Colo.App.2004) (allowing testimony by detective to bolster a prior statement when door was opened by cross examination). But see United States v. Tomaiolo, 249 F.2d 683, 689 (24 Cir.1957) ("[The opening statement of counsel for the defendant could not have put the defendant's character at issue. Such a statement has no evidentiary value, and therefore does not call for or justify eross-examination or rebuttal evidence."); United States v. Green, 648 F.2d 587, 595 (9th Cir.1981) ("A witness may, of course, be cross-examined about matters which he has put in dispute. An opening statement, having no evidentiary value, cannot operate to place an issue in controversy.") (internal citations omitted); Bynum v. Commonwealth, 28 Va.App. 451, 506 S.E.2d 30, 34 (1998) ("[SItate-ments made during an opening statement are not evidence; therefore, opening statements may not 'open the door' to otherwise inadmissible evidence."); State v. Richards, 190 W.Va. 299, 438 S.E.2d 331

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Cite This Page — Counsel Stack

Bluebook (online)
312 P.3d 193, 2010 WL 2105878, 2010 Colo. App. LEXIS 695, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-davis-coloctapp-2010.