People v. Constant

• Decision Date: 29 March 1982
• Docket Number: No. 80SC250,80SC250
• Citation: 645 P.2d 843
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Gardy CONSTANT, Respondent.
• Court: Colorado Supreme Court

Page 843

645 P.2d 843

The PEOPLE of the State of Colorado, Petitioner, v. Gardy CONSTANT, Respondent.

No. 80SC250.

Supreme Court of Colorado, En Banc.

March 29, 1982.

Rehearing Denied April 19, 1982.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarky, Sol. Gen., Robinson, Waters, O'Dorisio & Rapson, P. C., William R. Rapson, Denver, for petitioner.

Karp, Goldstein & Stern, Kenneth H. Stern, Denver, for respondent.

ERICKSON, Justice.

We granted certiorari to review People v. Constant, Colo.App., 623 P.2d 63 (1980), which granted the defendant, Gardy Constant, a new trial because the prosecutor's closing argument called the jury's attention to the fact that the defendant was laughing while the complaining witness testified and during the prosecution's closing argument. We reverse the judgment of the court of appeals and remand to the court of appeals with directions to affirm the judgment of conviction.

The defendant was convicted by a jury of first-degree sexual assault, ¹ second-degree burglary, ² and crime of violence, ³ and was thereafter sentenced to the Colorado State Penitentiary. The sole issue before us is whether the prosecutor's comments in closing argument regarding the defendant's demeanor at trial constituted plain error which requires reversal and a new trial. No contemporaneous objection was made by defense counsel to the prosecution's argument and no error was asserted in the defendant's motion for a new trial. In our view, the court of appeals erred in reversing the defendant's conviction because the alleged prosecutorial misconduct was not plain error.

I. The Factual Background

The factual dispute in this case centers on whether the complaining witness consented or was forced at knifepoint to submit to sexual intercourse with the defendant. At trial, the testimony of the complaining witness and the defendant was in sharp conflict, and their credibility was the primary issue for the jury to determine. A review of the testimony of both the complaining witness and the defendant provides the foundation for the legal conclusions in this opinion.

The complaining witness testified that she returned to her second floor apartment in Colorado Springs, Colorado, in the early morning hours of January 7, 1978. When she unlocked the front door, she saw the defendant standing in her kitchen with a knife in his hand. She testified that the defendant then forced her into the bedroom by putting his arm around her neck and the knife to her throat. She said that he then undressed her and forced her to submit to sexual intercourse. She also described how the defendant covered her face with a curtain while he was having intercourse with her. When she asked the defendant why he raped her, he laughed and said "You wouldn't believe me."

The defendant then permitted the complaining witness to dress, and he remained in the apartment for a short period of time. He apologized for raping her and said that he had done it to win a bet from some college friends which required him to "go into a lady's apartment, and take some of her jewelry, and come three times and then leave." At first the defendant prevented the complaining witness from telephoning the police, but he eventually permitted a call to be completed. He then left and was arrested outside the apartment. Thereafter the police found the defendant's car keys on a ledge outside a window of the apartment, and located some of the complaining witness' jewelry in the defendant's car. The police also recovered a knife and a curtain near the complaining witness' bed.

The defendant admitted being in the apartment and having sexual intercourse with the complaining witness but testified that no force was used. He said that he had been drinking heavily that night and decided that he would visit an old girl friend. When he arrived at what he believed to be her apartment, he found the door unlocked and entered. He thought that she had been negligent in leaving the door unlocked and, to teach her a lesson took her jewelry and some other items and put them in his car. He then returned to the apartment, fixed a snack in the kitchen, and waited for her to return. According to the defendant, he was washing a knife when the complaining witness came home. He was embarrassed when he did not recognize her and realized that he was in the wrong apartment. He then decided that he should "get on good terms" with her because of his mistake in taking her jewelry, and suggested that they "go to bed" since she seemed "pretty friendly." The defendant testified that the complaining witness responded by saying "as handsome as you are, you don't need that knife," and led him to the bedroom.

He testified that he covered her face with a curtain while having intercourse "because he didn't like the way she looked." Afterwards, the defendant admitted that while he was "reminiscing about the evening," he "giggled a little." In his view, the complaining witness thought that he was laughing at her, became angry, and called the police. He said he waited for the police to arrive because he did not rape her, but only consented to have intercourse.

