People v. Casias

Citation312 P.3d 208
Decision Date27 September 2012
Docket NumberNo. 09CA1745.,09CA1745.
PartiesThe PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Jeff Anthony CASIAS, Defendant–Appellant.
CourtCourt of Appeals of Colorado


John W. Suthers, Attorney General, Alice Q. Hosley, Assistant Attorney General, William Kozeliski, Assistant Attorney General, Denver, Colorado, for PlaintiffAppellee.

Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for DefendantAppellant.

Opinion by Judge DAILEY.

¶ 1 Defendant, Jeff Anthony Casias, appeals the judgments of conviction entered on jury verdicts finding him guilty of first degree murder (causing the death of a child under the age of twelve by one in a position of trust) and knowing or reckless child abuse resulting in death. We affirm.

I. Background

¶ 2 Defendant's girlfriend left defendant at home with their seven-week-old baby, J.C. When she left, defendant was holding an awake, responsive, and content J.C. Shortly afterwards, however, defendant telephoned to tell her that J.C. had choked and stopped breathing. Defendant hung up but called back moments later to tell her that he was taking J.C. to the hospital.

¶ 3 Upon arrival at the hospital, J.C. was unresponsive and limp and did not open her eyes or move any of her extremities. Defendant told the emergency room physician that he had been feeding her when she began choking and that, in an effort to help her, he put cold water on her and shook her “a little bit but not excessively.”

¶ 4 J.C. died the next morning.

¶ 5 At trial, the People presented expert witnesses who opined that J.C. died as the result of nonaccidental traumatic brain injury caused by being violently shaken or “slamm[ed] against a hard surface. The experts based their opinions on fractures to J.C.'s skull and rib, hemorrhages in both her retinas, severe swelling of her brain, and bruising on her forehead. 1 According to some experts, J.C.'s injuries had been recently inflicted, that is, within a day or two of her death. Additionally, some stated that J.C.'s injuries would have immediately affected her heart rate and breathing, making her lethargic and unable to focus.

¶ 6 Defendant asserted that J.C.'s injuries were the result of a fall off the bed onto a hardwood floor approximately a week before she died. Consistent with this theory, defendant's girlfriend testified that seven to ten days before she died, J.C. rolled off the bed, struck her head on the wooden floor, and thereafter was more lethargic, had trouble eating, was congested, and “cried a lot.”

¶ 7 Also consistent with this theory, defendant's expert witness testified that (1) skull fractures in children J.C.'s age could result from short falls onto a hard surface; (2) she did not see injuries to the upper neck, spinal cord, and brain stem that she would expect if J.C. had been injured as a result of being shaken; and (3) choking is reported in many cases where a child has the type of brain damage J.C. suffered. Defendant's expert also opined, contrary to the People's evidence, that J.C.'s rib injuries could have resulted from either a deformity or CPR performed on her, and that retinal hemorrhages are found in accidental deaths and are not characteristic of significant force to the head.

¶ 8 For the purposes of showing defendant's knowledge or absence of mistake, the prosecution was permitted to introduce evidence of two instances in which defendant allegedly abused his three-year-old daughter, A.C.

¶ 9 The jury convicted defendant as charged, and the trial court sentenced him to concurrent terms of life imprisonment without the possibility of parole on the first degree murder count and twenty-four years imprisonment on the child abuse count.

II. Refusal to Allow Expert Testimony via Video–Conferencing Equipment

¶ 10 Defendant contends that the trial court erred when it precluded a defense expert from testifying live via video-conferencing equipment. We disagree.

¶ 11 Twenty-two days before trial, defendant endorsed, as an expert witness, a radiologist who, after reviewing J.C.'s medical file, concluded that her head injuries could not be distinguished as accidental or nonaccidental and that her rib injuries were likely caused by a bone disorder. Defendant simultaneously filed a motion to permit the expert to testify via telephone because he was unable to travel to Colorado on the dates scheduled for trial. Over the prosecution's objection to the late endorsement of the witness, 2 the trial court determined that the expert would be allowed to testify. However, the court ruled that the expert would have to testify in person because allowing him to testify telephonicallywould limit the prosecution's ability to cross-examine him.

