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holding that when cross-examining character witness concerning other bad acts of defendant, party should obtain favorable ruling from trial court prior to attempting to admit the evidence so as to avoid inadvertently prejudicing or confusing the jury
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No. 86SA401
Decided July 5, 1988. Rehearing Denied August 8, 1988.
Appeal from District Court, El Paso County Honorable Joe E. Cannon, District Judge
Duane Woodard, Colorado Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, John Milton Hutchins, First Assistant Attorney General, Clement P. Engle, Assistant Attorney General, for Plaintiff-Appellee.
Lee Jay Belstock; William H. Kirkman, Jr., for Defendant-Appellant.
The defendant was convicted of accessory to crime and conspiracy to commit accessory to crime, pursuant to sections 18-8-105 and 18-2-201, 8 C.R.S. (1978), and was sentenced to four years of probation with a condition that she not take part in nursing home affairs for a period of one year. Because we hold that the prosecution impermissibly cross-examined defense witnesses concerning collateral matters, we reverse the defendant's conviction and remand the case for a new trial.
The trial court actually sentenced the defendant to two years of imprisonment on each count and suspended those sentences subject to the conditions that the defendant remain on probation for four years, pay the costs of the action, and not take part in nursing home affairs for one year. We note that the trial court was without authority to impose imprisonment, suspend the sentence, and then impose probation. People v. Flenniken, 749 P.2d 395, 398 (Colo. 1988); see People v. District Court, 673 P.2d 991, 996 (Colo. 1983).
I.
The defendant, Olga Pratt, is the primary owner and the director of nursing of Norton's Nursing Home in Colorado Springs. The charges in this case arose out of an incident on December 30, 1984, in which an orderly employed by Norton's, Kenneth Berzinis, assaulted a patient of Norton's, John Howard. Howard was ninety-seven years old at the time of the assault and did not testify at trial; his daughter and his physician, however, did testify. Testimony at trial focused on when the defendant learned of the assault and whether she obstructed the police investigation of the incident.
On December 30, 1984, Berzinis was the orderly in charge of two rooms, one of which was occupied by John Howard. Howard was described by all parties as a difficult patient, often causing disturbances and fabricating stories about staff abuse. Howard was unable to walk on his own and needed assistance in leaving his bed. Berzinis testified at trial that, on the day of the assault, Howard had become "increasingly demanding, cantankerous, and unable to be satisfied," and that Howard's behavior made him tense. Berzinis further testified that he was adjusting the mattress and pillows on Howard's bed with Howard in the bed and that, while doing so, "a fist was seen off my peripheral vision. At that moment, the man was injured." In response to questioning by the prosecutor, Berzinis explained that he had hit Howard. Berzinis eventually confessed to the police and pled guilty to third degree assault.
The events subsequent to the assault were a source of controversy at trial. Mary Wilburn was a registered nurse at Norton's and was a codefendant at trial. She was the supervising nurse on duty on the day of the assault. Wilburn testified that she heard moaning coming from Howard's room, and that she entered the room and found Howard in the bathroom sitting on the toilet. She noted that his left eye was badly swollen and asked him what had happened. He stated, "fist in my eye." She then transferred Howard to his bed, examined him, and placed an icebag on his eye.
Berzinis testified that, following the assault, he moved Howard from the bed to a portable toilet, and that he never moved Howard to the bathroom. This was corroborated by Janet Hern, a former nurse of Norton's. She testified that when she entered Howard's room shortly after the assault and asked Berzinis what had happened, he replied "I lost it; I hit him." Hern was fired by Norton's on February 18, 1985. The defense introduced into evidence Hern's employment file, which documented various incidents of deficient work performance by Hern dating back to April of 1984.
Both Berzinis and Hern testified that, although they were in Howard's room following the incident, they never observed an icebag on Howard's eye. Berzinis testified that he was in Howard's room when Wilburn entered, and that Howard was sitting on the portable toilet at that time. Jerry Cain, a janitor on duty at Norton's on the day of the assault, testified that he had entered Howard's room while Berzinis was there, that he then discovered Howard's injury, and that he informed Wilburn of the injury. Cain also testified that Howard was in bed at this time, although earlier he had stated to police detectives that Howard was sitting on the portable toilet. The defendant and several other witnesses challenged Hern's and Berzinis' account of the incident by testifying that the nursing home did not have a portable toilet like they described.
