People v. District Court of El Paso County, 89SA116

CourtSupreme Court of Colorado
Citation776 P.2d 1083
Docket NumberNo. 89SA116,89SA116
PartiesThe PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT OF EL PASO COUNTY, and Honorable Bernard Baker, one of the judges thereof, Respondents.
Decision Date24 July 1989

Robert M. Brown, Chief Deputy Dist. Atty., and Paul A. Sanford, Deputy Dist. Atty., Colorado Springs, for petitioner.

David F. Vela, Colorado State Public Defender, Bradley D. Crown and Nancy J. Lichtenstein, Deputy Public Defenders, Colorado Springs, for respondents.

ERICKSON, Justice.

This original proceeding raises the issue of whether the trial court properly excluded a four-year-old child's hearsay statements that alleged her father had sexually abused her. The prosecution argues that the trial court erred in holding the statements inadmissible. Specifically, the prosecution claims that the trial court erred by finding that the child, although not competent, was "available" to testify under section 13-25-129(1)(b)(II), 6A C.R.S. (1987), and that the child's statements were unreliable and therefore inadmissible hearsay under section 13-25-129. We issued a rule to show cause, and now make the rule absolute and remand for further proceedings consistent with this opinion.


The defendant, Kenneth D. Wade, was charged by information on July 20, 1988, with one count of aggravated incest in violation of section 18-6-302, 8B C.R.S. (1986), for sexually abusing his four-year-old daughter, who is identified in this opinion as "Jane." Because this proceeding is before us prior to trial, all of the facts which led to the filing of the charge have not been presented to this court. However, the record is sufficient to resolve the limited evidentiary issue in this case.

Although the factual circumstances of the sexual assault are undecided at this point, the hearsay statements in issue are not disputed. Jane's mother testified at the preliminary hearing that

[Jane] and I were roughhousing in our home, and during the process of roughhousing, she told me that her Dad had bit her in her crack. I didn't pursue it at that time, but come around bedtime, I said, "Where did your Daddy bite you"? And she said, "In my crack". And I said, "Well, what did you have on"? And she said, "A diaper", and she hesitated, and then she said that he had gotten her all wet and slobbery. And that's all she told me.

A clinical child psychologist who evaluated Jane for signs of sexual assault testified at the preliminary hearing that upon being given male and female anatomically correct dolls,

[Jane] had them hug, and then she put [the] father on top of the little girl. And then I ... ask[ed] her if that happened between herself and her father, and she indicated that her father kissed her on the mouth, the cheek, and the forehead. And then she pointed to her vagina; indicated that she'd been kissed on the vagina by her father, then indicated that her father had touched her with his finger on the vagina.

The final hearsay statement involved was made by Jane to a state social worker. According to a report made by the social worker:

In her therapy session with me, [Jane] chose to play with the anatomically correct dolls I have in my office. She selected the adult male and the girl doll. During her play, she had each doll place his or her mouth on the other doll's nipples. She also had both dolls kiss the other doll's nipples. She then held the two dolls facing each other, and thrusted ... the two dolls, undressed, toward one another approximately six times. I asked [Jane] to identify who the dolls were, and she indicated that the adult male doll was her father, and that the girl doll was herself. I asked her if her father had touched her with his mouth, and she pointed to her own crotch. She then had the male doll kiss the female--or kiss the face and head of the female doll. I asked her what had happened, and she said, "I don't want to tell you". She then added, "He's a mean dad". At that point, [Jane] said spontaneously, "He opened me with a sharp knife". I asked her where, and she pointed to her leg and her belly. She then said, "He put his ding-a-ling inside". At that point, [Jane] picked up a pen I had on my desk, and stuck it inside the vaginal opening of the girl doll. She then said, "He cut me open with a spoon". When I asked her where, she pointed to her cheek and her eye. [Jane] then said, ["]He used a pencil too,["] and she began pushing a pencil in and out of the female doll's vaginal opening.

