 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Clark12/11/1975
field of psychiatry. The court determined that the doctor was qualified to testify as an expert and express his opinion.
Hypothetical questions which set forth the prior testimony as to the defendant's character were posed to the doctor, and then the doctor was asked to give an opinion whether an individual of that character could
commit a violent rape. The doctor responded in the affirmative. The doctor was then asked whether rapists had any common characteristics and he answered "no."
In responses to questions from the court and defense counsel, the doctor stated that his opinion was based upon research in the field and his personal experience which had disclosed no "predictors" between the type of character possessed by an individual and the propensity of that individual to commit violent acts.
Defendant first contends that the trial court erred in admitting the doctor's testimony arguing that the only proper rebuttal evidence under the circumstances of this case was evidence of defendant's "bad character." We disagree.
The obvious purpose in eliciting testimony to show defendant's good character was to raise the inference that he would not commit a violent rape. The doctor's testimony merely tended to rebut that inference by showing that in the doctor's opinion there was no correlation between an individual's character and his propensity to commit violent acts. Since it is proper for the People to present testimony of bad character in response to evidence of good character offered by the defendant, see Martin v. People, 114 Colo. 120, 162 P.2d 597, we conclude it is also proper to offer testimony to rebut the inferences to be derived from defendant's character evidence.
We have examined defendant's other contentions relative to the admission of the doctor's testimony and find them to be without merit.
IV. Instructions
Defendant contends that the trial court erred in refusing his tendered instruction regarding the People's failure to call a witness. We disagree.
In addition to the hiking boots removed from defendant's apartment during the initial investigation in this case, other items of clothing were seized thereafter and forwarded to the Colorado Bureau of Investigation for testing. The People did not call any witnesses relative to whether tests were conducted on these other items and the results thereof, if any.
Relying on cases such as Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215, defendant requested an instruction which advised the jury to the effect that if they found the People had failed to call an available witness who had knowledge of facts not testified to by others, then the jury could presume that the testimony of the "uncalled witness" would have been unfavorable to the People. Assuming, without deciding, that the instruction correctly stated the law, the trial court properly refused it since there was no evidence showing that any tests were ever conducted on these items, and thus no basis to support a conclusion that the People failed to call any witness relative thereto. See People v. Trujillo, 186 Colo. 329, 527 P.2d 52.
We have considered defendant's other contentions and find them to be without merit.
Judgment affirmed.
Disposition
Affirmed.
|