Montoya v. People
| Decision Date | 27 July 1987 |
| Docket Number | No. 85SC143,85SC143 |
| Citation | 740 P.2d 992 |
| Parties | Ronald Allen MONTOYA, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
David F. Vela, Public Defender, Thomas M. Van Cleave, III, Deputy Public Defender, Denver, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Cynthia Jones, Asst. Atty. Gen., Denver, for respondent.
We granted certiorari to review the decision of the court of appeals in People v. Montoya, 703 P.2d 606 (Colo.App.1985), affirming the conviction of Ronald Allen Montoya (defendant) for sexual assault on a child. The court of appeals held that the trial court, pursuant to section 16-10-201, 8A C.R.S. (1986), properly admitted extrinsic evidence of prior inconsistent statements made by several prosecution witnesses even though the prosecution failed to follow the procedures of CRE 613 by first directing the witnesses' attention to the circumstances surrounding the making of the prior statements and affording them an opportunity to explain or deny the statements. We conclude that section 16-10-201 authorized the admission of the extrinsic evidence in this case, and we accordingly affirm the judgment of the court of appeals.
The defendant was charged by information with the offense of sexual assault on a child, § 18-3-405, 8B C.R.S. (1986). 1 The charge was filed on the basis of statements made to social workers and a police officer by the defendant's stepdaughters, K.W. and T.W., who were then thirteen and eleven years of age respectively, alleging that the defendant had sexually assaulted K.W. at their home in Northglenn, Colorado, on March 3, 1982.
At a jury trial, the prosecution called as witnesses K.W., T.W., and the girls' mother, who was then married to the defendant. On direct examination the two girls were questioned concerning the events of March 3, 1982. Both denied that the defendant had assaulted K.W. on that day, although they admitted having telephoned their mother, who was in the hospital at the time, to tell her that something was going on between the defendant and K.W. The mother testified that she had spoken with the girls on the telephone that day and had become concerned that the defendant might be assaulting K.W., but she denied that the defendant had admitted to her that he had sexually assaulted the girl or that she had ever been in fear of her life from the defendant. At no time during the direct examination of these witnesses did the district attorney ask them if they had previously made statements that were inconsistent with their testimony. On cross-examination, defense counsel elicited testimony from K.W. and T.W. to the following effect: that they had planned to do something to get the defendant out of the house because they were tired of his fighting with their mother; that in carrying out their plan they had lied to a social worker and to a police officer about the alleged sexual assault; that the defendant had not sexually assaulted K.W.; and that they had decided to tell the truth now because they were concerned about testifying truthfully under oath at trial.
In order to show that the girls' present testimony was a recent fabrication, the prosecution then sought to call three witnesses--two social workers and a police officer--for the purpose of having them relate statements made to them by the girls and their mother about the defendant's sexual assault on K.W. Defense counsel objected to this testimony, contending that the prosecution was precluded by CRE 613 from introducing extrinsic evidence of K.W.'s and T.W.'s prior inconsistent statements since the girls had admitted on cross-examination that they made the statements but that the statements were not true. The trial court overruled the objection on the basis of section 16-10-201, 8A C.R.S. (1986), which permits extrinsic evidence of prior inconsistent statements in criminal trials without the foundation requirement that the witness first deny or fail to remember making the prior statement. The trial court stated that the prior inconsistent statements were being admitted as substantive evidence as well as for impeachment purposes, and the jury was so instructed.
Susan Roos, a social worker for the Adams County Department of Social Services, testified that she had interviewed K.W. and T.W. on March 4, 1982, after having received a referral from a school social worker concerning possible sexual abuse of the girls. K.W. told Roos that she had stayed home from school on March 3 because the defendant had told her to do so. K.W. further stated that the defendant made her model some panty hose and some of her mother's clothing for him; that he continually touched her genital area despite her resistance to his advances; that he tied her legs with a rope, and after getting on top of her he rubbed her vaginal area and her breasts, and "licked her legs and kissed her;" and that he made her read to him from a pornographic book while he took a bath. T.W. told the social worker that when she arrived home from school on March 3 she found her sister's clothes scattered about the house and that she saw the defendant in the bathroom and heard K.W.'s voice in the bathroom. Roos also related a conversation which she had with the mother at the hospital, during which the mother said that the defendant had admitted to her that he had assaulted K.W.
