1. CRIMINAL LAW — Witnesses — Cross-Examination — Drug Addiction — Credibility — Impeachment — Not Permissible. It is improper to ask questions pertaining to a witness' purported drug addiction merely for purposes of attacking the credibility of the witness, and even though conviction of a felony may be made the subject of cross-examination for impeachment purposes, supposed weaknesses or misdeeds attributed to the witness which fall short of criminal conviction but which might discredit or impeach a witness by impugning the witness' character may not be utilized for this purpose.
Opinion by JUDGE PIERCE.
The People seek review of rulings made by the trial court during the course of a trial for aggravated robbery which resulted in acquittal of the defendant. We approve the rulings.
I.
The People first ask review of the rulings of the trial court permitting defense counsel to inquire of two prosecution witnesses about their alleged use of heroin. The People contend that the cross-examination by defense counsel in this regard was merely for impeachment of credibility, and hence, that the trial court erred in permitting the challenged line of questioning. We disagree.
[1] In this state, it is improper to ask questions pertaining to a witness' purported drug addiction merely for purposes of attacking the credibility of the witness. Even though conviction of a felony may be made the subject of cross-examination for impeachment purposes, supposed weaknesses or misdeeds attributed to the witness which fall short of criminal conviction and which attempt to discredit or impeach a witness by impugning the witness' character may not be utilized for this purpose. Webb v. People, 97 Colo. 262, 49 P.2d 381. See also § 13-90-101, C.R.S. 1973.
[2] Here, however, the record discloses that the cross-examination was directed at another, permissible purpose: attempting to prove that the witnesses were under the influence of the narcotic substance at the time of the occurrence as to which they were testifying, or at the time of testifying at trial, matters which might affect the witnesses' ability to perceive, remember, or testify as to a particular event. Thus, the cross-examination was properly related to a material matter, and did not constitute impermissible impeachment of credibility. See Fields v. State, 487 P.2d 831 (Alas.); State v. Goodin, 8 Ore. App. 15, 492 P.2d 287. See generally Annot., 52 A.L.R.2d 848.
The People also raise questions pertaining to the proper procedure to be followed in pursuing cross-examination of this nature, arguing that the potential for misuse is great and that there is danger that every witness may indiscriminately be asked questions of a similar nature with or without a foundation in fact. The partial record before us does not reveal what procedures were followed in this case; hence, we must presume that defense counsel proceeded properly in this regard, and in accordance with governing decisional law. People v. Lewis, 180 Colo. 423, 506 P.2d 125. See also People v. Simbolo, 188 Colo. 49, 532 P.2d 962.
II.
The People also contend that the trial court erred in refusing a tendered instruction based on § 18-4-302(2), C.R.S. 1973. The tendered instruction read as follows:
"Possession of any article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon is prima facie evidence that such article is a deadly weapon."
The People argue that a presumption is created by the statutory language whence the instruction was taken, that the jury must be apprised of such presumption whenever the factual foundations of the presumption are proved beyond a reasonable doubt, and that the trial court erred in refusing to submit the instruction in this case. Again, we do not agree.
[3] Uncontradicted testimony established that a revolver was used by the perpetrator of the robbery. Defendant offered no evidence to rebut the deadly weapon aspect of the charge of aggravated robbery, see § 18-4-302(1)(a) and (b), C.R.S. 1973, but rather based his defense on not having been the person who committed the offense. There being no question that a deadly weapon had been utilized during the robbery, no issue concerning § 18-4-302(2), C.R.S. 1973, was raised. Hence, the trial court properly refused the tendered instruction.
Rulings approved.
JUDGE SMITH and JUDGE BERMAN concur.