People v. Hall11/18/2004
JUDGMENT AFFIRMED
Marquez and Kapelke, JJ., concur
Defendant, Michael Omar Hall, appeals the judgment of conviction entered on jury verdicts finding him guilty of vehicular homicide, vehicular assault, careless driving resulting in injury, driving under the influence , and use of a schedule II controlled substance. We affirm.
On December 29, 2001, defendant, the victim, and four friends were riding in a car owned by defendant's mother and driven by defendant. The group drove from Delta, Colorado, to Hotchkiss, then on to Paonia, and back to Delta. Everyone in the group had been drinking alcohol.
On the return trip to Delta, the vehicle skidded through a stop sign, spun off of the road, and crashed. The victim died at the scene, and the surviving passengers were injured.
At trial, the defense centered on the identity of the driver. Defendant argued that A.R., one of the passengers, was driving at the time of the accident. The four surviving passengers testified that defendant was driving then.
I.
Defendant contends the trial court erred by excluding, under CRE 608(b), the testimony regarding A.R.'s conduct during an alleged conversation about the accident. Specifically, he argues such testimony should have been admitted as "impeachment by specific contradiction." We conclude the trial court erred in excluding the testimony under CRE 608(b), but that any error was harmless.
CRE 608(b) provides that specific instances of a witness's conduct may be inquired into on cross-examination under certain circumstances:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime . . . may not be proved by extrinsic evidence. They may, however, 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.
CRE 608 controls the admissibility of character evidence when it is offered to support or attack the credibility of a witness. " itness character evidence may be defined as evidence that directly relates to the general credibility of the witness, rather than the believability of specific testimony, and conveys some judgment about the ethics or moral qualities of that witness." 28 Charles A. Wright & Victor J. Gold, Federal Practice and Procedure § 6113 (1993).
To the contrary, "[character impeachment] looks to the past and requires the trier of fact to add another link in the chain of inferences which must be drawn, i.e., that because the witness has lied or been dishonest on previous occasions, he has the character of a liar and therefore must be lying on this occasion." 28 Wright, supra, § 6112 n.9 (quoting Kerper & MacDonald, Federal Rules of Evidence 608(b): a Proposed Revision, 22 Akron L. Rev. 283, 291 (1989)).
Here, A.R. testified defendant was driving the car at the time of the accident. During cross-examination of A.R. the following exchange took place:
Q: In a couple of days after the accident, were you with a group of friends that included [N.T.]?
A: No.
Q: When you were with friends or with a group, and if anyone said that you were driving, would you correct them?
A: Yes.
Q: That would include the group a couple days after, when if someone would have said you were driving, you would have corrected them?
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