II. The Closing Argument

It is not disputed that the defendant laughed while the complaining witness testified and also laughed during the prosecution's closing argument. In closing argument, the prosecutor pointed out the inconsistencies in testimony and the defendant's incredible theory of consent. In attacking the defendant's credibility, the prosecutor characterized his testimony as a deliberate fabrication designed to mislead the jury which was motivated by his desire to evade responsibility for a criminal act. The court of appeals concluded that the following statements in the prosecution's closing argument required reversal of the defendant's conviction:

"And Mr. Constant is laughing again like he did before. This whole trial is a joke to him." (Emphasis added.)

"And (defense counsel) makes the statement that in this trial Mr. Constant has been painfully honest with you. You have been able to observe his demeanor, and while (the complaining witness) was testifying he was generally chuckling to himself." (Emphasis added.)

"Let's look at (the complaining witness') motives in testifying. It's one of the things in credibility you can look at. If she was just mad at him, because he said she was ugly, would she tell it to two police officers at length, would she go through a vaginal examination ... and testify before all you people, and all those people, and these people, and watch him laugh at her while she was testifying, and go to counseling at Victim Services Bureau?" (Emphasis added.)

"Their demeanor on the witness stand in the courtroom-(the complaining witness) did pretty well in telling you what happened to her. It was a very personal thing that happened to her. She used a few Kleenexes and she was tearing them up with her hands. I think she only had a couple of tears. What did Gardy Constant do? He laughed. (The complaining witness) testified that he just kept sitting there-he just kept laughing at her, just like after he rolled off her and she said, 'Why?' and he just laughed." (Emphasis added.)

Defense counsel made no objection to any of the prosecutor's remarks, and none of the references to the defendant's laughter were asserted as grounds for reversal in the defendant's motion for a new trial. The error was asserted for the first time on appeal.

In closing argument, the prosecutor also stressed the need for the jury to determine the credibility of the complaining witness and the defendant, and reviewed the court's instruction to the jury on the credibility of witnesses. Colo.J.I. (Crim.) 3:8 (1974 rev.). Counsel can with propriety comment on how well and in what manner a witness measures up to the tests of credibility set forth in the instruction. Valdez v. People, 168 Colo. 429, 451 P.2d 750 (1969). Moreover, to determine whether the prosecutor's closing argument is improper, the remarks complained of must be reviewed in light of the evidence which is before the jury. Stout v. People, 171 Colo. 142, 464 P.2d 872 (1970). See also State v. Knapp, 14 Wash.App. 101, 540 P.2d 898 (1975). A determination of whether the prosecutor's closing argument is improper depends upon the nature of the comment and on whether the jury's attention has been directed to something which it is not entitled to consider. State v. Knapp, supra. See also State v. Padilla, 101 Idaho 713, 620 P.2d 286 (1980).

Here, the prosecutor commented on the defendant's behavior at the defense table. He referred to the fact that the defendant laughed during the time that the complaining witness testified and during the prosecution's rebuttal argument. The prosecution's reference to the defendant's conduct at the defense table were brief. Moreover, the defendant's conduct was committed in the presence of the jury. In People v. Dykes, 66 Ill.App.3d 403, 23 Ill.Dec. 183, 383 N.E.2d 1210 (1978), cert. denied, 444 U.S. 940, 100 S.Ct. 292, 62 L.Ed.2d 305 (1979), a conviction for rape and other sexual misconduct was affirmed when the defendant did not testify in his own defense and laughed at the rape victim while she was testifying. In the course of his closing argument, the prosecution in Dykes told the jury that they should let the defendant know by their verdict that "you don't consider this funny, you don't consider it a laughing matter." In reviewing the conduct, the Illinois court concluded that the prosecutor had not argued that the defendant's demeanor was evidence of guilt, but merely had pointed out the defendant's conduct to the jury. Cf. United States v. Wright, 489 F.2d 1181 (D.C.Cir.1973).

We agree that a prosecutor may draw reasonable inferences as to the demeanor and credibility of witnesses. Based upon the facts of this case, the prosecution's argument is consistent with the instruction to the jury which permits the jury...