People v. Renfro, Court of Appeals No. 03CA0047 (CO 11/4/2004)
| Decision Date | 04 November 2004 |
| Docket Number | Court of Appeals No. 03CA0047. |
| Parties | The People of the State of Colorado, Plaintiff-Appellee, v. Augustus Lawson Renfro, Jr., Defendant-Appellant. |
| Court | Colorado Supreme Court |
El Paso County District Court No. 01CR2272, Honorable G. David Miller, Jr., Judge.
Defendant, Augustus Lawson Renfro, Jr., appeals the judgment of conviction entered on a jury verdict finding him guilty of sexual assault on an at-risk adult as a class two felony. He also appeals the classification of his sentence. We affirm.
JUDGMENT AFFIRMED.
Ken Salazar, Attorney General, Katherine A. Hansen, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David S. Kaplan, Colorado State Public Defender, Ned R. Jaeckle, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by JUDGE TAUBMAN
Defendant was a certified nurse's aide (CNA) at a retirement community. In June 2001, a fellow CNA, C.R., was searching for another CNA to help her lift a patient. C.R. testified at trial that she entered the victim's room and saw defendant sexually penetrating the victim, an 80-year-old woman. C.R. left the room and told another CNA, K.D., what she had seen, and the two advised their supervisor of the incident. K.D. testified that after advising the supervisor, she returned to the victim's room and witnessed defendant adjusting his clothing and that he appeared to be putting his penis back into his pants.
Defendant denied that he sexually assaulted the victim and testified that he was cleaning the victim after a bowel movement when C.R. entered the room.
On the day of the alleged assault, the victim was examined by V.S., a sexual assault nurse examiner. She testified that the victim had three distinct areas of injury which were consistent with penetration of the genitalia.
Defendant contends that the trial court abused its discretion by allowing into evidence certain bolstering testimony by a police detective and in declining to give the jury a curative instruction. We disagree.
We review a trial court's admission of testimony for an abuse of discretion. People v. Jones, 743 P.2d. 44 (Colo. App. 1987).
Bolstering testimony is generally improper. See Tevlin v. People, 715 P.2d 338 (Colo. 1986); see also People v. Gillispie, 767 P.2d 778 (Colo. App. 1988). Bolstering testimony is improper when it relates to the witness's truthfulness on a specific occasion and when the foundational requirements of CRE 608(a) are not met. Tevlin v. People, supra.
Although bolstering testimony is normally inadmissible, where the defense on cross-examination creates the impression that an investigation was less than thorough, the defense has opened the door and the prosecution should be allowed the opportunity to dispel that impression. See People v. Haymaker, 716 P.2d 110, 113 (Colo. 1986); see also People v. Tenorio, 197 Colo. 137, 145-46, 590 P.2d 952, 958 (1979)(where defense opened the door to a topic, the district attorney had a right to explain or rebut any adverse inferences which might have resulted from the cross-examination question); People v. Braley 879 P.2d 410 (Colo. App. 1993)(witness's testimony regarding arguably inadmissible subject was not improperly admitted where defendant opened the door by asking several questions to point out weaknesses in witness's report).
A. Bolstering Regarding Witness Statements
During cross-examination, defense counsel asked Detective Weaver about a statement he had made to defendant during an interview that he had "overwhelming evidence" implicating defendant. Weaver agreed that he had made the statement. Defense counsel then questioned Weaver about the evidence obtained in his investigation up to that point, stating, "in fact, at that particular time, sir, no evidence had been sent to CBI (Colorado Bureau of Investigation), right?" Weaver agreed that much of the evidence had not yet been sent to CBI, which meant that it had not yet been examined and evaluated.
On redirect examination, the following exchange took place between the prosecutor and Weaver:
Q. You were asked about the fact that you confronted the defendant with the fact that you had overwhelming evidence in this matter, but you were also asked about the fact that you didn't have any of the information back from CBI. Now, would you recount for the jury what evidence did you have at that point in time?
Defense counsel objected, stating: The trial court overruled the objection, stating:
[It was] a fair answer because he [Weaver] has been attacked as to why he has not — didn't do more investigation. I think we can allow him to express his opinion as to why he didn't do the investigation. I think that's where he is going so I'll allow the answer.