Wilburn immediately telephoned the defendant after discovering Howard's injury. She testified that she informed the defendant that Howard had been injured and that, although Berzinis was the orderly in charge of Howard's room, she did not think he was responsible for Howard's injury. The defendant asked to speak to Berzinis and told him that patient abuse would not be tolerated, that he was to go home for the day, and that he was to meet with her on the next morning to discuss the incident. Berzinis testified that he did not, during this telephone conversation, tell the defendant that he had hit Howard, although he claimed that he had told Wilburn that he had injured Howard. When confronted by defense counsel with his deposition testimony, Berzinis testified that he had stated to Wilburn: "Mary, I'm not going to lie to you; the man has been hit, but I'm not sure how he got hit." Wilburn testified that Berzinis did not make this statement or any other statement indicating that he had assaulted Howard.
Following this telephone conversation, the defendant went to the nursing home. She testified that she was unable to locate anyone who had seen or heard anything concerning the assault. She also testified that, although Hern at first told her that she knew what happened, Hern also told her that she had not seen or heard anything. Hern testified that she told the defendant that Berzinis and Howard had told her that Berzinis had assaulted Howard, but that the defendant told her to "keep my mouth shut until I found out what was going on." The defendant denied making this statement.
A meeting was held on December 31 among the defendant, Berzinis, and other members of Norton's staff. Testimony concerning this meeting also was conflicting. Berzinis testified that the defendant opened the meeting by stating that the Howard incident could have very serious repercussions, including criminal charges against Berzinis, a lawsuit against Norton's, higher insurance rates, and bad publicity for the nursing home. Berzinis testified that he stated at this meeting that, although he wasn't totally clear as to what had happened, he believed that he had hit Howard, although the incident was "accidental." He also testified that, although he did not in any way imply that Howard accidentally fell in the bathroom, the defendant stated at the meeting that any public statements would be to the effect that Howard was accidentally injured in the bathroom.
The defendant testified that, while the possibility of criminal charges against Berzinis was mentioned at the meeting, potential repercussions to the nursing home were never brought up. She further testified that, although Berzinis did state "I must have hit him, I might have," after being informed that Howard's jaw was broken in two places, Berzinis also stated that he couldn't have possibly done that. The defendant testified that no effort was made to convince Berzinis to do anything but tell the truth concerning the incident. The defendant's version of the December 31 meeting was corroborated at trial by the testimony of the other staff members at the meeting. The defendant further testified that she was concerned about falsely accusing Berzinis of the assault and that she did not believe she had enough information to accuse Berzinis.
The defendant called her insurance agent after this meeting, and informed him that a patient was found injured in the bathroom. She also told the insurance agent that Berzinis was on duty at the time, but that she did not know whether he was involved, and requested that an investigator be sent to the nursing home. Testimony of the insurance agent confirmed the defendant's testimony.
On January 7, two police investigators met with the defendant, a staff member, and the nursing home attorney. The police investigators testified that the defendant told them that Wilburn had found Howard injured in the bathroom, that there was some doubt about what had happened and whether Berzinis was responsible, and that Berzinis was suspended until the conclusion of the insurance investigation at which time she would decide whether he would be retained or fired. The defendant and her attorney testified that they had informed the police investigators about the December 31 meeting and Berzinis' statements at that meeting, that there were several rumors regarding the incident but no actual witnesses, and that Hern had told her that she knew what had happened. The police investigators denied during their testimony that they had received this additional information.
On January 7, 1985, Berzinis confessed to police that he had assaulted Howard. He pleaded guilty to third degree assault on July 11, 1985.
The defendant was charged on January 15, 1985, with accessory to third degree assault. This charge subsequently was amended to add a charge of conspiracy to commit accessory to third degree assault. The defendant was convicted by a jury of both charges, and was sentenced to probation for four years on the condition that she not take part in nursing home affairs for a period of one year. The defendant now appeals her conviction.
Because the defendant challenges the constitutionality of the accessory statute, we have jurisdiction to decide this case pursuant to section 13-4-102(1)(b), 6A C.R.S. (1987).
II.
The defendant claims that the trial court erred in allowing the prosecution, during cross-examination of defense witnesses, to inquire several times into two incidents of alleged misconduct. We agree with this contention and reverse the defendant's conviction.
