People v. Hise, 84CA1014

• Citation: 738 P.2d 13
• Decision Date: 13 November 1986
• Docket Number: No. 84CA1014,84CA1014
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven R. HISE, Defendant-Appellant. . II
• Court: Court of Appeals of Colorado

Page 13

738 P.2d 13

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Steven R. HISE, Defendant-Appellant.

No. 84CA1014.

Colorado Court of Appeals Div. II.

Nov. 13, 1986.

Rehearing Denied Jan. 15, 1987.

Certiorari Denied (Hise) June 8, 1987.

Norman S. Early, Jr., Dist. Atty., Nathan B. Coats, Chief Deputy Dist. Atty., Ferdinand L. Torres, Deputy Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., David Dansky, Deputy Dist. Atty., Denver, for plaintiff-appellee.

Eugene Deikman, P.C., Craig A. Murdock, Denver, for defendant-appellant.

SMITH, Judge.

Defendant, Steven Hise, appeals the judgments of conviction and the sentences entered on jury verdicts finding him guilty of two counts of sexual assault on a child. We affirm.

At the time of the incident in question, defendant was divorced from his wife, and their two sons, M., age 4, and L., age 3, were visiting him for the weekend. When their mother picked them up on Sunday, L. complained that his "bottom" had been hurt in a playground accident. The following day, their mother noticed that each of the boys had a red, sore-looking area around his anus. Upon inquiry, M., who initially said that he also had suffered a playground fall, related that his father had put a hammer handle "up his bottom." He later stated that his father's roommate had done the same thing to L. The incident was reported to authorities the following day.

I.

Hise first argues that the admission, pursuant to § 13-25-129, C.R.S. (1986 Cum.Supp.), of statements made by the children violated his federal and state constitutional rights to confront the witnesses against him. We disagree.

Both the United States Supreme Court and the Colorado Supreme Court employ a two-step analysis in criminal cases when considering challenges to hearsay evidence based on the constitutional ground of lack of confrontation. Initially, the prosecution must either produce the hearsay declarant for cross-examination or, in most instances, demonstrate his unavailability. Secondly, in those instances when the unavailability of the witness is demonstrated, only hearsay bearing "sufficient indicia of reliability" is admissible. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); People v. Dement, 661 P.2d 675 (Colo.1983). But see United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986) which holds that a specific showing of unavailability is not always required.

Since M. did testify and defendant exercised his right to confrontation through cross-examination of him, there was no constitutional deprivation as to this witness. See People v. Galloway, 726 P.2d 249 (Colo.App.1986).

As to both children, however, defendant argues that § 13-25-129, C.R.S., fails to meet the indicia-of-reliability prong of the test stated in Ohio v. Roberts, supra. We disagree. The statute requires that before a hearsay statement may be admitted, the court must conduct a hearing outside the presence of the jury to determine if the time, content, and circumstances of the statement provide sufficient safeguards of reliability and further requires that, if the child is not available as a witness, there must be corroborative evidence of the act which is the subject of the statement.

In this case, the trial court conducted the required hearing and found that L. had a speech problem and was very difficult to understand. Because of this and the fact that he made some "gross errors" in his testimony at the hearing, the court did not allow him to testify at trial. It found, however, that one of the things he did say clearly enough to understand was that his father had inserted a hammer "up his bottom."

The boys' allegations concerning the assault by their father were corroborated by medical evidence. Further, several people interviewed the boys, and their stories, especially M.'s, remained consistent as to the important events. Photographs of the room which showed its appearance, where items were located, and the presence of the hammer which the boys had described, provided further corroboration of their account of the assault. Also, the court noted that the statements were made by the boys shortly after the incident when they were most likely to be accurate. Lastly, the court found the fact that both of the children gave statements which would be harmful to their father and which they knew could affect whether they would see him again was supportive of the reliability of the statements.

These findings are supported by the record, and we agree with the trial court that the statements of L. had sufficient indicia of reliability to allow their admission without violating defendant's state and federal constitutional rights to confront the witnesses against him.

II.

Defendant next argues that the court erred in failing to determine whether the two children were testimonially competent under § 13-90-106(1)(b)(II), C.R.S. (1986 Cum.Supp.) prior to deciding whether § 13-25-129 should apply.

We reject the claim that the court must first find the children competent before allowing their hearsay statements to be admitted under § 13-25-129. The standards of reliability required by that section furnish the sufficient guarantees of trustworthiness that are implicit in the rationale of all hearsay exceptions. Cf. Lancaster v. People, 200 Colo. 448, 615 P.2d 720 (1980).

Defendant further contends that M. should not have been allowed to testify since he was below the age of ten years.

Pursuant to § 13-90-106(1)(b)(I), C.R.S. (1986 Cum.Supp.), children under age ten are precluded from testifying only when they "appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly." Section 13-90-106(1)(b)(II) provides, inter alia, that the proscription does not apply to children under age ten in a criminal proceeding for sexual assault when the child is able to describe or relate in language appropriate for his age the events or facts respecting which the child is examined.

The question of whether a child under age ten is competent to be a witness is left to the sound discretion of the trial court. The record supports the findings and determination of the court in this regard, and accordingly, that determination will not be disturbed on review. People v. Lancaster, supra.

III.

Defendant next argues that the court improperly limited his cross-examination of a psychotherapist concerning conversations she had with M. and L. following the alleged assault.

The psychotherapist, on direct examination, testified to statements made by the children during counselling sessions. The court had previously ruled that these statements would be admissible under § 13-25-129. On cross-examination, defense counsel asked whether the boys had made any other statements which were inconsistent with these. The prosecutor objected, and the trial court sustained the objection on the basis that the question called for hearsay.

Defendant argues that, if the requisites of § 13-25-129 were satisfied as to the children, then any and all statements they made should be admitted. We agree that once a statement has been allowed into evidence under this hearsay exception, the proponent of the statement has "opened the door" to other statements made at the same time, under the same circumstances, and concerning the same event. Here, however, the prosecutor objected at the time of trial to the broad question on the basis that...