People v. Rodriguez, 05CA2591.

Docket NºNo. 05CA2591.
Citation209 P.3d 1151
Case DateDecember 11, 2008
CourtCourt of Appeals of Colorado
209 P.3d 1151
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Karen S. RODRIGUEZ, Defendant-Appellant.
No. 05CA2591.
Colorado Court of Appeals, Div. VI.
December 11, 2008.
Rehearing Denied January 15, 2009.
Certiorari Granted June 22, 2009.

[209 P.3d 1155]

John W. Suthers, Attorney General, Elizabeth Rohrbough, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Samler & Whitson, P.C., Eric A. Samler, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAILEY.

Defendant, Karen S. Rodriguez, appeals the judgments of conviction entered on jury verdicts finding her guilty, under a complicity theory, of numerous counts of attempted and completed aggravated incest, sexual assault on a child, and sexual assault on a child by one in a position of trust. We affirm.

Defendant's husband physically, emotionally, and sexually abused defendant, their youngest daughter, M.R., and defendant's son from a prior relationship, M.H. The husband abused the son over a ten- to twelve-year period and abused the daughter throughout the year before his arrest.

Defendant facilitated the husband's offenses by bringing the children to him to be sexually abused. At trial, she asserted that she acted under duress as a result of the husband's extreme emotional, physical, and sexual abuse perpetrated against her.

The prosecution's theory was that, although defendant had herself been severely abused by her husband, the abuse had not been severe enough that she could not have protected the children from her husband.

The jury found defendant guilty of the twenty-four counts charged against her. After merging several of those convictions, the trial court sentenced defendant to an aggregate term of 118 years to life imprisonment.

I. Use of Closed-Circuit Television Procedure

Defendant contends that the trial court violated her rights to be present at trial and to confront adverse witnesses as a result of the procedure it used to obtain the testimony of M.R. We conclude that reversal is not warranted.

Here, the prosecution moved, under the statutory provision currently codified at section 16-10-402, C.R.S.2008, to use a closed-circuit television procedure to allow ten-year-old M.R. to testify outside defendant's physical presence. Based on the testimony of a social worker, the trial court granted the prosecution's motion. Under the procedure adopted by the trial court, (1) M.R. testified in open court; (2) defendant watched M.R. testify via closed-circuit television from the judge's chambers; and (3) (as the court informed the jury) the trial could, on occasion, be suspended so counsel, who remained in the courtroom, could consult with defendant about M.R.'s testimony. The record reflects a recess was taken before defense counsel cross-examined M.R. to allow defendant and defense counsel to confer.

In the trial court, defense counsel expressed concern that (1) separating the witness from defendant in this manner would cause a prejudicial effect in the minds of the jury that would be difficult to overcome; (2) he would not be able to "get input from his client"; and (3) his being separated from defendant raised "constitutional problems" about his ability to simultaneously counsel her and assist in her defense. Defense counsel was noncommittal about whether, if a closed-circuit television procedure were utilized, the witness or defendant should remain in the courtroom.

The trial court considered defense counsel's comments as constituting an objection

209 P.3d 1156

to the use of closed-circuit television to obtain M.R.'s testimony. However, in our view, it is highly questionable whether those comments were sufficient to properly preserve for appellate review the claims defendant now makes on appeal.

The purpose of an objection is not only to express disagreement with a proposed course of action, but also to identify the grounds for disagreement. An objection must be specific enough to provide the trial court with a meaningful opportunity to prevent or correct error. See Vigil v. People, 134 Colo. 126, 129, 300 P.2d 545, 547 (1956); Borquez v. Robert C. Ozer, P.C., 923 P.2d 166, 171 (Colo.App.1995), aff'd in part and rev'd in part, 940 P.2d 371 (Colo.1997).

Here, it is not altogether evident that defense counsel's comments would have alerted the trial court or the prosecutor to the contentions she raises on appeal, that is, that the procedure used by the court violated her rights under the federal constitution or state statute to be present in court to confront M.R. face-to-face. Nonetheless, for purposes of resolving this issue, we will assume that those contentions have been properly preserved for review.

