Krutsinger v. People

• Decision Date: 13 October 2009
• Docket Number: No. 08SC378.,08SC378.
• Citation: 219 P.3d 1054
• Parties: Charles M. KRUTSINGER, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

219 P.3d 1054

Charles M. KRUTSINGER, Petitioner v. The PEOPLE of the State of Colorado, Respondent.

No. 08SC378.

Supreme Court of Colorado, En Banc.

October 13, 2009.

Rehearing Denied November 23, 2009.

The Dubofsky Law Firm, P.C., Jean E. Dubofsky, Boulder, Colorado, Springer & Steinberg, P.C., Michael P. Zwiebel, Denver, Colorado, Dean Neuwirth P.C., Dean Neuwirth, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, Attorneys for Respondent.

Justice COATS delivered the Opinion of the Court.

Krutsinger petitioned for review of the court of appeals' judgment affirming his convictions for multiple sexual-assault-on-a-child and incest-related crimes. See People v. Krutsinger, No. 06CA0532, 2008 WL 963034 (Colo.App. April 10, 2008) (not selected for official publication). On direct appeal, the court of appeals accepted the People's concession that the trial court erred in excluding testimony from a therapist of the defendant's stepdaughter, on grounds of privilege. Rather than deciding whether the error was harmless, however, the court of appeals remanded for a hearing to obtain the therapist's testimony and to determine whether that testimony was constitutionally material to the defendant's case. See People v. Krutsinger, 121 P.3d 318 (Colo.App.2005). Upon recertification, the court of appeals agreed with the trial court's assessment that the error was not material and therefore not of constitutional magnitude, and it found the error harmless according to the standard for evaluating nonconstitutional error. The court of appeals therefore affirmed the defendant's convictions and ten-year sentence.

By conditioning a designation of federal constitutional error on a determination that the error would impact the verdict sufficiently to be constitutionally material, the court of appeals applied the wrong legal standard. Because, however, we determine that the exclusion of Dr. Howard's testimony did not deprive the defendant of a meaningful opportunity to present a complete defense, the error did not rise to the level of federal constitutional error, even under the proper standard. Because we also find that the error was harmless according to the standard for nonconstitutional error in this jurisdiction, the judgment of the court of appeals is affirmed.

I.

Charles M. Krutsinger was charged with ten counts of sexual assault on a child, nine of which were allegedly committed as part of a pattern of abuse, as well as ten counts of sexual assault on a child by one in a position of trust and ten counts of aggravated incest. All of the counts alleged, in the same generic terms, that Krutsinger subjected his stepdaughter to sexual contact between the years 1991 and 1997. The jury returned guilty verdicts on all counts, and the court imposed the minimum allowable sentence for each count, all to be served concurrently. Because the pattern-of-abuse verdicts required sentencing to at least the midpoint of the presumptive range for a class 3 felony, the defendant was sentenced on some counts to terms as great as ten years in the department of corrections.

At age sixteen, the defendant's stepdaughter first accused him of sexually assaulting her, years earlier when she was a young child. In a number of statements and interviews before trial, and again in her testimony at trial, she accused him of subjecting her, over a period of years, to continuous acts of sexual contact of two general types. She described how he at times would rub his genital region against her from behind in simulated acts of sexual intercourse, and how at other times he would direct her hands inside his pants and underwear and cause her to manipulate his penis.

The defendant testified on his own behalf and denied all of the accusations. Because the acts described by his stepdaughter were allegedly committed much earlier and over a period of years, with only general references to time and place, and because she was the only witness professing first-hand knowledge of the assaults, which by their very nature were not susceptible of physical corroboration, the defense focused heavily on the circumstances of and possible motives for her delayed outcry and the numerous inconsistencies in her testimony and various pretrial statements. In anticipation of these defenses, the prosecution presented, in addition to the stepdaughter's own testimony about these earlier statements, the testimony of her mother and others to whom she claimed to have made some manner of outcry statement, including a childhood friend, her school counselor, her school resource officer, and a sheriff's department investigator. The prosecution also presented an expert on the psychology of child sexual assault victims, along with a videotape of an interview conducted by a victim advocacy center.

