People v. Jefferson

• Decision Date: 19 June 2014
• Docket Number: Court of Appeals No. 11CA1465
• Citation: 411 P.3d 823
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Dherl JEFFERSON, Defendant–Appellant.
• Court: Colorado Court of Appeals

411 P.3d 823

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Dherl JEFFERSON, Defendant–Appellant.

Court of Appeals No. 11CA1465

Colorado Court of Appeals.

Announced June 19, 2014

As Modified on Denial of Rehearing July 3, 2014

John W. Suthers, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Douglas K. Wilson, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant

Opinion by JUDGE DAILEY

¶ 1 Defendant, Dherl Jefferson, appeals the judgment of conviction entered on jury verdicts finding him guilty of sexual assault on a child and sexual assault on a child by one in position of trust. We reverse and remand for a new trial.

I. Background

¶ 2 Defendant was a friend of L.T., a mother of two small children. In 2008 and 2009, he watched the children without their mother being present four times, including two overnights. On one of the overnights, he allegedly picked up five-year-old J.B., brought her to his bedroom, laid her on the bed, pulled down her underwear, and touched her vaginal area.

¶ 3 This allegation surfaced after L.T. (the mother) had been lecturing the children about lying and the consequences of lying, one of which would be that they would not be believed if something bad happened to them. When the mother followed up by asking whether anything bad had happened to them, J.B. responded by saying that "Uncle Dherl" had touched her "booty," showing the mother, however, that he had touched her vaginal area. According to the mother, J.B. said it happened "every time we go over there."

¶ 4 After the mother reported the incident to the police, J.B. was subjected to a medical examination, which revealed no visible injuries, and to a forensic interview, which was videotaped. During the interview, J.B. stated that, besides pulling down her underwear and rubbing her bottom with his hand,¹ defendant also got on top of her, moved up and down, and did "sex stuff" or "stuff like sex." At one point, she said defendant "humped" her.

¶ 5At trial, the prosecution presented:

• J.B.'s out-of-court statements to her mother, to J.B.'s brother (J.V.B.), to an investigator for the district attorney's office, and (via testimony and videotape) to the forensic interviewer;• testimony from the by-then seven-year-old J.B., after she had watched, outside of court, the video of her prior interview;

• testimony from J.V.B., who related that, although he and J.B. normally shared the couch when sleeping over at defendant's house, he woke up one night and observed that J.B. was in defendant's bedroom; and,

• testimony from a licensed clinical social worker regarding typical behavior of child sexual assault victims.

¶ 6 Defendant did not testify. He argued, however, that J.B. was not credible and that the mother and the forensic interviewer had suggested the allegations of abuse to J.B. He introduced evidence that the mother had broken into his apartment and stolen some of his property while he was incarcerated. He also pointed to inconsistencies among the statements J.B. had made to her mother, J.B.'s live testimony, and her video-recorded statements to the forensic interviewer. And he suggested that J.B.'s allegation that defendant had "humped" her was unbelievable because J.V.B., who was in the next room, had not heard it happening.

¶ 7 The jury found defendant guilty of the above-mentioned charges, and the trial court sentenced him to an aggregate term of ten years to life imprisonment in the custody of the Department of Corrections.

II. Jury Access to Videotaped Interview of J.B.

¶ 8 Defendant contends that the trial court abused its discretion when it gave the jury unrestricted and unsupervised access during deliberations to the videotaped forensic interview of J.B. We agree.

A. Abuse of Discretion

¶ 9 The trial court admitted the videotaped interview as child hearsay under section 13–25–129, C.R.S.2013. Defendant objected not to the admission of the videotaped interview as evidence, but to any possession of it by the jury that would allow it to be given undue emphasis by being played "over and over and over." Ultimately, the court exercised its discretion to permit the jury to have unrestricted access to the videotaped interview during deliberations. It reached its decision by reasoning that:

First of all, the Court can consider whether or not the videotape was admitted as an exhibit and played for the jury in open court during the trial, thus reducing the likelihood that the jury would place undue weight on it. In this case that was true. The DVD was played for the jury. [It] had the opportunity to see it. And so in that case that factor weighs in favor of allowing the jury to have in [its] possession and view it as [it] wish[es].

