People v. Baenziger

• Decision Date: 11 March 2004
• Docket Number: No. 01CA2218, No. 01CA2219.
• Citation: 97 P.3d 271
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Peter E. BAENZIGER, Defendant-Appellant.
• Court: Colorado Court of Appeals

97 P.3d 271

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Peter E. BAENZIGER, Defendant-Appellant.

Nos. 01CA2218, 01CA2219.

Colorado Court of Appeals, Div. I.

March 11, 2004.

Certiorari Denied September 13, 2004.¹

Ken Salazar, Attorney General, Lauren Edelstein Park, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Law Office of Lindy Frolich, Lindy Frolich, Denver, Colorado, for Defendant-Appellant.

Opinion by Chief Judge DAVIDSON.

Defendant, Peter E. Baenziger, appeals from the judgment of conviction entered upon a jury verdict finding him guilty of second degree sexual assault. He also appeals the revocation of a deferred judgment and sentence in an unrelated case. We affirm.

In October 1999, the victim called defendant to ask him for a ride home. Defendant, his mother, and his sister arrived to pick up the victim, and she was taken to defendant's home. She and defendant went downstairs to play pool alone, where defendant began touching the victim. Over her protestations, defendant had sexual intercourse with the victim.

After the encounter, defendant's mother drove the victim and defendant to the victim's home. The victim did not tell defendant's mother or her parents about the sexual assault, and she did not call the police.

The next day at school, a custodian overheard a conversation between the victim and a friend and took her to a school counselor. After the victim told the counselor she had been sexually assaulted, the counselor called the police.

The prosecution charged defendant with first degree sexual assault and second degree sexual assault, and defendant was convicted of the latter charge.

In an unrelated case, defendant was charged with possession of a schedule II controlled substance, specifically cocaine. Defendant pleaded guilty to the charge and was sentenced to two years deferred judgment. After his conviction in the sexual assault case, defendant's deferred judgment was revoked, and he was sentenced to three years imprisonment in the Department of Corrections. This sentence was to be served consecutively to the sentence in the sexual assault case.

I.

Immediately preceding opening statements, the trial court instructed the jury on the presumption of innocence and the burden of proof. Before closing arguments, however, the trial court did not reinstruct the jury on the presumption of innocence and the requirement of proof beyond a reasonable doubt. Instead, the trial court summarily reminded the jury of its earlier instructions and, without objection, referred the jury to the written instructions printed in the juror notebooks, which included, inter alia, instructions on the presumption of innocence and reasonable doubt.

Defendant contends that the trial court's reliance on the juror notebooks and consequent failure to reinstruct the jury on the presumption of innocence and burden of proof beyond a reasonable doubt was structural error because the jury was not properly aware of the standards by which it was to evaluate defendant's guilt. We disagree.

Structural errors affect the framework in which a trial proceeds. Such errors bring into doubt the fairness of an entire trial by the denial of a basic protection of the judicial process. Bogdanov v. People, 941 P.2d 247, 253, amended, 955 P.2d 997 (Colo.1997), disapproved on other grounds by Griego v. People, 19 P.3d 1 (Colo.2001); People v. Willcoxon, 80 P.3d 817 (Colo.App.2002). As a result, the presence of a structural error requires reversal. Blecha v. People, 962 P.2d 931 (Colo.1998).

Examples of structural error include the complete deprivation of the right to counsel, trial before a biased judge, improper exclusion of a member of the defendant's ethnic group from a grand jury, and violation of the right to a public trial. People v. Willcoxon, supra. Generally, omissions in jury instructions are not structural error. See Griego v. People, supra. However, structural error can occur if the jury is not properly aware of the standards used in determining a defendant's guilt or innocence. See, e.g., Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). As in Sullivan, this can involve the jury's lack of knowledge of the requirement of proof beyond a reasonable doubt, and of its necessary corollary, the presumption of innocence. See United States v. Doyle, 130 F.3d 523, 535 (2d Cir.1997)("reasonable doubt standard is the means by which the presumption of innocence is implemented"); cf. People v. Aragon, 665 P.2d 137 (Colo.App.1982)(concluding that absence of instruction on presumption of innocence was plain error).

