People v. Gabriesheski

• Decision Date: 24 October 2011
• Docket Number: No. 08SC945.,08SC945.
• Parties: The PEOPLE of the State of Colorado, Petitionerv.Mark Joseph GABRIESHESKI, Respondent.
• Court: Colorado Supreme Court

262 P.3d 653

The PEOPLE of the State of Colorado, Petitioner

v.Mark Joseph GABRIESHESKI, Respondent.

No. 08SC945.

Supreme Court of Colorado, En Banc.

Oct. 24, 2011.

Daniel H. May, District Attorney, Fourth Judicial District, Doyle Baker, Deputy District Attorney, Colorado Springs, Colorado, Attorneys for Petitioner.McClintock & McClintock, P.C., Elizabeth A. McClintock, Theodore P. McClintock, Colorado Springs, CO, Attorneys for Respondent.Theresa Spahn, Executive Director, Nancy J. Walker–Johnson, Sheri Danz, Sarah Ehrlich, Denver, Colorado, Attorneys for Amicus Curiae The Colorado Office of Child's Representative.Anne Kellogg, Aurora, Colorado, Attorney for Amicus Curiae The National Association of Counsel for Children.Jeffrey C. Koy, Denver, Colorado, Attorney for Amicus Curiae Rocky Mountain Children's Law Center.Colene Flynn Robinson, Denver, Colorado, Attorney for Amicus Curiae University of Colorado Law School Juvenile and Family Law Program.Colorado Bar Association, William E. Walters, III, President, Denver, Colorado, Cox & Baker, LLC, Mary Jane Truesdell Cox, Denver, Colorado, Jacobs Chase LLC, Michael H. Berger, Denver, Colorado, Attorneys for Amicus Curiae Colorado Bar Association.Justice COATS delivered the Opinion of the Court.

The People sought review of the court of appeals' judgment affirming two in limine evidentiary rulings of the district court in a prosecution for sexual assault on a child by one in a position of trust. See People v. Gabriesheski, 205 P.3d 441 (Colo.App.2008). Following the district court's exclusion of testimony concerning the recantation of the defendant's stepdaughter, the alleged child-sexual-assault victim, the prosecutor conceded her inability to go forward, and the case was dismissed. The court of appeals concluded that section 16–12–102(1), C.R.S. (2010), gave it jurisdiction to entertain the People's appeal, but it affirmed both of the trial court's evidentiary rulings.

With regard to the exclusion of testimony by the guardian ad litem appointed in a parallel dependency and neglect proceeding, the court of appeals held that the child's communications with the guardian fell within the attorney-client privilege, as set out at section 13–90–107(1)(b), C.R.S. (2010). With regard to the exclusion of testimony by a social worker also involved in the dependency and neglect proceeding, the court found her to be both a professional who could not be examined in a criminal case without the consent of the parent-respondent, as dictated by section 19–3–207, C.R.S. (2010), and a licensed professional who could not be examined without the consent of her client, according to section 13–90–107(1)(g), C.R.S. (2010).

We conclude that the court of appeals did have jurisdiction to entertain the People's appeal, but we disapprove of its conclusions with regard to both of the trial court's evidentiary rulings. Because a child who is the subject of a dependency and neglect proceeding is not the client of a court-appointed guardian ad litem, neither the statutory attorney-client privilege nor ethical rules governing an attorney's obligations of confidentiality to a client strictly apply to communications by the child. Because the trial court apparently understood section 19–3–207 to bar the examination of the social worker in the defendant's criminal case as long as she qualified as a professional involved in the dependency and neglect proceeding, it failed to make sufficient findings to satisfy the additional statutory requirement that the statements at issue be ones made in compliance with court treatment orders, or to demonstrate the applicability of section 13–90–107, which is limited by its own terms to communications made by a client in the course of professional employment or psychotherapy.

The judgment of the court of appeals is therefore affirmed in part and reversed in part.

I.

Mark Gabriesheski was charged with two counts of sexual assault on a child by one in a position of trust. The charges arose from allegations by the defendant's sixteen-year-old stepdaughter to the effect that he had fondled her breasts and digitally penetrated her vagina on approximately fifteen occasions. A Petition in Dependency and Neglect was then filed in the juvenile court, designating the child's mother as the Respondent and the defendant as a Special Respondent. A guardian ad litem was appointed by the juvenile court, as required by statute.

