People v. Wittrein, No. 08SC588.

• Docket Nº: No. 08SC588.
• Citation: 221 P.3d 1076
• Case Date: December 14, 2009
• Court: Supreme Court of Colorado

221 P.3d 1076 The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent
v.
David Arthur WITTREIN, Respondent/Cross-Petitioner. No. 08SC588. Supreme Court of Colorado, En Banc. December 14, 2009. Rehearing Denied January 11, 2010.^*

[221 P.3d 1078]

John W. Suthers, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, Attorneys for Petitioner/Cross-Respondent.

Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy Colorado State Public Defender, Denver, Colorado, Attorneys for Respondent/Cross-Petitioner.

Justice RICE delivered the Opinion of the Court.

I. Introduction

The People appeal the decision of the court of appeals in People v. Wittrein, 198 P.3d 1237 (Colo.App.2008), reversing the defendant's convictions and remanding the case to the trial court for a new trial. We reverse and remand the case to the court of appeals for consideration of the defendant's other arguments raised, but not yet resolved, in his original appeal.

The defendant, David Arthur Wittrein, was charged and convicted of nineteen counts of sexual assault on a child by one in a position of trust as part of a pattern of abuse, and one count each of sexual assault on a child by one in a position of trust, enticement of a child, sexual assault on a child, and indecent exposure. The court of appeals reversed Wittrein's convictions, holding that the trial court erred in conducting a competency proceeding for the child victim, K.H., in front of the jury, and in admitting certain expert

221 P.3d 1079

testimony purportedly offering an opinion on K.H.'s truthfulness. The court of appeals also affirmed the trial court's refusal to conduct an in camera review of K.H.'s mental health records, basing this determination on its own in camera review. Finally, the court of appeals held that the trial court should have conducted a balancing test to determine whether K.H.'s education records could be reviewed in camera but that Wittrein had not established a sufficient need for the information at trial and, therefore, the error was harmless.

The People now appeal the decision of the court of appeals, arguing that the trial court properly conducted the competency proceeding in front of the jury and that the challenged expert testimony was admissible. Wittrein cross-appeals, arguing that the court of appeals applied an incorrect standard when it reviewed K.H.'s mental health records in camera. Wittrein also renews his argument that the trial court should have conducted an in camera review of K.H.'s education records.

These issues present distinct problems, and for that reason we will address each issue individually. First, we hold that it was not reversible error for the trial court to conduct K.H.'s competency proceeding in front of the jury but that by far the better practice is to hold child competency proceedings outside the jury's presence. Second, we find that the challenged expert testimony on cross-examination was inadmissible but that the error was invited by defense counsel. Third, we hold that K.H. did not waive her psychologist-patient privilege with regard to her mental health records; therefore the trial court and the court of appeals were precluded from reviewing them in camera. Finally, we hold that, contrary to the trial court's position, education records may be reviewed in camera if the defendant shows a need for the information that outweighs any privacy interests. Here, however, K.H.'s education records did not relate to any evidence presented at trial; thus the trial court's refusal to review them in camera was harmless. Accordingly, we remand the case to the court of appeals to consider Wittrein's additional appellate arguments not yet addressed by that court.

II. Competency Proceeding

Wittrein argues that the trial court erred in conducting K.H.'s competency proceeding in front of the jury. We disagree. K.H. was nine years old at the time of the trial. Under Colorado law, the trial court must determine whether a witness under ten is competent to testify. § 13-90-106(1)(b)(II), C.R.S. (2009). This requires a court finding that the child witness is "able to describe or relate in language appropriate for a child of that age the events or facts respecting which the child is examined." Id. Whether a child is competent to testify is addressed to the trial court's discretion. See Harris v. People, 174 Colo. 483, 490, 484 P.2d 1223, 1226 (1971).

Prior to trial, Wittrein objected to holding K.H.'s competency proceeding in front of the jury, and he renewed this objection at trial. The trial court held that it was permissible for K.H.'s competency questioning to be held in front of the jury but elected to excuse the jury during the judge's ruling that K.H. was competent to testify. During the competency questioning, the prosecutor first asked K.H. her name and age, then questioned her about school, her teacher, and her favorite subjects. The prosecutor then asked:

Q: Do you understand the difference between telling the truth and telling a lie?

