People v. Acosta, Court of Appeals No. 10CA0790

Docket NºCourt of Appeals No. 10CA0790
Citation338 P.3d 472
Case DateJuly 03, 2014
CourtCourt of Appeals of Colorado

338 P.3d 472

The PEOPLE of the State of Colorado, Plaintiff–Appellee,
Victor Cirilo ACOSTA, Defendant–Appellant.

Court of Appeals No. 10CA0790

Colorado Court of Appeals,

Announced July 3, 2014


Berger, J., filed an opinion concurring in part and dissenting in part.

[338 P.3d 475]

El Paso County District Court No. 09CR1083, Honorable Jann P. DuBois, Judge
John W. Suthers, Attorney General, Nicole D. Wiggins, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.


¶ 1 Defendant, Victor Cirilo Acosta, appeals the judgment of conviction entered on a jury verdict finding him guilty of sexual assault on a child. He asserts that the trial court erred by refusing to sanction the prosecution for a discovery violation, admitting testimony that he was “very guilty-looking” after the assault, admitting a prejudicial hearsay statement, and instructing the prosecutor on how to introduce an item of evidence. We disagree and thus affirm.

I. Background

¶ 2 Defendant attended a party in his apartment complex that was hosted by a couple he did not know. A number of adult couples attended the party. At least two children, including the seven-year-old victim, C.L., were also present. At some point, defendant called his female friend J.H. and invited her to join the party, which she did.

¶ 3 Toward the end of the party, the adults were in one room (the tattoo room) of the apartment drinking alcohol and smoking marijuana while C.L. and her friend, six-year-old C.C., watched television in the adjacent living room. C.L. and C.C. were lying down on separate couches. The kitchen was on the other side of the apartment so that the adults had to cross the living room to get to the kitchen.

¶ 4 Defendant left the tattoo room on a number of occasions, always returning with a drink for himself or another guest. After defendant left the room several times, C.C.'s mother became suspicious and followed him out of the tattoo room. When she entered the living room, she saw defendant kneeling next to C.L. with one hand over C.L.'s head and the other hand “down there by her private area.” She could not see what he was doing with his hand.

¶ 5 C.C.'s mother became angry, returned to the tattoo room, and told her husband to make defendant leave the party. C.C.'s father went into the living room and also saw defendant kneeling next to C.L. with his arm around her and one hand on her belly, near her belt line. C.L.'s shirt was pulled halfway up. C.C.'s father saw defendant's face very

[338 P.3d 476]

close to C.L.'s face, and he was whispering to her.

¶ 6 C.C.'s father angrily told defendant, with a raised voice, that he needed to leave the party. Defendant returned to the tattoo room to get J.H. At trial, J.H. testified that when defendant came back into the tattoo room at this time, he was “very guilty-looking.” Defendant and J.H. left the party together.

¶ 7 About an hour and a half later, C.L.'s parents called the police to report the incident. C.L. told the responding officer, and later a forensic interviewer, that defendant told her she was beautiful, kissed her on the lips, touched her on “the part where I pee,” and pointed to her vaginal area.

¶ 8 Police arrested defendant and charged him with one count of sexual assault on a child. This appeal followed defendant's conviction.

II. Discovery Violation

¶ 9 Defendant asserts that the trial court erred by refusing to sanction the prosecution for withholding, until just before trial, the fourth interrogation of defendant, and for misrepresenting the content of the interrogation. We disagree.

A. Preservation and Standard of Review

¶ 10 Defendant preserved this issue for review. We review for an abuse of discretion a trial court's resolution of discovery issues and its decision whether to impose sanctions for discovery violations. People v. Bueno, 2013 COA 151, ¶ 10, ––– P.3d ––––. “ ‘Because of the multiplicity of considerations involved and the uniqueness of each case, great deference is owed to trial courts in this regard, and therefore an order imposing a discovery sanction will not be disturbed on appeal unless it is manifestly arbitrary, unreasonable, or unfair.’ ” Id. (quoting People v. Lee, 18 P.3d 192, 196 (Colo.2001)).

B. Law

¶ 11 In a criminal case, the prosecution must make available to the defendant any “written or recorded statements of the accused.” Crim. P. 16(I)(a)(1) (VIII). The prosecution must also make available any material or information within its possession or control (or the possession or control of its staff and any others who have participated in the investigation of the case), which “tends to negate the guilt of the accused.” Crim. P. 16(I)(a)(2)-(3); Bueno, ¶ 11 (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)).