At trial, the defense called Eddie Bishop, the business manager of Norton's nursing home. During its cross-examination, the prosecution asked for a recess, and an in camera hearing was held at which the prosecution made an offer of proof concerning allegedly fraudulent activity by the nursing home administrators, and indicated its intention to cross-examine Bishop regarding this matter. The prosecutor stated that the nursing home had been investigated by the state Department of Social Services concerning its bookkeeping for various Medicaid accounts. He further stated that Bishop had accepted full responsibility for any improper accounting although the prosecutor conceded that no charges were ever filed. The defense produced a letter from the Department of Social Services addressed to Bishop acknowledging receipt of funds from the nursing home to cover all cash shortages, stating that the audit had been closed, and thanking Bishop for his cooperation. The defendant objected to this line of questioning, arguing that a government audit by itself was not indicative of truthfulness. The trial court ruled that CRE 608 permitted this inquiry.
CRE 608(b) provides that specific instances of the conduct of a witness may, "in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified." While we recognize that the decision whether to allow this type of cross-examination is within the discretion of the trial court, People v. Crawford, 191 Colo. 504, 507, 553 P.2d 827, 829 (1976); see People v. Raffaelli, 647 P.2d 230, 234 (Colo. 1982), the conduct inquired into nevertheless must be probative of the truthfulness or untruthfulness of the witness. See People v. Saldana, 670 P.2d 14, 15 (Colo.App. 1983) (approving trial court's ruling preventing cross-examination of the prosecution's investigator as to his past use of marijuana because such evidence is not probative of truthfulness or untruthfulness).
During his cross-examination of Bishop, the prosecutor questioned Bishop about monies that were improperly withheld from Medicaid patients. Bishop explained the circumstances surrounding the audit and denied that any wrongdoing had occurred. There was no evidence, other than an audit by the state Social Services Department, of any fraudulent activity by Bishop. To be admissible under CRE 608, questions of this sort must relate to the truthfulness of the witness. The offer of proof made by the prosecutor at the in camera hearing indicated bookkeeping errors at most, and not fraudulent action. Nevertheless, the prosecutor's insinuation of fraudulent conduct was made clear to the jury, despite the defense's efforts at explaining the situation.
Unproven accusations, by themselves, do not raise an inference of improper actions. For example, an arrest alone is not admissible to impeach a witness' credibility. E.g., United States v. Labarbera, 581 F.2d 107, 108 (5th Cir. 1978); United States v. Ling, 581 F.2d 1118, 1121 (4th Cir. 1978); United States v. Hodnett, 537 F.2d 828, 829 (5th Cir. 1976). This is because arrests "happen to the innocent as well as the guilty." Ling, 581 F.2d at 1121 (quoting Michelson v. United States, 335 U.S. 469, 482 (1948)). Total and complete exclusion of an arrest is generally required because "the probative value of such evidence is so overwhelmingly outweighed by its inevitable tendency to inflame or prejudice the jury against the defendant." Ling, 581 F.2d at 1121; see Labarbera, 581 F.2d at 109. Similarly, a pending criminal charge against a witness is an improper subject for impeachment. United States v. Farid, 733 F.2d 1318, 1320 (8th Cir. 1984). By analogy, these considerations apply to the Social Services audit of the defendant's business and Bishop's role in that audit. We cannot say that an audit which results in a settlement concluding with a letter of thanks from the investigating agency is probative of the untruthfulness of the person audited.
The Eighth Circuit Court of Appeals reached a similar issue in United States v. Dennis, 625 F.2d 782 (8th Cir. 1980). The court upheld the trial court's rejection of the defendant's attempt to cross-examine a witness about an arrest for tax problems, which arrest did not result in a conviction. 625 F.2d at 798. The court held that civil tax problems cannot be regarded as indicating a lack of truthfulness under Fed.R. Evid. 608(b), which is identical to CRE 608(b). 625 F.2d at 798; accord Shafer v. American Employers' Ins. Co., 535 F. Supp. 1067 (W.D. Ark. 1982) (quoting Dennis and holding that a possible discrepancy between a witness' testimony and his tax returns was not probative of his truthfulness or untruthfulness and thus not admissible under Fed.R. Evid. 608(b)). We believe that the instant situation is comparable to that in Dennis, and we hold that the trial court abused its discretion in allowing this cross-examination of Bishop.
The prosecution compounded its wrongful action with its cross-examination of two other witnesses called as character witnesses for the defendant. The prosecutor asked both witnesses whether they were aware that Norton's Nursing Home had wrongfully retained approximately $15,000 from patients and Medicaid and whether they were aware that the defendant had ordered that a patient be tied to an upright chair every evening.
