People v. Melendez, 03SC494.

• Court: Supreme Court of Colorado
• Citation: 102 P.3d 315
• Docket Number: No. 03SC494.,03SC494.
• Parties: Petitioner: The PEOPLE of the State of Colorado, v. Respondent: Jorge E. MELENDEZ, Jr.
• Decision Date: 06 December 2004

102 P.3d 315

Petitioner: The PEOPLE of the State of Colorado,
v.
Respondent: Jorge E. MELENDEZ, Jr

No. 03SC494.

Supreme Court of Colorado.

December 6, 2004.

102 P.3d 317

Ken Salazar, Attorney General, Wendy J. Ritz, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, for Petitioner

M. Colin Bresee, Denver, for Respondent.

HOBBS, Justice.

We granted certiorari¹ under C.A.R. 49 to review the court of appeals' decision in People v. Melendez, 80 P.3d 883 (Colo.App.2003). The trial court precluded the testimony of a defense witness who allegedly violated a sequestration order. Because the record does not demonstrate an adequate inquiry by the trial court into whether the sequestration violation actually occurred and because preclusion of the witness's testimony was not harmless error, we affirm the judgment of the court of appeals.

I.

A jury convicted Jorge Melendez of multiple counts of sexual assault in the first and second degrees,² aggravated incest,³ sexual assault on a child,⁴ sexual assault on a child-pattern of abuse,⁵ and sexual assault on a child under fifteen by one in a position of trust.⁶

Melendez's former step-daughter, a seven-year-old girl, reported to her grandparents that he had sexually assaulted her on several occasions when he was married to her mother. Melendez defended on the basis that the child fabricated the allegations due to emotional problems with her mother, Melendez, and the divorce.

The trial court issued a sequestration order barring witnesses from the courtroom while other witnesses were testifying at trial, but made an exception for Detective Kenneth Brecko, a prosecution advisory witness.

The prosecution proceeded with testimony by Jodi Curtin, the child advocacy center interviewer who had interviewed the child after the police began investigating the allegations. The prosecution showed a videotape of Curtin's interview with the child to the jury. Curtin testified about her observations of the child's behavior during the interview, emphasizing a change in her demeanor when the alleged assaults were mentioned. On cross examination, defense counsel asked Curtin whether false allegations are more common in "high conflict" situations and she answered that they may be. She also said false accusations can occur in interviews but not often, in her experience.

After Curtin's testimony, Brecko, the detective assigned to the Melendez case, testified about general procedures used in investigating sexual assault cases.

The prosecution rested after Brecko's testimony. The trial court then excused jurors for lunch. Counsel and the court discussed several motions. The defense made a motion for judgment of acquittal due to inconsistencies in the number and type of charges in the case. The trial court granted this motion as to three of the four pattern of abuse counts. The defendant received his Curtis advisement.⁷

After the lunch recess, the court held further discussions outside the hearing of the jury. The defendant affirmed his intention to testify.

The attorneys and the court continued to discuss the pattern of abuse counts. The prosecutor argued about the admissibility of evidence related to an earlier instance when

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the child was found left alone in her apartment. Melendez and the mother were charged with neglect in that instance. The defense planned to call the police officer who responded to that incident as a witness. Defense counsel conceded that evidence of the charges themselves and the resulting deferred sentences need not come in, but contended that all witness observations related to "this child's behavioral emotional status and more specifically whether she has ever shown signs of significant distress prior to [the time of the alleged assaults]" were relevant and material. Both counsel went on to discuss in greater detail the child's emotional state before and after the time of the alleged assaults. The court ruled that the defense could call the police officer involved with the child neglect call, but the charges and judgment in the neglect case were inadmissible

After this discussion, the defense presented testimony from its expert witness, Dr. Spiegle. Spiegle criticized the manner in which Curtin conducted her interview, opining that she had used inappropriately suggestive and leading questions with the child, which may have affected the reliability of the child's answers. He also testified about a study showing that some twenty-three percent of sexual assault allegations by children in the Denver area in a particular time period proved to be false. Spiegle also testified about his evaluation of the child's behavior as seen on the videotaped interview. His view was that various pre-allegation events in her life may have impacted her emotional well-being and behavior.

