Frasco v. People, 06SC314.

• Decision Date: 02 July 2007
• Docket Number: No. 06SC314.,06SC314.
• Citation: 165 P.3d 701
• Parties: Richard FRASCO, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

165 P.3d 701

Richard FRASCO, Petitioner v. The PEOPLE of the State of Colorado, Respondent.

No. 06SC314.

Supreme Court of Colorado, En Banc.

July 2, 2007.

Rehearing Denied September 4, 2007.^*

Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.

Justice COATS delivered the Opinion of the Court.

The defendant sought review of the court of appeals' judgment affirming his multiple convictions for the sexual and physical abuse of his step-daughter. Among other things, the defendant assigned error to the district court's decision to allow the jury unsupervised access to a videotaped interview of the child-victim, which had been admitted as an exhibit at trial. The court of appeals held that the district court did not err for the reason that C.R.C.P. 47(m) no longer prohibits unsupervised jury access to testimonial evidence, including videotaped interviews.

Because the district court did not abuse its discretion, under the circumstances of this case, in honoring the jury's request to view the victim's videotaped interview during its deliberations, the judgment of the court of appeals is affirmed.

I.

The defendant, Richard Frasco, was convicted of multiple counts of sexual assault on a child, sexual assault on a child by one in a position of trust, aggravated incest, and child abuse. The court imposed three sets of concurrent sentences of either eight years or eight years to life—one set for each residence in which the acts of sexual abuse occurred. It then ordered each set of concurrent sentences to be served consecutively to each other but concurrently with an additional eighteen-month sentence for child abuse.

Police began an investigation after officials at the school of the defendant's ten-year-old step-daughter, J.H., received an anonymous tip that the defendant was abusing her. The school's counselor spoke with J.H., who confirmed that the defendant had physically and sexually abused her. As part of their investigation, a law enforcement officer and a human services coordinator interviewed J.H. about the allegations, and J.H. provided incriminating details. Without J.H.'s knowledge, the interview was recorded on videotape.

The prosecution successfully moved in limine for admission of the videotape in lieu of J.H.'s in-court testimony, pursuant to Colorado's statutory hearsay exception for child sexual assault victims.¹ Although J.H. ultimately testified, the prosecution nevertheless offered an edited version of the videotape, which was admitted during the testimony of one of the officials who interviewed J.H. Prior to allowing the prosecution to play the videotape in open court, the trial court admonished jurors not to give it any more significance than the other evidence. Later, at the conclusion of the trial, while instructing the jurors about the handling of questions they might have during deliberations, the court further advised them that if they wanted to see the videotape again, a decision would be made after receiving input from the lawyers. The jury then retired, taking with them all of the admitted exhibits except the videotape.

During their deliberations, the jury requested permission to review the videotaped statement. The trial court called the prosecution and defense counsel into chambers and, on the record, indicated its inclination to allow the jury to view the videotape, specifically asking the defendant's attorney for his position. Defense counsel responded, "I think the current state of the law and the procedural rules are that they should have pretty much unimpeded access to it. And I don't—I don't object to that." Accordingly, the trial court provided the jurors with the videotape, a television, and a videocassette player.

For the first time on appeal, the defendant asserted, among other things, that granting the jury unsupervised access to the videotape warranted reversal of his convictions. Relying on prior court of appeals' holdings, the appellate court held that unsupervised access by a jury to testimonial evidence, including videotaped interviews, is no longer prohibited. Rejecting the defendant's other assignments of error as well, the court of appeals affirmed the defendant's convictions.

This court granted the defendant's petition for a writ of certiorari solely on the question whether the trial court committed reversible error and violated due process by permitting the jury to view the videotaped interview during deliberations, without supervision.

II.