We note first that, in general, inquiry into the prior acts of a criminal defendant is not allowed. A defendant on trial for a specific offense should not be expected or required to meet anything other than the specific accusation made against her. E.g., Edmisten v. People, 176 Colo. 262, 275, 490 P.2d 58, 64 (1971); Stull v. People, 140 Colo. 278, 283, 344 P.2d 455, 458 (1959). An accused has the right to know the allegations against which she must defend. Edmisten, 176 Colo. at 275, 490 P.2d at 64; Stull, 140 Colo. at 283, 344 P.2d at 458. These basic tenets are particularly applicable where the prosecution has not demonstrated that the questioning concerned incidents indicative of wrongdoing.
The defendant properly introduced testimony concerning her good reputation pursuant to CRE 404(a)(1) and CRE 405(a). The prosecution's cross-examination of the defendant's character witnesses is controlled by CRE 405(a), which allows inquiry into "relevant specific instances of conduct."
CRE 404(a) provides in pertinent part: "Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except . . . [e]vidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same . . . ." CRE 405(a) provides: "In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct."
We address first the prosecution's cross-examination of the character witnesses regarding whether they were aware that Norton's Nursing Home had wrongfully retained approximately $15,000 from patients and Medicaid. When a defendant puts her character in issue by offering testimony as to her good reputation or opinion testimony concerning her character, the prosecution's cross-examination is limited to relevant specific instances of conduct. Relevant specific instances of conduct are instances related to the character trait put in issue. E.g., United States v. Curtis, 644 F.2d 263, 268, 269 (3d Cir. 1981); United States v. Wooden, 420 F.2d 251, 252-53 (D.C. Cir. 1969) (quoting Michelson, 335 U.S. at 483-84); State v. Hinton, 206 Kan. 500, 479 P.2d 910, 915 (1971). See generally K. Broun, G. Dix, E. Gellhorn, D. Kaye, R. Meisenholder, E. Roberts, J. Strong, McCormick on Evidence § 191, at 568-69 (3d ed. 1984) (hereinafter McCormick); 3 J. Weinstein M. Berger, Weinstein's Evidence 608[06], at 608-55 (1987) (hereinafter Weinstein). "[R]elevant specific instances of conduct are only instances going to the accuracy of the character witnesses' testimony." Curtis, 644 F.2d at 268 (citation and emphasis omitted).
The first character witness called, Virginia Harlan, testified that the defendant had a "fine reputation," and that Norton's Nursing Home was "excellent," "very professional," and had "impeccable business practices [with] no theft." The second character witness, Arlene Linton, the executive director of the Colorado Health Care Association, testified that the defendant "has a great amount of respect from all of the individuals who deal routinely with nursing homes in Colorado," and that she had "no reason to ever question" the defendant's truth and veracity.
As to character witness Linton, any evidence of wrongdoing on Bishop's part was unrelated to the testimony offered by Linton, which was limited to the defendant's personal reputation for truth and veracity and the respect afforded her by others in the nursing home profession. See, e.g., United States v. Fox, 473 F.2d 131, 135 (D.C. Cir. 1972) (prejudicial error was committed when the trial court allowed the prosecution to ask a defense character witness questions concerning the defendant's arrest for rape because "[t]here is no obvious relationship between rape and veracity"); Wooden, 420 F.2d at 253 (holding that convictions for drunkenness are not relevant to a reputation for honesty and integrity and for peace and good order and reversing the defendant's conviction). The trial court therefore erred in allowing this questioning.
Concerning character witness Harlan, had Bishop engaged in fraudulent business practices, this conduct would be relevant to the witness' assessment of Norton's "impeccable business practices." We do not believe, however, that the evidence offered by the prosecution, which did not establish fraudulent activity, was related to the "accuracy of the character witness' testimony." Curtis, 644 F.2d at 268. When asked about this conduct on cross, Linton testified that such an audit was "not unusual . . . in the nursing-home industry."
