People v. Cole , 1982 Colo. LEXIS 746 ( 1982 )

DUBOFSKY, Justice,

dissenting:

I respectfully dissent from Part II of the majority opinion. The People appealed as a question of law the district court’s exclusion of rebuttal testimony tendered by the victim McCoy. The exclusion was based on the court’s conclusion that admission of McCoy’s testimony would be more prejudicial than probative. The majority acknowledges that the admission of rebuttal testimony is discretionary with the trial court, but rules here that the exclusion of the testimony by the district court was an abuse of discretion.

When a defendant is acquitted, section 16-12-102, C.R.S. 1973 (1978 Repl.Vol. 8) restricts the People’s appeal of the acquittal to questions of law. Whether the district court erred in excluding rebuttal testimony is not a question of law; instead, it is an evidentiary question — the determination

that the defendant first raised the issue to which the rebuttal testimony was directed — to be resolved only on the particular facts of the case. Our addressing the issue does not provide future guidance on a question of law.

This is an example of an issue appealed which needlessly taxes the appellate system’s already strained resources. See People v. Root, 650 P.2d 562, 564 (Colo.1982) (Dubofsky, J. dissenting). I would dismiss the People’s question addressed in Part II.

ERICKSON and QUINN, JJ., join me in this dissent.

QUINN, Justice, specially concurring, in part and dissenting in part:

I agree with the majority’s resolution of the issue presented in Part I of the opinion under the circumstances of this case. I might not concur, however, if the evidence of separate instances of alleged misconduct had been offered and admitted for a purpose other than general impeachment of credibility.¹ Under proper circumstances and upon the establishment of a proper foundation, this evidence might properly be admissible to support a claim of self-defense, People v. Lyle, Colo., 613 P.2d 896 (1980); People v. Ferrell, Colo., 613 P.2d 324 (1980); see C.R.E. 404(a)(2) and 405(b); a claim that the witness harbored a bias against the defendant, People v. Taylor, 190 Colo. 210, 545 P.2d 703 (1976); or to rebut the prosecution’s proof of an essential element, such as the statutory requirement of section 18-3-202(l)(e), C.R.S. 1973 (1978 Repl.Vol. 8), that the officer be engaged in the performance of his duties when assaulted, see C.R.E. 404(b).

I disagree with Part II of the majority’s opinion for the reasons stated in the dissenting opinion of Justice Dubofsky.

1 . In this case defense counsel asserted that the evidence was admissible not only because it questioned the officer’s propensity for telling the truth, but also because it tended to show who was the “initial aggressor.” Absent a claim of self-defense, however, I fail to see the relevancy of the issue of initial aggression.