People v. Vialpando, 88CA0661

• Decision Date: 28 June 1990
• Docket Number: No. 88CA0661,88CA0661
• Citation: 804 P.2d 219
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Timothy VIALPANDO, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 219

804 P.2d 219

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Timothy VIALPANDO, Defendant-Appellant.

No. 88CA0661.

Colorado Court of Appeals Div. II.

June 28, 1990.

Rehearing Denied July 26, 1990.

Certiorari Denied Jan. 28, 1991.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John J. Krause, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Terri L. Brake, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge PLANK.

Defendant, Timothy Vialpando, appeals from the judgment entered on jury verdicts finding him guilty of sexual assault on a child and adjudicating him as an habitual criminal. We affirm.

According to the prosecution's evidence, on October 31, 1986, the 14-year-old victim was babysitting at the home of a neighbor. While watching the three children, the neighbor's boyfriend, defendant, came to the door, was admitted into the house, and eventually sexually assaulted the victim.

I.

Defendant's initial contention is that the trial court's failure to record bench conferences constitutes reversible error. We disagree.

This case was tried prior to our supreme court's holding in Jones v. District Court, 780 P.2d 526 (Colo.1989) which is now controlling. In Jones, the court held that a judge may not conduct bench or side-bar conferences off-the-record unless the parties so request or consent. The court further stated:

"We do not hold, however, that failure to record all trial proceedings will always result in reversible error. Any such claim of error may or may not be harmless error under the facts and circumstances in a particular case."

The standard for determining harmless error is whether the error, defect, irregularity, or variance affected substantial rights of the defendant. Crim.P. 52(a).

Here, there were thirteen bench conferences held off-the-record. Four discussions concerned the effect of the Rape Shield Statute. These conferences involved previously ruled on matters regarding the extent to which particular witnesses could be questioned and the defense's ability to make offers of proof. In three instances, bench conferences were requested by the prosecution prior to dismissing the witness. Two discussions occurred prior to short recesses as another jury in deliberation posed questions to this trial court. Another discussion was held after identification of an exhibit prior to its admittance. In one instance the parties approached the bench to discuss an objection regarding the form and substance of defense counsel's line of questioning. After this discussion, questioning resumed in the same manner as prior to the bench conference.

The prosecution also requested a bench conference regarding calling a witness out of order. Lastly, a bench conference was conducted to determine the amount of evidence remaining to be presented. Afterwards, the court called recess for the afternoon.

The record contains sufficient colloquy between court and counsel enabling this court to consider the legal issues raised by the defendant. After reviewing the record and circumstances both prior to and after the bench conferences, we conclude that the defendant's assertions of error are ascertainable from the existing record. Thus, we deem the failure to record all bench conferences in this instance to be harmless. See Jones, supra.

II.

The defendant next contends that he was prejudiced by the trial court's failure to allow defense counsel an adequate opportunity to make contemporaneous objections and offers of proof and by disallowing questions or examination by defense counsel. The defendant claims that the cumulative effect of such actions was to deny him a fair trial. We disagree.

In reviewing the record, we conclude that the trial court acted properly and did not abandon its judicial role. The challenged incidents concerned instances in which the trial court would not allow defense counsel to proceed with a line of questioning ruled on in pretrial motions and hearings.

As to defendant's claim that he was not allowed to make an adequate record, we find no merit in this assertion. The record reflects that the trial court gave defense counsel opportunities to make offers of proof as to potential evidence; however, counsel was unable to make adequate offers of proof.

The purpose of a contemporaneous record is to aid appellate courts and to alleviate disputes as to the specific grounds asserted for error. See Jones, supra. We conclude that the defendant was not prejudiced because the trial court's rulings asserted to be error are easily discernible from the record.

III.

The defendant next contends that the trial court improperly prohibited the defense from presenting testimony which was critical to the victim's credibility. We disagree.

A.

