People v. Fierro, No. 79SA210
| Docket Nº | No. 79SA210 |
| Citation | 606 P.2d 1291, 199 Colo. 215 |
| Case Date | February 19, 1980 |
| Court | Supreme Court of Colorado |
Page 1291
v.
Robert FIERRO, Defendant-Appellant.
Rehearing Denied March 10, 1980.
[199 Colo. 217]
Page 1292
J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Maureen F. Phelan, Asst. Atty. Gen., Denver, for plaintiff-appellee.J. Gregory Walta, Colo. State Public Defender, Craig L. Truman, Chief Deputy State Public Defender, Melvin Rossman, Sp. Deputy State Public Defender, Denver, for defendant-appellant.
ROVIRA, Justice.
The defendant, Robert Fierro, was convicted by a jury of first-degree sexual assault, sexual assault on a child (sections 18-3-402 and 405, C.R.S.1973), and aggravated incest (section 18-6-302, C.R.S.1973). 1 We affirm.
[199 Colo. 218] The victim in this case was the defendant's eleven-year-old daughter, who was the prosecution's chief witness. The sexual assault occurred when she and her two sisters were visiting at the defendant's home. The victim testified that the defendant had been drinking beer on the evening of November 24, 1975, and that, at his request, she had typed a letter for him. The defendant then sent the victim's sisters to bed and told the victim to accompany him to a store. When they were outside the home, the defendant told the victim that he needed something from a camper trailer parked nearby. The defendant and the victim entered the trailer, where the defendant told the victim that he wanted to have a sexual relationship with her. She refused and began to cry, and the defendant threatened to shoot her
Page 1293
with a pistol. He put her on a bed, removed her clothing, and assaulted her sexually. Each time the victim tried to scream, the defendant put the pistol to her head and told her to be silent. After the assault, the defendant warned the victim that he would kill her or have her killed if she reported the incident.The victim also testified that, on the following day, she and her nine-year-old sister were in the bathroom of the defendant's home. The victim was crying because it hurt her to use the toilet. The younger sister asked her why she was crying, and the victim replied several times that "Daddy did it to me." She was frightened and exacted from her younger sister a promise not to repeat what she had been told. 2 During cross-examination of the younger sister, defense counsel established her uncertainty as to whether the victim had reported to her the occurrence of actual sexual penetration during the commission of the sexual assault.
Two defense witnesses were called. The first was the victim's cousin, who testified that, several months after November 24, 1975, the victim had stated that the defendant had "just tried" to rape her. The second was the victim's older sister, who testified that she had been present at the defendant's home on November 24, 1975, that there was no typewriter in the house, and that the defendant had drunk no beer and had gone to bed before she had on the evening of November 24. The victim made no complaint to her older sister concerning the sexual assault, and the older sister found no blood on the victim's clothing during the performance of laundry chores.
On this appeal, the defendant raises issues relating to: (1) the sufficiency of the evidence; (2) purported inconsistencies in the findings of the jury; (3) the constitutionality of section 18-3-408, C.R.S.1973, which prohibits the giving of the "Lord Hale" instruction in sexual assault prosecutions; and (4) purportedly inadequate and ineffective representation by [199 Colo. 219] trial counsel.
I.
The defendant advances several challenges to the sufficiency of the prosecution's evidence. At oral argument before this court, the defendant stipulated that it was appropriate to treat these challenges together as an appeal from the trial court's denial of his motion for judgment of acquittal. The issue before the trial judge on that motion was whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, was substantial and supported a conclusion by a reasonable mind that the defendant was guilty of the charges beyond a reasonable doubt. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973). We are convinced that the prosecution's evidence in the case before us met this standard and therefore affirm the denial of the motion for judgment of acquittal.
The defendant's principal sufficiency challenge is bottomed on his characterization of the victim's testimony both as uncorroborated and as so improbable and contradictory as to be incapable of standing alone without corroboration. We reject both characterizations. The law in this state is that corroboration of the victim's testimony is not essential in every criminal prosecution for unlawful sexual acts. People v. McCormick, 181 Colo. 162, 508 P.2d 1270 (1973); Johnson v. People, 172 Colo. 406, 473 P.2d 974 (1970); LaBlanc v. People, 161 Colo. 274, 421 P.2d 474 (1967). Rather, the need for corroboration is determined through an ad hoc assessment of the character of the prosecuting witness, the probability or improbability of her...
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Topping v. People, No. 88SC392
...of itself to establish that a sexual assault had occurred. Martinez v. People, 160 Colo. 534, 422 P.2d 44 (1966). See People v. Fierro, 199 Colo. 215, 606 P.2d 1291 (Colo.1980); People v. Graham, 678 P.2d 1043 (Colo.App.1983), cert. denied 467 U.S. 1216, 104 S.Ct. 2660, 81 L.Ed.2d 366 (1984......
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People v. Gonzales, No. 82SA18
...People v. Brassfield, 652 P.2d 588 (Colo.1982); People v. Franklin, 645 P.2d 1 (Colo.1982); People v. Ganatta, supra; People v. Fierro, 199 Colo. 215, 606 P.2d 1291 (1980); People v. Downer, 192 Colo. 264, 557 P.2d 835 (1976); People v. Gomez, 189 Colo. 91, 537 P.2d 297 (1975); People v. Go......
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Groditsky v. Pinckney, Nos. 82SA171
...to recall by the voters of his district through a recall election pursuant to Article XXI of the Constitution." People v. Losavio, 199 Colo. at 215 n. 2, 606 P.2d The California Constitution contains a provision similar to section 3 of article XIII of the Colorado Constitution. In Wigley v.......
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Brooks v. State, No. 352
...v. State, 624 P.2d 1240, 1255 (Alaska, 1980). Its use has been forbidden by statute in a number of jurisdictions. See People v. Fierro, 199 Colo. 215, 606 P.2d 1291 (1980). In some states the giving of the instruction has been held to be discretionary with the trial court. See, e.g., State ......
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Topping v. People, No. 88SC392
...of itself to establish that a sexual assault had occurred. Martinez v. People, 160 Colo. 534, 422 P.2d 44 (1966). See People v. Fierro, 199 Colo. 215, 606 P.2d 1291 (Colo.1980); People v. Graham, 678 P.2d 1043 (Colo.App.1983), cert. denied 467 U.S. 1216, 104 S.Ct. 2660, 81 L.Ed.2d 366 (1984......
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People v. Gonzales, No. 82SA18
...People v. Brassfield, 652 P.2d 588 (Colo.1982); People v. Franklin, 645 P.2d 1 (Colo.1982); People v. Ganatta, supra; People v. Fierro, 199 Colo. 215, 606 P.2d 1291 (1980); People v. Downer, 192 Colo. 264, 557 P.2d 835 (1976); People v. Gomez, 189 Colo. 91, 537 P.2d 297 (1975); People v. Go......
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Groditsky v. Pinckney, Nos. 82SA171
...to recall by the voters of his district through a recall election pursuant to Article XXI of the Constitution." People v. Losavio, 199 Colo. at 215 n. 2, 606 P.2d The California Constitution contains a provision similar to section 3 of article XIII of the Colorado Constitution. In Wigley v.......
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Brooks v. State, No. 352
...v. State, 624 P.2d 1240, 1255 (Alaska, 1980). Its use has been forbidden by statute in a number of jurisdictions. See People v. Fierro, 199 Colo. 215, 606 P.2d 1291 (1980). In some states the giving of the instruction has been held to be discretionary with the trial court. See, e.g., State ......