People v. Rex, 82CA1198

• Citation: 689 P.2d 669
• Decision Date: 19 April 1984
• Docket Number: No. 82CA1198,82CA1198
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Randall Edward REX, Defendant-Appellant. . I
• Court: Court of Appeals of Colorado

Page 669

689 P.2d 669

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Randall Edward REX, Defendant-Appellant.

No. 82CA1198.

Colorado Court of Appeals,

Div. I.

April 19, 1984.

Rehearing Denied May 17, 1984.

Certiorari Denied Sept. 24, 1984.

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.

Inman, Erickson & Flynn, H. Christopher Clark, Robert D. Inman, Denver, for defendant-appellant.

TURSI, Judge.

Randall Edward Rex, defendant, appeals his conviction of second degree kidnapping. We reverse.

On September 19, 1977, defendant was charged with attempted murder in the second degree, second degree kidnapping, and sexual assault on a young girl in Loveland on September 6, 1977. The sexual assault charge was dismissed following a preliminary hearing. Defendant's first trial ended in a mistrial in September 1978. A new trial was conducted, and the jury returned a verdict of guilty on both remaining counts. Following a hearing on defendant's motion for new trial, the trial court dismissed the count of attempted murder in the second degree.

Defendant's conviction of second degree kidnapping was reversed by this court in People v. Rex, 636 P.2d 1282 (Colo.App.1981). There, we held that certain statements made by defendant on September 14 and 15, 1977, were involuntary as a matter of law and, therefore, were improperly admitted against him. The cause was remanded for new trial, which resulted in a jury verdict of guilty as to the remaining count of second degree kidnapping. It is this conviction which is at issue here.

Defendant was questioned on September 14 and 15, 1977, about the September 6 kidnapping because he resembled a composite sketch of the assailant as described by the victim. The composite sketch was prepared on the day after the incident following a session in which the victim was hypnotized in order to enhance her recollection of the incident. This questioning by Officer Teeples resulted in the involuntary statements leading to the previous reversal.

On September 16, 1977, defendant was questioned by Officers Teeples and Dardano regarding the kidnapping of a young girl in Arvada. Defendant admitted to picking up a young girl and giving her a ride. However, the description of the girl given by defendant matched neither the victim herein nor the victim of the Arvada kidnapping.

Later that day, defendant was taken into custody by an Officer Sand for transportation to the sheriff's department. Upon being advised by Sand that he was under arrest, defendant stated, "[A]ll I did was give a little girl a ride .... I was just trying to be a nice guy."

Defendant moved to suppress the statements made to Sand, on the ground they were tainted. The trial court found that the statements were voluntary and were not the product of the police misconduct of September 14 and 15. In addition, when the testimony was offered at trial, defendant objected to the statements on grounds of lack of relevance, because the little girl referred to was not the victim. The trial court overruled the objection without making a determination of relevancy to the crime charged. The testimony was admitted.

In an effort to rebut the inference of Sand's testimony, defendant sought to adduce testimony from Officer Teeples to establish that the "little girl" referred to by defendant was not the victim. Without making an objection, the People stated that such testimony would "open the door" to examination on the involuntary statements made on September 14 and 15, 1977. Discussion was conducted out of the presence of the jury. The trial court declined to make a ruling until the situation actually arose. However, the trial court stated that defendant ran the danger of opening the door, as the testimony he sought to adduce was intertwined with the involuntary statements. Defendant chose to abandon the questioning rather than risk allowing the involuntary statements into evidence.

Defendant's preliminary motion to suppress testimony of the victim because of her hypnosis for the purpose of enhancing recollection had been denied. At trial, defendant renewed his objection to her testimony on these grounds. The trial court overruled the objection and permitted the victim to testify at trial to the events which took place on September 6, 1977.

The trial court also admitted into evidence testimony that in January 1978, after a physical line-up was conducted, the victim identified defendant as "looking like" her assailant. In addition, the victim was permitted to make an in-court identification of defendant, even though she had failed to identify defendant as her assailant at the two previous trials. The victim testified at trial that she was sure the defendant was her assailant because he was the same man as in the first two trials.

I

Defendant contends that the trial court erred in permitting the victim to testify over his objection to competency based on the victim's previous hypnosis. We agree.

In People v. Quintanar, 659 P.2d 710 (Colo.App.1982), we held that testimony of a witness who has been questioned under hypnosis is per se inadmissible as to recollections from the time of the hypnotic session forward. However, we held:

"[T]he witness is not incompetent to testify to pre-hypnosis recollections that have previously been unequivocally disclosed and recorded by tape recording, video tape, or ... written statement."

Here, no such procedure was followed. Thus, it is impossible to ascertain whether the victim's testimony and identification of the defendant was based on pre-hypnosis recollection. As such, the victim is incompetent to testify to the events which took place on September 6, 1977, and as to recollections from the time of hypnosis forward. Therefore, it was reversible error to permit the victim to testify at the trial.

Since this matter must be remanded for retrial, we address defendant's other allegations of error which may arise at that time.

II

Defendant argues that the trial court should have ruled that adducing testimony regarding the description he gave to Teeples and Dardano on September 16, 1977, would not "open the door" to the admission of the involuntary statements defendant made on September 14 and 15.

The use of an involuntary statement, for any purpose, against a defendant in a criminal trial constitutes a denial of due process. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). See People v. Salazar, 44 Colo.App. 242, 610 P.2d 1354 (1980). Here, the voluntariness of the statements made to Teeples and Dardano on September 16, 1977, is not in dispute as they were offered into evidence by defendant. Thus, if relevant, these statements may properly be admitted into evidence, even though they are related to the statements previously determined involuntary. Therefore, on retrial, testimony regarding defendant's statements to Teeples and Dardano on September 16, 1977, may be...