A: Yes.

Q: Is it a good thing or bad thing to tell the truth?

A: It's a good thing.

Q: If I were to tell you that my shirt was green, would that be the truth or would that be a lie?

A: A lie.

Q: Do you understand that the judge is going to ask you to take an oath in this courtroom to tell the truth?

A: No.

Q: Did you know that?

A: No.

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Q: If he asks you to take an oath to tell the truth in this courtroom, what does that mean?

A: I don't know.

Q: If he asks you to tell the truth, do you know what that means?

A: Yes.

Q: And will you be able to tell the truth in this courtroom?

A: Yes.

On appeal, Wittrein argued that the questioning resulted in prejudice and was an error that required reversal of his convictions. He believed that conducting K.H.'s competency proceeding in front of the jury was impermissible bolstering and that the jury confused a finding of competency with the judge's endorsement of K.H.'s credibility. The court of appeals agreed and apparently adopted a per se rule that child competency proceedings can never be held in front of a jury.¹ We disagree with the court of appeals and hold that there is no per se rule against conducting child competency proceedings in front of the jury, but by far the better practice is to excuse the jury.

Although some preliminary matters are required by rule to be conducted outside the presence of the jury, the competency of a child witness is not one of them. See CRE 104. Instead, the competency of a child witness falls under the blanket rule that preliminary matters should be conducted outside the presence of the jury when "the interests of justice require." CRE 104(c).

No prior Colorado case has addressed whether "the interests of justice" require child competency proceedings to be conducted outside of the jury's presence; thus this is a question of first impression for this court. Although we agree with several other jurisdictions that by far the better practice is to hold child competency proceedings outside the presence of the jury,² thereby minimizing the danger of unfair prejudice resulting from the child's responses to the competency questions, this does not mean that the interests of justice dictate that such questioning may never be held with the jury present. If the trial court decides to hold a child competency proceeding in the presence of the jury, then it bears the risk that the defendant will be prejudiced to a degree that requires reversal on appeal. Furthermore, if competency questioning is conducted in front of the jury, then a limiting instruction is most likely necessary to minimize jury confusion.³

The court of appeals cited to cases from other jurisdictions to support its per se rule, but only one was in accord with the court of appeals' holding. In Commonwealth v. Washington, the Pennsylvania Supreme Court adopted a per se rule for child competency hearings. 554 Pa. 559, 722 A.2d 643, 647 (1998). But even the Pennsylvania court noted that it was going "a step further than [its] sister jurisdictions" in creating a per se rule, and we have found no other jurisdiction that has a similarly stringent rule. Id. The other cases cited by the court of appeals simply do not support a per se rule. See Commonwealth v. Tatisos, 238 Mass. 322, 130 N.E. 495, 498 (1921) (holding that there

221 P.3d 1081

was no error when a child was examined for competency outside the presence of the jury); State v. Tandy, 401 S.W.2d 409, 413 (Mo. 1966) (not adopting a per se rule, but holding that the better practice is for competency proceedings to be conducted outside the jury's presence); Cross v. Commonwealth, 192 Va. 249, 64 S.E.2d 727, 730 (1951) (approving of a competency hearing that was held outside the jury's presence but without discussing whether the hearing could have been conducted otherwise). Therefore, we do not find these cases to be helpful or instructive for our determination today.

In this case, even though the better approach would have been to hold K.H.'s competency proceeding without the jury present, any prejudice to Wittrein does not rise to the level of reversible error. The prosecutor asked K.H. simple questions that directly related to her ability to be truthful and to relate facts to the jury. The jury was not told the purpose of the testimony and was excused before the trial judge ruled on K.H.'s competency. Therefore, we find Wittrein's claims of prejudice to be unwarranted based on the limited questioning that occurred.

Accordingly, we reject a per se rule for conducting child competency hearings outside the presence of the jury and find that Wittrein was not prejudiced to a degree requiring reversal of his convictions.

III. Expert Testimony

At trial, the People presented a child psychiatrist, Dr. Harriet Stern, to testify as an expert witness regarding K.H.'s reports of abuse and about the results of K.H.'s psychiatric tests. Dr....