People v. DeBella, No. 06CA2630.

• Citation: 219 P.3d 390
• Decision Date: 14 May 2009
• Docket Number: No. 07CA1961.,No. 06CA2630.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John Arthur DeBELLA, Defendant-Appellant.
• Court: Colorado Court of Appeals

219 P.3d 390

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John Arthur DeBELLA, Defendant-Appellant.

No. 06CA2630.

No. 07CA1961.

Colorado Court of Appeals, Div. VI.

May 14, 2009.

Rehearing Denied June 11, 2009.

John W. Suthers, Attorney General, Alexander C. Reinhardt, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Isaacson Rosenbaum, P.C., Shawn Gillum, Blain D. Myhre, Gary Lozow, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge BERNARD J.

Defendant, John Arthur DeBella, appeals the judgments of conviction entered on jury verdicts finding him guilty of two counts of sexual assault on a child (one as part of a pattern of abuse), two counts of enticement of a child, and one count of possessing an ounce or less of marijuana. Defendant also appeals the trial court's order denying his Crim. P. 35(c) motion for postconviction relief. We affirm.

According to the prosecution's evidence, in 2005, defendant took thirteen-year-old D.W. to a cemetery, performed oral sex on him, and had D.W. reciprocate the act; and, on another occasion, defendant took D.W. to his apartment, performed oral sex on him, and engaged in anal intercourse.

Defendant's theory of defense was that D.W. fabricated the allegations. Defendant pointed to the lack of corroborative evidence, and elicited testimony that D.W. had prior behavioral problems; engaged in attention-seeking behavior; and fabricated various stories, both related and unrelated to this case.

The jury found defendant guilty of all the charged offenses. Before sentencing, he filed a motion for postconviction relief under Crim. P. 35(c), alleging that his counsel had been ineffective during plea negotiations. Prior to ruling on the motion, the court sentenced defendant to concurrent terms of twenty-four years to life on each of the sexual assault charges, six years on each of the enticement charges, and a suspended $100 fine for possessing marijuana.

Following sentencing, defendant filed a notice of appeal. Thereafter, a division of this court granted defendant's motion for limited remand to allow the trial court to consider his pending motion for postconviction relief. On remand, defendant argued that his counsel was ineffective because counsel had failed to convey one plea offer, and inadequately communicated another, to him. Following an evidentiary hearing, the trial court denied defendant's motion.

I. Direct Appeal

Defendant contends that the trial court committed reversible error when it allowed the jury, during deliberations, unfettered access to a videotaped interview of D.W. that had been admitted into evidence. We disagree.

D.W. was interviewed twice on videotape by a detective and a counselor. Over defendant's objection, the trial court admitted both videotapes. The court decided at a pretrial hearing to admit the first videotape as child hearsay under section 13-25-129, C.R.S.2008. The court admitted the second videotape as a prior inconsistent statement under section 16-10-201, C.R.S.2008, after listening to D.W.'s testimony at trial.

Following closing arguments, the trial court initially indicated that it would give the jury both videotaped interviews and the machinery to play them during deliberations. When the prosecution informed the court that the videotape of the first interview contained material that the jury had not previously been allowed to see, the court ruled that that videotape would not be sent back to the jury room and that it could be viewed by the jury only upon request and, even then, in open court subject to court supervision and the presence of counsel. However, the court decided that the videotape of the second interview, in which D.W. described in great detail defendant's conduct to groom D.W. for sexual activity as well as the sexual assaults, would be given to the jury.

Defense counsel objected, arguing that (1) the videotape was testimonial evidence from D.W.; and (2) by allowing the jury unrestricted access to it, the jurors would be "able to give[ ] more weight to, or to review it as many times as they feel they want to," unlike "any of the other testimony that was presented during the trial." The court overruled defendant's objection, and did not instruct the jury that there were any limitations on its access to the videotape.