¶ 12 “Discovery sanctions serve the dual purposes of protecting the integrity of the truth-finding process and deterring prosecutorial misconduct.” People v. Zadra, 2013 COA 140, ¶ 15, ––– P.3d ––––. A trial court should impose the least severe sanction that will ensure full compliance with its discovery orders and protect the defendant's right to due process. Id.

¶ 13 When determining an appropriate sanction for a discovery violation, a trial court should consider “(1) the reason for the delay; (2) any prejudice a party suffered because of the delay; and (3) the feasibility of curing any prejudice through a continuance or recess during trial.” Id. at ¶ 16 (citing Lee, 18 P.3d at 196); see also People v. Castro, 854 P.2d 1262, 1265 (Colo.1993).

¶ 14 “Dismissal is a drastic sanction, typically reserved for willful misconduct.” Zadra, ¶ 17; Lee, 18 P.3d at 196 (absent willful misconduct or a pattern of neglect, “the rationale for a deterrent sanction loses much of its force”). In Zadra, ¶ 18, a division of this court concluded that a prosecutor had not willfully violated the discovery obligations of Crim. P. 16 by late disclosure of an interrogation recording because the prosecutor shared the recording soon after receiving it from investigators. The division also discerned no willful conduct and no prejudice from the prosecutor's failure to provide defendant's handwritten notes until mid-trial, because the prosecutor was not aware of their existence until an officer disclosed their existence on the witness stand, defendant's counsel received the notes “in time to briefly review them and use them in cross-examination” of the officer, and the defendant had written the notes and given them to investigators, so they were no surprise to her. Id. at ¶¶ 18–20.

[338 P.3d 477]

In considering sanctions, a trial court should “be cautious not to affect the evidence to be introduced at trial or the merits of the case any more than necessary,” and should, if at all possible, “avoid excluding evidence as a means of remedying a discovery violation because the attendant windfall to the party against whom such evidence would have been offered defeats, rather than furthers, the objectives of discovery.” Lee, 18 P.3d at 197. Thus, “exclusion of evidence is an inappropriate sanction where exculpatory evidence, although inadvertently withheld prior to the preliminary hearing, was revealed prior to trial.” People v. Dist. Court, 808 P.2d 831, 837 (Colo.1991); see also Lee, 18 P.3d at 194–98 (holding that the trial court abused its discretion by excluding DNA evidence when the record did not support a finding that the prosecutor had willfully violated discovery rules).

¶ 16 When imposing a sanction that is not designed primarily to deter improper behavior, “the goal must be to cure any prejudice resulting from the violation.” Lee, 18 P.3d at 197. Absent a showing of prejudice resulting from the discovery violation, there is no reversible error. Zadra, ¶ 20 (“ ‘Failure to comply with discovery rules is not reversible error absent a demonstration of prejudice to the defendant.’ ” (quoting Salazar v. People, 870 P.2d 1215, 1220 (Colo.1994))).

C. Application

¶ 17 Here, defendant contends that the trial court erred by refusing to sanction the prosecution for withholding the existence of a fourth police interrogation of defendant until the day before trial commenced and for misrepresenting the contents of the interrogation. We disagree.

¶ 18 Police interviewed defendant four times. The prosecution timely disclosed the first two interrogations and a summary of the third interview. But for unstated reasons, it did not disclose, until the day before jury selection commenced, the existence and content of a fourth interview and a supplemental disclosure concerning the third interview. At the time the prosecutor provided the additional interview recordings, the investigating detective told the defense that they contained “just arrest information,” and “nothing of material evidence or exculpatory value.”

¶ 19 The court deferred jury selection the first day of trial to permit the defense to review the recordings. At a status conference later that day, the court offered defendant a continuance to review and prepare in light of the newly-disclosed evidence. Defense counsel informed the court that a continuance was unnecessary because the new evidence did not change the defense theory of the case or strategy in such a way that it would require additional investigation.

¶ 20 The next morning, before jury selection began, defendant requested sanctions for the late disclosure because the recording of the fourth interview contained new exculpatory evidence. He requested dismissal of the case, preclusion of the interviewing detective's testimony entirely, or exclusion of any evidence that resulted from the third interrogation. The prosecution responded that such sanctions would be too drastic and inappropriate because defendant had not argued or shown any...

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