People v. Cowan

• Decision Date: 14 March 1991
• Docket Number: No. 89CA0347,89CA0347
• Citation: 813 P.2d 810
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James Wallace COWAN, Defendant-Appellant. . C
• Court: Colorado Court of Appeals

Page 810

813 P.2d 810

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James Wallace COWAN, Defendant-Appellant.

No. 89CA0347.

Colorado Court of Appeals Div. C.

March 14, 1991.

Rehearing Denied April 25, 1991.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John J. Krause, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, David M. Furman, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge KELLY ^*.

The defendant appeals judgments of conviction entered on jury verdicts finding him guilty of aggravated incest and third degree sexual assault. He contends that the trial court erroneously failed to instruct the jury as required by § 13-25-129(2), C.R.S. (1987 Repl.Vol. 6A), that the trial court improperly admitted evidence of similar offenses, and that the district attorney was guilty of misconduct during cross-examination of the defendant and during closing argument. Only the similar offense argument was preserved for review by contemporaneous objection; therefore, plain error is the standard of review on the other issues. We reverse.

I.

Relying on People v. McClure, 779 P.2d 864 (Colo.1989), a case decided after this trial, the defendant argues that the trial court's failure to instruct the jury contemporaneously with receipt of extrajudicial statements of the victim through testimony of other witnesses about the child victim's out-of-court statements, together with the failure to include the instruction in the final charge, constitute plain error. We agree.

In McClure, supra, the Supreme Court established the standards under which the failure of a trial court to instruct a witness contemporaneously with testimony about the extrajudicial statements of a child victim of sexual abuse rises to the level of plain error. It ruled that, in addition to contemporaneous instruction, the same instruction must be repeated in the general charge to the jury at the conclusion of the case.

However, for an appellate court to conclude that there was plain error, it must be fairly assured, after a review of the entire record, that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. People v. McClure, supra; see also People v. Diefenderfer, 784 P.2d 741 (Colo.1989) (fn. 10); People v. Wilson, --- P.2d ---- (Colo.App. No. 88CA1204, March 14, 1991).

In McClure, supra, the failure of the trial court to instruct either contemporaneously or in the final charge left the jury without any instruction whatever with the resultant finding on appeal of plain error. In Diefenderfer, supra, on the other hand, there was a proper instruction upon the reception of the testimony of one witness as well as a proper instruction in the final charge. As a result, there, the failure to instruct as to the testimony of the only other witness to the out-of-court statements did not cause serious doubt as to the reliability of the judgment of conviction. See also People v. Flysaway, 807 P.2d 1179 (Colo.App.1990).

While there may be cases in which an instruction in the final charge is sufficient to cure the prior default in giving a contemporaneous instruction, see Flysaway, supra, the converse situation yields no such clear conclusion. Here, the trial court held an in camera hearing as required by § 13-25-129(1), C.R.S. (1987 Repl.Vol. 6A), and concluded that the testimony of the first witness, a social worker, was sufficiently reliable to be admitted. Instead of giving the jury the cautionary instruction required by statute and by McClure contemporaneously with the admission of the testimony, the instruction was delayed until after the victim himself had testified, not only about his out-of-court statements to the social worker and others, but also about his recantation of these statements.

There followed a significant effort by the prosecution to impeach the victim with prior inconsistent statements, while the defense concentrated on establishing the victim's propensity for lying and fantasizing. Conversely, the defendant had also, prior to trial, recanted his admissions that the sexual acts had occurred, and this led to his defense that he had been under the influence of side effects of a medication he was taking for back pain.

The trial court gave no cautionary instructions prior to the victim's testimony about his numerous out-of-court statements, nor was there contemporaneous instruction at the time of the reception of testimony from the victim's girlfriend and his mother, both of whom, in their testimony, alluded to the victim's extrajudicial accusations made either to them or to others.

While it is true, as the attorney general points out in his brief, that this jury could not have misapprehended that the outcome of the case depended entirely upon the credibility of the victim and of the defendant, who testified at length in his own behalf, the fact remains that the jury was not instructed in the final charge beyond the general credibility instruction. Hence, the jury was unaware at the conclusion of this bizarre case with its "dizzying facts," as the attorney general characterizes them, that the victim's out-of-court statements were to be weighed and credited after considering the...