People v. Wilson

• Decision Date: 21 September 1992
• Docket Number: No. 91SC338,91SC338
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Norman Wayne WILSON, Respondent.
• Court: Colorado Supreme Court

Page 284

838 P.2d 284

The PEOPLE of the State of Colorado, Petitioner, v. Norman Wayne WILSON, Respondent.

No. 91SC338.

Supreme Court of Colorado,

En Banc.

Sept. 21, 1992.

As Modified on Denial of Rehearing Oct. 13, 1992.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., John J. Krause, Katherine M. Clark, Asst. Attys. Gen., Denver, for respondent.

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

Justice QUINN delivered the Opinion of the Court.

We granted the People's petition for certiorari to review the decision of the court of appeals in People v. Wilson, 821 P.2d 824 (Colo.App.1991), which reversed a judgment of conviction entered on jury verdicts finding the defendant, Norman Wayne Wilson, guilty of two counts of sexual assault on a child. In remanding the case for a new trial, the court of appeals held that the trial court committed plain error in violation of section 13-25-129(2), 6A C.R.S. (1987), when it failed sua sponte to instruct the jury contemporaneously with the admission of hearsay testimony of several witnesses concerning the child victims' out-of-court statements describing the sexual offense to them. A review of the record convinces us that the trial court's failure to give the cautionary instruction required by section 13-25-129(2) when each prosecution witness testified to the child victims' hearsay statements did not so undermine the fundamental fairness of the trial as to constitute plain error. We accordingly reverse the judgment of the court of appeals with respect to that issue. Because the court of appeals failed to consider other issues which the defendant raised in his appeal to that court, including the claim that the trial court failed to conduct an in limine hearing required by section 13-25-129(1)(a) on the reliability of the child victims' hearsay statements, we remand the case to the court of appeals for resolution of those issues.

I.

We deal with a plain-error issue, and a detailed summary of the evidentiary and procedural history of this case is necessary to place the issue before us in proper context. The defendant was charged by information with two counts of sexual assault on a child, stemming from incidents involving two victims. One of the victims was the defendant's stepson, J.N., and the other victim was the defendant's niece by marriage, J.D. The prosecution alleged that the date of the sexual assault on J.N. was between December 27, 1986, and January 4, 1987, and the date of the sexual assault involving J.D. occurred between October 10, 1984, and May 1985. J.N., who was thirteen years old at the time of trial, was eleven or twelve years old when the alleged assaults took place. J.D. was twelve years old at trial and eight or nine years old at the time of the alleged sexual assaults on her.

Pursuant to section 13-25-129(3), 6A C.R.S. (1987), the prosecution filed a pretrial notice of its intention to offer hearsay statements of the child victims into evidence during the trial through the testimony of several witnesses. The trial court, prior to the presentation of the prosecution's case, conducted a hearing for the purpose of determining the reliability of the hearsay testimony of one of the prosecution witnesses, Joann Sapp. At this hearing Ms. Sapp, who was J.N.'s special education teacher during the time in question, testified that throughout the week of January 5, 1987, J.N. was extremely disturbed, cried frequently, and acted as if he wanted to talk to her about something. On Friday of that week Ms. Sapp finally asked J.N. if someone was having sex with him. J.N. responded to that question by telling Ms. Sapp that every weekend "old Wilson" forces him to commit fellatio and uses a vibrator on him. ¹ The trial court ruled that J.N.'s statement qualified for admission under section 13-25-129(1)(a). ² The prosecution, however, did not present evidence relating to any other hearsay statements of the child victims, and consequently the trial court made no ruling on whether "the time, content, and circumstances" of those other hearsay statements provided "sufficient safeguards of reliability" as required by section 13-25-129(1)(a).

Ms. Sapp was the first prosecution witness to testify at trial. Immediately prior to her testimony regarding J.N.'s statement to her, the trial court instructed the jury as follows:

The conversation I would indicate, ladies and gentlemen, that you are going to be hearing is a statement made by the child [J.N.] to this particular witness. It is my duty to instruct you that it is the duty of the jury to determine the weight and credit to be given the statement you are about to hear; that in making that determination that you shall consider the age and the maturity of the child, nature of the statement, the circumstances under which the statement was made, and any other factor that you consider to be relevant.

