People v. Dembry

• Citation: 91 P.3d 431
• Decision Date: 18 December 2003
• Docket Number: No. 00CA0798.,00CA0798.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony DEMBRY, Defendant-Appellant.
• Court: Court of Appeals of Colorado

91 P.3d 431

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony DEMBRY, Defendant-Appellant.

No. 00CA0798.

Colorado Court of Appeals, Div. III.

December 18, 2003.

Certiorari Denied June 1, 2004.

Ken Salazar, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Law Office of Lindy Frolich, Lindy Frolich, Laurie S. Cohen-Ringler, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge TAUBMAN.

Defendant, Anthony Dembry, appeals the judgment of conviction entered on jury verdicts finding him guilty of sexual assault on a child by one in a position of trust, sexual assault on a child as a crime of violence, and reckless endangerment. We affirm.

In 1998, defendant was living in Colorado Springs, where he worked as a mentor to foster children through a child protection agency. A.R., a twelve-year-old boy, was one of the children whom defendant mentored.

On February 15, 1999, defendant picked up A.R. from his foster parents' home and took him to his apartment, where he sexually assaulted him. A.R. reported the assault. A subsequent physical examination of A.R. revealed rectal soreness and an anal tear.

On February 17, 1999, police officers obtained and executed an arrest warrant for defendant and a search warrant for his apartment. During an interview with law enforcement officers, defendant admitted having had sexual contact with A.R. at his apartment, though he asserted that A.R. had initiated the contact and that it was consensual. While defendant was being interviewed, officers searched his apartment and located HIV medication. When confronted with this information, defendant also admitted he knew that he was HIV positive but did not use a condom during the assault.

After a jury trial, defendant was convicted of sexual assault on a child by one in a position of trust, sexual assault on a child, and reckless endangerment, as a lesser included offense of the charge of attempted manslaughter, based on his unprotected sexual contact with A.R. while being HIV positive. This appeal followed.

I. Use of Suppression Hearing Testimony at Trial

Defendant asserts the trial court abused its discretion in ruling that his suppression hearing testimony, in which he admitted having sexual contact with A.R., could be used at trial to impeach his sister's opinion regarding his character. Defendant argues that his Sixth Amendment right to a fair trial was violated because, based on the court's ruling, he did not call his sister to testify as to his good character for fear that his suppression hearing testimony might be used to impeach her testimony. Defendant sought to have his sister testify that his character was such that he would not have committed a sexual assault. We reject defendant's argument.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court held that a defendant must be able to invoke his or her Fourth Amendment right to suppress illegally obtained evidence without surrendering the Fifth Amendment privilege against self-incrimination. Consequently, a defendant's suppression hearing testimony cannot be used at trial to prove guilt. Simmons v. United States, supra.

Nevertheless, in People v. Rosa, 928 P.2d 1365, 1371 (Colo.App.1996), a division of this court held that Simmons does not protect a defendant from the obligation to testify truthfully, and, therefore, a defendant's suppression hearing testimony may be used to impeach the defendant's contrary trial testimony. However, this case involves the potential testimony of a third person.

In Rosa, the division balanced the defendant's Fourth Amendment right to suppress illegally obtained evidence against his Fifth Amendment right not to incriminate himself. Here, because a third party would have been the source of the testimony, the trial court would have been required to balance defendant's Sixth Amendment right to present evidence with his Fourth and Fifth Amendment rights.

Under the Sixth Amendment, a defendant has a due process right to present evidence in his or her defense, but that right is not absolute. The trial court must use its authority to accommodate all legitimate interests in the criminal trial process. People v. Collie, 995 P.2d 765, 771 (Colo.App.1999).

The scope of cross-examination is a matter within the sound discretion of the trial court, and its determination will not be disturbed absent an abuse of that discretion. People v. Crawford, 191 Colo. 504, 507, 553 P.2d 827, 829 (1976). A defendant may introduce testimony regarding his or her reputation for good character, but that testimony may be impeached on cross-examination of the defendant's character witnesses by inquiry into relevant specific instances of conduct. CRE 404(a)(1), 405(a); People v. Pratt, 759 P.2d 676 (Colo.1988).