We do not, however, engage in the same assumption regarding those of defendant's arguments that are based on independent, state constitutional grounds. Where, as here, a defendant does not make a specific objection, with a separate argument, under the state constitution, we must presume the defendant's objections are based on federal, not state, constitutional grounds, and limit our review accordingly. Cf. People v. Gann, 724 P.2d 1318, 1320-21 (Colo.1986) (where defendant's motion to dismiss referred generally to "due process" and the district court failed to make any specific reference to the Colorado Constitution in its order of dismissal, appellate court must presume that both the motion and the lower court's ruling were based exclusively on federal constitutional standards).

A defendant has a federal constitutional right to confront adverse witnesses at trial. See U.S. Const. amend. VI. A defendant also has a closely related, but not identical, federal constitutional right to be present at critical stages of his or her trial. See United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (the "right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, but ... this right is [also] protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him" or her (citation omitted)).

Contrary to defendant's assertion, the federal constitution does not require that a defendant be allowed in all instances to confront an adverse witness face-to-face in court. In Maryland v. Craig, 497 U.S. 836, 855-56, 110 S.Ct. 3157, 3169, 111 L.Ed.2d 666 (1990), a closely divided Supreme Court upheld a defendant's sexual assault convictions despite the victims' having testified outside the defendant's presence via one-way, closed-circuit television. The Supreme Court reasoned that the "preference" for face-to-face confrontation "must occasionally give way to considerations of public policy and the necessities of the case." Id. at 848, 110 S.Ct. at 3165 (quoting Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895)).

In Craig, the Court recognized that a state's interest in protecting the physical and psychological well-being of child abuse victims could, in some cases, be sufficiently important to outweigh a defendant's right to be face-to-face with his or her accusers in court. Id. at 853-56, 110 S.Ct. at 3168-69. Such a case is presented when the trial court finds that (1) a special procedure is necessary to protect the welfare of the particular child witness; (2) the particular child witness would be traumatized by the presence of the defendant—not by the proceedings generally; and (3) the child witness will suffer more than de minimis emotional distress if forced to testify in the presence of the defendant. Id.

In Colorado, the General Assembly has enacted a statute, section 16-10-402 (formerly found at section 18-3-413.5, C.R.S.), representing its judgment as to how best, and under what circumstances, to accommodate

209 P.3d 1157

the public's interest in protecting testifying young child sex assault victims consistent with a defendant's right to confront adverse witnesses. See People v. Mosley, 167 P.3d 157, 161 (Colo.App.2007). Consistent with Craig, section 16-10-402 authorizes the use of closed-circuit television to obtain the live testimony of a sex assault victim who "at the time of trial [was] ... less than twelve years of age" when "the testimony by the witness in the courtroom and in the presence of the defendant would result in the witness suffering serious emotional distress or trauma such that the witness would not be able to reasonably communicate." § 16-10-402(1)(a)(II), C.R.S.2008.

Here, the trial court did not make any explicit findings regarding the impact on M.R. of her testifying in defendant's presence. However, in granting the motion, the court implicitly made the requisite determinations.

The record supports the trial court's decision. The social worker who provided therapy to M.R. opined that "it would re-traumatize [M.R.] greatly to testify ... in the physical presence of ... her mother." And, when asked by the court whether M.R.'s ability to communicate would be impaired if she were to testify in court, as opposed to through closed-circuit television, the social worker answered, "I believe as she's realized the enormity of what has happened, she has become more emotionally effected [sic] by reliving these events through discussion." Subsequently, the social worker added, "70 to 80% of the trauma would be associated with seeing her mother, having to testify in her mother's physical presence."

From this testimony, the trial court could reasonably have inferred that forcing an emotionally traumatized ten-year-old child to testify in front of her mother, who had repeatedly assisted in sexually abusing her, would cause her to be unable to reasonably communicate.

Defendant asserts, however, that the trial court did not use the precise closed-circuit television procedure prescribed by section 16-10-402. Although we agree, we conclude that, under the circumstances of this case, the error was harmless.


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