People v. Newbrough

• Decision Date: 09 October 1990
• Docket Number: No. 89SA280,89SA280
• Citation: 803 P.2d 155
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Linda L. NEWBROUGH, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 155

803 P.2d 155

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Linda L. NEWBROUGH, Defendant-Appellant.

No. 89SA280.

Supreme Court of Colorado En Banc.

Oct. 9, 1990.

Rehearing Denied Nov. 13, 1990.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Milton Hutchins, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Williams, Trine, Greenstein & Griffith, P.C., Jean E. Dubofsky, Boulder, for defendant-appellant.

Justice LOHR delivered the Opinion of the Court.

After a trial by jury, Linda Newbrough was found guilty of sexual assault on a child, § 18-3-405, 8B C.R.S. (1986). She now challenges the judgment of conviction on several grounds. ¹ We reverse Newbrough's conviction and remand the case for a new trial.

I.

William and Jeanine D. have two children, A.D. and M.D., who at the time of the alleged assault were ages two and six respectively. During the summer of 1987, Linda Newbrough, the defendant, began babysitting for A.D. and M.D. Newbrough was accused and convicted of sexual assault on a child based on evidence that she stuck her finger into M.D.'s vagina during a weekend in November 1987 when she was babysitting for M.D. and A.D. while William and Jeanine D. were away.

Newbrough challenges her conviction on several grounds: first, that the trial court erroneously admitted M.D.'s videotaped deposition into evidence; second, that the trial court erroneously admitted a videotaped interview of M.D. by Dr. Ruth Kempe; third, that the trial court erroneously admitted hearsay statements made by M.D. to her mother and a therapist; fourth, that the trial court erroneously admitted expert testimony regarding M.D.'s truthfulness on a specific occasion; and fifth, that sections 13-25-129, 6A C.R.S. (1987), and 18-3-413, 8B C.R.S. (1986), violate the constitutional doctrine of separation of powers. ² We will address each of these contentions in turn.

II.

In response to a prosecution motion, the court ordered a videotaped deposition of M.D. to be taken. The deposition was conducted at the C. Henry Kempe Center for the Treatment and Prevention of Child Abuse and Neglect ³ on September 16, 1988. M.D. was questioned by Dr. Susan Van Scoyk, a court-appointed child psychiatrist whom M.D. had not previously met. The questioning was videotaped. The judge, the court reporter, the prosecutor, a police investigator, the defense counsel and the defendant were in an adjacent room, able to view the questioning but not visible to the persons in the room where the deposition was being taken. Van Scoyk had an earpiece through which she could hear comments or questions from the lawyers. Van Scoyk also had lists of questions provided by the prosecutor and the defense counsel.

A.

Newbrough initially contends that the videotaped deposition was not properly admissible under section 18-3-413, 8B C.R.S. (1986), the statute providing for the taking and use of videotaped depositions. Section 18-3-413 provides:

(1) When a defendant has been charged with an unlawful sexual offense, as defined in section 18-3-411(1), ⁴ and when the victim at the time of the commission of the act is a child less than fifteen years of age, the prosecution may apply to the court for an order that a deposition be taken of the victim's testimony and that the deposition be recorded and preserved on video tape.

(2) The prosecution shall apply for the order in writing at least three days prior to the taking of the deposition. The defendant shall receive reasonable notice of the taking of the deposition.

(3) Upon timely receipt of the application, the court shall make a preliminary finding regarding whether, at the time of trial, the victim is likely to be medically unavailable or otherwise unavailable within the meaning of rule 804(a) of the Colorado rules of evidence. Such finding shall be based on, but not be limited to, recommendations from the child's therapist or any other person having direct contact with the child, whose recommendations are based on specific behavioral indicators exhibited by the child. If the court so finds, it shall order that the deposition be taken, pursuant to rule 15(d) of the Colorado rules of criminal procedure, and preserved on video tape. The prosecution shall transmit the video tape to the clerk of the court in which the action is pending.

(4) If at the time of trial the court finds that further testimony would cause the victim emotional trauma so that the victim is medically unavailable or otherwise unavailable within the meaning of rule 804(a) of the Colorado rules of evidence, the court may admit the video tape of the victim's deposition as former testimony under rule 804(b)(1) of the Colorado rules of evidence.