Prior to trial the child recanted her accusations, and the prosecution gave notice of its intention to call as witnesses the guardian ad litem and a social worker who had apparently been assigned to act as caseworker in the juvenile proceeding. According to the prosecution's offer of proof, the guardian ad litem and social worker were crucial witnesses because they had knowledge of attempts by the mother to pressure her daughter to recant. The prosecutor indicated that the guardian would testify concerning a discussion with the child during which the child said it would make things easier for her if she admitted to lying about the sexual abuse and that it would make her mother happy if she simply said the abuse never occurred. The prosecutor represented that the social worker would testify regarding her own conversation with the mother, in which the mother asserted that the child made up the allegations in order to get back at her and the child's step-father, and that the mother had a long talk with the child, in which she became angry and called the child a liar, and based on that discussion the child admitted to her, the mother, that she had fabricated the allegations.

The defense objected on the grounds that all communications between the child and guardian ad litem and all communications between the child and social worker were confidential and inadmissible in the absence of appropriate consent or waiver. The defense specifically argued that communications between the child and guardian ad litem were protected by the statutory attorney-client privilege and duty of confidentiality imposed on attorneys by rule 1.6(a) of the Colorado Rules of Professional Conduct. It asserted that communications between the social worker and mother were privileged under subsections 13–90–107(1)(g), which prohibits the examination of certain enumerated treatment professionals concerning communications or advice given to clients in the course of professional employment, and were further made inadmissible by section 19–3–207(2), which prohibits the examination in a criminal case of professionals as to certain statements made by respondents in dependency and neglect proceedings.

The trial court ruled that neither the guardian ad litem nor the social worker would be permitted to testify at trial. It concluded that Colo. R.P.C. 1.6, in conjunction with Chief Justice Directive 04–06, imposed a duty of confidentiality on the guardian ad litem, which could only be waived by the child. Although it did not address Gabriesheski's assertion of a social worker-client privilege, the trial court also concluded that the social worker could not be examined in the criminal case without the consent of the child's mother for the separate reason that the social worker was a qualifying professional within the prohibition of subsection 19–3–207(2). In light of the trial court's rulings, the prosecution conceded its inability to go forward, and the court dismissed the charges, without prejudice. Following the dismissal of all charges, the prosecution filed a notice of appeal in the court of appeals, challenging the validity of both of the trial court's evidentiary rulings.

After rejecting the defendant's contention that it lacked jurisdiction to entertain the People's appeal, the appellate court affirmed both of the trial court's evidentiary rulings. With regard to the guardian ad litem, it upheld the trial court's ruling that communications by the child fell within the statutory attorney-client privilege. It reasoned that because Chief Justice Directive 04–06 subjects guardians ad litem to “all of the rules and standards of the legal profession,” it necessarily establishes an attorney-client relationship between the guardian and the minor child. With regard to the social worker, the appellate court upheld the trial court's finding that section 19–3–207 barred any examination of her in the criminal case but also found, despite the issue not having been addressed by the trial court, that the social worker-client privilege of section 13–90–107(1)(g), supported the conclusion that she could not testify without the consent of the child or her mother.

The People petitioned for a writ of certiorari, challenging the appellate court's conclusion concerning both evidentiary rulings. Although the defendant did not cross-petition with regard to the question of jurisdiction, in conjunction with granting the People's petition, we ordered the parties to brief the question whether the People's direct appeal following dismissal was authorized as the appeal of a question of law pursuant to section 16–12–102(1).

II.

Public prosecutors in this jurisdiction are granted uncommonly broad authority to appeal decisions of trial courts in criminal cases upon questions of law. § 16–12–102(1), C.R.S. (2010) ¹; People v. Guatney, 214 P.3d 1049, 1050 (Colo.2009). Because this statutory authority, however, expressly requires that appeals under section 16–12–102(1) be filed and prosecuted as provided by the applicable rules of this court, we have previously made clear that appeals by the prosecution pursuant to this subsection are nevertheless subject to the final judgment requirement of C.A.R. 1. See Guatney, 214 P.3d at 1050; Ellsworth v. People, 987 P.2d 264, 266 (Colo.1999); People v. Gallegos, 946 P.2d 946, 950 (Colo.1997). Although the statute expressly permits an immediate appeal of an order declaring a death penalty inoperative, regardless of any statute or court rule to the contrary, and...