People v. Owens

• Decision Date: 17 May 2007
• Docket Number: No. 05CA1577.,05CA1577.
• Citation: 183 P.3d 568
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Tracy David OWENS, Defendant-Appellant.
• Court: Colorado Court of Appeals

183 P.3d 568

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Tracy David OWENS, Defendant-Appellant.

No. 05CA1577.

Colorado Court of Appeals, Div. VI.

May 17, 2007.

Rehearing Denied July 19, 2007.

Certiorari Denied May 12, 2008.

John W. Suthers, Attorney General, Deborah Isenberg Pratt, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

The Law Firm of Ted Hess, P.C., Theodore G. Hess, Glenwood Springs, Colorado, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Tracy David Owens, appeals the judgment of conviction entered upon a jury verdict finding him guilty of unlawful sexual contact, a class 1 misdemeanor under § 18-3-404(1)(a), (2)(a), C.R.S.2006. We reverse and remand for a new trial.

Defendant was originally charged with sexual assault. The prosecution alleged that he took advantage of his acquaintance with a young woman whose husband was serving overseas in the military. According to the alleged victim, over her objection, defendant subjected her to various acts of sexual contact and intrusion. The incident ended when a male friend of the alleged victim came to the door.

According to defendant, the alleged victim seduced him and welcomed his acts until the friend appeared at the door.

Prior to trial, defendant moved, pursuant to the rape shield statute, § 18-3-407, C.R.S. 2006, to introduce evidence of a sexual relationship between the alleged victim and the male friend. The proffered evidence, defendant said, (1) would establish that the friend was the alleged victim's paramour and (2) was relevant to show a motive to lie on her part, that is, upon being caught by the friend in a compromising position, to maintain her sexual relationship with the friend, the alleged victim had to cover up the true nature of her sexual liaison with defendant.

The trial court denied defendant's motion and prohibited him from introducing evidence of, inquiring into, or otherwise alluding to, acts of sex or sexual relations between the alleged victim and the friend.

On the morning of trial, the court reminded the parties of its ruling. During opening statement, however, defense counsel referred to the friend as the alleged victim's boyfriend, and the trial court declared a mistrial. At that point, defendant unsuccessfully requested that further prosecution of him be barred as a violation of double jeopardy.

A new trial commenced the next day before a different judge and jury. In addition to the alleged victim's, the friend's, and defendant's testimony, the jury also had before it evidence that, in taped phone conversations with both the alleged victim and the police, defendant admitted (1) doing the acts attributed to him by the victim and (2) having heard her repeatedly say either "no" or "stop." In both conversations, he had indicated his belief that she had not really wanted him to stop because she had not voiced her objections very loudly (which, she explained, was because she did not want to wake her baby). In his conversation with the alleged victim, defendant admitted using poor judgment, expressed a feeling of shame, and apologized for his actions.

In closing, defendant argued that the alleged victim had fabricated the sexual assault accusation against him to accommodate her relationships with the friend, her mother, her sister, and her husband.

The jury found him guilty of unlawful sexual contact.

I. Double Jeopardy

Initially, we reject defendant's contention that he was improperly subjected to a second prosecution in violation of the double jeopardy prohibitions of the Fifth and Fourteenth Amendments to the United States Constitution and article II, § 18 of the Colorado Constitution.

In People v. Berreth, 13 P.3d 1214, 1216 (Colo.2000), the supreme court stated:

If a criminal trial is terminated prior to its completion, double jeopardy will bar a second trial unless the trial court has sufficient legal justification for declaring a mistrial over the defendant's objection. Such justification exists only if, under all the circumstances of the case, there is a "manifest necessity" for the mistrial.

(Citations omitted); see § 18-1-301(1)(d), C.R.S.2006 (also recognizing that a prosecution is barred whenever a former prosecution for the same offense has been improperly terminated).

The manifest necessity doctrine recognizes that "a defendant's valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public's interest in fair trials designed to end in just judgments." Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949); see People v. Baca, 193 Colo. 9, 11-12, 562 P.2d 411, 412-13 (1977).

