People v. Gallegos

Decision Date26 April 1982
Docket NumberNo. 80SA252,80SA252
Citation644 P.2d 920
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Richard Gene GALLEGOS, Defendant-Appellant.
CourtColorado Supreme Court

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Michael L. Bieda, Monte Vista, A. Frank Gallegos, St. Paul, Minn., for defendant-appellant.

J. Gregory Walta, Colo. State Public Defender, James England, Deputy State Public Defender, Denver, for amicus curiae Colorado State Public Defender.

Francis K. Culkin, Denver, for amicus curiae American Civil Liberties Foundation, Inc.

DUBOFSKY, Justice.

The defendant, Richard Gene Gallegos, appeals his convictions in the Mesa County District Court of second-degree sexual assault under section 18-3-403, C.R.S.1973 (1978 Repl.Vol. 8); attempted first-degree sexual assault under sections 18-3-402 and 18-2-101, C.R.S.1973 (1978 Repl.Vol. 8); false imprisonment under section 18-3-303, C.R.S.1973 (1978 Repl.Vol. 8); and of being an habitual criminal under section 16-13-101(2), C.R.S.1973 (1978 Repl.Vol. 8; current version in 1981 Supp.). 1 He was sentenced to two concurrent terms of life imprisonment in the state penitentiary. 2 The grounds for his appeal are that the trial court erred in denying him discovery of portions of a letter written by the victim to the prosecuting attorney and that testimony of an investigating police officer was improperly admitted. He also contends that the habitual criminal statute is unconstitutional. We disagree and affirm the defendant's convictions.

On April 8, 1979, the defendant offered a ride to the victim, who was walking along business route 70 in Palisade on her way to work in Grand Junction. The victim accepted, and the defendant drove toward Grand Junction until he turned off on a deserted side road to go to the bathroom. When the defendant returned to the car, he grabbed the victim and began fondling her breasts while holding her tightly around the neck. The victim struggled, kicked the car door open and repeatedly honked the car's horn. The defendant managed to insert his finger in the victim's vagina before another vehicle pulled up behind the defendant's car. At the arrival of the other vehicle, the defendant desisted and drove to Grand Junction. When he stopped the car at a red light, the victim jumped out, took down the car's license number and immediately telephoned the police from a nearby gas station. The police investigator who interviewed the victim shortly after the attack testified that she had red marks on her neck and throat and torn underpants.

The defendant's version of the incident was that the victim had asked him to take her to buy a pair of shoes before dropping her off at work. When the defendant refused to be her "taxi cab," the victim became violent and began kicking the defendant's stereo, requiring him to physically restrain her. The jury found the defendant guilty as charged.

I.

Before trial, the district attorney notified the defendant's attorney that he had received a letter from the victim, who had moved out of Colorado after the assault, stating her current address. The defendant moved for discovery of the letter under Crim.P. 16 I(a)(1)(I) 3, alleging that it might contain relevant information. At the hearing on the discovery motion, the district attorney read the following portion of the victim's letter into the record:

Hello, Mr. Farina. I am puzzled. I really don't know what to do. I found myself with no place to live in Grand Junction. I moved back to Ritzville to my mom's. I found a house and have rented it. I really don't want to let him get away with what he's done. But I don't know how I'm going to be there the 20th. I'm on welfare and haven't know (sic) way to earn any money.

The district attorney omitted reading the concluding sentences of the letter, which he said related to a personal matter which he didn't think was exculpatory. The district attorney produced the letter to the court for in camera inspection. The court ruled that the omitted portion was not relevant or exculpatory and refused to compel discovery.

The omitted portion of the letter reads: "In my fifth month of P.G. (pregnancy). I'm due Feb. 4. Please write and tell me what to do! Thank you." The offense occurred on April 8, 1978, and the letter in which the victim stated she was five months pregnant was postmarked October 4, 1978, from which it could be concluded that conception had occurred approximately one month after the offense. This, and the fact that no intercourse took place during the assault, led the district attorney and the court to conclude that the information was irrelevant.