The prosecution called Officer Steve Hipp of the Northglenn Police Department, who had interviewed K.W. and T.W. on March 4, 1982, after he was contacted by Roos. His account of what the girls told him concerning the sexual assault was substantially the same as Roos's testimony. He also stated that he had spoken by telephone after the incident with the mother, who told him that she feared for her life because her husband was going to "get" her.
The prosecution elicited testimony from Sue Kelsall, a social worker who had become acquainted with K.W. and T.W. through her work with adolescent incest victims. Kelsall testified that K.W. on about five occasions told her she had been sexually assaulted by the defendant and further testified that both K.W. and K.W.'s mother told her they were afraid of the defendant.
The prosecution then recalled K.W. and T.W. Both girls admitted having made the prior inconsistent statements, but maintained that their prior statements were untrue. The prosecution also recalled the girls' mother to the stand. The mother admitted that she had at times feared for her safety on account of the defendant, but nonetheless continued to deny that the defendant had admitted to her that he had sexually assaulted K.W. in March 1982.
The defendant was found guilty of sexual assault on a child and was sentenced to a term of ten years. In affirming the judgment, the court of appeals rejected the defendant's claim that the trial court erred in admitting the girls' prior inconsistent statements by virtue of the prosecution's failure to follow the foundation requirements of CRE 613. The court of appeals was of the view that CRE 613 and section 16-10-201, 8A C.R.S. (1986), were in conflict with each other as to the foundation requirements for admitting prior inconsistent statements, but held that the statute prevailed over the rule. It thus concluded that, since the challenged testimony was admissible under section 16-10-201, "no additional showing of the witness' lack of acknowledgement of the prior inconsistent statements, as required under CRE 613, was necessary," and that the trial court's admission of the prior inconsistent statements was not error. 703 P.2d at 608. We granted certiorari to consider the relationship between CRE 613 and section 16-10-201 and to determine, based on our resolution of that question, whether the admission of extrinsic evidence of prior inconsistent statements in this case was error.
The defendant's argument on the relationship between CRE 613 and section 16-10-201 proceeds as follows: CRE 613, which makes the denial or failure to remember the prior inconsistent statement a prerequisite for the admission of extrinsic evidence to prove the prior statement, does not conflict with the provision of section 16-10-201 relating to the admissibility of prior inconsistent statements as substantive evidence in a criminal case; rather, CRE 613 prohibits the admission of extrinsic evidence of the prior inconsistent statement whenever the witness admits having made the prior statement; consequently, since both K.W. and T.W. had admitted on cross-examination by defense counsel that they had made the prior inconsistent statements, the trial court erred in permitting the prosecution to offer extrinsic evidence of these prior inconsistent statements. Although we agree with the defendant--as do the People--that CRE 613 and section 16-10-201 do not conflict and can be harmonized with each other, in that they address the use and admissibility of prior inconsistent statements for different evidentiary purposes, we conclude that section 16-10-201, rather than CRE 613, controls the admissibility of the prior inconsistent statements for substantive purposes in a criminal case.
At common law a proper foundation had to be laid before extrinsic proof could be introduced to show that a witness had previously made a statement that was inconsistent with the witness' in-court testimony. This traditional foundation consisted of directing the attention of the witness to the time, place, circumstances, and content of the statement. If the witness then denied or could not remember making the statement, extrinsic evidence was admissible to prove the statement. See M. Graham, Handbook of Federal Evidence § 613.3, at 568-71 (2d ed. 1986) (hereinafter Graham); McCormick on Evidence § 37, at 79 (E. Cleary 3d ed. 1984). These common law foundation requirements are retained in CRE 613, which became effective on January 1, 1980,...
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