The evidence presented at trial concerning her delayed outcry was to the effect that in the fall of 2002, the stepdaughter, after several abortive attempts, confided in her mother that she had been sexually abused as a child and, at some point thereafter, indicated that the perpetrator may have been her stepfather. Shortly after a session with a therapist, Dr. Patricia Howard, to whom her mother and stepfather had sent her, the stepdaughter told her mother in a long-distance telephone conversation that she was certain her stepfather was the perpetrator; and although her mother returned home several days later and asked for time to consider how to proceed, she made explicit outcry to her school counselor the next day. She was subsequently interviewed by the school resource officer and a sheriff's department investigator, and even later by a victim advocacy center.

Through cross-examination, defense counsel exposed the stepdaughter's growing behavioral problems, substance abuse, and increasingly poor academic performance. She was forced to concede her dislike for her stepfather and particularly what she considered to be his interference in her affairs by communicating with her teachers, which effectively exposed lies she had told about certain school assignments. She also conceded disputes with her mother, who at one point before retracting it, made a demand that she move to Washington state to live with her father. Mainly, however, defense counsel was able to expose numerous inconsistencies in her testimony and previous statements, including inconsistencies in her accounts concerning when the assaults began and ended, and how frequently they occurred; the nature and location of the last assault; whether the defendant ejaculated during the assaults; when and where the assaults typically occurred and how the defendant was typically dressed; other people she claimed to have told about the assaults; precisely what and when she told her mother about the involvement of her stepfather; and the details of her meetings with a family friend who offered to help, her school counselor, the sheriff's investigator, and the therapist, Dr. Howard.

With regard to Dr. Howard in particular, defense counsel confronted the defendant's stepdaughter with the therapist's notes of their first session, which indicated that she had told Howard she thought the assaults continued until the fourth grade, despite her testimony and other pre-trial interviews indicating that they continued until the sixth grade. The stepdaughter was quite adamant that she had always described the assaults as continuing from about her second through sixth grade years, while the family lived in one particular residence. In addition, despite asserting at trial that she had always been quite certain that her stepfather was the perpetrator, she admitted telling Howard only that she was "almost certain," explaining that she was reluctant in part because Howard had informed her of Howard's legal duty to report any accusation against the defendant.

At the conclusion of the People's case, defense counsel sought to endorse Howard as a rebuttal witness. After an in-camera hearing, in which Dr. Howard testified that she had spoken with and turned over her notes to a defense investigator when shown a release signed by the child's mother, the trial court construed the release as extending only to her records and not actual testimony about the sessions. Defense counsel offered to elicit from Dr. Howard live testimony concerning the matters described in her notes of the first session, namely that the stepdaughter trusted and loved some of her teachers, apparently to discredit her explanation for failing to report sooner; that she was only beginning to remember more about the assaults but was almost sure they were committed by her stepfather and continued until the fourth grade; and that she did not like her stepfather and thought her mother also did not love her and was covering up for him. The court denied the proffer on grounds of psychologist-patient privilege.

On appeal, the People confessed error in the exclusion of Dr. Howard's proffered testimony but asserted that the error was harmless. Although the court of appeals rejected the defendant's other assignments of error, it held that by testifying about her sessions with Dr. Howard, the defendant's stepdaughter effectively waived any psychologist-patient privilege. Rather than considering the harmfulness of the error, however, the appellate court remanded for a determination by the trial court, after entertaining additional testimony from Dr. Howard, whether her testimony would have been both favorable to the accused and constitutionally material, and therefore require reversal as federal constitutional trial error; and even if these conditions were not met, whether its exclusion required reversal under the ordinary harmless-error standard.

On remand, the district court heard from Dr. Howard, who testified from her notes, admitting that she lacked any independent recollection of what occurred during the therapy...