Ms. Sapp then recounted before the jury J.N.'s statement to her. On cross-examination of Ms. Sapp, the defense elicited testimony indicating that J.N. was a disturbed child. The defense offered and the court admitted into evidence J.N.'s school records showing that J.N. was a seriously maladjusted boy with emotional disorders that predated the defendant's relationship with J.N.'s mother. The defense also elicited testimony from Ms. Sapp that J.N. had lied to her about a previous incident involving the defendant, in which J.N. claimed that the defendant had kicked him in the head. According to Ms. Sapp, J.N. later recanted this story and stated to her, "I hate old Wilson so much I just wanted to get him in trouble."

Both J.N. and J.D. testified at trial. J.N. testified that the defendant, on several weekends, forced him to engage in oral sex and simulated sexual intercourse with him. J.N. further testified that he told no one except J.D., his cousin, of these incidents until January 2, 1987, when he told a schoolmate, who urged him to tell an adult. One week later J.N. told Ms. Sapp of his problem and also several other persons. J.D. testified at trial that the defendant fondled her chest several times and on one occasion forced her to take off her clothes and lay on top of the defendant while he simulated sexual intercourse.

The prosecution called six other witnesses who testified in varying degrees to statements made to them by J.N. and J.D. Five of those witnesses had been listed on the prosecution's pretrial notice of intent to offer at trial hearsay evidence of the child victims' out-of-court statements. The defense made no objection to these statements, and the trial court did not conduct a hearing outside the presence of the jury on the admissibility of the statements.

One of these witnesses was Doctor Geoffrey Heron, a psychiatrist who treated J.N. in the hospital in July 1987, after J.N. tried to commit suicide by attempting to throw himself out of a moving car. The doctor, in the course of his testimony, briefly stated that J.N. "told me that he had been sexually abused and that he was having flashbacks about this experience." The doctor made only one other reference during his direct examination to the fact that J.N. had told him that he had been sexually abused. The defendant did not request nor did the trial court give the jury a cautionary instruction on Doctor Heron's hearsay testimony.

J.N.'s schoolmate, who was thirteen years old at the time of the trial, testified that J.N. had told him about the defendant's sexual assaults in early January 1987. The schoolmate's hearsay testimony basically consisted of J.N.'s statement to him that the defendant "made him suck his penis" and was trying to have sex with J.D. No cautionary instruction was requested or given during the schoolmate's testimony.

A clinical psychologist, Doctor Robert Pelc, testified about his examination of J.D. in 1987. The purpose of the doctor's examination was to evaluate whether J.D. manifested the characteristics usually associated with sexually abused children. The doctor stated that he did not attempt to investigate what might have occurred between J.D. and the defendant, but was primarily interested in evaluating J.D.'s mental status. In the course of his testimony, Doctor Pelc stated that on one occasion J.D. said that she had been "touched" by the defendant. Again, no cautionary instruction was either requested or given in connection with the doctor's passing reference to J.D.'s statement.

The prosecution also called J.N.'s mother. The mother stated that she was present at the Thornton police station on January 9, 1987, when J.N. told Detective Richard Martin that "Mr. Wilson had pulled him in on Saturday mornings and told him to undress, perform oral sex on him, and to kiss him on the lips and lay on top of him and to put his penis in between ... his legs and rub up and down." No cautionary instruction was requested or given during Ms. Wilson's hearsay testimony.

An Adams County social services worker, Patricia Berdiales, was also present at the police station and testified to a statement made by J.D. at that time. Ms. Berdiales testified that in response to general questions about problems in the home, J.D. stated:

She said when she was in the third grade, sometime shortly after school started, that Mr. Wilson had asked her to go into his bedroom and that he had asked her to kiss him. The incident then evolved into his asking her to lie on top of him, which she refused to do. He then got her onto the bed and laid on top of her. She then described that he had sex with her and I said, "Tell me what you mean by having sex with somebody," and she said, "Well, all of our body parts were touching except our faces," and I said, "I'm still not real sure about what you mean. What would have happened if you weren't having sex? Tell me more about it," and she indicated sh...