Following Spiegle's testimony, the defense called the director of the child advocacy center where Curtin worked, followed by the officer who had responded to the neglect call. This testimony concluded at the end of the business day.

The defense planned to call Robert Curry the next day. Curry, a friend of Melendez, would have testified to his observations of the child's relationship with Melendez, as well as her behavior with her mother. The trial court precluded Curry from testifying.

The trial court based its preclusion order solely on the prosecution's assertion that Brecko had reported seeing Curry in the courtroom during portions of Curtin's testimony and during bench discussions after the recess.

Defense counsel responded that he was not aware of Curry's presence in the courtroom. He argued that Curry's testimony would not have been tainted by any of Curtin's testimony that he may have overheard, because Curry was planning to testify to completely different matters. Defense counsel made the following offer of proof regarding Curry's testimony:

Judge, the expected nature of the testimony of Mr. Curry would essentially be that he has observed Mr. Melendez with the alleged victim in this case. He has seen him with the mother in this case. He has seen interactions between parent/child, Mr. Melendez and child. This is essentially the scope of his testimony.

Counsel also asserted that "having [Curry] stricken as a defense witness I believe is a really severe sanction in this case. I think that the Court could inquire or admonish or ask questions of Mr. Curry but not allowing him to testify I think would be a severe prejudice to the defendant."

The prosecutor answered that Curtin testified about the child's behavior and the kinds of behavioral changes to be expected after sexual assaults. The prosecutor argued that this testimony could taint Curry's testimony because it suggested ways to show that the child was emotionally disturbed before she made her allegations. The prosecutor also noted that Brecko had subsequently told her that he had seen Curry talking to the defendant during a break and it sounded as if they were discussing the case. The trial court delayed ruling on the issue until the following morning.

The next day, defense counsel and the prosecutor made essentially the same arguments. The court precluded Curry's testimony, ruling that,

considering argument of both the defense and the prosecution, noting the length of time the defendant (sic) was in the courtroom, pa[ying] particular attention that the witness was in the courtroom during the testimony of Ms. Curtin, the Court is going

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to not allow the witness to be called for the defense.

The trial court did not ask any questions of Brecko, Curry, or Melendez concerning the alleged sequestration violation.

Defense counsel rested his case after Melendez testified. The jury convicted Melendez on several counts.

On appeal, Melendez argued, inter alia, that the trial court abused its discretion by precluding Curry's testimony and that the error was not harmless. We agree and affirm the court of appeals' judgment.

II.

Because the record does not demonstrate an adequate inquiry by the trial court into whether the sequestration violation actually occurred, and because preclusion of the witness's testimony was not harmless error, we affirm the judgment of the court of appeals.

A. Standard of Review

In proper circumstances, the trial court may sequester witnesses, find that a witness has violated the sequestration order, and impose sanctions for the sequestration violation. See People v. Wood, 743 P.2d 422, 429-30 (Colo.1987); People v. P.R.G., 729 P.2d 380, 382 (Colo.App.1986). We review the trial court's determinations for abuse of discretion. People v. Stewart, 55 P.3d 107, 122 (Colo.2002). If an abuse of discretion occurred, we must then determine whether the error is reversible. See Salcedo v. People, 999 P.2d 833, 841 (Colo.2000).

B. Sequestration Order Violations

Trial courts shall impose sequestration orders on witnesses at the request of either party. Martin v. Porak, 638 P.2d 853, 854 (Colo.App.1981); CRE 615. The court may order witnesses to remain outside the courtroom and not discuss the case with each other. People v. Brinson, 739 P.2d 897, 899 (Colo.App.1987).

The Colorado sequestration rule is identical to the federal rule, so analysis of the rule by federal courts and commentators is germane. See People v. Cheeks, 682 P.2d 484, 485 (Colo.1984); CRE 615. Sequestration orders are meant to prevent witnesses from tailoring their testimony to that of other witnesses and to aid the court in the detection of false testimony. United States v. Gibson, 675 F.2d 825, 835 (6th Cir.1982).

Before it considers sanctions for a sequestration violation, the trial court must first...