People v. Rollins

Decision Date20 March 1995
Docket NumberNo. 93SC682,93SC682
Citation892 P.2d 866
PartiesThe PEOPLE of the State of Colorado, Petitioner, v. Marvin Andrew ROLLINS, Respondent.
CourtColorado Supreme Court

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Atty. Gen., Eric V. Field, Asst. Atty. Gen., Criminal Enforcement Section, Denver, for petitioner.

David F. Vela, Colo. State Public Defender, Beth L. Krulewitch, Deputy State Public Defender, Denver, for respondent.

Justice ERICKSON delivered the Opinion of the Court.

We granted the prosecution's petition for certiorari to review People v. Rollins, No. 91CA1985 (Colo.App. Aug. 19, 1993) (not selected for official publication). 1 The court of appeals ordered a new trial. We reverse and remand this case to the court of appeals with directions to vacate the order for a new trial and to reinstate the judgment of conviction and sentence imposed by the trial court.

I

The respondent, Marvin Andrew Rollins (defendant), was charged with sexual assault on a child pursuant to section 18-3-405, 8B C.R.S. (1986 & 1994 Supp.). 2 The information filed on June 20, 1989, alleged that the defendant sexually assaulted T.B., who was ten-years old at the time of the assault. A second information, filed on July 6, 1989, charged the defendant with sexually assaulting T.K., who was twelve-years old at the time of the assault.

In pretrial proceedings in both cases, the prosecution moved to introduce evidence of the defendant's sexual assault against T.K. in T.B.'s trial and the defendant's sexual assault against T.B. in T.K.'s trial. The prosecution sought to introduce this evidence as similar transaction evidence pursuant to CRE 404(b) and section 16-10-301, 8A C.R.S. (1986 & 1994 Supp.), for the limited purpose of proving identity, modus operandi, intent, absence of mistake or accident, or knowledge. 3 The trial court conducted a hearing on the prosecution's motion. The defense's theory of the case was that T.B. and T.K. fabricated the charges and that sexual assaults did not occur. At the conclusion of the hearing, the trial court ruled that the similar acts evidence relating to the sexual assault on T.K. would not be admissible in T.B.'s case because the evidence was more prejudicial than probative under CRE 403. The court stated that it would confront the similar transaction evidence associated with T.K.'s case at a later date since the prosecution was going to trial first in T.B.'s case.

New defense counsel was appointed at the defendant's request, and on July 25, 1991, defense counsel filed a motion to consolidate the charges for trial. The prosecution did not oppose the motion, but stated that there had not been a hearing on the hearsay testimony of prosecution witnesses who were witnesses to statements made by T.K. 4 The defendant's new counsel waived objection to the admission of the hearsay statements. The motion for consolidation was granted on August 12, 1991, the date set for the trial of the charges made by T.B. The issue of the admissibility of similar transaction evidence in the consolidated trial was not raised and no objection was made by defense counsel at anytime before or during the trial.

At the consolidated trial, defense counsel, in his opening statement, outlined his trial strategy and described an uncharged incident of sexual assault by the defendant against T.K. In his opening statement, defense counsel said:

You will hear that [T.B.] has made three prior allegations of sexual abuse, one at age five, one at age seven and one at age eight. One of them had to do with a Bryce, a person by the name of Bryce who was her great aunt's live-in boyfriend who tried to touch her and she pretended to sleep and roll over and that purportedly happened in New York. The second time was at age seven when a babysitter at age 40 allegedly fondled her in Alabama. And the third one was at age eight when an Uncle Charley--we have no details, she's somewhat evasive about it, but apparently he rubbed her butt according to her. Now, those things are of interest not only because of them being prior accusations of some kind of sexual abuse but for another reason and we will point this out during the trial and you'll hear it during the trial because it relates to [T.K.].