Here, at the outset of the trial, the court stated:

Every person charged with a crime is presumed innocent. This presumption of innocence remains throughout the trial and must be given effect unless after considering all the evidence you are convinced the defendant is guilty beyond a reasonable doubt ... [and] the prosecution has the burden to prove beyond a reasonable doubt each element of the crime charged.

In addition to this initial instruction, the trial court stated before closing argument, "I'm going to read to you the remainder of the instructions of law in the case. As you will recall, I gave you some of the instructions of law before you heard opening statement." The court also told the jury the prior instructions were of equal importance to the instructions that the court was about to give.

In accordance with Crim. P. 16(f), the jury also received written copies of the instructions in their juror notebooks, which the jurors brought into their deliberations.

Because the prior instructions and the notebooks, combined with the trial court's reminder of the importance of these principles, indicate that the jurors were aware of the proper standards for evaluating the evidence, we conclude that no structural error, nor even plain error, occurred, and therefore reversal is not required. See, e.g., United States v. Payne, 944 F.2d 1458, 1467 (9th Cir.1991)(no concluding instruction on presumption of innocence, but record supported "a sense that the jury was aware of the presumption of innocence"); United States v. Ruppel, 666 F.2d 261 (5th Cir.1982)(despite lack of concluding instruction on presumption of innocence, specific instruction at beginning of trial led to conclusion that jury was aware of such presumption); United States v. Davila-Nater, 474 F.2d 270 (5th Cir.1973)(same); State v. Jackson, 139 Ariz. 213, 677 P.2d 1321 (Ct.App.1983)(instruction on burden of proof at beginning of trial coupled with jury's possession of written copies of instruction in jury room precluded reversal).

In reaching this conclusion, however, to preclude any further confusion as to the role of juror notebooks in this regard, we emphasize that as a matter of practice a trial court should read all instructions to the jury before closing argument by counsel.

This practice, set forth in Crim. P. 30, existed in Colorado prior to the adoption of the Colorado Rules of Criminal Procedure in 1961, and remains unchanged. See Symposium on the Colorado Rules of Criminal Procedure, 34 Rocky Mtn. L.Rev. 1 (1961). Nothing in Crim. P. 16, permitting written instructions to be included in juror notebooks, indicates that the notebooks are to supplant the requirement of Crim. P. 30 to orally instruct the jury prior to closing arguments.

As pertinent here, the practice of instructing the jurors immediately prior to closing arguments has many benefits, including ensuring that the jury hears and considers all the applicable law before deliberations and aiding the overall comprehension of the jury. See State v. Johnson, 173 Ariz. 274, 842 P.2d 1287, 1289 (1992)("Instructions given just before the jury deliberates will likely make more of an impression than those given prior to the presentation of evidence."); State v. Nelson, 587 N.W.2d 439 (S.D.1998)(reviewing social science literature supporting practice of instructing jurors immediately prior to closing arguments). It also assists the jury in comprehending the legal context underlying closing arguments that immediately follow. See People v. Bastin, 937 P.2d 761 (Colo.App.1996).

Furthermore, because the presumption of innocence and the burden of proof beyond a reasonable doubt are so critical in a criminal case, it is especially important to instruct the jury on those points at the close of the case. See United States v. Ruppel, supra (when jury is preinstructed on key principles, repetition of key instructions is still important); United States v. Davila-Nater, supra, 474 F.2d at 285("[T]his is a good place to emphasize that trial judges should be careful to give the instruction on the presumption of innocence at the close of the case, so as to leave no room for controversy on this subject."); State v. Johnson, supra, 842 P.2d at 1289 ("A few extra minutes to reinstruct on basic legal principles is the modest cost of this additional safeguard to the rights of an accused.").

II.

Defendant next contends that the trial court erred in admitting the testimony of the prosecution's expert regarding rape trauma syndrome. We again disagree.

A trial court has broad discretion to determine the admissibility of expert testimony, and its ruling will not be disturbed on appeal unless it is manifestly erroneous. People v. Martinez, 74 P.3d 316, 322 (Colo.2003).

A.

Defendant contends that the expert's testimony was not helpful to the jury. We disagree.

Here, the record indicates that the victim initially failed to call for help during the assault or disclose the assault to defendant's mother, her family, or the police. Because the "lay notion of what behavior logically follows the experience of being raped may not be consistent with the actual behavior which social scientists have observed from studying rape victims," expert testimony explaining these reactions is helpful to the jury in determining whether this delay should support the...