While we recognize that some courts have allowed cross-examination of character witnesses concerning rumors which may or may not be grounded in fact, see, e.g., Shimon v. United States, 352 F.2d 449, 453 (D.C. Cir. 1965); Hohman v. State, 669 P.2d 1316, 1327 n. 10 (Alaska App. 1983), we believe the better-reasoned approach is to require a showing from the impeaching party that the acts forming the basis for the rumor actually occurred, e.g., Curtis, 644 F.2d at 268 n. 2 ("The matters the witness is to be asked about should first be established to the trial judge's satisfaction as actual events.") (quoting United States v. Lewis, 482 F.2d 632, 639 (D.C. Cir. 1973)); Hinton, 479 P.2d at 917 (trial court should establish, out of the presence of the jury, that "there is no question as to the fact of the subject matter of the rumor, that is, of the previous arrest, conviction or other pertinent misconduct of the defendant"); Miller v. State, 418 P.2d 220, 225 (Okl. Crim. App. 1966) (same). See generally 2 Weinstein, supra 405[02], at 405-33 (1986) ("if the court discovers that the question put on cross is unfair — either because it is unfounded or can be explained away — it should not permit the question" (footnote omitted)). The prosecution asked both character witnesses if they were aware that Norton's Nursing Home had "kept about $15,000 in money that should have gone to either patients or Medicaid." We hold that, because there was no basis in fact for these questions, the questions were improper.
We next consider the prosecution's examination concerning an alleged order by the defendant that a patient be tied in an upright chair every evening. We also conclude that this line of inquiry was improper. The defendant denied any knowledge of this incident during her testimony. Character witness Linton explained that doctors often order such a procedure, called "poseying," for the patient's protection.
Questions directed toward impeaching a witness must be asked in good faith. See People v. Robles, 183 Colo. 4, 6, 514 P.2d 630, 631 (1973) (questioning by district attorney regarding a prior felony conviction which the district attorney knew did not exist is reversible error); People v. Thompson, 182 Colo. 198, 200, 511 P.2d 909, 910 (1973) (questions about prior felonies must be asked by the prosecuting attorney in good faith); People v. Lewis, 180 Colo. 423, 426-27, 506 P.2d 125, 126 (1973) (same). This general principle likewise is applicable when cross-examining character witnesses. When questioning character witnesses, counsel should not "tak[e] a random shot at a reputation imprudently exposed or [ask] a groundless question to waft an unwarranted innuendo into the jury box." Michelson v. United States, 335 U.S. 469, 481 (1948) (footnote omitted). A good faith basis is required to question character witnesses concerning specific incidents seemingly at odds with the witnesses' assessment of the defendant's character. United States v. Canniff, 521 F.2d 565, 573 (2d Cir. 1975) ("adequate basis" required), cert. denied, 423 U.S. 1059 (1976); United States v. Beno, 324 F.2d 582, 588 (2d Cir. 1963) ("good faith belief" required); United States v. Curtis, 494 F. Supp. 279, 283 (E.D. Pa. 1980) (quoting Michelson), rev'd on other grounds, 644 F.2d 263 (3rd Cir. 1981); People v. Eli, 66 Cal.2d 63, 56 Cal.Rptr. 916, 424 P.2d 356, 367 (quoting Michelson and holding that trial courts must "scrupulously prevent cross-examination based upon mere fantasy"), cert. denied, 389 U.S. 888 (1967).
The prosecutor established no good faith basis for this line of cross-examination; in fact, the only evidence presented on the issue was the defendant's denial of such an incident. Once the prosecutor asked the question, the jury was clearly informed that the state believed that such an incident had occurred and was improper, without any showing by the prosecution of its basis for the question or the relevance of the incident.
CRE 103(c) provides: "In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury." When the prosecution wishes to submit similar transaction evidence pursuant to CRE 404(b), we have imposed an obligation on the prosecutor to obtain a favorable ruling from the trial court prior to attempting to admit the evidence. Stull, 140 Colo. at 284, 344 P.2d at 458; see People v. Scheidt, 182 Colo. 374, 381, 513 P.2d 446, 450 (1973); Kurtz v. People, 177 Colo. 306, 313, 494 P.2d 97, 101 (1972). We explained the rationale for this rule in Stull:
"Bearing in mind that evidence of similar acts has inhering in it damning innuendo likely to beget prejudice in the minds of jurors, and that such evidence tends to inject collateral issues into a criminal case which are not unlikely to confuse and lead astray the jury, it becomes exigent that courts observe the fine balance in regard to such evidence that must exist between the necessity of proof on the part of the prosecutor and the danger of unfair prejudice to the defendant."