The defendant did not learn the contents of the withheld portion of the letter until reading it in the Attorney General's brief to this Court. In his briefs, the defendant argues that the excised portion of the letter should have been disclosed under Crim.P. 16 I(a)(1)(I) regardless of its contents because that provision calls for disclosure to defense counsel of the "relevant written or recorded statements" of witnesses, and it is a defense function to determine the relevance of witness statements. At argument, after learning the contents of the excised portion, the defendant's attorney asserted specifically that the excised portion may have been relevant to the victim's credibility as a witness in that the victim was not pregnant when she appeared at trial on February 27 through March 1, 1979. Although the victim stated in her letter, "I'm due Feb. 4," and this would appear the most logical explanation for her appearing not pregnant at trial, defense counsel nevertheless argued that she may have lied about being pregnant in her letter to the district attorney.

Disclosure of relevant statements upon defense motion is no longer discretionary with the trial court as was the case prior to the adoption of the present Crim.P. 16. See People v. Smith, 185 Colo. 369, 524 P.2d 607 (1974); People v. District Court, 172 Colo. 23, 469 P.2d 732 (1970). Under the current rule, such disclosure is mandatory. Therefore, the sole issue on review is whether the victim's statement to the district attorney that she was five months pregnant was relevant.

Relevance as used in Crim.P. 16 I(a)(1)(I) embodies a broad standard of disclosure. See 2 A.B.A. Standards for Criminal Justice 11-2.1 (2d ed. 1980). A witness statement, to be relevant, need not contain information admissible at trial, as long as the contents of the statement are relevant to the conduct of the defense. Generally, defense counsel is the appropriate party to make that determination. See A.B.A. Standards, supra, Commentary at 11.15. As we noted in People v. Smith, 185 Colo. 369, 524 P.2d 607 (1974),

In certain cases even an in camera hearing imposes unfairness on the defense, as only the defense can determine what will be material and helpful to its case. See Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176.

524 P.2d at 611.

Nevertheless, the term "relevant" used in Crim.P. 16 I(a)(1)(I) is more than mere surplusage; the prosecution is not obliged in every case to disclose the entire contents of its file. In People v. McKnight, Colo., 626 P.2d 678 (1981), we contrasted the language of Crim.P. 16 I(a)(1)(I) with that of Crim.P. 16 I(a)(1)(II), which requires disclosure of "Any written or recorded statements and the substance of any oral statements made by the accused...." We pointed out that subparagraph (II) contains no requirement of relevancy and thus mandates broader disclosure of statements made by an accused than is mandated by subparagraph (I) with respect to witness statements. We described the standard of disclosure for an accused's statements as encompassing "every statement made by the accused ... which relates in any way to the series of events from which the charges pending against the accused arose...." 626 P.2d at 680 (emphasis in original). Clearly then, Crim.P. 16 I(a)(1)(I) does not require disclosure of every witness statement which relates to the events giving rise to criminal charges, but only to those statements relevant to the issues in the case.

Under the Colorado Rules of Evidence, the issue of relevance is resolved by determining whether the evidence tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. C.R.E. 401. 4 Here, the fact that the victim became pregnant approximately one month after the assault would not tend to prove or disprove any fact that is of consequence to the defendant's guilt or innocence. The victim's subsequent pregnancy had no bearing on the acts charged, since penetration was not alleged to have occurred, or on the defendant's defense, which was a denial that he committed the offenses charged.

Neither would evidence of the victim's subsequent pregnancy be admissible to impeach her credibility as a witness. In the past, defense counsel in a sexual assault case was accorded wide latitude in cross-examining the prosecutrix. See Struna v. People, 121 Colo. 348, 215 P.2d 905 (1950); 3A J. Wigmore, Evidence § 929a (Rev. ed. 1970). However, the more modern rejection of the view that all evidence of sexual behavior is probative of a victim's credibility as a witness, and the recognition that the introduction of such evidence may confuse the jury, prejudice the prosecution's case and discourage victims from reporting and prosecuting sexual assaults led to the enactment in 1975 of Colorado's "rape shield" statute, section 18-3-407, C.R.S.1973 (1978 Repl.Vol. 8). See People v. McKenna, 196 Colo. 367, 585 P.2d 275 (1978). It provides:

(1) Evidence of specific instances of the victim's prior or subsequent sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the...

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