People v. Anderson

• Decision Date: 13 December 2007
• Docket Number: No. 05CA0426.,05CA0426.
• Citation: 183 P.3d 649
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael Jerome ANDERSON, Defendant-Appellant.
• Court: Colorado Court of Appeals

183 P.3d 649

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Michael Jerome ANDERSON, Defendant-Appellant.

No. 05CA0426.

Colorado Court of Appeals, Div. I.

December 13, 2007.

Certiorari Denied May 27, 2008.

John W. Suthers, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge ROY.

Defendant, Michael Jerome Anderson, appeals the judgment of conviction entered upon a jury verdict finding him guilty of four counts of sexual assault on a child as a pattern of abuse, four counts of sexual assault on a child by one in a position of trust, and a mandatory sentencing enhancer for bodily injury during a sexual offense. He also appeals the enhanced sentence. We affirm.

A thirteen-year-old boy (the victim) reported to the police that he had been orally and anally sexually assaulted by defendant, who was living with the victim and the victim's mother and sister. The victim described to the responding officer five separate incidents of sexual abuse beginning in the prior year. The officer then took the victim to a hospital for an examination.

At the hospital, the victim informed a doctor that he had been molested by defendant ten or eleven times. An examination of the victim revealed scarring on the victim's anus which could have been caused by a sexual assault, but for which there were also other possible causes. After his examination, the victim described two of the incidents of sexual abuse in some detail to a second officer. The victim later received a second physical examination, which also revealed scarring consistent with, among other things, sexual abuse.

Defendant was charged with four counts of sexual assault on a child-pattern, sections 18-3-405(1), (2)(d), C.R.S.2007; four counts of sexual assault-position of trust, section 18-3-405.3, C.R.S.2007; three counts of second degree sexual assault, Ch. 127, sec. 1, § 18-3-403(1)(e), 1988 Colo. Sess. Laws 725 (now codified as section 18-3-402(1)(e), C.R.S. 2007); and a mandatory sentencing enhancer for a crime of violence-bodily injury during a sexual offense applicable to all the sexual assault counts, Ch. 287, sec. 3, § 16-11-309(2)(a)-(b), 1994 Colo. Sess. Laws 1715-16 (now codified as section 18-1.3-406(2)(a)-(b), C.R.S.2007). All the offenses were alleged to have occurred between January 1, 1998 and February 17, 1999. Prior to trial, the prosecution dismissed the three counts of second degree sexual assault, and the jury returned verdicts of guilty on the remaining counts.

Defendant was sentenced to consecutive ten-year sentences to the Department of Corrections (DOC) on three counts of sexual assault on a child-pattern of abuse, each sentence concurrent with the corresponding ten-year sentences for three counts of sexual assault on a child-position of trust. In addition, defendant was sentenced to eight years to life on the fourth count of sexual assault on a child-pattern of abuse, to be served consecutively to the sentences for the other pattern of abuse counts and concurrently with the sentence of eight years to life for the corresponding count of sexual assault on a child-position of trust. Thus, the total sentence is thirty-eight years to life in the DOC with mandatory parole.

I.

Defendant argues that the trial court erred in excusing a seated juror from service and replacing her with an alternate outside the presence of, and without notice to, defendant or his counsel. We disagree.

On the second day of trial the court received a telephone call from a distraught member of the jury who reported that her son had just been removed from her home in handcuffs. The juror requested to be relieved of her duties. The trial court summarily granted the request outside the presence of, and without notice to, defendant or his counsel.

The trial court later informed both counsel that the juror had been excused, at which time defense counsel was given an opportunity to object or to make a further record on the matter. Defense counsel declined to do so. The court then informed both counsel that an alternate juror, who had been passed for cause and not otherwise challenged, would serve in place of the excused juror.

On appeal, defendant does not argue that the trial court lacked the authority to excuse the juror. See People v. Abbott, 690 P.2d 1263, 1268 (Colo. 1984) (excusing a juror whose wife had been admitted to the hospital and substituting an alternate juror is within discretion of the trial court); People v. Johnson, 757 P.2d 1098, 1100 (Colo.App.1988) (appointment of an alternate juror to replace a sitting juror who has become disqualified is within the sound discretion of the trial court). Instead, he argues that he and his counsel should have been present and participated in the decision before it was made.

While the selection of a jury is a critical stage of the proceeding at which a defendant or his counsel has a right to be present, People v. Cohn, 160 P.3d 336, 342 (Colo.App.2007), replacing a juror with an alternate is more in the nature of an administrative task. Olszewski v. Spencer, 369 F.Supp.2d 113, 143-44 (D.Mass.2005), aff'd, 466 F.3d 47 (1st Cir.2006). Therefore, failure to afford a defendant the opportunity to be present and heard before a juror is excused is not a ground for reversal without a showing of prejudice. United States v. Patterson, 819 F.2d 1495, 1507 (9th Cir.1987); see also 2 Charles Alan Wright, Federal Practice and Procedure: Criminal § 388, at 574 (3d ed.2000) (the substitution of an alternate juror for a sitting juror for reasonable cause is within the prerogative of the trial court, is discretionary, and does not require the consent of any party).

Because defendant has not asserted any prejudice, we conclude that there was no error by the trial court.

II.

Defendant next argues that the trial court erred in failing to declare a mistrial, sua sponte, when a caseworker improperly testified that she believed the victim's allegations were true. We disagree.

An expert witness may not give opinion testimony as to the truth of a child victim's testimony or statement on a specific occasion. People v. Koon, 713 P.2d 410, 412 (Colo.App.1985).

On redirect examination, the prosecutor asked the caseworker whether the victim and his sister were removed from the home because defendant was still in the home or for some other reason. The witness replied, "The children were removed because I ... believed [the victim's] disclosure and because [the mother] was not protecting the children and [defendant] remained." After the witness was excused, the prosecutor made a record that she thought the statement was improper, but that she had not intended to elicit it. The court agreed and said that it was likewise concerned after hearing the statement. Following a discussion between the court and counsel, defense counsel requested that the jurors be instructed to disregard the improper testimony and that whether they believed the victim was for them to decide. The trial court did so.

Defendant did not object to the testimony. Consequently, we review for plain error. Crim. P. 52(b); People v. Kruse, 839 P.2d 1, 3 (Colo.1992). "Plain error ... is error that is so clear-cut, so obvious, a competent district judge should be able to avoid it without benefit of objection." People v. O'Connell, 134 P.3d 460, 464 (Colo.App.2005). In addition, the error must "so undermine[ ] the fundamental fairness of the proceeding as to cast serious doubt on the reliability of the judgment" of conviction. People v. Sepulveda, 65 P.3d 1002, 1006 (Colo.2003).

While the evidence of guilt was not overwhelming, we cannot say that the improper statement so undermined the fundamental fairness of the trial as to cast...