The second is whether inculpatory evidence was introduced at trial in addition to the videotape. In this case it includes the victim who is JB.... [S]he has testified in this case incriminating the defendant and made clear statements about that. There were also other hearsay witnesses to statements that the ... victim made during her outcry. Those being to her mother, her brother and the forensic interviewer whose [sic] is depicted in the DVD, all of whom were present at trial, testified at trial, subject to cross-examination.

And lastly, the court can consider the issue of whether the jury was allowed to take notes which would preserve trial testimony in note form. And therefore, the prospect of [sic] the jury would place greater evidence [sic] on that preserved trial testimony militates, again, in favor of allowing the jury to take the DVD with [it] into the jury room unsupervised.

¶ 10 Generally, a jury is permitted to take into the jury room all exhibits received into evidence, subject to the trial court's discretion to order otherwise. See Frasco v. People, 165 P.3d 701, 703 (Colo.2007). The trial court has an obligation, however, to ensure that " ‘evidence is not so selected, nor used in such a manner, that there is a likelihood of it being given undue weight or emphasis by the jury.’ " Id . (quoting Settle v. People, 180 Colo. 262, 264, 504 P.2d 680, 680–81 (1972) ). This obligation is particularly pronounced with respect to jury access during deliberations to portions of trial testimony (as in Settle ) and to exhibits substituting for trial testimony. See Frasco, 165 P.3d at 704 (noting "a general recognition that granting jury access to exhibits substituting for trial testimony necessarily shares the same risk of ‘undue weight or emphasis' about which we expressed concern in the context of trial testimony itself" (citation omitted)).

¶ 11 Thus, a trial court must "oversee with caution" the jury's use of exhibits of a testimonial character, including video recorded interviews of witnesses. See id . at 703–04 (citing People v. Montoya, 773 P.2d 623, 626 (Colo.App.1989) ); see also People v. DeBella, 219 P.3d 390, 402 n. 1 (Colo.App.2009) ( DeBella I ) (Dailey, J., dissenting) ("Testimonial exhibits are transcripts of testimony or exhibits substituting for trial testimony."), rev'd, 233 P.3d 664 (Colo.2010) ( DeBella II ).²

¶ 12 The trial court must exercise its discretion to permit, deny, or limit the jury's use of a testimonial exhibit by assessing (1) whether the exhibit will aid the jury in its proper consideration of the case, and, even if it would, (2) whether a party will nevertheless be unfairly prejudiced by the jury's use of the exhibit. Frasco, 165 P.3d at 704–05. Ultimately, the court "has an obligation ... to assure that juries are not permitted to use exhibits in a manner that is unfairly prejudicial to a party." Id. at 704.

¶ 13 We apply the abuse of discretion standard to a trial court's refusal to exclude or limit the jury's use of an exhibit during deliberations. DeBella II, 233 P.3d at 666–67. In this regard, "[a]n appellate court may not assign error to a trial court merely because it would have reached a different conclusion." Id . at 667. "Rather, ... a court's refusal to exclude or otherwise limit the use of an exhibit will generally be overturned only when it is manifestly arbitrary, unreasonable, or unfair," id. or it is based on an erroneous understanding or application of the law. See People v. Esparza–Treto, 282 P.3d 471, 480 (Colo.App.2011) (discussing abuse of discretion standard of review, in general).

¶ 14 In Frasco, the supreme court held that the trial court did not abuse its discretion in giving a videotaped statement of the child sex assault victim to the jury. 165 P.3d at 705–06. Specifically, the court perceived an absence of unfair prejudice in the record, where (1) the trial court initially did not allow the jury to take the videotape into the jury room; (2) when the jury asked to view the exhibit, defense counsel did not object or request a limiting procedure or instruction; (3) the court, nonetheless, instructed the jury not to give the videotape any special weight; and (4) the defendant alleged nothing about the particulars of the videotape that would likely have rendered the jury's review unfairly prejudicial. See id.

¶ 15 In DeBella II, the supreme court again considered the propriety of a jury having unfettered access to videotaped interviews of a child sexual assault victim. There, the court reiterated the principles set forth in Frasco and explained that a trial court's failure to exercise its discretion because of an erroneous construction of controlling authority is tantamount to an abuse of discretion. 233 P.3d at 666–67. Applying these principles to the case before it, in which the trial court had relied on subsequently disapproved case law to allow the jury unimpeded access to the videotapes at issue, the supreme court concluded that the trial court's failure to exercise its discretion constituted an abuse of discretion. Id . at 668.

¶ 16 In the present case, the trial court affirmatively exercised its discretion to provide no...