People v. Gillispie, No. 87CA0642

Docket NºNo. 87CA0642
Citation767 P.2d 778
Case DateOctober 13, 1988
CourtCourt of Appeals of Colorado

Page 778

767 P.2d 778
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
James E. GILLISPIE, Defendant-Appellant.
No. 87CA0642.
Colorado Court of Appeals,
Div. V.
Oct. 13, 1988.
Rehearing Denied Nov. 10, 1988.
Certiorari Denied Jan. 23, 1989.

Page 779

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Hope P. McGowan, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Jaydee K. Bachman, Deputy State

Page 780

Public Defender, Denver, for defendant-appellant.

FISCHBACH, Judge. *

Defendant, James E. Gillispie, appeals the judgment of conviction entered on a jury verdict finding him guilty of sexual assault on a child. He alleges error in the admission of expert testimony relating to the child victim's veracity, in the admission of hearsay testimony by a child witness, and in remarks made by the prosecutor during closing arguments. We affirm.

I.

Defendant first contends that certain testimony of an expert witness for the prosecution was improper because, on two occasions, it reflected the witness' opinion that the child victim was telling the truth about being sexually assaulted. He argues that, although a curative instruction to disregard the opinion testimony was given, the prejudice to defendant was so substantial that the error could only have been cured by the court's declaration of a mistrial. We disagree.

Neither a lay nor expert witness may give opinion testimony with respect to whether a child victim is telling the truth on a specific occasion. People v. Koon, 713 P.2d 410 (Colo.App.1985). In sexual assault situations, however, and particularly where the victim is a very young child, an opinion as to the credibility of the victim is admissible if that testimony relates to general characteristics only. People v. Koon, supra. It is proper, for instance, to elicit an opinion as to whether children, in general, have the sophistication to lie about having experienced a sexual assault. People v. Ashley, 687 P.2d 473 (Colo.App.1984).

Here, a pediatric specialist who had examined the child victim wrote a report indicating that the child's accounts of the assaults were very detailed and specific. Asked if these details were important to her evaluation, the expert answered affirmatively and explained that a child is not capable of recalling details consistently if she has not personally experienced the events being described. Defendant raised no objection to this testimony. Shortly thereafter, when asked if she had made a diagnosis with respect to the child victim, the witness answered, "I believe the child, I felt that she was sexually abused." Defendant objected to this comment, and thereafter, the court instructed the jury to disregard the expert's opinion on the child's truthfulness and ordered the statement stricken from the record.

We conclude, under the circumstances here, that neither comment warrants reversal of defendant's conviction.

Our review of the record demonstrates that the...

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23 practice notes
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • 19 Noviembre 2009
    ...opinion as to whether children, in general, have the sophistication to lie about having experienced a sexual assault. People v. Gillispie, 767 P.2d 778, 780 (Colo.App.1988) (citation omitted). Here, Tillery points to the following statements made by the interviewer during her recorded inter......
  • People v. District Court, City and County of Denver, No. 97SA337
    • United States
    • Colorado Supreme Court of Colorado
    • 20 Enero 1998
    ...181 Colo. 406, 410, 509 P.2d 801, 803 (1973); Edmisten v. People, 176 Colo. 262, 276, 490 P.2d 58, 65 (1971); People v. Gillispie, 767 P.2d 778, 780 Furthermore, if limiting jury instructions were always a sufficient method to handle prejudicial evidence, CRE 403 and CRE 404(b) would be unn......
  • Stevens v. People, No. 89SC105
    • United States
    • Colorado Supreme Court of Colorado
    • 16 Julio 1990
    ...the court has abused its discretion. See People v. District Court of El Paso County, 776 P.2d 1083, 1090 (Colo.1989); People v. Gillispie, 767 P.2d 778, 781 (Colo.App.1988), cert. denied (1989); People v. Hise, 738 P.2d 13, 16 (Colo.App.1986), cert. denied (1987). 6 Courts in other states t......
  • People v. Tillery, Court of Appeals No. 06CA1853 (Colo. App. 10/1/2009), No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • 1 Octubre 2009
    ...opinion as to whether children, in general, have the sophistication to lie about having experienced a sexual assault. People v. Gillispie, 767 P.2d 778, 780 (Colo. App. 1988) (citation Page 6 Here, Tillery points to the following statements made by the interviewer during her recorded interv......
  • Request a trial to view additional results
23 cases
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • 19 Noviembre 2009
    ...opinion as to whether children, in general, have the sophistication to lie about having experienced a sexual assault. People v. Gillispie, 767 P.2d 778, 780 (Colo.App.1988) (citation omitted). Here, Tillery points to the following statements made by the interviewer during her recorded inter......
  • People v. District Court, City and County of Denver, No. 97SA337
    • United States
    • Colorado Supreme Court of Colorado
    • 20 Enero 1998
    ...181 Colo. 406, 410, 509 P.2d 801, 803 (1973); Edmisten v. People, 176 Colo. 262, 276, 490 P.2d 58, 65 (1971); People v. Gillispie, 767 P.2d 778, 780 Furthermore, if limiting jury instructions were always a sufficient method to handle prejudicial evidence, CRE 403 and CRE 404(b) would be unn......
  • Stevens v. People, No. 89SC105
    • United States
    • Colorado Supreme Court of Colorado
    • 16 Julio 1990
    ...the court has abused its discretion. See People v. District Court of El Paso County, 776 P.2d 1083, 1090 (Colo.1989); People v. Gillispie, 767 P.2d 778, 781 (Colo.App.1988), cert. denied (1989); People v. Hise, 738 P.2d 13, 16 (Colo.App.1986), cert. denied (1987). 6 Courts in other states t......
  • People v. Tillery, Court of Appeals No. 06CA1853 (Colo. App. 10/1/2009), No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • 1 Octubre 2009
    ...opinion as to whether children, in general, have the sophistication to lie about having experienced a sexual assault. People v. Gillispie, 767 P.2d 778, 780 (Colo. App. 1988) (citation Page 6 Here, Tillery points to the following statements made by the interviewer during her recorded interv......
  • Request a trial to view additional results

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