People v. McKnight , 1981 Colo. LEXIS 653 ( 1981 )

QUINN, Justice,

dissenting:

I respectfully dissent from Parts I and III of the majority opinion.

The record conclusively establishes that the defendant’s statement was known to the district attorney prior to the commencement of the trial and that the district attorney breached his duty to disclose it to defense counsel under Crim.P. 16(I)(a)(l)(II). The failure to disclose the statement implicated the defendant’s constitutional rights in two respects. First, it eliminated the opportunity for defense counsel to challenge the admissibility of the statement by

a pre-trial motion to suppress. Second, it prevented the defendant from making an informed decision on whether to exercise his constitutional right to testify and thereby face cross-examination on the statement, or alternatively to remain silent at trial. Because the exercise of constitutional rights was most probably affected by the prosecution’s failure to disclose, the proper inquiry here is not whether the admittedly improper impeachment had a substantial effect on the verdict. Rather, the proper inquiry is whether the prosecution, the beneficiary of the error, has demonstrated beyond a reasonable doubt the harmless character of the error. E. g., Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). Unless the record establishes no reasonable possibility of the improper impeachment having contributed to the conviction, the conviction should be reversed and a new trial ordered. Chapman v. California, supra; Fahy v. Connecticut, supra. In my opinion the prosecution’s showing of harmless error falls short of the mark.

I believe this error was compounded by the admission into evidence of the minute order of the defendant’s prior conviction stating that “the defendant committed the offense in an especially heinous, cruel or depraved manner.” A prior conviction of murder was the basis of the defendant’s confinement and that conviction was properly admitted. However, the manner in which the crime was committed was totally irrelevant to the charge of escape and, for that matter, to any issue in the case. The natural and probable consequence of the admission was to portray the defendant to the jury as a dangerous and brutal criminal who should be found guilty for that reason alone. Under such circumstances the prejudice to the defendant is evident on the face of the offered evidence and the fairness of the trial proceeding is irreparably compromised. See People v. Lucero, Colo., 615 P.2d 660 (1980). Only a new trial can cure the wrong.

I am authorized to say that Justice Erickson joins me in this dissent.