People v. Mosley

• Decision Date: 03 May 2007
• Docket Number: No. 04CA0587.,04CA0587.
• Citation: 167 P.3d 157
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Victor L. MOSLEY, Defendant-Appellant.
• Court: Colorado Court of Appeals

167 P.3d 157

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Victor L. MOSLEY, Defendant-Appellant.

No. 04CA0587.

Colorado Court of Appeals, Div. VI.

May 3, 2007.

Rehearing Denied August 2, 2007.

John W. Suthers, Attorney General, Cheryl Hone Canaday, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Victor L. Mosley, appeals the judgments of conviction entered upon jury verdicts finding him guilty of three counts of sexual assault on a child by one in a position of trust (pattern of abuse), nine counts of sexual assault on a child by one in a position of trust, and one count of crime of violence. He also appeals the sentences imposed in connection with these convictions. We reverse and remand for a new trial.

Defendant's convictions arose out of allegations that he sexually abused his youngest daughter from 1996 to 2001, when she was between the ages of seven and twelve. The prosecution's case consisted of the victim's testimony, the victim's earlier videotaped statement, and evidence that defendant had sexually assaulted two of his other daughters and a stepdaughter.

Defendant testified in his own defense. He denied having sexually assaulted the victim, her half-sisters, or her stepsister. He also elicited evidence that, despite ample opportunity to do so, two of the three other sisters, had not, until the youngest sister made her accusations, complained of any inappropriate behavior by defendant.

The jury found defendant guilty as charged. The trial court imposed consecutive sentences for an aggregate term of seventy-five years to life imprisonment.

I. Right of Confrontation

Defendant contends that reversal is required because the trial court placed a barrier between him and his accuser during her testimony at trial. We agree.

A. Facts

When the prosecution indicated to the court that it was having a "little difficulty" getting the fourteen-year-old victim to take the stand, the court excused the jury. And because the victim had indicated that she was afraid of defendant, the prosecution requested that defendant temporarily leave the courtroom, which he did.

Thereafter, the victim took the stand, and she told the court that she was "scared" of "everything," including defendant. When the court suggested different seating arrangements, the victim indicated that that would not help, and that she did not want defendant in the room: "The only thing that would help is him not being here."

After the prosecutor noted that the closed-circuit television system was not working, the court proposed setting up a physical barrier between the victim and defendant. Again, the victim indicated that that would not help.

When the court stated that it was willing to find the victim "unavailable" to testify, the prosecution requested additional time to see whether it could present her testimony. After about twenty minutes, the victim took the stand and, in the presence of defendant and the jury, testified about her home, school, family, parents, and school counselor. When asked to describe a person's "private parts," however, she balked and requested a five-minute recess. Because, as the court put it, "problems continue[d]," the case was recessed until after lunch.

When the trial resumed, the prosecution informed the court that the victim had changed her mind and now wanted a barrier. Defense counsel objected, stating:

I'm not sure I wouldn't have been agreeable if that was at the start of this. Now, we've had 10 or 15 minutes of testimony. We've had numerous hours of dealing with this witness. I think it's highly prejudicial to my client when he's not done anything wrong ... when nothing out of the ordinary . . . has taken place.

Nonetheless, the court ordered a visual barrier, that is, an easel, to be placed between the witness stand and defendant. Upon its return to the courtroom, the jury was instructed that the easel had been installed at the request of the victim, and, "[You are] to draw no adverse inferences at all from the fact that this easel has been put up. You are to draw no inference that the Court is favoring one side or the other in this particular case."

On appeal, defendant asserts that the trial court's placement of a barrier which precluded him from seeing the victim during her testimony violated his constitutional right to confront adverse witnesses.

B. Standard of Review

Initially, we conclude that defendant has not properly preserved this objection for review because he objected not to placement of the barrier but to the timing of its placement. He did not complain that he was unable to see his accuser. Rather, he expressed concern that the jury would believe that he had done something improper to warrant the need for a physical barrier.

