People v. District Court of Fifth Judicial Dist. In and For Clear Creek County, 82SA23

• Decision Date: 21 June 1982
• Docket Number: No. 82SA23,82SA23
• Parties: The PEOPLE of the State of Colorado, John F. Healy, District Attorney, Fifth Judicial District, and W. Terry Ruckriegle, Assistant District Attorney, Clear Creek County, Petitioners, v. The DISTRICT COURT OF the FIFTH JUDICIAL DISTRICT In and For the COUNTY OF CLEAR CREEK, State of Colorado, and The Honorable William L. Jones, one of the Judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 1206

647 P.2d 1206

The PEOPLE of the State of Colorado, John F. Healy, District

Attorney, Fifth Judicial District, and W. Terry

Ruckriegle, Assistant District Attorney, Clear Creek County, Petitioners, v. The DISTRICT COURT OF the FIFTH JUDICIAL DISTRICT In and For

the COUNTY OF CLEAR CREEK, State of Colorado, and

The Honorable William L. Jones, one of

the Judges thereof, Respondents.

No. 82SA23.

Supreme Court of Colorado, En Banc.

June 21, 1982.

Rehearing Denied July 26, 1982.

John F. Healy, Dist. Atty., W. Terry Ruckriegle, Asst. Dist. Atty., Georgetown, for petitioners.

Stewart H. Brown, Vail, for respondents.

LOHR, Justice.

The People brought this original proceeding to challenge an order of the Clear Creek County District Court granting the motion of the defendant, Wayne Harold Buterbaugh, to suppress the videotape deposition of Kennette Ann Willmore. The trial court concluded that the deposition should be suppressed because Willmore was not a competent witness at the time the deposition was taken. We issued a rule to show cause, but now hold that the trial court's ruling was proper and so discharge the rule.

I.

The record in this proceeding reveals the following facts. In December 1980 and January 1981 Buterbaugh and Willmore were living in an isolated mountain cabin located in Clear Creek County, Colorado. In the last week of December or the first week of January, Buterbaugh and Willmore were visited by David Downer, an acquaintance of Buterbaugh. At the prompting of Downer, the three individuals undressed and frolicked in a nearby creek. After returning to the cabin, Willmore engaged in sexual intercourse with both men. Downer then began to taunt and tease Buterbaugh by threatening to take Willmore away from him, and an altercation followed during which a shotgun held by Buterbaugh discharged, killing Downer. Buterbaugh and Willmore dragged the body outside, cremated it, and then fled.

After traveling throughout the west during the next few months, Buterbaugh and Willmore arrived in Oregon in the spring of 1981. Still troubled by the Downer incident, Willmore sought out the Oregon State Police and told her story. Following a preliminary investigation corroborating Willmore's revelations, Buterbaugh and Willmore were placed under arrest. Buterbaugh was charged with first-degree murder, section 18-3-102, C.R.S.1973, and Willmore was charged as an accessory to the crime, section 18-8-105(1), (2), C.R.S.1973.

The district attorney subsequently applied for a grant of immunity for Willmore in exchange for her testimony against Buterbaugh, and the application was granted. The charges against Willmore were later dismissed.

Fearing that Willmore might be unavailable when Buterbaugh was ultimately brought to trial, the district attorney moved for leave to take Willmore's deposition, and the deposition was taken and recorded on videotape on July 8, 1981.

Several weeks before the deposition was taken, Willmore was interviewed while under hypnosis by a Denver police officer acting at the request of the Clear Creek County Sheriff's Office. The interview was recorded on audiotape but not on videotape. The hypnotic session consisted of an extensive review of the events leading up to and following Downer's death.

On August 10, 1981, Buterbaugh filed a motion for appointment of a psychiatrist to examine Willmore for the purpose of assessing her competency to testify at Buterbaugh's trial. The motion was granted and Dr. Lawrence Stross was designated as the psychiatrist.

On January 5, 1982, the People filed a motion for continuance of Buterbaugh's trial, originally scheduled to commence on January 18, 1982, because Willmore had left the jurisdiction and could not be located. On January 6, 1982, Buterbaugh filed a motion to suppress Willmore's videotape deposition on the basis that she was incompetent at the time the deposition was taken. Subsequently, a hearing was held.