140 Colo. at 284, 344 P.2d at 458 (citations omitted).
We believe the same reasoning applies to cross-examination of character witnesses concerning other acts of the defendant. Other courts have held that a trial court should rule on the propriety of such cross-examination prior to any attempt at questioning. Curtis, 644 F.2d at 268 n. 2, Lewis, 482 F.2d at 639; Hinton, 479 P.2d at 913, 917; Miller, 418 P.2d at 225. See generally McCormick, supra, § 191, at 569-70 ("As a precondition to cross-examination about other wrongs, the prosecutor should reveal, outside the hearing of the jury, what his basis is for believing in the rumors or incidents he proposes to ask about. The court should then determine whether there is a substantial basis for the cross-examination." (footnotes omitted)); 2 Weinstein, supra, 405[02], at 405-33 ("If the attorney has the slightest doubt about the propriety of the question he should raise it at sidebar to prevent introducing unnecessary prejudice into the case. This is particularly important because the proponent of the witness is not generally permitted to bring in extrinsic proof to show that the question is unwarranted and the jury is likely to assume that the court would not have permitted it to be asked unless its predicate were true." (footnote omitted)).
The prosecutor in this case made no effort to obtain a ruling from the trial court prior to asking questions concerning a highly prejudicial incident, which may not have even occurred. This line of questioning clearly was prejudicial and may have led the jury to discredit the testimony of the character witnesses. In addition, as with the audit questions, there is no indication, even if the incident actually occurred, that it was improper. We therefore doubt whether the questioning was relevant. Thus, we hold that the prosecution failed to establish a good faith basis that the incident actually occurred, and also failed to demonstrate the relevance of the questions. Therefore, the prosecutor's cross-examination of both character witnesses as to the alleged poseying incident was improper.
Evidence of specific acts of an individual to prove her character may also be admissible pursuant to CRE 404(b), but no argument has been presented that this section is applicable.
The People argue that, even if the cross-examination of Bishop and the defendant's character witnesses was improper, it was harmless error because "it dealt with matters which were truly fleeting and inconsequential when considered in context of the meat and potatoes of the trial." We cannot agree that the errors in this case were harmless. The People concede that the lengthy trial transcript contains a multitude of versions of the incidents which gave rise to the conviction. The trial was a complicated one, and a substantial amount of the testimony presented was contradictory. Many of the witnesses were impeached with their prior statements. The trial turned on which witnesses the jury chose to believe. The prosecution directly attacked the credibility of the defendant and another important defense witness, Bishop, with improper questioning. Defense counsel consistently objected to the prosecution's cross-examination. The prosecutor stressed throughout his closing argument that the case turned on the credibility of the witnesses and which witnesses the jury chose to believe. We cannot say that the errors which occurred did not affect the substantial rights of the defendant. Crim. P. 52(a). See Wooden, 420 F.2d at 253 (where the decisive issue before the jury is one of credibility, improper cross-examination of the defendant's character witness was not harmless error because "evidence of [the defendant's] good reputation might well have tipped the scales in his favor; for evidence of good reputation standing alone may create a reasonable doubt"); Shimon, 352 F.2d at 453 (character evidence alone may raise a reasonable doubt of guilt) (citing Edgington v. United States, 164 U.S. 361 (1896)). We therefore reverse the defendant's conviction.
Defense counsel objected several times during the in camera hearing to the cross-examination of Bishop on the grounds that it was not admissible under CRE 608, that the subject of the cross-examination was not indicative of truthfulness, and that the prosecution had not established a good faith basis for the questions. Following one of these objections, the trial judge stated that defense counsel had "already objected" and "that's all that's required under the rules." Additional formal objections in the presence of the jury are not required. See Uptain v. Huntington Lab, Inc., 723 P.2d 1322, 1330-31 (Colo. 1986) (objections during motion in limine satisfy the purposes of the contemporaneous objection rule). Defense counsel also objected to the prosecution's first question concerning the alleged poseying incident. Although defense counsel did not specifically object to the questioning of the character witnesses concerning the alleged misappropriation of funds, or to the questioning of the second character witness regarding poseying, we believe that the defendant preserved these issues for appeal with her previous objections. E.g., United States v. Talavera, 668 F.2d 625, 630 (1st Cir.), cert. denied, 456 U.S. 978 (1982); United States v. Brown, 555 F.2d 407, 422 n. 32 (5th Cir. 1977), cert. denied, 435 U.S. 904 (1978); Padilla v. Southern Pac. Transp. Co., 131 Ariz. 533, 642 P.2d 878, 880 (1982). See generally McCormick, supra, § 52, at 118 (Requiring repetitious objections places the objector "in the invidious semblance of a contentious objector, and conduces to waste of time and fraying of patience. Most courts, however, hold that [the objector] is entitled to assume that the judge will continue to make the same ruling and that he need not repeat the objection." (footnotes omitted)); C. Wright K. Graham, Federal Practice and Procedure § 5037, at 191 (1977) ("[U]nder the better traditional view, an objection overruled will suffice to preserve the point as to all subsequently offered evidence of the same type; the objector need not continue to object each time such evidence is offered." (footnote omitted)).