On January 3, 1989, the prosecution, pursuant to section 13-25-129(3), 6A C.R.S. (1987), filed a notice of its intent to offer as evidence Jane's three out-of-court statements. Under section 13-25-129(1)(a) and (b), a child's out-of-court statements relating incidents of sexual abuse are admissible if the statements are reliable and the child either testifies at trial or is unavailable to testify but there is corroborative evidence supporting the out-of-court statement. The defendant responded to the prosecution's notice by arguing that admitting Jane's hearsay statements would violate his right to confront an adverse witness face-to-face as guaranteed by article II, section 16 of the Colorado Constitution and the sixth amendment of the United States Constitution. 1 He also argued that the statements should not be admitted since Jane was available to testify and that, even if she was unavailable, her statements lacked the requisite indicia of reliability required by section 13-25-129(1)(a).

Thereafter, a number of hearings were held by the trial court. At the first hearing the trial court found that Jane was not competent to testify at trial since she was unresponsive to questions in open court from both the prosecution and court and could not state what it meant to tell the truth or to lie. At the second hearing, the trial court heard testimony from Jane's pediatrician. The pediatrician told the court that at Jane's mother's request, he examined Jane in February 1988 for signs of sexual assault. The examination revealed that the child's hymenal ring was enlarged for a child of her age which, according to the doctor, was consistent with the allegation of sexual abuse.

The trial court then conducted a third hearing to determine whether, based upon all the evidence, Jane's statements were admissible under section 13-25-129. The court first reiterated its finding that Jane was not competent to testify. Then, the trial court stated that although Jane was not competent, she was nevertheless "available" to testify within the meaning of section 13-25-129(1)(b). The trial court concluded by noting that while the pediatrician's testimony was corroborative evidence which supported the allegation of abuse, Jane's three out-of-court statements were not reliable and hence did not fall within the hearsay exception found in section 13-25-129(1).

The prosecution asserts that the trial court erred by holding that Jane was available to testify when the court had previously found that she was not competent to testify. In our view, because the trial judge questioned Jane and found her not competent, she was unavailable to testify under section 13-25-129(1)(b)(II). Additionally, the trial court's determination that Jane's statements were not reliable under section 13-25-129(1)(a) forces us to resolve not only whether Jane was available to testify, but also determine whether the proper test was used in addressing the reliability issue.


Section 13-25-129, 6A C.R.S. (1987), provides an exception to the hearsay rule for out-of-court statements made by a child who is the victim of an unlawful sexual offense and sets forth procedures to be followed in order to admit such out-of-court statements. Section 13-25-129(1) provides that a child's hearsay statement 2 concerning sexual assault is admissible in evidence if:

(a) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and

(b) The child either:

(I) Testifies at the proceedings; or

(ii) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.

(Emphasis added.) The statute is a legislatively crafted exception to the hearsay rule which, in certain cases, prevents a defendant from exercising his constitutional right to confront an adverse witness face-to-face. See U.S. Const. amend. VI; Colo. Const. art. II, § 16. When considering a confrontation clause challenge to hearsay evidence such as the one now before us, we employ a two-step analysis. See Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980); 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; People v. Dement, 661 P.2d at 680. If the declarant is unavailable to testify, we must then determine whether the hearsay bears "sufficient indicia of reliability" precluding the need for cross-examination. Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538, 65 L.Ed.2d 597 (1980); People v. Dement, 661 P.2d at 681.


The trial court ruled that although Jane was not competent to testify, she was nevertheless "available" within the meaning of section 13-25-129(1)(b)(II). Because Jane was deemed to be available, her out-of-court statements would be inadmissible unless she testified. Section 13-25-129(1)(b). She could not testify, however, because the court held that she was not competent. The practical effect of this ruling was to preclude the jury from hearing any testimony regarding the assault from Jane or the three persons whom Jane told about the assault.

Pursuant to section 13-90-106(1)(b)(II), 6A C.R.S. (1987), a child under ten years of age is...

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