Defendant filed a pretrial motion requesting permission to offer certain evidence affecting victim's credibility. The trial court granted defendant's request by stating that: "Evidence not allowed in people's case-in-chief may be allowed in defendant's case." However, defendant does not cite a single instance in which he was denied the opportunity to impeach the victim's credibility. In fact, a lengthy cross-examination was conducted regarding a witness' opinion as to victim's truthfulness and credibility. Thus, the defendant was not prejudiced by the trial court in this regard.

B.

Defendant also asserts that he was prohibited from extensively cross-examining the victim as well as from making an offer of proof.

Defense counsel may not properly propound to a witness questions which can cause a doubt in the jury's mind as to the witness' credibility when there is no reasonable basis in fact for that interrogation. See People v. Simbolo, 188 Colo. 49, 532 P.2d 962 (1975); § 18-3-407, C.R.S. (1986 Repl.Vol. 8B).

Here, defense counsel asked the victim several questions, some of which were based on information not in evidence. Upon the prosecution's objections, and defense counsel's inability to make an offer of proof, the defense changed its line of questioning. Eventually defense counsel voluntarily ceased questioning the victim and reported to the court, "Your honor, the rest of my questions I will not ask, pursuant to the court's order." The trial court responded, "You do not have an offer of proof on them, is that correct?" Defense counsel replied, "That's correct, your honor, because I don't know what the answer is."

In light of this discussion, we conclude that the defendant was not prejudiced by the trial court's limitation of cross-examination. See People v. Deeds, 712 P.2d 1055 (Colo.App.1985), aff'd, 747 P.2d 1266 (Colo.1987).

C.

Defendant next contends that he was precluded from having a witness identify another male who allegedly had sexual relations with the victim near the date of the sexual assault.

The defendant claims that this testimony was relevant and admissible for purposes of impeaching the victim's prior testimony. However, after reviewing the record, we conclude that the trial did not commit reversible error by disallowing extensive testimony on this subject.

Defendant was given the opportunity to lead the witness directing his attention to events surrounding October 31, 1986, the date of the sexual assault. However, the trial court refused to permit defense counsel to name the male the victim allegedly had relations with some days prior to the assault.

The trial court summarized to defense counsel:

"That is a violation, in my opinion, of the Rape Shield Statute. You did not file anything about this, and had you been able to tie this alleged sexual intercourse into the injuries, you wouldn't have a problem under the Rape Shield Statute...."

Defense counsel asserted the relevance of this sexual relationship because the victim had told her treating physician that she had not had intercourse prior to the date of the offense. The trial court found no such relevance.

We conclude, that based on the requirements of both CRE 403 and § 18-3-407, C.R.S. (1986 Repl.Vol. 8B), defendant did not establish that he was entitled to elicit the name of the male whom the victim allegedly had intercourse with days before the date of the sexual assault.

IV.

The defendant next asserts that the trial court erred by improperly prohibiting defense counsel from cross-examining a medical expert on the strength of his opinion. We disagree.

The expert opined on direct examination that the bruises the victim sustained were consistent with forced intercourse.

On the initial cross-examination, defense counsel extensively questioned the expert on the strength of his opinion.

No new issues were raised during redirect-examination. Accordingly, the trial court was not required to grant the defense an opportunity to recross-examine the witness.

Nevertheless, defense counsel was allowed a second cross-examination. However, the trial court limited counsel's questions regarding the strength of the expert's opinion since that issue had already been covered extensively in the initial cross-examination. Defense counsel had an ample opportunity for comprehensive cross-examination of this witness and the limitation imposed during the second cross-examination was not error.

V.

The defendant next asserts the trial court erroneously admitted the testimony of an incompetent child. We disagree.

Section 13-90-106(1)(b)(I), C.R.S. (1987 Repl.Vol. 6A) provides that children under ten are precluded from testifying only when they "appear incapable of receiving just impressions of the facts respecting which they are examined or of relating them truly."

The determination as to the competency of a child to testify is within the sound discretion of the trial court. See People v. Hise, 738 P.2d 13 (Colo.App.1986); People v. Lancaster, 43 Colo.App. 328, 605 P.2d 67 (1979), aff'd, 200 Colo. 448, 615 P.2d 720 (1980). The trial court's determination will...