People v. Orozco

• Decision Date: 05 February 2009
• Docket Number: No. 06CA1533.,06CA1533.
• Citation: 210 P.3d 472
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ermulo Enriquez OROZCO, Defendant-Appellant.
• Court: Colorado Court of Appeals

210 P.3d 472

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ermulo Enriquez OROZCO, Defendant-Appellant.

No. 06CA1533.

Colorado Court of Appeals, Div. III.

February 5, 2009.

Rehearing Denied April 30, 2009.

John W. Suthers, Attorney General, Christopher Y. Bosch, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Todd E. Mair, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Ermulo Enriquez Orozco, appeals the judgments of conviction entered on jury verdicts finding him guilty of incest and sexual assault on a child. We reverse and remand for a new trial.

According to the prosecution's evidence, defendant grabbed his thirteen-year-old nephew, R.O., and forced him into a bedroom, where he made him remove his clothes. Defendant then removed his own clothes, forced R.O. to engage in mutual masturbatory activity, put his penis in R.O.'s mouth, and then inserted his penis into R.O.'s anus. After showering, R.O. left the house to find his older brother and tell him what happened. The older brother returned to the home, confronted defendant, and called the police, whereupon defendant left the scene.

R.O. was taken to the hospital, where, although one doctor found no evidence of physical trauma to R.O.'s anal region, another doctor observed a small, non-bleeding tear in R.O.'s anus. R.O. made a number of statements to others about where and how the assault occurred. These statements were admitted, along with his testimony, at trial.

Defendant's theory of defense was that R.O. had not been sexually assaulted. Among other things, he noted that (1) although R.O. reported to a victim's advocate that he had ejaculated onto the bed, the police found no trace of semen on the bed; and (2) there was no unambiguous physical evidence indicating that a sexual assault had occurred.

Defendant moved to have the state pay the fees of an expert investigator who would have testified that, under the circumstances reported by R.O., there should have been other physical evidence of a sexual assault. The trial court denied defendant's motion and the expert did not testify.

To prove defendant's intent and motive for the present offenses, the prosecution presented evidence that defendant had previously sexually assaulted two other children.

The jury found defendant guilty as charged, and the trial court sentenced him to concurrent terms of eight years to life imprisonment for sexual assault on a child and four years to life imprisonment for incest.

I. Denial of Funds for Defense Expert

Defendant contends that the trial court abused its discretion in denying his motion for funds to hire an expert who would have testified about the likelihood of physical evidence being present if R.O. was sexually assaulted as he said he was. We agree.

A. Factual Background

In his motion, defendant asserted that (1) he qualified for and was initially represented by the Public Defender's Office; (2) his sister had retained private counsel on his behalf; (3) although he was currently represented by private counsel, his sister could no longer afford his attorney; (4) he was indigent; and (5) an expert would be reasonably necessary to his defense because, without one, his attorney would be unable to effectively represent him or counter expert testimony he expected the prosecution to present at trial.

At the hearing on the motion, defendant, through counsel, argued that the expert was the crux of his defense because his case hinged on the lack of physical evidence to substantiate R.O.'s claim. The trial court found that it had no reason to doubt that defendant was indigent, and that defendant's request was reasonable: "[The proffered expert evidence] would be relevant and material. It goes to the ability of [defendant] to present a defense." Nonetheless, the court denied defendant's motion, reasoning:

[T]he State's constitutional obligation to assist is really all one hundred percent put into the umbrella of the public defender's office. If the public defender has a client and they choose to do so, there's a limited pot of money to pay investigators. But it's also my understanding, not just that it's discretionary, but that there is, in fact, no money other than that. That is judicial doesn't have any money. There's no other branch of government or place where the money could come from.

Essentially if I entered this order, there's no way to pay the expert because the PD's office isn't going to pay it for obvious reasons. He's not their client. The courts don't have the money without stealing it from some other line item in their budget. It's just not doable as I understand it.

