People v. Gaffney, No. 87SC404

Docket NºNo. 87SC404
Citation769 P.2d 1081
Case DateFebruary 21, 1989
CourtSupreme Court of Colorado

Page 1081

769 P.2d 1081
The PEOPLE of the State of Colorado, Petitioner,
v.
Phillip S. GAFFNEY, Respondent.
No. 87SC404.
Supreme Court of Colorado,
En Banc.
Feb. 21, 1989.
As Modified on Denial of Rehearing
March 13, 1989.

Page 1082

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Cynthia D. Jones, Asst. Atty. Gen., Denver, for petitioner.

David Hofer, Lakewood, for respondent.

QUINN, Chief Justice.

We granted certiorari to review the unpublished decision of the court of appeals in Gaffney v. People, No. 86CA0441 (Sept. 10, 1987), which reversed the conviction of the defendant, Phillip S. Gaffney, for sexual crimes and remanded the case for a new trial. The court of appeals ruled that a pediatrician's statement that the medical history given by the child-victim was "very believable" constituted impermissible opinion testimony on the victim's character for truthfulness in violation of CRE 608(a). We conclude that because the pediatrician's statement could have been interpreted by a jury as an expert opinion on the truthfulness of the child's identification of the defendant as his assailant, the statement should not have been allowed into evidence. We are satisfied, however, that when the challenged statement is viewed in light of the entire record, the error in admitting the statement must be deemed harmless. We accordingly reverse the judgment of the court of appeals and remand the case to that court with directions to consider the defendant's other claims raised in his appeal to that court but not addressed in the court of appeals' opinion.

I.

The defendant was charged with first degree sexual assault, 1 sexual assault on a child, 2 and the commission of a crime of violence, 3 all of which were alleged to have occurred on August 16, 1984, in Denver, Colorado. The defendant entered a not guilty plea to the charges, and the case was set for a trial to a jury.

Prior to trial the district court conducted a hearing, pursuant to section 13-25-129, 6A C.R.S. (1987), on the admissibility of certain hearsay statements made by the child-victim, a twelve year old boy, to his mother, to an investigating police officer, and to an examining pediatrician. As pertinent here, section 13-25-129(1)(a) provides that a child's out-of-court statement, not otherwise admissible by statute or rule, describing any act of sexual penetration performed on the child is admissible in evidence in a criminal proceeding if the court determines that: (a) the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and (b) the child either testifies at the proceedings or, if unavailable as a witness, there is corroborative evidence as to the act which is the subject of the child's statement. In the event the statement is ruled admissible, section 13-25-129(2) requires the court to instruct the jury that it is the jury's prerogative to determine the weight and credit to be given the statement and that, in making this determination, the jury should consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor. § 13-25-129(2), 6A C.R.S. (1987). The district court determined that the statutory safeguards had been met and that the three witnesses would be permitted to testify at trial to the child's out-of-court statements.

At trial the prosecution called as its first witness the child-victim, whom we will refer to as W.H. He testified that on the day of the assault the defendant, who was apparently married to but separated from a neighbor of W.H., had made arrangements with W.H.'s mother to take W.H. to an apartment complex to assist in the cleaning of some carpets. The defendant picked up W.H. at his home and then drove to the apartment complex. The apartment manager, however, was not at the complex, so the defendant drove to his own apartment and then took W.H. home. At approximately

Page 1083

three-thirty in the afternoon W.H.'s mother told him to go over to the defendant's apartment, which was approximately one block distant from W.H.'s home, to assist the defendant in the carpet cleaning job. Upon arrival the defendant told W.H. that they could not immediately start working at the apartment complex, so W.H. turned on the television. Approximately thirty minutes later the defendant placed a knife to W.H.'s throat and threatened to kill him if he screamed. After W.H. complied with the defendant's instructions to undress and bathe, the defendant entered the bathroom and carried W.H. to the living room couch where the defendant began rubbing W.H.'s penis. The defendant then carried W.H. to the bedroom, tied his hands together, covered his head with a bathrobe, and performed anal intercourse on him. W.H. testified that the defendant performed at least two other similar acts before permitting W.H. to leave the apartment. Since he was afraid of the defendant, W.H. did not tell anyone of the assaults until October 31, 1984, when he told his mother.

W.H.'s mother testified to the statement made to her by W.H. on October 31, 1984. Before receiving into evidence the mother's testimony, the trial court cautioned the jury that it was their prerogative to determine what weight and credit to give to the statement and that in making that determination the jury should consider the age and maturity of the child, the nature of the statement, the circumstances under which it was made, and any other relevant factor. The mother testified that W.H. told her that on the day he went with the defendant to help in the cleaning of carpets, the defendant had threatened him with a knife and had sexually assaulted him. W.H. described to his mother the manner in which the assault took place and told her that "it was painful, like [I] had to go to the bathroom." 4

The prosecution also elicited testimony from Denver Police Officer Romas Freeman, who interviewed W.H. on November 14, 1984. Prior to receiving the officer's testimony about W.H.'s statement, the court gave the same cautionary instruction to the jury as previously given when W.H.'s mother testified. The officer testified that W.H. identified the defendant by name as the man who had assaulted him and then described in detail the circumstances of the assault.

