People v. Diefenderfer

• Citation: 784 P.2d 741
• Decision Date: 04 December 1989
• Docket Number: No. 87SA355,87SA355
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel W. DIEFENDERFER, Defendant-Appellant.
• Court: Supreme Court of Colorado

Page 741

784 P.2d 741

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel W. DIEFENDERFER, Defendant-Appellant.

No. 87SA355.

Supreme Court of Colorado,

En Banc.

Dec. 4, 1989.

Rehearings Denied Jan. 16, 1990.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Curt P. Kriksciun and Wendy J. Ritz, Asst. Attys. Gen., Appellate Section, Denver, for plaintiff-appellee.

Fredric B. Butler, Eagle, for defendant-appellant.

Justice MULLARKEY delivered the Opinion of the Court.

This is an appeal of a conviction for sexual assault upon a child and aggravated incest originally taken from the District Court of Eagle County to the Colorado Court of Appeals. Because the defendant raised certain constitutional questions, the court of appeals submitted the case to this court for a determination of jurisdiction pursuant to section 13-4-110, 6A C.R.S. (1987). We accepted jurisdiction and now affirm the judgment of the district court.

I.

A.

Daniel Wayne Diefenderfer was charged with sexual assault upon a child, section 18-3-405, 8B C.R.S. (1986), and aggravated incest, section 18-6-302(1)(a), 8B C.R.S. (1986). The charges were based on an incident alleged to have occurred in August of 1985 involving Diefenderfer and his three-year-old stepdaughter M.W. The investigation began after M.W. allegedly stated to her eighteen-year-old babysitter Lenna Curtis that "Dan--Dad--put his--made her sit on his lap and put his thing, wiener, through her legs." After Curtis reported M.W.'s statements to the Department of Social Services, an investigation followed.

Curtis testified at trial that she believed that M.W. made the statements to her sometime in the "mid-Summer" of 1985. Other evidence produced at trial indicated that M.W.'s statement was made to Curtis sometime in August of 1985. At the time the alleged incident occurred, M.W. was living with defendant Dan Diefenderfer and his wife Brenda, the natural mother of the child M.W. Brenda Diefenderfer had custody of M.W. pursuant to a custody order and dissolution decree entered in February 1985, dissolving the marriage between Brenda Diefenderfer and her husband Justin. ¹

In late August of 1985, following the report by Lenna Curtis of the potential sexual abuse of M.W., the Department of Social Services contacted the Diefenderfers and asked them to bring in M.W. and her brother R.W. for an interview. Present at the interview was Gerald Sandberg, an investigator for the Eagle County District Attorney's office. Sandberg, together with a Social Services caseworker, interviewed M.W. in private making use of anatomically correct dolls. M.W. indicated through the use of the dolls that "Dad" had put her on his lap with his penis between her legs. According to the testimony of Sandberg, she stated that "he put it inside me, and it hurt, and I cried." Following the interview with M.W., Sandberg interviewed Diefenderfer and indicated that there "had been some allegations" without revealing the exact nature of those allegations. Without receiving further prompting from Sandberg as to the nature of the allegations against him, Diefenderfer volunteered that "they were very open in their household" and that he and Brenda "played with each other on the couch in their home." He further indicated that "Brenda and he would have sex on the couch in their trailer" and that "[M.W.] had fallen down and hurt herself and bruised her vaginal area."

It appears from the record that shortly after the Diefenderfers' interview with the Social Services caseworker and Sandberg, Brenda Diefenderfer arranged for M.W. to stay with Brenda's parents in Nebraska. During that time, at the request of the defendant's attorney, the grandparents took M.W. to a psychiatrist, Dr. Robert C. Calkins of Scottsbluff, Nebraska, for evaluation. M.W. stayed with her maternal grandparents until about October 20, 1985, at which time she returned home and stayed with her mother and the defendant for approximately two weeks. Subsequently, the Diefenderfers arranged for M.W. to stay with the defendant's parents in Wyoming. Although it is unclear from the record, apparently M.W. remained with Dan Diefenderfer's parents until custody of her was given to the Department of Social Services by order of the court on March 13, 1986.

On February 12, 1986, pursuant to a court order, M.W. was examined by Dr. Susan VanScoyk, a child psychiatrist at the Kempe Center, a national center for studies and research on child abuse and neglect in Denver. During the course of the interview by VanScoyk, M.W. made statements indicating that Diefenderfer had put his penis between her legs. These statements were subsequently admitted at trial through the testimony of VanScoyk pursuant to the statutory hearsay exception of section 13-25-129, 6A C.R.S. (1987), which permits the admission of certain statements made by children who have been victims of sexual abuse.

