People v. P.R.G., 85CA0985

• Decision Date: 09 October 1986
• Docket Number: No. 85CA0985,85CA0985
• Citation: 729 P.2d 380
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. P.R.G., Minor-Child-Appellant. . I
• Court: Colorado Court of Appeals

Page 380

729 P.2d 380

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. P.R.G., Minor-Child-Appellant.

No. 85CA0985.

Colorado Court of Appeals,

Div. I.

Oct. 9, 1986.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., David L. Saine, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender Jeffrey S. Pagliuca, Deputy State Public Defender, Denver, for minor-child-appellant.

METZGER, Judge.

In this delinquency proceeding, a jury found P.R.G. to have committed acts constituting one count of second degree assault and carrying a concealed weapon and found her to be a violent juvenile offender. From the resulting adjudication of delinquency P.R.G. appeals, contending that numerous violations of the court's sequestration order mandated a mistrial. We affirm.

P.R.G. and numerous other persons were involved in a brawl outside a bar, during which three persons received knife wounds. P.R.G. was charged with committing the three assaults.

At trial, the prosecution presented testimony that P.R.G. had stabbed Frank Zimmerman and also presented circumstantial evidence implicating P.R.G. in the other assaults. A witness for P.R.G. testified that she, the witness, had stabbed Zimmerman. P.R.G. testified that she had stabbed one victim in self-defense, but denied stabbing Zimmerman or the other victims.

After the prosecution's first witness testified, the juvenile court entered an order sequestering witnesses pursuant to CRE 615, stating that witnesses should not discuss the case. The jury found the assault allegation proven only as to the stabbing of Zimmerman.

This appeal is based upon three purported violations of the trial court's sequestration order. P.R.G. asserts that the violations were prejudicial and denied her a fair trial, and consequently, that the juvenile court erred when it denied her requests for a mistrial. We disagree.

The determination whether there has been a violation of a sequestration order and the penalty or sanction to be imposed are all matters resting within the sound discretion of the trial court. People v. Gomez, 632 P.2d 586 (Colo.1981); Hampton v. People, 171 Colo. 153, 465 P.2d 394 (1970). The moving party must demonstrate prejudice resulting from violation of a sequestration order to require a trial court to grant a mistrial. See People v. Mackey, 185 Colo. 24, 521 P.2d 910 (1974); People v. Wright, 678 P.2d 1072 (Colo.App.1984).

In determining whether to impose sanctions for violation of a sequestration order, a trial court needs to consider three principal factors. First, it must consider the involvement, or lack thereof, of a party or his counsel in the violation of the order by the witness. See Cruz v. People, 149 Colo. 187, 368 P.2d 774 (1962). Second, it should consider the witness' actions and state of mind in his or her violation of the sequestration order, and whether the violation was inadvertent or deliberate. See People v. Gomez, supra. Third, the court should consider the subject matter of the violation in conjunction with the substance of the disobedient witness' testimony. In this regard, if the testimony is unrelated in substance to the violation of the sequestration order, the court enjoys wide discretion in its ability to allow the witness to testify. See Hampton v. People, supra.

In addition to a mistrial, sanctions for violation of a sequestration order fall into three categories: (1) citing the witness for contempt; (2) permitting comment on the witness' non-compliance in order to reflect on his or her credibility; or (3) refusing to let the witness testify or striking his or her testimony. J. Weinstein & M. Berger, Weinstein's Evidence § 615 (1985); see generally Annot., 14 A.L.R.3d 16.

A.

The first purported violation of the sequestration order took place during a conversation between a prosecution witness and the victim Zimmerman.

At an in camera hearing on the minor child's motion for mistrial, testimony was presented that, after the witness had testified, Zimmerman was overheard to say to the witness, "Did her attorney ask you...." Zimmerman testified that he was merely inquiring of the witness whether he had finished testifying and whether Zimmerman would be called as the next witness. Zimmerman denied discussing the substance of the witness' testimony.

Finding that there was no evidence that the witnesses discussed their testimony or the facts of the case, the court declined to grant a mistrial or to preclude Zimmerman's testimony. On this state of the record, we perceive no error in the court's ruling. See Hampton v. People, supra.

B.

The second alleged violation of the sequestration order arises from the following remarks made by the court to counsel:

"Before we go back in front of the jury, I did want to advise counsel I am instructing the bailiff from this point out to allow no persons in the courtroom who are friends of any parties--witnesses or of the parties. I have received a fairly reliable report there's apparently a pipeline being used to circumvent the sequestration of witnesses. Reports are being taken out of the courtroom to people outside and to avoid any potential problems this far into a very complicated trial, I think we will put an end to any of that."

Counsel for the minor child failed to respond to the court's remarks in any way. No motion for mistrial was made, nor did counsel inquire about the exact nature of the violation of the sequestration order. Accordingly, any error arising by virtue of these remarks was waived. People v. Watson, 668 P.2d 965 (Colo.App.1983).

Furthermore, the record does not reveal any additional evidence which would...