The only witness testifying at the hearing was Dr. Stross. He stated that, in his medical opinion, Willmore was of unsound mind at the time of the videotape deposition. Stross testified that his opinion was based upon his conclusion that Willmore was unable to recall the events surrounding Downer's death in a "truthful, accurate way." He further stated that Willmore "cannot distinguish what she remembers from what she imagined happened." Stross testified that Willmore's condition at the time of the deposition could be traced to (1) her general tiredness resulting from the prolonged questioning, (2) her traumatic neurosis caused by experiencing the highly stressful event of Downer's death, and the resulting repression of the event from her conscious awareness, and (3) an exacerbation of her repression and the consequent amnesia because of the hypnotic interview conducted shortly before her deposition.

With respect to the hypnotic interview, Stross testified that he did not believe it had been employed as a therapeutic technique designed to enable Willmore to deal with the overwhelming emotional reaction that was disturbing her mental balance, and that, as a consequence, the hypnotic interview was psychologically harmful to Willmore and had further destabilized her mental balance. Stross testified that Willmore's unstable condition and the harmful effect of the hypnotic interview were illustrated by Willmore's ability to recall the events surrounding Downer's death in substantially greater detail while under hypnosis than later at her deposition. He also pointed to Willmore's inability to verify her hypnotic session account of the incident at the time of her deposition, despite her statement that she remembered basically everything she had said while hypnotized, as further evidence of her unsound mind with respect to the event. Stross additionally noted Willmore's statement that she remembered less of the event every time that she reviewed it. He testified that this was contrary to the generally observed psychological phenomenon that repetition results in enhancement of memory.

Stross further testified that he based his opinion upon his review of: the videotape of the Willmore deposition and a transcript of that deposition; the audiotape and a transcript of the hypnotic interview; a transcript of Buterbaugh's preliminary hearing, where Willmore had appeared as a witness; a transcript of an interview of Willmore by the Oregon State Police; and various other materials.

On cross-examination, Stross testified that he could not assess the relative importance of the three factors-tiredness, traumatic neurosis, and improper hypnotic treatment-in causing Willmore's psychological disability at the time of the deposition. Stross conceded that a personal examination of Willmore would have been a desirable supplement to the materials reviewed as a basis for his opinion. Stross also stated that he spent approximately 4 hours reviewing the available materials before reaching his conclusions.

At the end of the hearing, the court granted the defendant's motion to suppress and the state's motion for a continuance pending Willmore's return. The trial court later entered a written order, which stated that Willmore was of unsound mind with respect to the Downer incident and, consequently, was precluded from testifying by section 13-90-106(1)(a), C.R.S.1973. The court found that Willmore was unable to recall crucial matters or to communicate such matters to those conducting her examination. The court further found that in giving her deposition Willmore refused, or was unable, to disclose matters that were demonstrably within her knowledge on prior occasions, and presumably within her knowledge at the time of the deposition. Based on this finding, the court concluded that use of the deposition against the defendant at trial would violate his constitutional right of cross-examination, and in support of that proposition cited U.S.Const. amends. V, VI, and XIV, and Colo.Const. Art. II, §§ 16 and 17.

The People contend that the trial court erred: (1) because Dr. Stross was not qualified as an expert and because, even if his expertise was sufficient, there was an insufficient foundation for his opinion; and (2) because, even if Stross' opinion was properly admitted, the trial court abused its discretion in relying upon this opinion and in issuing its suppression order without personally reviewing the videotape. The People also challenge the trial court's conclusion that use of the Willmore deposition against the defendant at trial would violate Buterbaugh's constitutional right of cross-examination. We address these arguments in turn.

II.

A.

At the suppression hearing the prosecution stipulated to Dr. Stross' qualifications as an expert in the field of psychiatry. However, it contended in the trial court and now contends on appeal that Stross was not qualified as an expert in forensic hypnosis, and that such expertise was necessary to support his testimony concerning the mental state of Willmore. We find the prosecution's argument unpersuasive.

The guidelines for use of expert testimony are now set forth in CRE 702 as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The determination of whether a witness is qualified to render an expert opinion is committed to the discretion of the trial court, and will not be disturbed on review unless that discretion is abused. E.g., Baird v. Power Rental Equipment, Inc., 191 Colo. 319, 552 P.2d 494 (1976); McCune v. People, 179 Colo. 262, 499 P.2d 1184 (1972); Stork v. People, 175 Colo. 324, 488 P.2d 76 (1971).

Stross' qualifications as a psychiatrist were undisputed. Stross testified that he had been involved with hypnosis for 23 years and forensic hypnosis...