People v. Daley

• Decision Date: 24 June 2021
• Docket Number: Court of Appeals No. 17CA1328
• Citation: 496 P.3d 458,2021 COA 85
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carri Lyn DALEY, Defendant-Appellant.
• Court: Colorado Court of Appeals

496 P.3d 458

2021 COA 85

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Carri Lyn DALEY, Defendant-Appellant.

Court of Appeals No. 17CA1328

Colorado Court of Appeals, Division VI.

Rehearing Denied July 29, 2021

Announced June 24, 2021

Philip J. Weiser, Attorney General, Trina K. Taylor, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Anne T. Amicarella, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE BERGER

¶ 1 Defendant, Carri Lyn Daley, appeals her convictions for one count of sexual assault on a child by one in a position of trust and as part of a pattern of sexual abuse, four counts of aggravated incest, one count of internet sexual exploitation of a child, four counts of sexual exploitation of a child, and one count of contributing to the delinquency of a minor.

¶ 2 One of the many issues raised by Daley is whether it was permissible for a police detective to testify that the victim's testimony was consistent with her out-of-court statements. We hold in Part II.D.1, infra , that the court erred by allowing this testimony because it constituted an opinion on the truthfulness of the victim. We conclude, however, that this error was harmless. Because we reject Daley's other claims of error, we affirm her convictions.

I. Relevant Facts and Procedural History

¶ 3 At trial, the prosecution presented evidence from which the jury could find the following facts.

A. Abuse Relating to Communication With "the British Guy"

¶ 4 When the victim was fourteen years old, Daley (the victim's mother) began exchanging online messages with a man she called "the British Guy." He messaged Daley that he had the sexual fantasy of having a threesome with a mother and daughter and that he would travel to Colorado to meet them.

¶ 5 The victim testified that Daley sent sexually explicit photos of the victim to the British Guy. The photos included Daley and the victim kissing, touching each other's breasts, and using vibrators on each other's genitals.

¶ 6 Daley and the victim discussed whether the victim should lose her virginity to the British Guy. The victim told Daley that she wanted to have sex with someone else first. With Daley's help, the victim met a twenty-one-year-old man online who agreed to have sex with her. The victim testified that she had sex with the man and discussed it with Daley. Ultimately, the British Guy never came to Colorado.

B. Abuse Relating to "Daddy"

¶ 7 The victim testified that Daley kissed her, touched her breasts, and touched her vagina after Daley had "phone sex" with someone Daley had met online. The victim testified that Daley referred to this person as "Daddy."

C. Abuse Relating to Nick Helton

¶ 8 Daley traveled to California to visit a man she had met online. Daley texted the victim about her sexual encounters and bought the victim a vibrator. On this trip, Daley also met Nick Helton. Daley texted the victim about having sex with Helton.

¶ 9 Daley continued communicating with Helton on an instant messaging application when she returned to Colorado. Daley, Helton, and the victim also communicated in a group chat on the same application. Daley and the victim sent messages back and forth, which Helton could see, about having group sex with Helton. In a private message to Helton, Daley said, "[s]o have we teased you enough that you're just ready to throw [u]s down and fuck us both?"

¶ 10 Helton flew to Colorado. While there, he had group sex with Daley and the victim, who was seventeen years old at the time. The victim testified that she tried to leave when the other two removed their clothes, but Helton told her she had to stay. The victim testified that she touched Daley's breasts, Daley "tried" to touch the victim's breasts, and Helton had sex with the victim.

¶ 11 The next day, Helton returned to California. He and Daley messaged regarding their concern of how the victim was doing.

D. The Victim's Outcry

¶ 12 Daley and Helton continued their relationship over the next few months. At some point, Daley again traveled to California to see him.

¶ 13 While Daley was gone, the victim told two friends about some of the abuse. The friends were shocked, which confused the victim, who testified that she thought Daley's sexual behavior was normal. The victim told the mother of one of the friends, who took her to the police.

¶ 14 A social worker called Daley as she was preparing to fly back from California and told her that the victim had been taken into custody for her safety. Daley told Helton, and the pair exchanged concerned text messages. Helton suggested that Daley call a neighbor to see if she could learn anything. Daley responded, "[s]ooooooo not a good idea honey until I find out if this has anything to do with you!!!" Helton replied, "I'm beyond super fucked if it does." The police arrested Daley when she landed in Colorado. Helton sent several messages "freaking out" about why Daley stopped responding.