For instance, the prosecution stated early in his closing argument: "The evidence that you've looked at comes down to who are you going to believe. That's flat the one issue that you're going to be deciding back there in the jury room. . . . And that's what this whole case comes down to."
We also will address the following issues which are likely to recur at the new trial.
III.
The accessory statute under which the defendant was convicted provides that "[a] person is an accessory to crime if, with intent to hinder, delay, or prevent the discovery, detection, apprehension, prosecution, conviction, or punishment of another for the commission of a crime, he renders assistance to such person." § 18-8-105(1), 8 C.R.S. (1978). "Render assistance" is defined as including "[b]y force, intimidation, or deception, obstruct[ing] anyone in the performance of any act which might aid in the discovery, detection, apprehension, prosecution, conviction, or punishment of such person." § 18-8-105(2)(d), 8 C.R.S. (1978). The defendant argues that the definition of the term "render assistance" makes the statute unconstitutionally vague and overbroad.
A penal statute offends due process if it forbids or requires the doing of an act in terms so vague that persons of common intelligence necessarily must guess as to its meaning and differ as to its application. E.g., Connally v. General Constr. Co., 269 U.S. 385, 391 (1926); People v. Rowerdink, 756 P.2d 986 (Colo. 1988); People v. Moore, 674 P.2d 354, 356-57 (Colo. 1984). The vagueness doctrine also demands that a statute provide clearly defined standards to minimize arbitrary and discriminatory enforcement of the laws and to inform a court and a jury whether a crime has been committed and proved. E.g., People v. Jennings, 641 P.2d 276, 278 (Colo. 1982); People v. Thatcher, 638 P.2d 760, 765 (Colo. 1981). There is a limit, however, to the degree of precision that can be reasonably expected of a legislative enactment. Rowerdink, slip op. at 8; People v. Garcia, 197 Colo. 550, 553, 595 P.2d 228, 230 (1979).
The People argue that People v. Young, 192 Colo. 65, 555 P.2d 1160 (1976), which rejected a vagueness challenge to the accessory statute then in effect, controls our decision in this case. Young relied on Self v. People, 167 Colo. 292, 448 P.2d 619 (1968), which also rejected a vagueness challenge to the applicable accessory statute. Self interpreted a statute significantly different from the one presently at issue, and, for that reason, is not controlling. The statute at issue in Young, § 40-8-105, 12 C.R.S. (1971 Perm. Supp.), was identical in all pertinent respects to section 18-8-105(1) and (2); the particular language which the defendant challenges, however, was not at issue in Young and, thus, Young also is not controlling.
The statutory language at issue in Self was as follows: "An accessory after the fact is a person who, after a full knowledge that a crime has been committed, conceals it from the magistrate, or harbors and protects the person charged with or found guilty of the crime." Section 40-1-13, 3 C.R.S. (1963).
The defendant relies upon our decision in People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977). In Hoehl we interpreted the child abuse statute, section 18-6-401(1)(a), 8 C.R.S. (1973), which provided in pertinent part: "A person commits child abuse if he knowingly, intentionally, or negligently, and without justifiable excuse, causes or permits a child to be: . . . [p]laced in a situation that may endanger the child's life or health. . . ." Relying on a definition of "may" as "be in some degree likely," we held that "[s]o construed, we seriously doubt whether `may' in a criminal statute provides a fair description of the prohibited conduct, since virtually any conduct directed toward a child has the possibility, however slim, of endangering the child's life or health." Hoehl, 193 Colo. at 560, 568 P.2d at 486 (citations omitted). The defendant argues that use of the word "might" in the accessory statute raises identical problems.