¶ 12 Defendant then filed a motion to permit the expert to testify via video-conferencing. In his motion, defendant asserted that video testimony “would alleviate the Court's concern regarding fairness to the prosecution in cross-examination [and] ... allow[ ] for the jurors to judge [the expert's] demeanor on the stand.” Defendant subsequently confirmed that the courtroom had the necessary equipment to conduct video-conferencing, and that the equipment had been tested and worked properly. The prosecutor renewed her objection to the late endorsement of the expert and objected to allowing him to testify by video because (1) she could not control what documents the expert had access to, and thus, she could not adequately or effectively cross-examine him, and (2) the technology had not yet been used in the courtroom, and thus, the quality of the audio and video was unknown.

¶ 13 The trial court denied defendant's motion because (1) it did not have confidence that the video-conferencing equipment would work and (2) as neither the prosecution nor the jury would be able “to see how the [expert] ... reacts,” allowing video testimony would affect the prosecution's ability to cross-examine the witness and the jury's ability to assess the witness's credibility.

¶ 14 The day before trial, defendant filed a motion to reconsider the court's video-conferencing ruling or, in the alternative, to continue the trial until a date upon which the expert could appear in person to testify. In his motion, defendant asserted that the expert witness was essential to his defense. The court denied both proposed alternatives.

¶ 15 On appeal, defendant asserts that the court's refusal to allow his expert to testify via video-conferencing equipment violated his constitutional rights to present a defense and to a fair trial. He characterizes the court's action as an exclusion of his expert's testimony for a discovery violation, which, he asserts, cannot be justified under the five-factor test of People v. Pronovost, 773 P.2d 555, 558 (Colo.1989).

¶ 16 Defendant's argument is built upon a false premise. The court did not exclude his expert from testifying. Indeed, the court expressly permitted his expert to testify, despite having been belatedly endorsed. The court simply required that the expert testify in court. As such, the court's ruling calls into question only the exercise of its discretion in reasonably controlling the interrogation of witnesses and the presentation of evidence. SeeCRE 611(a).

¶ 17 A trial court abuses its discretion when its ruling is (1) manifestly arbitrary, unreasonable, or unfair or (2) based on an erroneous understanding or application of the law. People v. Muniz, 190 P.3d 774, 781 (Colo.App.2008).

¶ 18 [T]here is nothing arbitrary about favoring [in-court] over remote testimony....” Djedovic v. Gonzales, 441 F.3d 547, 551 (7th Cir.2006) (upholding denial of motion to permit telephonic testimony from expert). For centuries, courts have observed the traditional requirement that witnesses deliver testimony in person and in open court:

The rule is a function of the adversarial mode of Anglo–American adjudication that encourages litigants, in the elusive search for the truth, to subject opposing witnesses to rigorous cross-examination. The rule [also] promotes another core feature of our adjudicatory system: the factfinder's all-important function of observing the demeanor and evaluating the credibility of each witness that comes before the court.

State v. Santos, 210 N.J. 129, 42 A.3d 141, 147 (2012) (citations omitted) (discussing motion to have defendant testify from Mexico via telephone).

¶ 19 To this effect, Crim. P. 26 provides that [i]n all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by law.” The rule protects not only a defendant's confrontation rights but also the fundamental fairness of the trial itself. See United States v. Banki, 2010 WL 1063453 (S.D.N.Y. No. 10 CR. 08(JFK), Mar. 23, 2010) (unpublished opinion and order) (denying, under the nearly identically worded Fed.R.Civ.P. 26, the defendant's request for videoconference testimony because, although government's interest in confrontation was not of constitutional proportion, such testimony lacked safeguards which “bear on the integrity of the overall proceedings”); United States v. Hernandez, 2005 WL 1244918 (E.D.Pa. No. CRIM.05–047, May 24, 2005) (unpublished memorandum and order) (denying the defendants' request for telephone testimony because such testimony introduces “fundamental concerns,” such as “impermissibly shortchang [ing] the jury, the witness, and the judicial process itself”).

¶ 20 Courts have recognized certain disadvantages of video testimony. See, e.g., United States v. Lawrence, 248 F.3d 300, 304 (4th Cir.2001) ( [V]irtual reality is rarely a substitute for actual presence and ... even in an age of advancing technology, watching an event on the screen remains less than the complete equivalent of actually attending it.”); Edwards v. Logan, 38 F.Supp.2d 463, 467 (W.D.Va.1999) ([Video-conferencing] is not the same as actual presence, and it is to be expected...

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