People v. Harris

• Decision Date: 11 March 2002
• Docket Number: No. 00SC185.,00SC185.
• Citation: 43 P.3d 221
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. David E. HARRIS, Respondent.
• Court: Colorado Supreme Court

43 P.3d 221

The PEOPLE of the State of Colorado, Petitioner, v. David E. HARRIS, Respondent.

No. 00SC185.

Supreme Court of Colorado, En Banc.

March 11, 2002.

Rehearing Denied April 8, 2002.

Nancy L. Flax, C. Keith Pope, Denver, CO, Attorneys for Petitioner.

Ken Salazar, Attorney General, Lauren A. Edelstein, Assistant Attorney General, Denver, CO, Attorneys for Respondent.

Chief Justice MULLARKEY delivered the Opinion of the Court.

This case arises out of David E. Harris's conviction after a jury trial of first degree sexual assault. We granted certiorari to review the court of appeals' unpublished decision in People v. Harris, No. 98 CA0335 (Colo.App.1999). The court of appeals reversed the conviction and ordered a new trial, holding that the trial court had impermissibly excluded evidence of the victim's prior sexual encounter, contrary to the rape shield statute, section 18-3-407(1)(b), 6 C.R.S. (2001). It also determined that the trial court impermissibly admitted hearsay evidence, which violated Harris's right to confront a witness against him.

We hold that the trial court properly excluded evidence of the victim's earlier sexual conduct. We also conclude that the challenged statements were hearsay and should not have been admitted into evidence. The error, however, was harmless beyond a reasonable doubt. Accordingly, we reverse the court of appeals' judgment and remand the case to that court with directions to reinstate the trial court's judgment of conviction.

I. FACTS AND PROCEDURAL HISTORY

The crime occurred shortly after the twenty-six-year-old victim P.A. completed her shift at a fast-food restaurant. She purchased a snack before leaving and walked to a nearby park, where she sat on a bench and started eating. P.A. testified that while sitting on the bench, defendant Harris approached her and attempted to initiate a conversation. After she rebuffed him, P.A. claims that Harris became hostile and vituperative. According to the victim, Harris then dragged her through the park to a baseball field where he forced her to perform oral sex on him, after which he placed a condom on his penis and vaginally raped her. She testified that she told the defendant that she did not want to have intercourse with him. After Harris ejaculated, P.A. asserts, he tossed the used condom on the ground behind him.

Once Harris permitted her to leave, P.A. testified, she ran to a sheriff's station in the vicinity and reported the rape. P.A. was transported to the hospital where a rape examination was conducted; the examining nurse discovered an abrasion on her vaginal wall that measured approximately .5 millimeter in length.

Police investigators went to the scene immediately upon receiving P.A.'s report where they found two items of significance. First, they observed the victim's snack food strewn about a park bench, consistent with her account of where she had been. Second, they collected a discarded condom containing a liquid substance near the bleachers at the baseball field. Tests on the condom indicated that Harris was the probable source of the semen recovered in it.¹ After obtaining these test results, police investigators interviewed Harris, who initially denied involvement in the assault. After being confronted with the DNA evidence, however, Harris admitted that he had sex with P.A. but maintained that P.A. approached him, offered to have sex with him, and provided the condom.

Alice Lasley, Harris's girlfriend, accompanied him to the interview. The two were questioned in separate rooms by the same investigator, Officer Leslie Copp. Upon obtaining contradictory information from Lasley, the officer confronted Harris, who changed his story to conform with his girlfriend's account.

At the close of the interview, Harris was charged with one count of first degree sexual assault, a class three felony, in violation of section 18-3-402(1)(a), 6 C.R.S. (1998) and with seven counts of habitual criminal based on prior felony property crimes, in violation of section 16-13-101, 6 C.R.S. (1998). An element of the sexual assault offense charged in this case is the use of force or violence.² Specifically, a person commits sexual assault in the first degree where he "knowingly inflicts sexual intrusion or penetration on a victim ... if ... the actor causes submission of the victim through the actual application of physical force or physical violence." § 18-3-402(1)(a), 6 C.R.S. (1998). As his defense, Harris contended that the sexual encounter with P.A. was consensual, and was not an assault by force or violence.