E. Charges and Convictions

¶ 15 The prosecution charged Daley with thirteen counts: sexual assault on a child by one in a position of trust, including a pattern of sexual abuse, § 18-3-405.3(1), (2), C.R.S. 2020; six counts of aggravated incest, § 18-6-302(1)(a), C.R.S. 2020; internet sexual exploitation of a child, § 18-3-405.4(1), C.R.S. 2020; four counts of sexual exploitation of a child, § 18-6-403, C.R.S. 2020; and contributing to the delinquency of a minor, § 18-6-701, C.R.S. 2020.

¶ 16 The jury found Daley guilty as charged, except that it acquitted her of the two counts of aggravated incest pertaining to the incident with "Daddy." While the jury found that Daley committed a pattern of sexual abuse against the victim, consistent with its not-guilty verdict on the "Daddy" counts, the jury did not find that Daley "committed sexual contact, or penetration, or intrusion of victim relating to ‘Daddy’ " as part of that pattern.

II. Analysis

¶ 17 Daley contends on appeal that the trial court

• violated her right to be present at trial; • violated her right to an impartial and competent jury;

• erred by refusing to instruct the jury on the reliability of child hearsay;

• erred by allowing the prosecutor to ask a police detective whether the victim's testimony at trial was consistent with her prior statements;

• erred by admitting an unavailable witness's statements against interest;

• erred by admitting res gestae evidence about the sexual environment in which Daley raised the victim;

• erred by excluding testimony under the rape shield statute; and

• violated her right to a fair trial through cumulative error.

We address each argument in turn.

A. Right to be Present at Trial

¶ 18 Daley argues that the trial court violated her constitutional right to be present by proceeding with trial after she was hospitalized for an apparent suicide attempt. This argument is preserved.

¶ 19 This argument has two sub-issues: first, whether Daley waived her right to be present by her mid-trial voluntary absence; and second, if there was waiver, whether the court abused its discretion by proceeding with trial in her absence.

1. Additional Background

¶ 20 Daley was not in custody when the trial began. She attended the first four days of trial. On the fifth morning of trial, a Monday, counsel for the parties learned that Daley had been hospitalized for a drug overdose.

¶ 21 First responders discovered three pill bottles on Daley's nightstand, along with an empty beer bottle and a glass that contained residue of crushed pills. One pill bottle was for hydrocodone

(an artificial opiate) prescribed to Daley, another for hydrocodone prescribed to the victim, and a third for tramadol (another artificial opiate) prescribed to a dog. There was also a note on the nightstand that said, "[the victim] was right. This world doesn't need another me."

¶ 22 Daley was taken to a hospital. She was largely unresponsive to both nasal and intravenous Narcan

, a drug typically administered to prevent or mitigate an opioid overdose. Doctors put Daley on a Narcan drip, but she continued to fade in and out of consciousness. Doctors thought that she may need to be taken to the Intensive Care Unit. (She was eventually taken there that afternoon.) At the time, the parties understood that Daley would not be medically cleared and available for a mental health evaluation until late Tuesday or Wednesday, after which a psychiatrist would determine whether a further mental health hold was necessary.

¶ 23 The prosecution argued that the circumstances established that Daley was voluntarily absent from trial and that the trial should proceed. The court agreed, finding that "the defendant has made herself voluntarily absent by virtue of a mid-trial suicide attempt." The court then ruled that the trial would proceed without her.

¶ 24 When trial resumed, the court instructed the jury, "Ms. Daley is not here. You are not to draw any adverse inference from her absence." Daley was absent for the remainder of trial.

2. Law

¶ 25 A defendant has a constitutional right to attend her own trial. U.S. Const. amends. VI, XIV ; Colo. Const. art. II, § 16 ; People v. Janis , 2018 CO 89, ¶ 16, 429 P.3d 1198.

¶ 26 We review de novo the ultimate question "[w]hether a trial court violated a defendant's constitutional right to be present at trial." Janis , ¶ 14. Whether this right was relinquished by an effective waiver presents "a mixed question of fact and law." People v. Price , 240 P.3d 557, 560 (Colo. App. 2010). We review factual findings for clear error. People v. Beauvais , 2017 CO 34, ¶ 22, 393 P.3d 509 ; United States v. Edwards , 303 F.3d 606, 627 (5th Cir. 2002) (reviewing factual findings about whether the defendant was voluntarily absent for clear error).

¶ 27 A waiver of the right to be present at trial "is valid only when the record as a whole demonstrates that the waiver was knowing, intelligent, and voluntary." Janis , ¶ 26. The prosecution may satisfy its burden of proving waiver...