No. 96CA2108Colorado Court of Appeals.
December 10, 1998 Rehearing Denied January 14, 1999. Certiorari Denied July 26, 1999.[*]
Appeal from the District Court of the City and County of Denver, Honorable R. Michael Mullins, Judge No. 96CR2498
JUDGMENT AFFIRMED
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Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Kathleen M. Byrne, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Anthony Viorst, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Division II
Criswell and Vogt, JJ., concur
Opinion by Judge CASEBOLT
[1] Defendant, William J. Garcia, appeals the judgment of conviction entered upon a jury verdict finding him guilty of possession of a controlled substance. We affirm. [2] Contraband was found in defendant’s car when he was stopped for a traffic violation. Under the floor mat on the driver’s side an officer found a syringe filled with a liquid that contained cocaine. Under the floor mat on the passenger side of the car the officer found a spoon with burn marks and a moist cotton ball, and under the front passenger seat the officer found some new syringes, a bottle of water, and a small piece of plastic with white residue on it. The officer testified that such implements could be used to ingest cocaine. [3] During the stop, defendant told an officer that all of the items found in the car belonged to him. Also, one of the officers noticed recent “track marks” on the defendant’sPage 216
arms, while another officer testified that defendant’s demeanor was consistent with someone who was under the influence of cocaine.
[4] Testifying on his own behalf at trial, defendant acknowledged during direct examination that he had four prior felony convictions, including two for cocaine possession. And, he acknowledged that, during the stop, he had admitted ownership of the items. He testified, however, that the contraband items were not his, and that he did not know that they were in the car, nor did he know how they got there. I.
[5] Defendant contends the trial court erred in not instructing the jury that his prior felony convictions could be used only to impeach his credibility, even though he did not request such an instruction. We find no reversible error.
A.
[6] Relying upon People v. Garner, 806 P.2d 366 (Colo. 1991) and other cases that require a limiting instruction when “other transaction” evidence is admitted under CRE 404(b), defendant first asserts that the court’s failure to give a limiting instruction concerning the use of his prior felony convictions was per se reversible error. We disagree.
occurred. See People v. Gladney, supra; People v. Ned, 923 P.2d 271 (Colo.App. 1996) (because defendant did not request cautionary instruction, no reversible error occurred when trial court admitted evidence concerning prior bad acts).
B.
[13] We reject defendant’s corollary contention that, because a trial court’s failure properly to advise a defendant regarding the right to testify constitutes reversible error per se, see People v. Curtis, 681 P.2d 504 (Colo. 1984), a trial court’s failure to instruct the jury concerning use of previous felony convictions must also merit automatic reversal.
(“if the felony conviction is disclosed to the jury then the jur can be instructed to consider it only as it bears upon the defendant’s credibility” (emphasis supplied)).
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[15] Indeed, there may be strategic or tactical reasons for a defendant’s choice not to request a limiting instruction. See People v. Gladney, supra (a defense attorney has an opportunity to consider and determine in advance whether it is in the defendant’s best interest to request a contemporaneous cautionary instruction, and may conclude that such an instruction would be more harmful than beneficial, for example, by giving the evidence greater emphasis than it would otherwise receive). Cf. Hansen v. State Farm Mutual Automobile Insurance Co., 957 P.2d 1380 (Colo. 1998) (trial court’s general duty to instruct on the law cannot be construed to require it to craft appropriate instructions when party’s counsel declines to do so).C.
[16] We also reject defendant’s related argument that the trial court’s failure to instruct the jury concerning the limited use of the prior convictions constituted a breach of the trial court’s “promise” to do so as embodied in the Curtis advisement, thereby constituting a violation of his due process rights.
[18] In our view, a Curtis advisement should not be construed as a promise to give an instruction limiting a jury’s consideration of previous convictions. Rather, it is an advisement of defendant’s right to testify that also functions to draw a defendant’s attention to his or her right to request that a limiting instruction be given. But, a defendant cannot take this simple advisement to mean that he or she is excused from following proper procedure and excused from making a request for such an instruction. [19] We accordingly reject defendant’s due process claims. For the same reasons, we reject defendant’s contention that his testimony was rendered involuntary because of the trial court’s failure to give such an instruction.If the felony convictions are disclosed to the jury, then the jury would be instructed to consider any convictions only, and I emphasize only, as it bears upon your credibility and for no other purpose.
D.
[20] Assuming, without deciding, that a plain error analysis is applicable here, we reject the contention that the alleged failure to instruct the jury constitutes plain error.
II.
[25] Defendant next contends that his conviction must be reversed because the prosecution presented evidence of “old track marks,” and because he contends the court failed to issue a limiting instruction when this evidence was presented. We disagree.
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that defendant was using cocaine at or just prior to the time he was stopped, and in view of defendant’s own admission during his testimony that he had been injecting cocaine for many years, no plain error occurred. See Merritt v. People, 842 P.2d 162
(Colo. 1992).
III.
[30] We also reject defendant’s next contention that the court abused its discretion in denying his pretrial motion requesting funds to hire an expert concerning window tinting and to rent a video camera.
(1975). An abuse of discretion occurs only when the court’s decision to exclude the evidence is manifestly arbitrary, unreasonable, or unfair. People v. McCoy, 944 P.2d 584
(Colo.App. 1996). [33] To succeed, the motion must demonstrate a particularized and reasonable need for the services and the unavailability of alternative means to fulfill those necessary functions. People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976). [34] Here, the search of the car was based in part on furtive conduct that led the officer to believe that the occupants might have a weapon. At a suppression hearing, the officer testified that he saw this movement through the vehicle’s rear windshield as he followed the vehicle. Defendant, in contrast, contended that the tint on his rear windshield was so dark that the officer could not possibly have seen anything through the window. [35] Although the motion concluded that, without the expert and the camera, defendant was unable effectively to defend the case or to challenge the credibility of the officer, it failed to show that the relevant facts could not have been obtained through alternative means, such as photos of a re-creation of the scene. Indeed, defendant introduced four photographs of the vehicle at the suppression hearing and had the services of a private investigator who took two other photographs of the vehicle and testified at trial concerning her ability to see through the tinted windows. [36] We perceive no abuse of discretion in the trial court’s ruling.
IV.
[37] Defendant also contends that the court erred in denying his motions to have the court (prior to the suppression hearing), and the jury (at trial) view the vehicle. We disagree.
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