People v. Halstead

881 P.2d 401, 18 Brief Times Rptr. 427, 1994 Colo. App. LEXIS 75, 1994 WL 72532
CourtColorado Court of Appeals
DecidedMarch 10, 1994
Docket92CA0300
StatusPublished
Cited by20 cases

This text of 881 P.2d 401 (People v. Halstead) 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. Halstead, 881 P.2d 401, 18 Brief Times Rptr. 427, 1994 Colo. App. LEXIS 75, 1994 WL 72532 (Colo. Ct. App. 1994).

Opinions

Opinion by

Judge DAVIDSON.

Defendant, Donald Halstead, appeals from the judgments of conviction entered upon jury verdicts finding him guilty of first degree sexual assault, first degree assault, burglary, and criminal mischief. We affirm in part, vacate in part, and remand with directions.

The charges stem from an incident during which defendant, armed with a knife, sexually assaulted his neighbor after entering her home with her permission but on false pretenses. As the victim struggled against him, he cut her hand with the knife. Following his conviction on the charges listed, defendant was sentenced to consecutive sentences for the first degree assault and sexual assault charges, to run concurrently with concurrent sentences for burglary and criminal mischief.

I.

Defendant first asserts that the trial court erred by permitting the prosecution to play a videotape of the victim’s statement to the police. Specifically, defendant contends that, although portions of the tape may have been admissible to rebut specific prior inconsistent statements used by defendant to impeach the victim’s direct testimony, most of the tape was irrelevant and constituted hearsay. Further, defendant argues, the court erred by allowing the videotape to be shown again to the jury during deliberation. We disagree.

The record indicates that, during the victim’s cross-examination, defense counsel attempted to impeach the victim’s testimony with her prior statements to the police, including her statements in the videotaped interview. The prosecution requested permission to play the videotape as redirect examination. Over defendant’s objection, the court — after redacting certain portions of the tapes as irrelevant — allowed the tapes to be shown to the jury.

A.

The rule of completeness does not extend to permit the admission of irrelevant portions of a document to explain the portion already in evidence. See People v. DelGuidice, 199 Colo. 41, 606 P.2d 840 (1979). Instead, the determination of how much of a prior consistent statement is admissible is based upon its relevance and probative use. People v. Tyler, 745 P.2d 257 (Colo.App.1987).

Thus, if the impeachment or charge of fabrication goes only to specific facts, then only consistent statements regarding those specific facts are relevant and admissible. See People v. DelGuidice, supra. If, however, the impeachment was general and not limited to specific facts, the consistent statements are relevant and probative. People v. Tyler, supra.

Here, the record reveals that, unlike the situation in People v. DelGuidice, supra, the impeachment did not relate to one specific statement, but was a general attack on the victim’s credibility. Defendant’s cross-examination included over 30 references to the victim’s statements to the police and covered nearly every aspect of the offense. See People v. Tyler, supra, 745 P.2d at 259 (“[i]f the credibility of a witness is at issue, the jury should have access to all the relevant facts, including consistent and inconsistent statements”).

Also, contrary to defendant’s assertion, the videotape was not hearsay. If prior consistent statements are offered, as here, to rebut a charge of recent fabrication, the statements are not hearsay. CRE 801(d)(1)(B).

[404]*404B.

We also disagree with defendant that the trial court abused its discretion when it allowed the jury to view the tapes during deliberation.

A trial court may allow the jury to review a videotape of a witness’ previous statements under circumstances that will assure that such statements will not be given undue weight or emphasis. “The precise procedure to be followed to assure this result lies within the trial court’s sound discretion,” but the trial court must supervise the procedure adopted. People v. Montoya, 773 P.2d 623, 626 (Colo.App.1989).

Here, the trial court allowed the tapes to be viewed with counsel and the court present. In addition, the trial court ensured that only the same portions of the tapes were shown to the jury during deliberation as had been shown during trial.

Moreover, in response to the defendant’s objection at trial that showing the videotape would overemphasize that evidence, the trial court reasoned that:

This is not a situation where we had one witness who came in and testified one way and another witness who came in and testified in another way so that the jury is having to resolve credibility issues, one witness as compared to the other. The testimony to us is just the one and only version that was presented of the facts to the jury. Under these circumstances, I don’t think that this would give undue weight to the testimony of one witness [while] at the same time [ignoring] the testimony of some other witnesses.

We agree with the trial court and find no abuse of discretion.

II.

Defendant’s primary contention on appeal is that his multiple felony convictions for first degree assault, first degree sexual assault, and first degree burglary cannot stand under the merger doctrine as set forth in § 18-l-408(l)(a), C.R.S. (1986 Repl.Vol. 8B), and the double jeopardy clauses of the Colorado and United States Constitutions. We agree that pursuant to § 18-l-408(l)(a), burglary and sexual assault are included offenses of first degree assault under § 18-3-202(l)(d), C.R.S. (1986 Repl.Vol. 8B), and as a consequence, one of those convictions must be vacated.

A person commits first degree assault under § 18-3-202(l)(d) if:

Acting either alone or with one or more persons, he commits or attempts to commit murder, robbery, arson, burglary, escape in the first degree, kidnapping in the first degree, sexual assault in the first or second degree, or class 3 felony sexual assault on a child and in the course of or in furtherance of the crime that he is committing or attempting to commit, or of immediate flight therefrom, the serious bodily injury of a person, other than a participant in the commission or attempted commission of the crime, is caused by anyone.

Here, either the sexual assault or the burglary functions as a predicate offense for the first degree assault conviction.

A defendant may be convicted of multiple offenses arising out of a single transaction if such defendant has violated more than one statute, but he or she cannot be convicted of both a greater and lesser included offense. Section 18-l-408(l)(a); see Armintrout v. People, 864 P.2d 676 (Colo.1993).

Section 18-l-408(5)(a), C.R.S. (1986 Repl. Vol. 8B) “defines a lesser included offense as one ‘established by proof of the same or less than all the facts required to establish the commission of the offense charged.’ ” Armintrout v. People, supra, 864 P.2d at 579. The doctrine of merger treats an offense as lesser included when proof of the essential elements of the greater offense necessarily establishes the elements required to prove the lesser offense. Armintrout v. People, supra.

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People v. Halstead
881 P.2d 401 (Colorado Court of Appeals, 1994)

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Bluebook (online)
881 P.2d 401, 18 Brief Times Rptr. 427, 1994 Colo. App. LEXIS 75, 1994 WL 72532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-halstead-coloctapp-1994.