Subsequently, defendant endorsed the investigative expert as a witness. In an offer of proof, defendant stated that the expert would testify (1) about the evidence he would have expected to find in an assault case involving anal penetration; (2) that, here, the collection and processing of the evidence was inadequate and did not adhere to police standards; and (3) about what trace evidence should have been present in a case like this. Over the prosecution's objection, the trial court ruled that this evidence would be relevant and admissible. Defendant did not, however, call the expert to testify during trial.

B. Analysis

An indigent defendant is entitled to the basic "tools of an adequate defense." People v. Tafoya, 703 P.2d 663, 667 (Colo. App.1985) (quoting Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971)). However, "[g]ranting or denying a motion for supporting services to an indigent defendant lies within the sound discretion of the trial court." People v. Garcia, 981 P.2d 214, 218 (Colo.App.1998).

A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or based on an erroneous understanding or application of the law. People v. Muniz, 190 P.3d 774, 781 (Colo. App.2008).

A court abuses its discretion in refusing to grant an indigent defendant's request for support services when the defendant shows that the requested services are reasonable, necessary, and helpful to the defense. See Tafoya, 703 P.2d at 667 ("a trial court's discretionary refusal to grant an indigent defendant's request for investigatory or other services will be upheld absent a showing that the services sought were reasonable, necessary, and helpful to the defense"); see also Brown v. Dist. Court, 189 Colo. 469, 470-71, 541 P.2d 1248, 1249 (1975) ("The trial court did not abuse its discretion by denying a motion for appointment of experts when no showing was made that the services sought by the defendant were reasonable, necessary, or in any way helpful to her defense."); People v. Mossmann, 17 P.3d 165, 171 (Colo. App.2000) ("where the defendant cannot show that such services are reasonable, necessary, or in any way helpful to the defense, the trial court is not required to grant a motion requesting such services").

Here, the trial court effectively determined that defendant had made the requisite showing to obtain state-funded expert witness services. However, the court denied the request because, in its view, no mechanism existed under the law to provide the necessary funds. The court was mistaken.

Section 18-1-403, C.R.S.2008, addresses legal assistance and support services for indigent defendants. In People v. Cardenas, 62 P.3d 621, 622-23 (Colo.2002), the supreme court held that, under section 18-1-403, "[i]f [d]efendant wants the state to pay the costs of his attorney and supporting services, his only choice is to be represented by the public defender, or in the case of a conflict, a state-appointed alternate defense counsel."

If section 18-1-403 encompassed all of the authority on the subject, we would have to affirm the trial court's ruling. However, it does not.

Chief Justice Directives represent an expression of Judicial Department policy, to be given full force and effect in matters of court administration. Cardenas, 62 P.3d at 623.

In Cardenas, the supreme court considered and rejected the argument that Chief Justice Directive (CJD) 90-01 required the appointment, at state expense, of a particular type of support service (that is, a private interpreter to effectuate attorney-client communications between an indigent defendant and a pro bono attorney). Here, we are concerned not with CJD 90-01, but with a different Chief Justice Directive.

At the time of defendant's trial, CJD 04-04 § IV provided, in pertinent part:

D. Court Costs of Indigent Party Not Appointed Counsel

In certain circumstances, a defendant's costs may be paid by the Judicial Department even though the defendant is not being represented by state-funded counsel (i.e., Public Defender; Alternate Defense Counsel; Judicial-paid counsel). Payment by the local court is appropriate if any of the following statements apply:

....

c) The defendant is receiving private counsel but becomes indigent during the course of the case, and the court has determined that there are insufficient funds to pay for court costs, and that it would be too disruptive to the proceedings to assign the Public Defender or Alternate Defense Counsel to the case.

CJD 04-04 § IV was amended, effective July 1, 2008. However, the amendments did not change the substance of the provision, as it applies here.

Under CJD 04-04 § IV, a court may order payment of Judicial Department funds for support services to an indigent defendant even where, as here, the defendant is represented by a private attorney. Thus, the trial court in the present case misunderstood its authority in ruling to the contrary.

Under CJD 04-04 § IV(D)(c), payment from the Judicial Department's budget is appropriate when (1) the defendant becomes indigent during the course of the case; (2) there are insufficient funds to pay for the costs; and (3) assigning the...