We agree with the defendant's argument. "Might" is defined as "express[ing] permission, liberty, probability, possibility in the past . . . or less probability or possibility than may . . . ." Webster's Third New International Dictionary 1432 (1986). Thus, "might" is even more speculative than "may", and the connection between the defendant's actions and the prohibited result is more tenuous than that which we condemned in Hoehl.
The People attempt to distinguish Hoehl by arguing that the accessory statute contains other elements, i.e., an "intent to hinder, delay, or prevent" and the use of "force, intimidation, or deception," which are certain enough to cure any ambiguity created by the use of "might". We reject this argument; the inclusion of several definite elements in a criminal statute cannot solve the constitutional deficiency created by the failure of the legislature to define a critical element of the statute with sufficient certainty.
We also held in Hoehl, however, that, where necessary, we would construe "may" as importing a greater degree of certainty than that normally attached to the word, and we construed the word "may" to mean a reasonable probability that the forbidden result would obtain. Hoehl, 193 Colo. at 560, 568 P.2d at 486. We hold that such a construction of "might" likewise is appropriate for purposes of the criminal accessory statute.
The defendant further argues that the accessory statute is unconstitutionally broad. An overbreadth challenge usually is applicable to legislative enactments which threaten the exercise of fundamental or express constitutional rights. Rowerdink, slip op. at 6; Garcia, 197 Colo. at 552, 595 P.2d at 230 (1979). A statute also may be overbroad if, in addition to proscribing conduct which can be prohibited under the state's police power, it purports to prohibit conduct that is not within the police power. Rowerdink, slip op. at 6; People v. Sequin, 199 Colo. 381, 384, 609 P.2d 622, 624 (1980).
The defendant does not allege that the statute at issue impinges upon a fundamental right or other constitutionally protected interest; in fact, the defendant has provided no example of legitimate conduct which is threatened by this statute. In any event, we hold that any overbreadth problem inherent in the accessory statute is cured by our limiting construction of the statute.
The defendant did not request, and the trial court did not give, a special instruction in accordance with our views in this opinion. Because we are reversing the defendant's conviction on other grounds, we need not determine whether the failure to give such an instruction constituted plain error. See People v. Rubanowitz, 688 P.2d 231 (Colo. 1984).
IV.
The defendant argues that the information charging her was insufficient. We reject this argument.
An information is sufficient if it advises the defendant of the charge she is facing so that she can adequately defend herself and be protected from further prosecution for the same offense. E.g., People v. Moore, 200 Colo. 481, 484, 615 P.2d 726, 728 (1980); People v. Albo, 195 Colo. 102, 106, 575 P.2d 427, 429 (1978). The amended information tracked the language of the accessory statute, specified a sixteen day period during which the offense allegedly occurred, and named Berzinis as the principal involved.
The accessory to crime charge of the information read as follows: "Between December 30, 1984 and January 14, 1985, [the defendant] with intent to hinder, delay and prevent the discovery, detection, prosecution, conviction, punishment and apprehension of KENNETH WARREN BERZINIS for the commission of Second Degree Assault on Elderly, as defined by C.R.S. 18-3-203 and 18-3-209, as amended, did knowingly, feloniously and unlawfully render assistance to the said KENNETH WARREN BERZINIS, by obstructing law enforcement authorities and others, by force, threat and intimidation, in the performance of acts which might aid in the discovery, detection, apprehension, prosecution, conviction or punishment of the said principal defendant; in violation of Colorado Revised Statutes 18-8-105(1) and (2), as amended, Accessory to Crime."
The defendant relies upon the vague wording of the statute in support of her argument. We rejected a similar argument in Hoehl, where the information also tracked the statutory language, despite our holding that the statutory language required a limiting instruction. 193 Colo. at 561, 568 P.2d at 487. As in Hoehl, the defendant has failed to demonstrate any prejudice from the allegedly vague information; she argues only that the information prevented her from preparing a defense. The record demonstrates that the defendant was quite aware of the nature of the prosecution's charges against her, that the trial was, in fact, hotly contested, and that the defendant failed to demonstrate any prejudice caused by the information. Thus, we hold that the information was sufficient.
V.
We reverse the defendant's conviction and remand the case to the trial court for a new trial.
JUSTICE ROVIRA joins in the opinion except for Part II; JUSTICE VOLLACK concurs in part and dissents in part and JUSTICE ERICKSON joins in the concurrence and dissent.