People v. Koon
| Decision Date | 08 May 1986 |
| Docket Number | No. 84CA0171,84CA0171 |
| Citation | 724 P.2d 1367 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Orion Leroy KOON, Defendant-Appellant. . II |
| Court | Colorado Court of Appeals |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Cynthia D. Jones, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, Public Defender, Karen A. Chaney and Pamela Stross Kenney, Deputy Public Defenders, Denver, for defendant-appellant.
Defendant, Orion Leroy Koon, appeals the judgment entered on jury verdicts finding him guilty of two counts of first degree sexual assault. He alleges error in the admission of certain hearsay statements, in the admission of expert testimony concerning behavioral patterns of incest victims, and in the admission of expert testimony as to the truthfulness of the alleged victim. We reverse.
The defendant was charged with two sexual assaults in February 1983 on his then twelve-year-old stepdaughter. In addition to the stepdaughter's testimony, at trial the prosecution produced testimony by, among others, the mother of the stepdaughter's girlfriend, a police psychologist, a social worker, and a therapist. The testimony of these witnesses forms the basis of this appeal.
Defendant testified, denying any sexual contact with his stepdaughter. He claimed that her allegations were fabricated. The stepdaughter's mother and grandmother testified that the stepdaughter was an habitual liar.
Because the following evidentiary issues were not brought to the attention of the trial court, they may be considered only under the plain error standard. See Crim.P. 52(b); CRE 103(d).
Defendant first contends that testimony by the police psychologist about behavioral patterns of child incest victims, and the supporting testimony by the social worker that the stepdaughter fit these patterns, was inadmissible. He argues that this evidence is not admissible under CRE 702, that it unduly corroborated the child's testimony, and that its probative value was outweighed by its prejudicial effect. Under the circumstances of this case, we disagree.
The police psychologist was qualified without objection as an expert in the field of victim psychology. She testified about certain specific behavioral patterns which are unique to child incest victims, and to the families of such victims. The social worker testified concerning observations she made of the stepdaughter's behavior and that her behavioral characteristics were the same as those unique characteristics of a child incest victim as described by the police psychologist.
Rulings on the admissibility of expert testimony are committed to the sound discretion of the trial court. See People v. Farley, 712 P.2d 1116 (Colo.App.1985) (cert. granted January 31, 1986). If a qualified expert offers testimony that the reaction of one child is uniquely similar to the reaction of most victims of familial child abuse, and, if believed, this testimony would assist the jury in deciding whether a sexual assault occurred, it may be admitted. See State v. Middleton, 294 Or. 427, 657 P.2d 1215 (1983); State v. Haseltine, 120 Wis.2d 92, 352 N.W.2d 673 (Wis.App.1984); State v. Myers, 359 N.W.2d 604 (Minn.1984); cf. People v. Farley, supra.
We recognize a distinction between Rape Trauma Syndrome evidence and evidence about certain specific behavioral patterns which are unique to child incest victims and to their families. Although the issue has not been resolved in Colorado, see People v. Farley, supra, other jurisdictions have generally held Rape Trauma Syndrome evidence inadmissible to determine whether an adult woman was in fact raped. See State v. Saldana, 324 N.W.2d 227 (Minn.1982). However, in cases involving child incest victims, upon proper foundation, evidence such as that introduced in this case is uniformly admitted. See State v. Myers, supra.
When the credibility of a witness has been attacked, opposing counsel may present evidence of "truthful character," but supporting evidence of the truthfulness of the witness on a particular occasion is prohibited. CRE 608(a); Tevlin v. People, 715 P.2d 338 (Colo.1986); People v. Koon, 713 P.2d 410 (Colo.App.1985). Child incest pattern testimony may incidentally give rise to an inference that a victim is or is not telling the truth about the specific incident. See State v. Haseltine, supra. However, this fact alone is insufficient to deny admission of the evidence, because expert testimony generally tends to bolster or attack the credibility of another witness. State v. Myers, supra; See State v. Middleton, supra.
