People v. Rogers, No. 88CA0920

Docket NºNo. 88CA0920
Citation800 P.2d 1327
Case DateApril 05, 1990
CourtCourt of Appeals of Colorado

Page 1327

800 P.2d 1327
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Thomas ROGERS, Defendant-Appellant.
No. 88CA0920.
Colorado Court of Appeals,
Div. I.
April 5, 1990.
Rehearing Denied May 31, 1990.
Certiorari Denied Dec. 10, 1990.

Page 1328

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Robert M. Russel, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, and Thomas M. Van Cleave, III, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge PIERCE.

The defendant, Thomas Rogers, appeals a judgment of conviction entered on a jury verdict finding him guilty of sexual assault on a child. We reverse and remand.

I.

What we perceive to be the defendant's principal contention of error is that the trial court erred in personally escorting the child victim to and from the witness stand. He argues that the trial court's action deprived him of a fair trial by improperly bolstering the child's credibility. We agree that these actions constituted error.

As a preliminary matter we point out that, before any evidence was received, the following colloquy between defense counsel and the court occurred:

"COUNSEL: Now, Your Honor, at some point today, the People are going to call the child and I understand the Court has special procedures for the child, although I've never been here for them. I understand the child sits in a special seat and that we will question while sitting down, and that ordinarily it's your custom to escort the child personally to her chair?

"THE COURT: Well, usually I meet the child when she's coming through the gate and bring her over and have her sit down, do the swearing--well, such as it is--there, and then I have a staff person sit next to her, who used to have a microphone. I don't know if we have a microphone that will reach anymore, just in case the child's voice doesn't carry, and a glass of water, whatever.

"COUNSEL: Sure. Could you have one of your staff people rather than you walk her to the chair? Would the court consider this?

"THE COURT: No."

A trial court may not express to a jury any personal opinion of the credibility of testimony. People v. Martinez, 652 P.2d 174 (Colo.App.1981). It is particularly important in a case such as this, in which the credibility of a child witness is the crucial issue, that the judge avoid any statement or action that could be construed by a juror as an endorsement of the child's credibility.

Although child witnesses must be protected against undue embarrassment, trial courts should scrupulously avoid taking actions that might give an appearance of partiality. See LaChappelle v. Moran, 699 F.2d 560 (1st Cir.1983). The court must be free of even the appearance of bias and partiality. See People v. Hrapski, 718 P.2d 1050 (Colo.1986); People v. District Court, 192 Colo. 503, 560 P.2d 828 (Colo.1977).

Just as a trial court's statement may be an improper comment on credibility, see State v. Suttles, 767 S.W.2d 403 (Tenn.1989) (a trial court's actions towards a child victim may constitute an improper comment on the child's credibility); State v. Cook, 485 So.2d 606 (La.App.1986) (rewarding child victim with candy in presence of jury after conclusion of testimony was reversible error).

Page 1329

Based on these considerations, we believe that the jury in this case could have perceived the trial court's action as an endorsement of the child's credibility, thus impinging upon the defendant's right to a fair trial. See People v. Martinez, supra.

We do not question the appropriateness of the motivation of the trial judge here, or the desirability of the effect which she hoped to achieve. However, there are alternatives that can facilitate the testimony of child witnesses and at the same time minimize the adverse effects upon the child without leaving open the possibility of misinterpretation by the jurors of the judge's actions. A victim witness advocate, a specially trained member of the court staff, or the prosecutor could escort the child to the witness stand in order to make the witness more comfortable. Other neutral means of making a child more at ease in testifying have been suggested. See Garnett, Children as Witnesses: Competency and Rules Favoring Their Testimony, 12 Colo. Law 1982 (December 1983); Ginkowski, The Abused Child: The Prosecutor's Terrifying Nightmare, 1 Criminal Justice 30 (Spring 1986); Whitcomb, Child Victims in Court: The Limits of...

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11 practice notes
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...testified as a lay witness that the victim's reactions were very 231 P.3d 43 consistent with her being a rape victim); People v. Rogers, 800 P.2d 1327, 1330 (Colo.App.1990) (permitting a detective to testify under CRE 701 about the range of responses and demeanor demonstrated by child sexua......
  • People v. Whitman, No. 04CA1428.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 29, 2007
    ...or a specially trained member of the court staff may assist a child witness who is uncomfortable testifying in court. People v. Rogers, 800 P.2d 1327, 1329 (Colo.App.1990). Other states permit child witnesses to have another person present near the witness for emotional support during the w......
  • Evans v. State, No. 26679
    • United States
    • Nevada Supreme Court of Nevada
    • October 22, 1996
    ...inquiry is whether the show of emotion by the judge influenced the jury in a manner that was prejudicial to Evans. Cf. People v. Rogers, 800 P.2d 1327 (Colo.Ct.App.1990) (reversible error for trial judge to escort child-victim to and from witness stand in a prosecution for sexual assault be......
  • People v. Tillery, Court of Appeals No. 06CA1853 (Colo. App. 10/1/2009), No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 1, 2009
    ...properly testified as a lay witness that the victim's reactions were very consistent with her being a rape victim); People v. Rogers, 800 P.2d 1327, 1330 (Colo. App. 1990) (permitting a detective to testify under CRE 701 about the range of responses and demeanor demonstrated by child sexual......
  • Request a trial to view additional results
11 cases
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...testified as a lay witness that the victim's reactions were very 231 P.3d 43 consistent with her being a rape victim); People v. Rogers, 800 P.2d 1327, 1330 (Colo.App.1990) (permitting a detective to testify under CRE 701 about the range of responses and demeanor demonstrated by child sexua......
  • People v. Whitman, No. 04CA1428.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 29, 2007
    ...or a specially trained member of the court staff may assist a child witness who is uncomfortable testifying in court. People v. Rogers, 800 P.2d 1327, 1329 (Colo.App.1990). Other states permit child witnesses to have another person present near the witness for emotional support during the w......
  • Evans v. State, No. 26679
    • United States
    • Nevada Supreme Court of Nevada
    • October 22, 1996
    ...inquiry is whether the show of emotion by the judge influenced the jury in a manner that was prejudicial to Evans. Cf. People v. Rogers, 800 P.2d 1327 (Colo.Ct.App.1990) (reversible error for trial judge to escort child-victim to and from witness stand in a prosecution for sexual assault be......
  • People v. Tillery, Court of Appeals No. 06CA1853 (Colo. App. 10/1/2009), No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • October 1, 2009
    ...properly testified as a lay witness that the victim's reactions were very consistent with her being a rape victim); People v. Rogers, 800 P.2d 1327, 1330 (Colo. App. 1990) (permitting a detective to testify under CRE 701 about the range of responses and demeanor demonstrated by child sexual......
  • Request a trial to view additional results

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