Opinion
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., John R. Rodman, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Lee Belstock, Deputy Public Defender, Denver, for defendant-appellant.
ENOCH, Judge.
After trial to a jury defendant was convicted of introducing contraband into a detention facility, in the second degree, in violation of s 18--8--204, C.R.S.1973. On appeal he seeks reversal and a new trial, contending that the trial court improperly limited his cross-examination of certain witnesses. We affirm.
On December 13, 1973, defendant was in detention at the Boulder County Jail. After a 'contact visit' with his wife in the jail, defendant underwent the customary strip search, conducted by Deputy Sheriff Wands. Officer Wands testified at the trial that during that search he found defendant to be in possession of a wrench, an item the defendant was not permitted to have under the rules and regulations of the jail. The officer signed two criminal complaints against defendant and on February 22, 1974, the district attorney filed an information charging defendant with the crime for which he was subsequently convicted.
Defendant's theory at trial was that the prosecution for introducing contraband was retaliatory, and was brought only after he was acquitted of the charges for which he was being held pending trial at the time of the incident involving the wrench. Defendant did not testify, however. In support of this theory he sought to introduce evidence that the charges in the instant case were not filed until two days after acquittal on the other charges. He also attempted to introduce a report which, counsel argued, needed to show that prior to the acquittal, the officers who investigated the wrench incident had concluded the evidence was insufficient to warrant prosecution. The trial court excluded this evidence but did permit counsel to cross-examine Officer Wands concerning any bias or prejudice which he held toward defendant. Defendant argues that this exclusion was erroneous and that cross-examination of prosecution witnesses should have been permitted regarding the timing of the filing of charges, because it was crucial in his effort to challenge the credibility of the complaining witness.
The right of a defendant to cross-examine a witness is constitutionally protected. The trial court does, however, have discretion to determine the scope and limits of that cross-examination and will not be overruled on review except for an abuse of that discretion. People v. Fresquez, Colo., 526 P.2d 146; People v. Chavez, Colo., 511 P.2d 883.
It is correct that cross-examination should be liberally extended to permit thorough inquiry into the motives of a witnesses testifying for the prosecution. People v. Key, Colo., 522 P.2d 719, and cross-examination should not be limited where defense counsel seeks to elicit evidence regarding the motive of a witness in testifying or his interest in the outcome of the case, from which a want of credibility may be inferred. See People v. King, 179 Colo, 94, 498 P.2d 1142; Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347. In this case, however, examination of the record reveals that the trial judge permitted thorough inquiry by the defense into the motives of Officer Wands, the complaining witness. While it excluded evidence and inquiry concerning the timing of the filing of the charges, the court did say regarding cross-examination of Officer Wands:
'If you want to ask him what steps he took, what force he used, what urging he did to get this information filed and show any bias or prejudice, you can do that.'
Thus the court did permit cross-examination not only as to Whether Officer Wands was biased, but also Why he might be biased. See Davis v. Alaska, supra. The trial court did not abuse its discretion when it concluded that in view of the many possible reasons for the timing of the filing of charges it would not permit evidence or inquiry on that point.
Defendant also contends that the trial court erroneously permitted testimony by Sergeant Amezquita of the Boulder County Sheriff's Department concerning conversations he had with defendant in jail regarding defendant's familiarity with jail procedures governing permissible items. He contends that this testimony should have been revealed to the defendant prior to trial in accordance with defendant's motion for discovery which was confessed by the prosecution. The People admit that the motion for discovery sought the substance of all oral statements of defendant upon which the prosecution sought to rely to support the charges, and that the district attorney agreed to comply with the motion. However, the People contend that the rules of discovery do not contemplate requiring the district attorney to inform the defense of testimony regarding unrecorded conversations with defendant.
It appears that the district attorney should have informed defendant that it would use this testimony since the People had agreed to comply with the very broad terms of the motion for discovery. However we are unable to conclude that defendant was prejudiced by any error of the trial court in permitting Sergeant Amezquita to testify regarding defendant's knowledge of jail regulation of items permitted to inmates. Defendant has not explained how he was prejudiced. Defendant's unsuccessful attempt to conceal the wrench within his anatomy was sufficient evidence in and of itself to show that defendant knew that he was violating jail procedures governing permissible items. The mere possibility of prejudice is insufficient to warrant reversal. People v. Thomas, 181 Colo. 317, 509 P.2d 592; Sequra v. People, 159 Colo. 371, 412 P.2d 227.
Judgment affirmed.
COYTE and BERMAN, JJ., concur.