Dr. Sara Evans, a pediatrician who examined W.H. at Denver General Hospital on November 5, 1984, also testified as a prosecution witness. After the court repeated the cautionary instruction previously given the jury, Dr. Evans recounted the medical history given to her by W.H. The doctor testified that W.H. told her that "Phillip Gaffney" was the man who had assaulted him. W.H. also told Dr. Evans that he experienced considerable pain during the acts of anal intercourse and that he had to use the bathroom three times for very painful bowel movements during the criminal episode. Dr. Evans described her findings on examining W.H. These findings included an enlarged raphe, which the doctor described as the thin line between the scrotum and the anal opening, and a slightly lax sphincter, which is a muscle surrounding the anus. Both of these conditions, in the doctor's opinion, were unusual for a twelve year old child and were consistent with repeated acts of forcible sexual penetration of the anus. Based on the medical history and physical examination, it was the doctor's opinion that W.H. had been subjected to forcible anal intercourse.

During Dr. Evans' direct examination, the prosecuting attorney asked, "What was particularly compelling about the history as told to you?" The doctor replied, "This history is very believable." Although the defense attorney objected to the doctor's response, the trial court overruled the objection and refused to hear any argument.

Page 1084

Dr. Evans went on to testify that what she found compelling about W.H.'s history was its physiological consistency, in that anal stimulation "will cause a reflection to defecate and that is the thing that was most physiologically consistent, as well as the fact of [W.H.] describing the pain going along with the situation." 5

The defense presented testimony from Michelle Mills and the defendant. Ms. Mills testified that on August 16, 1984, the date of the alleged offenses, she was with the defendant from 9:00 a.m. in the morning until approximately 2:00 a.m. the next morning. Both she and the defendant went shopping, returned to her apartment where they had dinner with Michelle's husband, and then the three of them went to several bars. It was Ms. Mills' testimony that after the bars closed at 2:00 a.m., she walked the defendant to his home. The defendant denied committing the offenses and testified basically to the same events previously described by Ms. Mills.

The jury returned guilty verdicts to all counts, and the court sentenced the defendant to concurrent terms totalling twenty-four years. In reversing the judgment, the court of appeals reasoned that the admission of the pediatrician's opinion concerning the believability of W.H.'s history was in violation of CRE 608(a) because W.H.'s character for truthfulness had not been attacked and, in addition, the pediatrician's

Page 1085

testimony referred to "a specific occasion of truthfulness as opposed to the witness' general character for truthfulness." In light of this evidentiary analysis, the court of appeals concluded that since there were no witnesses to the assault other than the child, the pediatrician's statement could not be considered harmless error. In reversing the judgment on the basis of CRE 608(a), the court of appeals did not address other claims raised by the defendant. We granted the People's petition for certiorari to consider whether the pediatrician's statement that "[t]his history is very believable" violated CRE 608(a) and, if so, whether the admission of such testimony constituted reversible error.

II.

We...

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94 practice notes
  • Duckett v. State, No. 330-88
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 10, 1990
    ...ability to 'in character' tell the truth prejudicial and counsel ineffective for failing to object to introduction); People v. Gaffney, 769 P.2d 1081 (Colo.1989) (witness may not offer opinion that child is very believable); Tingle v. State, 536 So.2d 202 (Fla.1988) (in rejecting expert's t......
  • People v. Rodriguez, No. 87SA48
    • United States
    • Colorado Supreme Court of Colorado
    • May 29, 1990
    ...is "whether the error substantially influenced the verdict or affected the fairness of the trial proceedings." People v. Gaffney, 769 P.2d 1081, 1088 (Colo.1989); accord Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). In this case the error is of co......
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...that a child victim was telling the truth when the child reported a particular sexual assault by a defendant. See People v. Gaffney, 769 P.2d 1081, 1088 (Colo.1989).[H]owever ... an opinion as to the credibility of the victim is admissible if that testimony relates to general characteristic......
  • Schutz v. State, No. 726-95
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 3, 1997
    ...that specific allegations are not the result of manipulation or fantasy. See generally above discussion. See also People v. Gaffney, 769 P.2d 1081, 1088 (Colo.1989). The question remains whether testimony about specific allegations necessarily opens the door to expert testimony. We have hel......
  • Request a trial to view additional results
94 cases
  • Duckett v. State, No. 330-88
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 10, 1990
    ...ability to 'in character' tell the truth prejudicial and counsel ineffective for failing to object to introduction); People v. Gaffney, 769 P.2d 1081 (Colo.1989) (witness may not offer opinion that child is very believable); Tingle v. State, 536 So.2d 202 (Fla.1988) (in rejecting expert's t......
  • People v. Rodriguez, No. 87SA48
    • United States
    • Colorado Supreme Court of Colorado
    • May 29, 1990
    ...is "whether the error substantially influenced the verdict or affected the fairness of the trial proceedings." People v. Gaffney, 769 P.2d 1081, 1088 (Colo.1989); accord Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). In this case the error is of co......
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...that a child victim was telling the truth when the child reported a particular sexual assault by a defendant. See People v. Gaffney, 769 P.2d 1081, 1088 (Colo.1989).[H]owever ... an opinion as to the credibility of the victim is admissible if that testimony relates to general characteristic......
  • Schutz v. State, No. 726-95
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 3, 1997
    ...that specific allegations are not the result of manipulation or fantasy. See generally above discussion. See also People v. Gaffney, 769 P.2d 1081, 1088 (Colo.1989). The question remains whether testimony about specific allegations necessarily opens the door to expert testimony. We have hel......
  • Request a trial to view additional results

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