 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Copenhaver9/14/2000
s are not necessarily involuntary simply because they are made in connection with a plea agreement. People v. McCormick, 881 P.2d 423 (Colo. App. 1994).
Here, when defendant objected to the prosecutor's attempt to use the statements at issue for impeachment, the court excused the jury, heard arguments from both sides, and reviewed People v. McCormick, supra. Noting that the prosecutor had not attempted to use the statements in his case in chief, the court found that the CRE 410 requirements for use of the statements for impeachment had been met, and ruled that the prosecutor could use them for that purpose.
Defendant did not contend in the trial court that either statement was involuntary or unreliable, nor did he request a hearing on these issues. Moreover, the record does not afford a basis for concluding that the voluntariness of the statements might be challenged. In these circumstances, the court was not required to hold a hearing on voluntariness sua sponte. Cf. People v. Cole, 195 Colo. 483, 584 P.2d 71 (1978)(defendant who challenges the voluntariness or reliability of statements sought to be used against him at trial for impeachment purposes is entitled to a hearing); Whitman v. People, 170 Colo. 189, 460 P.2d 767 (1969)(even absent an express objection by defendant to admission of a confession, trial court is required to conduct a hearing when it becomes evident that voluntariness is an issue).
Defendant did contend at trial, without citing any authority to support his contention, that the challenged statements were not "on the record." The trial court disagreed, finding that the first statement was included in the court's file, was submitted in support of the parties' stipulation for a deferred judgment and defendant's petition to enter plea of guilty, and thus was a statement on the record. It later reached the same conclusion as to the letter attached to defendant's motion to continue the sentencing hearing scheduled in connection with the proposed plea disposition.
We agree with the trial court that defendant's statements were properly characterized as statements on the record for purposes of determining whether they could be used for impeachment.
Defendant cites language from People v. Flores, 902 P.2d 417, 420 (Colo. App. 1994), characterizing statements in a letter as not made "in court or on the record," in support of a contrary conclusion. However, there is no indication in Flores that the letter at issue there, which contained an offer by a pro se defendant to plead nolo contendere, had been made part of the court's record. Rather, upon receipt of the letter, the court had turned it over to the prosecutor and had then permitted the prosecutor to use it as substantive evidence at trial. Flores does not stand for the proposition that a defendant's written statements tendered to the court in support of motions or other court documents and made part of the court record cannot be used for impeachment under CRE 410.
In his reply brief, defendant argues that the impeachment with the statements was not properly conducted. Because defendant did not raise this argument either in the trial court or in his opening brief, we decline to address it here. See People v. Czemerynski, 786 P.2d 1100 (Colo. 1990).
The judgment is affirmed.
JUDGE RULAND and JUDGE PIERCE concur.
|