Opinion by JUDGE BERMAN.
Alleging that the trial court committed reversible error in admitting certain testimony of a prosecution witness, and in denying his motion for a new trial based on the jury's obtaining information about him outside the courtroom, defendant, David Lee Anderson, appeals his conviction of felony theft of two snowmobiles and a trailer. In addition, he seeks to withdraw his plea of guilty to accompanying habitual criminal charges. We affirm.
On December 27, 1975, the part owner and general manager of P.G.B. Marine, a recreational vehicle dealership located on a strip of establishments in Colorado Springs known as Motor City, discovered on arrival at work that the gate to its business lot had been opened and its padlock removed, and that two Johnson snowmobiles were missing. The vehicles were later recovered from a cabin near Evergreen.
At trial, the prosecution's case consisted principally of the testimony of Phillip Freeman and David Kuck. Freeman testified that several days after Christmas 1975 he visited defendant's home and saw a snowmobile and snowmobile trailer. He further testified that defendant admitted that he had stolen the vehicles from a Motor City lot, using a bolt cutter to remove a padlock on the lot's gate.
Kuck testified that in January 1976 he saw defendant arrive at the cabin near Evergreen where the stolen vehicles were ultimately recovered and observed one of the Johnson snowmobiles in the back of defendant's pickup truck.
I.
Preliminarily, we reject defendant's contention that the trial court reversibly erred in allowing Ava Kuck, David Kuck's mother, to testify that she had received a phone call from an unknown young woman, who related that $10,000 would be provided her son if he would leave the state and not testify against defendant. Mrs. Kuck's testimony was offered to rebut the testimony of two defense witnesses, who asserted that Kuck had instructed them to notify defendant that, for that sum, Kuck would fail to appear at defendant's trial. By eliciting Mrs. Kuck's testimony, the prosecution sought to corroborate Kuck's version of events that he had declined offers which the defendant or others had initiated, and to rehabilitate his credibility after the defense witness's suggestion that he was an extortionist.
[1] The probative value of Mrs. Kuck's testimony was not dependent on the identity or credibility of the telephone caller, but rather related to the fact that efforts had been made to communicate an offer to Kuck, rather than from Kuck. Such testimony tended to impeach the defense witness's testimony that Kuck had solicited a bribe, and was therefore not a credible witness. Since the testimony was not elicited to prove the truth of the matter asserted in the conversation, but rather the conversation's making, it did not, contrary to defendant's assertions, constitute hearsay. See Moore v. People, 171 Colo. 338, 467 P.2d 50 (1970); Abeyta v. People, 156 Colo. 440, 400 P.2d 431 (1965); cf. People v. Todd, 189 Colo. 117, 538 P.2d 433 (1975).
[2] Moreover, the entire line of inquiry was distant in its relation to the primary issues at trial. Our review of the record convinces us that the challenged testimony could not have had a substantial influence on the jury's verdict, and thus its admission cannot, in any event, be deemed reversible error. People v. Thomas, 189 Colo. 490, 542 P.2d 387 (1975); see Crim. P. 52(a).
II.
Defendant also argues that the trial court abused its discretion in denying defendant a new trial because several jurors read a docket sheet posted outside of the courtroom door which noted that defendant was alleged to be an habitual criminal. In the circumstances here, we disagree.
Here, on the first day of jury selection, the trial court's division clerk posted the docket sheet showing defendant was charged with three counts of being an habitual criminal. The parties first learned that several members of the jury had seen those allegations, after the theft charge part of what was to be a bifurcated trial had concluded. The trial court subsequently conducted an extensive hearing on the matter.
Seven jurors testified at the hearing. They uniformly related that after retiring to consider their verdict, they discussed the case for approximately 15 minutes and then took an initial vote. The vote was unanimous for conviction. The jurors then reviewed the evidence further for approximately an hour and took a second vote. The second vote was also unanimous for conviction.
