Oldsen v. People
| Decision Date | 15 December 1986 |
| Docket Number | No. 84SC462,84SC462 |
| Parties | Raymond Richard OLDSEN, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
David F. Vela, State Public Defender, Michael J. Heher, Deputy State Public Defender, Denver, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Robert M. Petrusak, Asst. Atty. Gen., Denver, for respondent.
We granted certiorari to review the court of appeals' decision in Oldsen v. People, 697 P.2d 787 (Colo.App.1984), upholding the admission, in a prosecution for sexual assault on a child, of out-of-court statements of the child victim about the nature of the sexual contact and the identity of the perpetrator. The court of appeals held that the hearsay statements were properly admitted under CRE 803(4), the "medical exception" to the hearsay rule. Although we disapprove the court of appeals' rationale for admission of the statements, we determine that the statements were sufficiently trustworthy to qualify as an exception to the hearsay rule and affirm the judgment of the court of appeals.
On April 13, 1982, the defendant, Raymond Richard Oldsen, was charged with second degree sexual assault, sexual assault on a child, aggravated incest, and child abuse for a series of alleged incidents of sexual contact between Oldsen and his five-year-old daughter in the latter part of 1981. Before trial, the defendant moved that his daughter, then six years old, be disqualified from testifying under section 13-90-106(1)(b), 6 C.R.S. (1978). 1 At the in limine hearing on the daughter's competency to testify, the daughter did not respond to most of the questions asked of her, and the court stated "that from the Court's observation she is incapable of understanding the nature of an oath and receiving accurate cognitive impressions; and that she is too young to communicate and relate circumstances of her life factually to the satisfaction of this Court...." A social worker, who was the daughter's psychotherapist, then testified that the daughter loved her parents and was afraid that they were angry with her for telling about what her father had done to her. The daughter, therefore, was reluctant to talk with anyone about what had happened. The social worker also observed that the daughter's allegations for the most part had been very consistent. The daughter's reason for retracting her original statements on several occasions, according to the social worker, was her hope that the Douglas County Department of Social Services (the department), which had removed the daughter from her home on January 18, 1982, would allow her to go home immediately. The court granted the motion to disqualify the daughter from testifying.
At trial, the prosecution called as witnesses a school psychologist, a physician, an investigator with the district attorney's office, and the social worker, all of whom had examined or talked with the daughter in their professional capacities. Over the defendant's repeated objections, the four witnesses recounted statements concerning the alleged offenses made to them by the daughter.
The school psychologist testified that the daughter's kindergarten teacher asked her in November, 1982, to see the daughter because the daughter was having trouble in school. The psychologist administered a battery of tests of the daughter. As part of her testimony about the results of the tests, the psychologist stated that the daughter told her that she was hurt when the defendant tried unsuccessfully to place his penis in her vagina; that the defendant stepped on her younger brother's hand to prevent the brother from telling their mother about the incident; that she would be spanked if she mentioned the incident to her mother; and that she had touched the defendant's penis. The psychologist reported what she learned from the child to the department, and both children were removed from the home. 2
The department referred the daughter to a physician, Dr. Hendrika B. Cantwell, who examined her in late January, 1982. The physician testified that she observed a small tear scar on the daughter's somewhat enlarged vaginal opening and that, when she asked the daughter who had caused the injury, the daughter replied "daddy." The physician also testified that the daughter told her the injury was caused by her father's penis and that she was told by her father "not to tell anybody."
An investigator for the district attorney's office testified that she brought several anatomically correct dolls to a meeting with the daughter in the latter part of January, 1982. According to the investigator, the daughter told her that she and her father had slept together and that, when asked how they slept together, the daughter placed a little girl doll, without clothes, on top of a nude male doll. The investigator testified that the daughter said that she did not like to touch her father but that he wanted her to touch his penis.
The department also referred the daughter to the social worker, Dr. Patricia Mrazek, who saw the daughter on a number of occasions before trial. 3 At trial, in response to defense counsel's objection to the social worker's testimony, the court ruled that
[t]his particular witness, as previously testified, was cognizant that the little girl was uncommunicative in a verbal sense and has laid out the foundation of her approach in having the child make a picture and drawing the child out in a professional way that would not be available to the Court through the questioning of counsel.
The court then allowed the social worker to testify on the ground that her testimony about what the daughter had told her was trustworthy. The social worker stated that the daughter told her in response to questioning, "Daddy put his penis in me ... all the way." When asked how many times this had happened, the daughter said "lots of times, millions."
The defendant testified that he never had had sexual contact with the daughter. The mother of the daughter testified that she did not believe that her husband had assaulted their daughter. Several other witnesses testified to the defendant's trustworthiness and good relationship with his children.
The jury returned guilty verdicts on all four counts in the information. The defendant appealed to the court of appeals, arguing that the convictions were tainted by the admission of the daughter's hearsay statements. The court of appeals affirmed the convictions with one judge dissenting. The court held that the statements introduced through the testimony of the social worker, the psychologist, and the physician were properly admitted under CRE 803(4), the "medical exception" to the prohibition against hearsay evidence. The court also decided that although CRE 803(4) did not allow admission into evidence of the daughter's statements through the testimony of the investigator, their admission was harmless because they reiterated statements properly admitted.
It is undisputed that the daughter's statements repeated in the testimony of the four prosecution witnesses were hearsay. CRE 801(c) defines hearsay as "a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." CRE 802 provides that "[h]earsay is not admissible except as provided by [the rules of evidence] or by the civil and criminal procedural rules applicable to the courts of Colorado or by any statutes of the State of Colorado."
The question before us on certiorari is whether the daughter's statements were properly admitted under CRE 803(4), which provides an exception to the hearsay rule for "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." The rationale behind the exception is that the trustworthiness of statements made for the purpose of medical treatment or diagnosis "is assured by the likelihood that the patient believes that the effectiveness of the treatment he receives may depend largely upon the accuracy of the information he provides...." C. McCormick, McCormick on Evidence § 292 at 839 (E. Cleary 3d ed. 1984).
The court of appeals examined the applicability of CRE 803(4) in a case involving sexual abuse of children in People ex rel. W.C.L., Jr., 650 P.2d 1302 (Colo.App.1982). The trial court in that case had found the child victim incompetent to testify. However, the trial court permitted a physician to testify under CRE 803(4) to statements the child made to him about the circumstances of the offense and the identity of the assailant. The court of appeals determined that CRE 803(4) did not warrant the admission of the statements because there was "nothing in the record ... which would establish that the victim understood, or was aware of, the purpose of the questioning by the doctor." W.C.L., 650 P.2d at 1304. "Without such a foundation," the court stated, "the basis for the exception was lacking." Id. The court held, however, that the statements were admissible under the "residual exception" to the hearsay rule, now found in CRE 803(24), 4 although at the time of the decision the residual exception was not part of the Colorado Rules of Evidence. On appeal, this court declined to sanction the court of appeals' adoption of the residual exception and reversed the judgment. W.C.L. v. People, 685 P.2d 176 (Colo.1984). We agreed with the court of appeals that "the victim's statements [did] not fall within the exceptions to the hearsay rule codified in the Colorado Rules of Evidence" in force at the time, including CRE 803(4). Id. at 178.
There are significant factual similarities between W.C.L. and this case. Here,...
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