[T.K.] will probably testify, if she does not she has previously said that at one point [the defendant] tried to get in her shorts one night when she was sleeping in bed and she avoided it by rolling over like Bryce. She has further alleged that in June of 1988 and October of 1988 on two occasions a boy at school tried to force her to have oral intercourse, much like the statement made by [T.B.] in regard to [the defendant]. And you will see the parallels run between the statements of [T.K.] and [T.B.] and how they cross over and become intermingled in this entire web that occurs and brought about the filing of the case.

After the opening statements, the jurors were excused from the courtroom and a record was made on the admissibility of evidence of the victims' prior sexual conduct:

[PROSECUTING ATTORNEY]: ... I think 18-3-407 5 is extremely specific on what it says the evidence of specific instances ... is not relevant unless ... certain procedures [are] followed, the written motion with the affidavit, whether it's going to be used to show her credibility which is one of the things it actually goes into. Even in case law that has come out of 18-3-407, the credibility of the witness, whether she knew about sexual things or not from these prior accusations or actual touches or not, it is still something that comes under 18-3-407. That is extremely specific in that there has to be a hearing beforehand with a ruling on whether that can be brought into the courtroom in front of a jury in particular. And that's my main objection, that the procedure wasn't followed and all of a sudden it's being talked about that it certainly goes towards that it's accusations. I mean I think even in opening statement she's been touched she says by all these three people. I certainly can't retry those if they, you know--some of them weren't even ever given to the Department of Social Services. So it certainly is going to appear like they may have been false accusations and I think that's what the statute goes to....

....

[DEFENSE COUNSEL]: I think, Your Honor, when we look at the entire perspective of the case, especially as it relates to the interrelationship between [T.K.], the crossing over of stories that we believe will be shown, ... my effort would be to attempt to show that [T.K.] was aware of the allegation made by [T.B.] that she had been asleep at one point and had rolled over, at least made that accusation. That is a mirror image practically of something that [T.K.] says about [the] defendant. [T.K.] says that ... in June and I believe October of 1988 that a young man tried to get her to perform oral sex upon him. That allegation from [T.K.] becomes important because this is essentially the allegation being made by [T.B.]. And what I want to explore on cross-examination is the extent to which these children shared this information between them because I think that brings into question the credibility of each of those particular stories as it relates to those two particular kind of allegations.

....

THE COURT: [The purpose of introducing evidence of uncharged acts] is to show a sharing of knowledge of each other's prior alleged sexual contacts.

[DEFENSE COUNSEL]: A sharing of--a sharing of information or stories, true or false, Your Honor.... I certainly should be permitted to explore the basis by which they reached these stories and to show the interrelationship between the two girls as to the nature of those two stories.... [T]hey essentially adopt each other's stories to that extent.

....

THE COURT: ... I'm satisfied that the testimony which [defense counsel] seeks to elicit from either an independent witness to whom either or both of the children may have spoken or from the children themselves is based upon an independent belief from the evidence and/or from the discovery that [defense counsel] has that he may ask the questions and may get a positive answer with regard to statements that were made by the children either to each other or to a therapist, that the statements fall outside the scope of 18-3-407 in that they are not allegations which are enumerated in the statute and that a limiting instruction is appropriate. I'm going to limit the jury's consideration to the purposes [defense counsel] has stated, first, to either witness's knowledge of sexual matters and, second, to a sharing of any information between the two. And I'll give them a cautionary instruction now before we begin the testimony and I'll also tell them that I'm going to give them a written Instruction which limits them. It will not only tell them what they can use the information for but what they can't use it for and that is in any way to consider whether or not the allegations made were true.... And obviously [the prosecution's] objection is noted for the record....

After the jury returned to the courtroom, the trial judge gave the jurors the following limiting instruction:

[Defense counsel] in his opening statement referred to some allegations by one or both of the alleged victims in this case concerning prior sexual contact not involving any allegations against [the defendant]. I'm going to admit the testimony concerning those allegations for a limited purpose only and there are two purposes for which I'm admitting it. First, is to show either of the witnesses' knowledge of sexual matters in general and, second, is to show any sharing of information which might have taken place between these two alleged victims and for no other purposes than those two purposes.

T.B. testified...

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