To justify a finding of manifest necessity, not only must the circumstances be serious and outside the control of the trial court, they must also be such that "continuing with the trial would interfere with or retard the `administration of honest, fair, even-handed justice to either, both, or any, of the parties to the proceeding.'" People v. Berreth, supra, 13 P.3d at 1217 (quoting People v. Castro, 657 P.2d 932, 942 (Colo.1983), and Brown v. People, 132 Colo. 561, 569, 291 P.2d 680, 684 (1955)).

Here, the trial court declared a mistrial based on the misconduct of defense counsel in willfully violating the court's order not to introduce evidence of, inquire into, or otherwise allude to, acts of sex or sexual relations between the alleged victim and the friend.

Defendant asserts, in the first instance, that his reference to the friend as a "boyfriend" did not violate the court's order. In support of his assertion, he directs our attention to that part of the dictionary definition of "boyfriend" as simply "a male friend" or "a frequent, regular, or favorite escort or male companion of a girl or woman." Webster's Third New International Dictionary 264 (1986). However, he overlooks the other part of the definition of boyfriend, "the male partner in an intimate or esp. an illicit relationship: Lover, Paramour," Webster's, supra, at 264, and the context in which he had used the word.

During opening statement, defense counsel argued that there were various relationships "that the evidence is going to bring out and that [he thought] it's important to understand." The first two, counsel said, were between defendant and his wife and between the alleged victim and her husband. Then he added, "Now, there is a third important relationship here, and that is between [the alleged victim], the wife of the marine who is stationed overseas, and [the friend]. And [the friend] had—we believe the evidence will show, had become her boyfriend."

Given the context in which the term "boyfriend" was used by defendant, we, like the trial court, conclude that the jury would have interpreted it as referencing a "male partner in an intimate or esp. an illicit relationship: Lover, Paramour," with all the sexual connotations such meaning carries. Thus, the trial court correctly determined that defendant had violated its order not to allude to sex acts or sexual relations between the alleged victim and the friend.

Nor did the court err in concluding that defendant's violation of the order was willful. As the trial court noted:

In fear that you would do this, sir, the court entered oral findings on December 2. Later that day a written order was issued specifically instructing you that you can say they were friends but not more, ... absolutely no more.

Again, so that there would be no misunderstanding on your part and so that we would not have a mistrial, we went over it again this morning, and again you said you understood.

Defendant asserts, however, that alternatives other than a mistrial were available to the trial court. We are not persuaded.

In accord with the purposes of the rape shield statute, the court's order was designed to protect the victim from the jury's inferring that she was sexually promiscuous, making her, for that reason alone, unworthy of belief and more likely to have engaged in consensual sex with defendant. See People v. McKenna, 196 Colo. 367, 371, 585 P.2d 275, 277-78 (1978).

Furthermore, implying the alleged victim had a sexual relationship with another man while her husband was away in the military could be unfairly prejudicial to the alleged victim and the state. See People v. Gibbens, 905 P.2d 604, 608 (Colo.1995) (unfair prejudice refers to an undue tendency to inject considerations extraneous to the merits of the lawsuit, such as the jury's bias, sympathy, anger, or shock).

Next, the trial court considered and rejected alternatives to a mistrial, finding, "The prosecutor is right. The bell has been rung; it can't be unrung."

In reviewing this determination, we are mindful of the United States Supreme Court's admonition that, although the declaration of a mistrial might not be strictly "necessary" following defense misconduct, a mistrial under such circumstances may be in the interest of justice:

We recognize that the extent of the possible bias cannot be measured, and that the District Court was quite correct in believing that some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions. In a strict, literal sense, the mistrial was not "necessary." Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge's evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment.

....

... Unless unscrupulous defense counsel are to be allowed an unfair advantage, the trial judge must have the power to declare a mistrial in appropriate cases. The interest in orderly, impartial procedure would be impaired if he were deterred from exercising that power by a concern that any time a reviewing court disagreed with his assessment of the trial situation a retrial would automatically be barred.

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