Before voir dire, the prosecution made an oral motion in limine, based on the rape shield statute, to exclude evidence that P.A. had had consensual sex four days before the assault. Harris objected, asserting that the prior sexual encounter could account for the abrasion and would, inferentially, support his defense that his sexual encounter with P.A. was consensual. Hence, Harris argued that the evidence was relevant and admissible under section 18-3-407(1)(b), 6 C.R.S. (2001).

The trial court conducted an in camera hearing during which P.A. testified that she had engaged in consensual intercourse four days before the alleged assault. P.A. described this encounter as gentle and her partner as her serious boyfriend. She testified that in the days following this sexual contact she felt no pain in her vaginal area.

Linda Larkin, the nurse who examined P.A. after the assault, also testified outside the presence of the jury.³ She attested that during the course of her post-assault examination of P.A., she observed fresh scratches on P.A.'s arm and jaw; she also discovered the .5 millimeter abrasion an injury that she commonly observed during sexual assault examinations. While the nature and location of the abrasion were, in her view, consistent with P.A.'s report of forced penetration from behind, she conceded that it was possible, albeit "not most likely," that the abrasion could have resulted from P.A.'s prior consensual intercourse. It was unlikely that the earlier encounter caused the injury, she explained, because during consensual intercourse, "the normal sexual response is that the vagina's well lubricated and then there's not the friction that would cause the abrasion." Even if the prior encounter had caused an abrasion, she testified, it likely would have healed in the intervening days because vaginal tissue is vascular in nature, meaning that "lots of blood flow[s] to [the] tissue," so it heals "rather fast."

The trial court granted the prosecution's motion and excluded the evidence on the basis of this testimony and "in view of the presumption in the rape shield statute." Nevertheless, at trial, defense counsel was able to cross-examine Nurse Larkin about other possible sources of the abrasion, including the possibility that the injury resulted from consensual sex.

Also prior to voir dire, Harris's attorney made an oral motion to exclude statements made by his girlfriend Lasley to the police when she and Harris were interviewed separately.⁴ During that interview, Officer Copp used the girlfriend's statements to elicit statements from Harris that contradicted his prior statements to Copp. The People argued that Officer Copp's testimony would not amount to hearsay because she would not be testifying about any of the girlfriend's statements. Rather, the prosecution maintained that Copp's testimony would be limited to the contradictory statements made by Harris in response to statements allegedly made by Lasley. The trial court deferred ruling on the issue until trial commenced; it later denied Harris's motion.

At trial, the judge allowed into evidence through the testimony of Officer Copp three references to Lasley's statements. Defense counsel objected to two of these on hearsay grounds.

At the close of trial the jury found Harris guilty of first degree sexual assault; the trial court subsequently found him guilty of six habitual criminal counts and sentenced him to a term of sixty-four years in the Department of Corrections.

Harris appealed his convictions. In an unpublished opinion, a majority of the court of appeals reversed the judgment of conviction and remanded for a new trial; Judge Rothenberg dissented. People v. Harris, No. 98CA335 (Colo.App. Oct. 7, 1999). Concluding that the trial court committed reversible error in excluding evidence of the victim's consensual sexual activity with another man four days earlier, the court of appeals decided that the statutory presumption created by the rape shield statute did not attach in this case because the evidence of P.A.'s prior encounter might show that the act charged was not committed by Harris. Judge Rothenberg disagreed on the ground that section 18-3-407(1)(b) did not mandate admission of the evidence.

The court of appeals also determined that the trial court erred in denying Harris the right to confront and cross-examine witnesses when it admitted his girlfriend's hearsay statements through the testimony of Officer Copp. Again, Judge Rothenberg disagreed.

The People petitioned for a writ of certiorari, which this court granted.⁵ For the reasons set forth below, we reverse the judgment of the court of appeals.

II. ANALYSIS

The People advance two arguments on appeal. First, they assert that the trial court did not abuse its discretion when it determined that Harris failed to show that (1) the evidence of P.A.'s prior sexual conduct fell within the exception to the rape shield statute set forth in section 18-3-407(1)(b), and (2) the evidence was material and relevant to the case. Even if the exclusion of this evidence constituted error, they contend, it was harmless. Second, the People argue that the court of appeals erred in determining that the officer's testimony recounting statements made by Harris's girlfriend was hearsay. Thus, they urge us to reverse the court of appeals.

A. EXCLUSION OF EVIDENCE OF P.A.'S PRIOR SEXUAL...