People v. Martinez, 02CA0366.

• Decision Date: 28 August 2003
• Docket Number: No. 02CA0366.,02CA0366.
• Citation: 83 P.3d 1174
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph MARTINEZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

83 P.3d 1174

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph MARTINEZ, Defendant-Appellant.

No. 02CA0366.

Colorado Court of Appeals, Div. V.

August 28, 2003.

Rehearing Denied October 9, 2003.

Certiorari Denied February 17, 2004.

Ken Salazar, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Leslie A. Goldstein, Steamboat Springs, Colorado, for Defendant-Appellant.

Opinion by Judge CARPARELLI.

Defendant, Joseph Martinez, appeals the judgment of conviction entered upon a jury verdict finding him guilty of soliciting for child prostitution. Defendant also appeals the trial court's judgment adjudicating him an habitual criminal and the sentence imposed in conjunction with that determination. We affirm.

Defendant was initially charged with soliciting for child prostitution and unlawful sexual contact.

At trial, the fifteen-year-old victim testified that defendant had offered her and a friend money for performing what defendant's companion described as "sexual favors." The victim told defendant that she was not interested. According to the victim, she and defendant were left alone in the room and defendant forcibly touched her breasts and touched his penis to her leg.

The jury acquitted defendant of the sexual contact charge but found him guilty of soliciting for child prostitution.

I.

Defendant first argues that the trial court committed reversible error by admitting, as an excited utterance, the victim's testimony that a third person entered the room during the sexual assault and remarked, "oh my God." We disagree.

A.

Evidence meeting the criteria of CRE 803(2), the excited utterance exception to the hearsay rule, is admissible even though the declarant is available as a witness. An excited utterance is: "A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." CRE 803(2). The requirements for admissibility under CRE 803(2) are: (1) the event must be sufficiently startling to render normal reflective thought processes of the observer inoperative; (2) the statement must be a spontaneous reaction to the occurrence; and (3) direct or circumstantial evidence must exist to allow the jury to infer that the declarant had the opportunity to observe the startling event. People v. Martinez, 18 P.3d 831 (Colo.App.2000).

The trial court is in the best position to consider the effect of the startling event on the declarant. And, therefore, that court is afforded wide discretion in determining admissibility under the excited utterance exception. People v. Martinez, supra.

For purposes of analysis, we, like the trial court, accept the parties' representation that the statement at issue was offered to prove the truth of the matter asserted, that is, that the declarant observed the sexual assault and expressed shock at what was occurring.

The record supports the trial court's determination that the three requirements for admission of the statement as an excited utterance were satisfied. The victim's testimony constituted direct evidence that the declarant made the statement as a spontaneous reaction to a startling event which she had the opportunity to view. Contrary to defendant's contention, it was not necessary to produce the declarant herself to lay the foundation to admit the statement. Therefore, we perceive no abuse of discretion in the trial court's evidentiary ruling.

B.

Defendant also contends the trial court's admission of the statement violated "his right to confront adverse witnesses as guaranteed by the U.S. Constitution." We disagree.

1.

"[W]here proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied." White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 743, 116 L.Ed.2d 848, 859 (1992). Excited utterances have the necessary indicia of reliability and constitute a firmly rooted exception to the Confrontation Clause. White v. Illinois, supra; People v. Martinez, supra; People v. Mitchell,

829 P.2d 409 (Colo.App.1991).

Therefore, we conclude that admission of the testimony here did not violate the Sixth Amendment.

2.

To the extent that defendant also contends that admission of the statement violated his confrontation rights under Article II, Section 16 of the Colorado Constitution, we conclude that any error was harmless beyond a reasonable doubt.

The decision of the United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980), has often been interpreted to require that, under the Sixth Amendment of the federal constitution, the "prosecution must either procure, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant."

"In an effort to maintain consistency between Colorado law and federal law," the Colorado Supreme Court adopted this requirement in People v. Dement, 661 P.2d 675 (Colo.1983), "to determine whether the admission of hearsay violated a defendant's right of confrontation secured by Article II, Section 16 of the Colorado Constitution." Blecha v. People, 962 P.2d 931, 941 (Colo. 1998).

However, as we have already noted, more recent decisions of the United States Supreme Court have held that the Sixth Amendment does not require a showing of unavailability when there are "sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule." See White v. Illinois, supra, 502 U.S. at 356, 112 S.Ct. at 743, 116 L.Ed.2d at 859

; Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986). Nonetheless, the Colorado Supreme Court has never expressly disavowed the requirement that unavailability be demonstrated. Blecha v. People, supra.

Here, the prosecution did not demonstrate that the declarant was unavailable. Thus, one step of the Dement test is not satisfied and, therefore, admission of the statement violated Article II, Section 16 of the Colorado Constitution.

3.

However, an error in the admission of evidence, even if of constitutional dimension, does not require reversal of a criminal conviction if the error was harmless beyond a reasonable doubt. People v. Harris, 43 P.3d 221 (Colo.2002); People v. Smith, 77 P.3d 751 (Colo.App.2003).

When assessing whether denial of the right to confrontation constituted harmless error, a reviewing court must consider whether, assuming that the damaging potential of the statement was fully realized, the reviewing court nonetheless can say that the error was harmless beyond a reasonable doubt. We should examine a number of factors, including the importance of the declarant's statement to the prosecution's case, the statement's cumulative nature, the presence or absence of corroborating or contradictory evidence on the material points of the witness's testimony, the extent of the cross-examination otherwise permitted, and the overall strength of the prosecution's case. The ultimate question we must decide is whether the guilty verdict rendered in this trial was surely not attributable to the error. People v. Harris, supra.

Here, the declarant's statement related to the sexual assault charge of which defendant was acquitted. Even if we were persuaded by defendant's suggestion that admission of the declarant's statement could have bolstered the credibility of the victim's testimony as a whole, we would nevertheless conclude that the error was inconsequential because the victim's testimony about the solicitation for prostitution was corroborated by her friend who was also propositioned. Under these circumstances, the admission of the out-of-court statement was harmless beyond a reasonable doubt.

II.

Defendant next argues that the trial court abused its discretion when it allowed the victim to testify about the lasting psychological effects of the assault. We disagree.

Evidence is relevant if it has a tendency to render a fact of consequence more or less probable than it would be without such evidence. CRE 401. Relevant evidence, however, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice to the defendant. CRE 403.

Trial courts have considerable discretion concerning the admissibility of evidence and the determination of its relevancy, probative value, and prejudicial effect. To constitute an abuse of discretion, the trial court's evidentiary ruling must be shown to be manifestly arbitrary, unreasonable, or unfair. People v. White, 55 P.3d 220 (Colo.App. 2002).

Here, the victim testified that she had experienced insomnia, nightmares, and depression since the alleged assault. Defendant objected to this testimony as irrelevant and unfairly prejudicial.

Like the out-of-court statement discussed in the previous section, this statement related primarily to the charge of which defendant was acquitted. To the extent that the testimony had any prejudicial effect with respect to the charge of which defendant was convicted, the record supports the trial court's determination that that prejudice did not substantially outweigh the probative value of the evidence. Accordingly, we perceive no abuse of discretion in the trial court's ruling.

III.

Defendant next contends there is insufficient evidence in the record to support the trial court's judgment finding him guilty of the habitual criminal counts. Specifically, he argues that the prosecution failed to prove he was the person who sustained the four prior convictions at issue. We disagree.

Defendant was charged as a habitual criminal under the following section:

Every person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, and arising out of separate and distinct criminal episodes,

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