After the second vote, the foreman suggested that, regardless of the verdict, defendant would probably not go to jail. Another juror mentioned that he did not believe that was true, since he had seen a docket sheet indicating defendant was charged with habitual criminal counts. A third juror inquired what "habitual criminal" meant, and then acknowledged that he knew, what "habitual" meant. Several jurors, including the foreman, immediately asserted that, in any event, the matter was not to be considered by them, and that they should "forget it." The entire incident spanned 15 to 30 seconds. After lunch the jury voted a third time. Again, the vote was unanimous for conviction.
One other juror at the hearing indicated that he had seen the docket sheet but dismissed it as "standard procedure," and testified that he gave it no weight in his considerations, and did not communicate the information to anyone.
We recognize that actual prejudice to a defendant from jurors' knowledge of information obtained from outside the courtroom need not always be shown to invalidate a conviction, Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), and that on a number of occasions the United States and Colorado Supreme Courts have looked beyond jurors' statements of impartiality to determine the effect of knowledge of an accused's prior criminal misconduct. E.g., Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); Quintana v. People, 158 Colo. 189, 405 P.2d 740 (1965). Nevertheless, "the trial judge has a large discretion in ruling on the issue of [such] prejudice . . . ," and "generalizations beyond that statement are not profitable, because each case must turn on its special facts." Marshall v. United States, supra.
[3] The record before us does not reveal circumstances creating such a probability of prejudice as to mandate retrial. See Estes v. Texas, supra. Rather, as detailed previously, here, the jury voted twice before any mention was made of the habitual criminal counts, the first representing the jurors' initial reaction to the evidence, the second reflecting their considered judgment. In both instances, the jury unanimously found the defendant to be guilty of theft. The third vote was taken, in the words of one juror, "just to make sure." The reference to the habitual criminal counts was brief, and in context, suggested caution in, not support for, reaching a verdict of conviction. The reference aroused the immediate protest of other jurors, who noted that the judge's instructions required that they consider only the evidence presented at trial. And, all the jurors testifying at the hearing, and, by stipulation, the remaining jurors, related that they neither considered, nor were influenced by, the incident in their deliberations. We conclude that, in such circumstances, the trial court did not abuse its discretion in denying defendant's motion for a new trial.
III.
Defendant further avers that the trial court erred in refusing to allow him to withdraw his pleas of guilty to the habitual criminal charges. The contention lacks merit.
After the jury found defendant guilty of the theft charge, plea discussions between defendant and the district attorney resulted in an agreement that (1) defendant would admit the habitual criminal allegations thereby obviating the necessity of a bifurcated trial, and waive his rights to appeal the theft conviction, and (2) in return, the district attorney would dismiss several other unrelated criminal charges pending against the defendant at that time. After carefully explaining the plea agreement to defendant and ascertaining that defendant fully understood that, by its terms, he could appeal the theft conviction, but if he did so, the unrelated charges could be reinstated, the court accepted the guilty pleas.
Defendant subsequently filed a motion for a new trial, however, and indicated that he would appeal. He now seeks to withdraw the pleas to the habitual criminal counts, arguing that only after the pleas, did he learn of the posting of the potentially prejudicial docket sheet.
We observe, at the outset, that for several reasons, this issue is not properly before us. The record, for example, does not establish that, in fact, the district attorney prosecuted, or is prosecuting, the unrelated charges. More importantly, it is not normally within our province to vacate a plea of guilty before a motion has been considered by the trial court. See Crim. P. 35(b).
[4] Nonetheless, in the interest of judicial economy and because the issue involves no controverted questions of fact, we address and reject defendant's argument. A defendant cannot necessarily rescind a plea bargain because of his lack of knowledge of a possible infirmity to the conviction, see Von Pickrell v. People, 163 Colo. 591, 431 P.2d 1003 (1967), and the forfeiture of all such challenges on appeal was within the scope of the plea arrangement negotiated here.
Judgment affirmed.
JUDGE SMITH and JUDGE RULAND concur.