Here, the police psychologist was qualified without objection as an expert in the field of incest victim psychology. She rendered no opinion whether the stepdaughter was truthful in her report of the assaults, or whether the stepdaughter was a victim of child incest. Under these circumstances, we conclude that her testimony was admissible in the discretion of the trial court, and that its probative value is not outweighed by its prejudicial effect. See CRE 403; People v. Lowe, 660 P.2d 1261 (Colo.1983). Cf. People v. Farley, supra. Similarly, the social worker's testimony merely stated that the stepdaughter's observed behavior was consistent with the unique child incest patterns described by the police psychologist. This testimony was also admissible. See State v. Middleton, supra.
Defendant next asserts that the trial court erred in admitting expert opinion testimony that the stepdaughter was truthful. We disagree as to the social worker's testimony but agree as to the therapist's testimony.
The social worker was called during the prosecution's case-in-chief, and during her testimony, the following colloquy occurred:
The therapist was called at the end of the trial to rebut defendant's express charge that the stepdaughter had fabricated her claims. After testifying to statements made to her by the stepdaughter about the alleged sexual assault, the prosecutor inquired, "Do you find her truthful, in general?" To which the therapist replied:
Once a witness' credibility has been attacked, as the stepdaughter's was here, the prosecution may present evidence of truthful character. See CRE 608(a); Honey v. People, 713 P.2d 1300 (1986). However, neither a lay nor expert witness may give opinion testimony that a witness was telling the truth on a specific occasion. Tevlin v. People, supra; People v. Koon, supra.
Here, the social worker's testimony was directed to the stepdaughter's general character for truthfulness, and thus, it was admissible under CRE 608(a). See Tevlin v. People, supra; Honey v. People, supra; People v. Koon, supra. Although the form of the question was not objectionable, the therapist's opinion of the stepdaughter's truthfulness, on the other hand, was inadmissible because it referred to truth on specific occasions. See Tevlin v. People, supra; People v. Koon, supra.
Defendant also argues that the therapist's statement, "I think it happened and she knows it happened and that is what mattered" was inadmissible evidence that the sexual assault occurred. We agree.
This statement was made during questioning of the therapist by the prosecution about inconsistencies in dates in the stepdaughter's diary. It directly asserted the therapist's opinion that the stepdaughter's claims were true and accurate, and as such, it is inadmissible. See People v. Gallegos, 644 P.2d 920 (Colo.1982). Further, expert opinion that a rape or sexual assault actually occurred is inadmissible because the potential for unfair prejudice from opinions of this type is compounded by the aura of special reliability and trustworthiness which attaches to expert testimony. See State v. Saldana, supra; cf. People v. Farley, supra.
Defendant contends that the therapist's testimony concerning the stepdaughter's truthfulness, and her further opinion testimony that the sexual assault occurred, constitutes plain error. We agree.
No definition of plain error will fit every case. People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972). However, plain error may be found where an "obvious and substantial," or "grave," error occurs which seriously affects the substantial rights of the accused. People v. Barker, supra. A showing of plain error requires that defendant "demonstrate not only that the record reveals that [the error] affected a substantial right but that also the record reveals a reasonable possibility that the error contributed to his conviction." People v. Rubanowitz, 688 P.2d 231 (1984).
Here, there was no physical evidence of, or third-party eyewitness testimony to, the alleged sexual assaults. Hence, credibility was the central issue to be resolved by the jury in determining whether the sexual assaults occurred. The therapist's testimony was directed at this core issue. Further, the therapist was the last witness to testify at trial and the timing of this testimony undoubtedly increased its impact on the jury. Moreover, the testimony was aimed at rehabilitating the stepdaughter's credibility, and the therapist's status as an expert witness augmented her testimony with an aura of trustworthiness and reliability. Finally, the evidence of guilt produced in this case is not overwhelming as it was in Tevlin v. People, supra. Under these circumstances, we conclude that the two statements, taken together, substantially and seriously affected the defendant's right to a fair trial and there exists a reasonable possibility that the error contributed to his conviction. The judgment of conviction...
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