Because the objection in the trial court is not the one pursued here on appeal, we conclude that reversal is not warranted absent a finding of plain error. See Crim. P. 52(b); People v. Kruse, 839 P.2d 1, 3 (Colo. 1992).

Plain error is error that is "obvious," "substantial," and "grave." Moore v. People, 925 P.2d 264, 268-69 (Colo.1996). "Plain error assumes that the [trial] court should have intervened sua sponte because the error was so obvious," People v. Petschow, 119 P.3d 495, 505 (Colo.App.2004), and prejudicial. See People v. Grant, ___ P.3d ___, ___, 2007 WL 177679 (Colo.App. No. 03CA1034, Jan. 25, 2007) (plain error is error that seriously affects the substantial rights of the accused and so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction).

C. Legal Principles

"The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding...." Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666 (1990). The Confrontation Clause affords two types of protections to criminal defendants: the physical right to face those who testify against them, and the right to cross-examine adverse witnesses. Coy v. Iowa, 487 U.S. 1012, 1017, 108 S.Ct. 2798, 2801, 101 L.Ed.2d 857 (1988).

In Coy v. Iowa, supra, 487 U.S. at 1014, 108 S.Ct. at 2799-2800, the defendant's conviction for sexually assaulting two thirteen-year-old girls was reversed on Confrontation Clause grounds because the trial court allowed the girls to testify from behind a screen. The Supreme Court determined that the Confrontation Clause guaranteed "the defendant a face-to-face meeting with witnesses appearing before the trier of fact." Coy v. Iowa, supra, 487 U.S. at 1016, 108 S.Ct. at 2801. The Court reasoned:

A witness "may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is." It is always more difficult to tell a lie about a person "to his face" than "behind his back."

Coy v. Iowa, supra, 487 U.S. at 1019, 108 S.Ct. at 2802 (citations omitted)(quoting Z. Chafee, The Blessings of Liberty 35 (1956)).

The Court saved for "another day" the question whether the right to face-to-face confrontation of trial witnesses was subject to exceptions. See Coy v. Iowa, supra, 487 U.S. at 1021, 108 S.Ct. at 2803.

Two years later, in Maryland v. Craig, supra, a closely divided Supreme Court upheld a defendant's sexual assault convictions despite the victims' having testified outside the defendant's presence via one-way closed-circuit television. The Supreme Court reasoned that the "preference" for face-to-face confrontation "must occasionally give way to considerations of public policy and the necessities of the case." Maryland v. Craig, supra, 497 U.S. at 848, 110 S.Ct. at 3165 (quoting Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895)). The Court recognized that a State's interest in protecting the physical and psychological well-being of child abuse victims could, in some cases, be sufficiently important to outweigh a defendant's right to be face-to-face with his or her accusers in court. See Maryland v. Craig, supra, 497 U.S. at 853-56, 110 S.Ct. at 3168-69 (such would be the case when the trial court finds that (1) a special procedure is necessary to protect the welfare of the particular child witness; (2) the particular child witness would be traumatized by the presence of the defendant — not by the proceedings generally; and (3) the child witness will suffer more than de minimis emotional distress if forced to testify in the presence of the defendant).

Even then, a dispensation of face-to-face confrontation would be permissible only if "the reliability of the testimony is otherwise assured." Maryland v. Craig, supra, 497 U.S. at 850, 110 S.Ct. at 3166. However, the Court was less than clear about what would be necessary to "assure the reliability of the testimony."

The Court noted that the elements of an oath, cross-examination, and observation of the witness's demeanor "adequately ensure[ ] that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony." Maryland v. Craig, supra, 497 U.S. at 851, 110 S.Ct. at 3166.

In discussing the last of those elements, the Court at one point indicated that a witness's demeanor need only be observed by the jury or trier of fact. Maryland v. Craig, supra, 497 U.S. at 846, 110 S.Ct. at 3163. However, in upholding the use of closed-circuit television to present the testimony of a child witness, the Court found it significant that "the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she tes...