Subsection (3) requires videotaped depositions to be taken in accordance with Crim.P. 15(d), which provides:

If the subpoenaed deponent appears before the judge who ordered his deposition taken and is willing to testify immediately, at the request of the deponent for good cause shown, the judge forthwith shall:

(1) Procure the presence of the prosecuting attorney or one of his deputies;

(2) Procure the presence of each defendant and his counsel;

(3) Take the deposition; and

(4) Upon completion of the deposition, discharge the witness.

If any defendant is without counsel or his attorney fails to attend, the court shall advise him of his right and, unless he elects to proceed without counsel, shall assign counsel to represent him at that hearing only. Depositions shall be taken and transcribed as the court may direct and upon completion shall be lodged with the clerk of the court.

1.

Newbrough contends that M.D.'s deposition was not taken in accordance with Crim.P. 15(d) because questioning was not conducted by the defense counsel and the defendant was not in the room where the questioning took place. We conclude that the procedures followed do not require reversal of the defendant's conviction.

The defendant made no objection to the questioning of M.D. by Dr. Van Scoyk rather than by the attorneys. We therefore review the trial court's action under a plain error standard. Wilson v. People, 743 P.2d 415, 419 (Colo.1987). Crim.P. 15(d) does not specifically require that questioning be conducted by the attorneys. The requirement that the "presence" of the prosecuting attorney and the defense counsel be procured simply does not address whether the questioning is to be conducted by the attorneys. We are not persuaded that the trial court contravened the requirements of the rule by allowing Dr. Van Scoyk to conduct the questioning, much less that "the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." See Wilson, 743 P.2d at 420; Crim.P. 52(b) ("[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court"); C.A.R. 35(e) ("[t]he appellate court shall disregard any error or defect not affecting the substantial rights of the parties").

We also conclude that the fact that the defendant was in another room and not visible to M.D. during her videotaped deposition testimony does not require reversal as a violation of Crim.P. 15(d). Although the defendant objected to the introduction of the videotaped deposition at trial on confrontation clause grounds, she raised no objection that the procedure for taking the deposition did not comply with Crim.P. 15(d). Under these circumstances, we would reverse the defendant's conviction only if the procedure adopted by the trial court were contrary to the requirements of Crim.P. 15(d) and also constituted plain error. See, e.g., People v. Cowden, 735 P.2d 199, 202 (Colo.1987); Graham v. People, 705 P.2d 505, 509 (Colo.1985).

Although Crim.P. 15(d) requires that the "presence" of the defendant be procured, we do not read this to mean that the defendant has a right, derived from the rule, to be present in the room where the deposition is taking place. Rather, we hold that the defendant's presence in a room from which he can contemporaneously view the taking of the deposition satisfies the requirement of the rule that the defendant's presence be procured. See Glendening v. State, 536 So.2d 212 (Fla.1988); Commonwealth v. Willis, 716 S.W.2d 224 (Ky.1986); State v. Twist, 528 A.2d 1250 (Me.1987); State v. Lucero, 109 N.M. 298, 784 P.2d 1041 (App.1989). The trial court therefore did not violate Crim.P. 15(d), much less commit plain error, in adopting a procedure for taking M.D.'s deposition that placed the defendant in a room where she could see M.D. but M.D. could not see her.

2.

Newbrough also contends that the trial court's finding that M.D. was "medically unavailable" to testify at the time of trial, as required by section 18-3-413(4), was not supported by the record. ⁵ In granting the prosecution's motion to take a videotaped deposition of M.D., the trial court based its preliminary finding of unavailability under section 18-3-413(3) on the testimony of Dr. Ruth Kempe and Jeanine D. Dr. Kempe examined M.D. and based upon that examination and other information she had about M.D., concluded that testifying would be traumatic for M.D. and would have a lasting effect on her. She explained that M.D. had experienced nightmares, that her schoolwork had suffered and that she had some behavioral problems. M.D.'s mother, Jeanine D., who is a registered nurse, testified that M.D. was extremely upset about the prospect of testifying in court in front of the defendant. M.D. started crying and vomiting while returning home from the Kempe Center with her mother shortly after the possibility of testifying was mentioned by Dr. Kempe. ⁶ The trial court credited this testimony, concluded that M.D. was medically unavailable to testify and, implicitly, that she was likely to be medically unavailable at the time of trial. The court then ordered the taking of a...