The trial court based its ruling on, inter alia, People v. McKinney, 80 P.3d 823 (Colo. App.2003), rev'd on other grounds, 99 P.3d 1038 (Colo.2004), and People v. Isom, 140 P.3d 100 (Colo.App.2005). In those cases, divisions of this court recounted (1) how, under People v. Montoya, 773 P.2d 623 (Colo. App.1989), jurors were not allowed unrestricted and unsupervised access to testimonial exhibits during deliberations; (2) that the Montoya division had reached its decision based, in large part, on C.R.C.P. 47(m)'s prohibition on giving the jury a particular type of testimonial exhibit (that is, depositions) during deliberations; (3) that the language of C.R.C.P. 47(m) upon which the Montoya division relied had since been eliminated; and (4) how, consequently, there was no longer a bar to sending depositions (or other testimonial exhibits) into the jury room with the jury in criminal cases.

After defendant filed his notice of appeal in this court, the supreme court decided Frasco v. People, 165 P.3d 701 (Colo.2007). Although Frasco had not been announced when the trial court ruled in this case, we apply it here because this case was pending on direct appeal when Frasco was issued. See Lopez v. People, 113 P.3d 713, 716 (Colo.2005).

Frasco was a sexual assault on a child case. The trial court admitted, over the defendant's objection, a videotape of the victim's pretrial statement to law enforcement officers. Before playing the videotape in court, the court instructed the jurors not to give the tape more significance than other evidence, and instructed the jurors at the end of the trial that they would have to request permission to see the tape again. The jury made such a request, to which the defendant acceded, and the jury was allowed to review the tape during its deliberations. 165 P.3d at 702.

Frasco concluded that the reliance on the change in the language of C.R.C.P. 47(m) in the McKinney-Isom line of cases was misplaced. Rather, the supreme court held that the proper analysis stemmed from decisions in two criminal cases, Settle v. People, 180 Colo. 262, 264, 504 P.2d 680, 680-81 (1972), and Wilson v. People, 103 Colo. 150, 157-65, 84 P.2d 463, 466-70 (1938). Those cases established several relevant principles: (1) trial courts have discretion to allow a deliberating jury access to evidence admitted during trial; (2) there is no blanket rule excluding "testimonial evidence," such as depositions, from the scope of the court's discretion; (3) courts should be aware, when exercising this discretion, that jury access to testimonial evidence can present a risk of undue weight or emphasis being given to the evidence; and (4) courts should ensure that juries are not allowed to use exhibits in a way that unfairly prejudices defendants or the prosecution. Thus,

the trial court's ultimate objective must be to assess whether the exhibit will aid the jury in its proper consideration of the case, and even if so, whether a party will nevertheless be unfairly prejudiced by the jury's use of it.

Frasco, 165 P.3d at 704-05.

The supreme court determined that the trial court had not abused its discretion because the record was unclear whether the defendant objected to the jury's request to review the tape; the court instructed the jury when the videotape was admitted that it had no more significance than any other evidence; the court required the jury to request the videotape before allowing the jury to view it; and the court consulted with counsel before making its decision. Important for our review here, the supreme court observed:

The child testified at trial about the defendant's various acts of sexual abuse, sometimes with more and sometimes with less detail than in the earlier interview, and she was subjected to cross-examination about the differences or inconsistencies in the two accounts. In closing arguments, defense counsel drew the jury's attention to inconsistencies in the two accounts as support for his contention that the assaults were fabricated, and he specifically asked the jury, if it went through the videotape during deliberations, to take note of the suggestiveness of the questioning in that interview.

Beyond asserting that the jury had an opportunity to view the exhibit repeatedly and give it undue weight, the defendant has alleged nothing about the particulars of the videotape that would likely render its review during deliberations unfairly prejudicial.

Id. at 705.

We conclude that this case is like Frasco in important respects. Although clearly there are differences from Frasco, we hold, for the reasons we explain below, that they are not sufficiently compelling to support a conclusion that the trial court abused its discretion by allowing the jury to have unsupervised access to the videotape.

A. Nature of the Charges

This case, like Frasco, involved allegations of sexual assault on a child. Therefore, there is nothing inherently prejudicial in the nature of the charges here that was not considered in Frasco.

B. Victim's Testimony

As in Frasco, the victim here testified, and was subject to cross-examination. His trial testimony was marked by repeated statements that he did not know the answers to questions about details of the sexual assault. This lack of detail was significantly different from the statements he made during the videotaped interview. This difference prompted the trial court to observe that it would admit the second videotape as evidence of a prior inconsistent statement because the second interview was not cumulative of D.W.'s trial testimony: "[T]here are significant gaps and omissions from [D.W.'s] testimony ... versus...