Almost seventy years ago, we made absolutely clear that the English common law rule barring from the jury room any writings not under seal had long ceased to exist. See Wilson v. People, 103 Colo. 150, 84 P.2d 463 (1938). In doing so, we quoted liberally from a treatise of the time, indicating that the "modern practice" was to permit, in the discretion of the judge and the absence of a statute to the contrary, all documents and papers received in evidence, other than depositions, to be taken out by the jury. Id. at 159, 84 P.2d at 468. Although we have not meaningfully addressed the matter since, some thirty-five years ago we acknowledged the overwhelming weight of authority similarly leaving to the discretion of the court any response to jury requests for portions of the trial testimony. See Settle v. People, 180 Colo. 262, 504 P.2d 680 (1972). In that instance, however, we took particular note of the trial court's obligation to "observe caution that evidence is not so selected, nor used in such a manner, that there is a likelihood of it being given undue weight or emphasis by the jury." Id. at 264, 504 P.2d at 680-81.

Unlike this court, the court of appeals has dealt with the question of jury access to exhibits on a number of occasions. In People v. Montoya, the appellate court extended the concern we expressed in Settle to include videotaped interrogations admitted at trial. 773 P.2d 623 (Colo.App.1989); see also People v. Talley, 824 P.2d 65 (Colo.App.1991). In the absence of any treatment of the question by the Colorado Rules of Evidence or the Colorado Rules of Criminal Procedure, it found support for this extension in C.R.C.P. 47(m)'s prohibition against allowing depositions in the jury room² and (what it characterized as) the universal rule that depositions may not be reviewed by a jury on an unsupervised basis. Montoya, 773 P.2d at 625. While it ultimately concluded that jurors could be permitted to review videotaped witness statements, admitted for substantive purposes, "only under circumstances that will assure that such statements are not given `undue weight or emphasis,'" id. at 626 (quoting Settle, 180 Colo. at 264, 504 P.2d at 680-81), and that the precise procedure to be followed to assure this result would lie within the trial court's sound discretion, it nevertheless suggested that to allow jurors to engage in "the unsupervised, and perhaps repetitive, viewing" of such statements would amount to an abuse of that discretion. Id.

In a line of cases relied upon by the court of appeals below, other panels of that court have revisited this holding in light of subsequent amendments to C.R.C.P. 47(m). See People v. McKinney, 80 P.3d 823 (Colo.App. 2003), rev'd on other grounds, 99 P.3d 1038 (Colo.2004); see also People v. Isom, 140 P.3d 100 (Colo.App.2005); People v. Pahlavan, 83 P.3d 1138 (Colo.App.2003). In McKinney the appellate court noted that a series of reforms stemming from this court's jury reform project included the 1999 amendment of C.R.C.P. 47(m), removing the prohibition against taking depositions and certain other papers into the jury room during deliberations. 80 P.3d at 829. Unlike its predecessor, the rule now specifies that jurors shall take their instructions, their juror notebooks and personal notes, and "to the extent feasible, those exhibits that have been admitted as evidence," without exception.³

Finding that Montoya's restriction on the unsupervised review of "materials of a testimonial character" was premised on the civil rule's analogous prohibition against allowing "a deposition or a videotape" in the jury room; and that the historical concern about the latter was "eliminated" by the reform of the civil rules; the appellate court concluded that the basis for prohibiting juror access to "videotapes, audiotapes, or written documents" no longer exists. Id. at 828-29. Applying the "plain language" of amended C.R.C.P. 47(m), it therefore concluded that all exhibits admitted as evidence in criminal proceedings may be taken into the jury room, unless it is infeasible to do so. Id. at 829.

Whatever C.R.C.P. 47(m) may now require in civil proceedings, it does not govern the use of exhibits in criminal proceedings. While Crim. P. 57(b) dictates that criminal courts look to the Rules of Civil Procedure and other applicable law when no Rule of Criminal Procedure exists, it permits courts to proceed in any lawful manner not inconsistent with the Criminal Rules. In this jurisdiction we have long adhered to the rule that absent a specific exclusion of some particular class of exhibits, trial courts exercise discretionary control over jury access to trial exhibits during their deliberations. See Wilson, 103 Colo. 150, 84 P.2d 463.

The existence of a civil rule of procedure automatically excluding depositions from jury deliberations was peripheral at best to the scope of a criminal court's discretion over jury access to other testimonial exhibits. Abandonment of that automatic exclusion, while perhaps indicative of a policy shift (at least in the civil arena) away from mistrusting juries and imposing mechanical or formalistic restrictions on their deliberations, is equally peripheral. The treatment of depositions in civil proceedings, whatever it may be at any point in time,...