In June of 1986, the defendant became aware that Calkins, the Nebraska psychiatrist who had examined M.W. in September of 1985, would be unable or unwilling to appear at trial. In a series of letters to the district attorney as well as in a formal motion to the court dated September 8, 1986, the defendant requested that the prosecution produce M.W. and her brother R.W. for examination by another defendant expert, psychologist Dr. Lenore Walker of Denver. The court denied the request for further access stating that it was "not going to have this child put through it again."

At trial, M.W. did not testify. Instead, her hearsay statements regarding the actions of the defendant were admitted through the testimony of Sandberg, VanScoyk, and Lenna Curtis. Also, the court admitted testimony from Audrey Curtis, the mother of Lenna Curtis, confirming the content of M.W.'s statements to Lenna as reported by her to Audrey on the day of the babysitting. The court admitted the testimony of Lenna Curtis under C.R.E. 803(2) (excited utterance). M.W.'s statements to Sandberg were admitted under C.R.E. 803(24) (the residuary exception to the hearsay rule), and, as stated above, M.W.'s statements to VanScoyk were admitted under the statutory hearsay exception, section 13-25-129. It is unclear on what basis Lenna Curtis's hearsay statements to her mother were admitted.

Diefenderfer called several lay witnesses to testify on his behalf. He called Joy Stafford, the mother of his wife Brenda. He also called Marta Hulse, a neighbor who occasionally babysat M.W. He called his wife Brenda, and his father Robert Diefenderfer. Two experts, Walker and Dr. Richard Truchses, a clinical psychologist, also testified on behalf of Diefenderfer.

B.

The defendant alleges a number of errors. First, the defendant argues that the admission of M.W.'s hearsay statements made to VanScoyk and Sandberg was error. Further, the defendant challenges section 13-25-129 and C.R.E. 803(24) as being unconstitutionally vague, and as violating his right to confrontation. The defendant also claims that section 13-25-129 infringes upon this court's rulemaking authority. Second, the defendant claims that it was error for the trial court to deny his motion to allow his expert Lenore Walker to examine M.W. Third, the defendant asserts that the trial court erred in restricting his cross-examination of People's psychiatric expert. Fourth, the defendant claims the trial court erred in failing to declare a mistrial because of juror and prosecutorial misconduct. Fifth, the defendant claims that there was insufficient evidence to sustain the verdicts on both counts. We examine each of these claims in turn. ²

II. M.W.'s Hearsay Statements

The defendant asserts that testimony by VanScoyk and Sandberg regarding M.W.'s hearsay statements was improperly admitted. Further, the defendant urges that section 13-25-129 as well as C.R.E. 803(24) are unconstitutionally vague and violate his right to confrontation.

A. M.W.'s Statements to VanScoyk

First of all, our review of the record leads us to conclude that Diefenderfer did not object to the admission of M.W.'s hearsay statements made to VanScoyk. ³ During the preliminary hearing to determine the admissibility of these statements, we find that the defendant conceded that M.W.'s statements to VanScoyk were properly admissible under the statute. However, because the record is admittedly ambiguous on this point, and because the trial court formally ruled that these statements were admissible under the statute, we will consider whether these statements were properly admitted under section 13-25-129, 6A C.R.S. (1987).

Section 13-25-129 permits the admission of certain out-of-court statements made by a child describing acts of sexual conduct provided that the safeguards in the statute are followed. ⁴ The defendant argues that section 13-25-129(1), as applied in this case violated his constitutional right of confrontation. In People v. District Court, 776 P.2d 1083 (Colo.1989), we upheld this statute in the face of a confrontation clause challenge. Nevertheless, we will consider whether, as applied in this case, the statutory hearsay exception violated the defendant's constitutional rights.

In the past, when we have been faced with a confrontation clause challenge to hearsay evidence such as that present in this case, we have employed a two-step analysis. See Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980); People v. District Court, 776 P.2d 1083 (Colo.1989); People v. Dement, 661 P.2d 675, 680 (Colo.1983). First, it must be determined whether the proponent of the hearsay either produced the hearsay declarant for cross-examination or demonstrated that the declarant was unavailable. Ohio v. Roberts, 448 U.S. at 65, 100 S.Ct. at 2538-39. Second, if as in this case, the declarant is determined to be unavailable, then we must examine whether the hearsay bears "sufficient indicia of reliability" precluding the need for...