[T]he purpose of cross-examination of a character witness is not to establish the truth of the acts inquired about but rather to show the existence of such acts as they may bear upon the credibility of the witness and the accuracy of his testimony regarding community opinion. Thus, a character witness may be asked whether he has heard that the defendant has been arrested for a crime whether or not it culminated in a conviction.

United States v. Evans, 542 F.2d 805, 817 (10th Cir.1976).

We recognize that "it is improper to ask the character witness whether his or her testimony would be affected if the character witness assumed the existence of the particular act for which the accused is on trial." See Michael H. Graham, Handbook of Federal Evidence § 405.1 (5th ed.2001). However, we agree with the decisions of federal courts holding that such cross-examination of a character witness is proper when it concerns facts regarding the charged offenses that the defendant has conceded earlier in the trial through testimony or statements of counsel. See United States v. Wilson, 983 F.2d 221 (11th Cir.1993); United States v. Velasquez, 980 F.2d 1275 (9th Cir.1992).

Here, the People did not seek to introduce defendant's suppression hearing testimony on the issue of guilt. During a conference out of the presence of the jury, defense counsel indicated that defendant sought to present his sister's testimony to show that his character was such that he would not have committed a sexual assault. However, if defendant called his sister as a character witness, the People intended to introduce defendant's suppression hearing testimony to impeach her opinion.

As in Rosa, the holding in Simmons does not relieve defendant of his obligation to present truthful testimony, whether through his own testimony or that of others. Because defendant did not call his sister to testify, we can draw no conclusions as to the admissibility of the testimony she may have provided in response to questions from defense counsel. If we assume that (1) defense counsel's questions to defendant's sister would have elicited proper character evidence, and (2) defendant's sister would have been allowed to testify about his good character without being subjected to cross-examination about her awareness of defendant's suppression hearing testimony, there would have been a substantial question as to the accuracy of her statements of fact and the credibility of her opinions. Also, the proposed impeachment of the sister as a character witness would have been based upon defendant's suppression hearing testimony, made under oath, not a hypothetical question based upon the assumption that defendant was guilty of the crime charged. See United States v. Wilson, supra; United States v. Velasquez, supra.

Furthermore, the trial court did not prohibit defendant from calling his sister as a witness. To the contrary, the trial court allowed defendant, in the event he called his sister to the stand, to ask leading questions on direct examination so that defendant could present evidence without unintentionally eliciting character evidence. Nevertheless, defendant elected not to call his sister as a witness for any purpose.

Under the circumstances, we conclude that defendant's constitutional rights were not violated. His Fourth Amendment rights were protected when he testified at the suppression hearing. See Simmons v. United States, supra. His Fifth Amendment rights were protected because his suppression hearing testimony was not used during the prosecution's case-in-chief as evidence of his guilt. Finally, defendant's Sixth Amendment rights were not violated because he was not prevented from presenting evidence on his behalf. We further conclude that the trial court properly balanced defendant's Fourth, Fifth, and Sixth Amendment rights in ruling that his suppression hearing testimony could be used at trial to impeach his sister's opinion regarding his character.

Thus, the trial court did not abuse its discretion.

II. Motion to Sever

Defendant next argues the trial court abused its discretion by denying his motion to sever the attempted manslaughter count from the sexual assault charges. Defendant argues that the jury heard highly prejudicial evidence of his HIV status, which would not have been admissible to prove the sexual assault charges. We disagree.

A.

As an initial matter, the People argue that because defendant did not renew his pretrial motion to sever during trial, he has waived his right to object to the joint trial. However, in People v. Gross, 39 P.3d 1279 (Colo.App.2001), a division of this court held that a defendant need not renew opposition to the prosecution's pretrial consolidation motion to preserve the issue for appellate review. Here, similarly, the prosecution amended the information to add the attempted manslaughter count. Therefore, following Gross, we conclude defendant was not required to renew his motion to sever, and we address his severance motion on the merits.

B.

Denial of a motion to sever will not be disturbed on appeal absent a showing of abuse...