Weaver continued, "I had witness statements, again, that I believe to be rock solid."
Defendant contends that this testimony was inadmissible bolstering. We disagree.
Here, the "rock solid witness statements" testimony related to the witnesses' truthfulness on a specific occasion, and thus, the requirements for admission of opinion and reputation evidence of character under CRE 608(a) were not met. Nevertheless, defendant's cross-examination opened the door, enabling Weaver to rebut the inference that he was lying to defendant when he said that he had "overwhelming evidence" against him. Although much of the physical evidence had not yet been examined and evaluated, Weaver still might have had what he believed to be "overwhelming evidence." Therefore, it was proper to allow Weaver to rebut the adverse inference created by defense counsel that he had lied to defendant during his interview about the amount of evidence he had collected.
Defendant also contends that Weaver's testimony regarding V.S. violated CRE 608(a). Again, we disagree.
During redirect examination, the prosecutor and Weaver had the following exchange:
Q. Now, with regard to the request from [the] Colorado Bureau of Investigations [sic] for additional submission of pubic hairs from the victim in this case, were you aware that she had already declined that?
. . . .
A. No, I was not.
Q. You just knew they had not been submitted?
A. Correct. I saw in the report that they made a request for further . . . I trust [V.S.] a hundred and ten percent.
Defense counsel objected, stating, The court responded,
Although defendant objected to the testimony regarding Weaver's trust in V.S. and the trial court in effect sustained the objection, defendant did not move to strike Weaver's testimony regarding V.S. Because Weaver's answer was nonresponsive, the trial court properly allowed the question to be asked again.
Defendant contends that the trial court erred in allowing Weaver to testify that he had an arrest warrant that was signed by a judge. We find no reversible error.
The People maintain that defendant failed to object to this testimony at trial. Defendant asserts that he objected as to the arrest warrant testimony when he objected to Weaver's testimony regarding "rock solid witness statements." We agree with the People.
A party need not renew an objection to preserve a claim of error on appeal once the court makes a definitive ruling admitting or excluding evidence. CRE 103(a)(2). However, this rule applies only if the substance of the evidence was made known to the court or is apparent from the context of the questions. CRE 103(a)(2). Moreover, failure to object in the trial court on the grounds asserted on appeal is deemed to be a waiver of the objection. People v. Watson, 668 P.2d 965, 967 (Colo. App. 1983).
Neither defense counsel's objection that Weaver could not pass on the credibility of the witness statements, nor the context in which it was made, identified the reference to the arrest warrant as included in the objection. Furthermore defense counsel objected to the testimony pursuant to CRE 608 regarding the credibility of the witness statements, not to the prejudicial effect of Weaver's testimony about the arrest warrant.
Where the defendant fails to object to evidence at trial, we review the alleged error under a plain error standard. People v. Dunaway, 88 P.3d 619, 632 (Colo. 2004). The standard for plain error is whether an appellate court, after reviewing the entire record, can say with fair assurance 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. People v. Hoskay, 87 P.3d 194, 199 (Colo. App. 2003). Furthermore, any error allowing testimony regarding a search warrant is not reversible if the reference is fleeting and there is no indication from the record that it undermined the fundamental fairness of the trial. People v. Ornelas, 937 P.2d 867, 872 (Colo. App. 1996).
Defendant now asserts the admission of the warrant testimony caused unfair prejudice. Here, however, the reference to the arrest warrant by Weaver was fleeting, and there was no indication that it affected the fundamental fairness of the trial. See People v. Ornelas, supra.
Additionally, although a division of this court recently held that testimony regarding the procedure for obtaining an arrest warrant was improperly admitted, see People v. Mullins, ___ P.3d ___ (Colo. App. No. 02CA0465, Sept. 9, 2004), that case is distinguishable. There, the testimony regarding the warrant was extensive and was only...
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People v. Singley
...750. We review a trial court's decision whether to give a particular jury instruction for an abuse of discretion. Id. ; People v. Renfro, 117 P.3d 43, 48 (Colo.App.2004). ¶ 41 The supreme court has consistently held that a trial court does not abuse its discretion by refusing to give jury i......