Thomas v. People, 89SC25

Decision Date09 October 1990
Docket NumberNo. 89SC25,89SC25
Citation803 P.2d 144
PartiesMack Willie THOMAS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
CourtColorado Supreme Court

David F. Vela, Colorado State Public Defender, Jaydee K. Bachman, Deputy State Public Defender, Greeley, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for respondent.

Justice LOHR delivered the Opinion of the Court.

We granted certiorari to review the Colorado Court of Appeals' judgment in People v. Thomas, 770 P.2d 1324 (Colo.App.1988). The defendant, Mack Willie Thomas, was convicted of two counts of sexual assault on a child, § 18-3-405, 8B C.R.S. (1986). On appeal to the court of appeals, he challenged the admission of videotaped depositions of two child victims pursuant to section 18-3-413, 8B C.R.S. (1986), and contended that his due process rights were denied by the failure of the prosecution to elect a specific incident of alleged sexual assault as the basis for each of the charges against him. The court of appeals found no error in the trial court's ruling that the prosecution was not required to elect a specific incident. The court of appeals remanded the case to the trial court, however, for further findings regarding the unavailability of the child witnesses in order to establish whether the videotapes were admissible under section 18-3-413. We hold that in the absence of an election by the prosecution, the court should have instructed the jury more specifically on the need for unanimity concerning the incident or incidents relied on, but conclude that, in this case, failure to instruct in further detail was harmless error. We also conclude that further findings regarding the children's unavailability are unnecessary because the trial court's findings are adequate and supported by the record. We therefore affirm the judgment in part, reverse it in part, and remand the case to the court of appeals with directions to reinstate the trial court's judgment of conviction.

I.

The jury found Thomas guilty of two counts of sexual assault on a child, § 18-3-405, 8B C.R.S. (1986). The first count alleged that Thomas assaulted his daughter, L.T., between the dates October 1, 1984, and September 30, 1985. L.T. was born on September 28, 1981, and so was three years old during most of the time in question. The second count alleged that Thomas assaulted a neighbor boy, J.P., between the dates July 1, 1984, and September 30, 1985. J.P. was born March 12, 1980, and therefore was four and five years old during the period covered by the charge.

Between August 1980 and July 11, 1985, Thomas resided at 109 Bass Circle, Lafayette, Colorado, with his then wife Susan Frey-Thomas, their two children L.T. and T.T., and Susan's son from a previous marriage. During part of each year, Thomas' daughter S.T., born of a previous marriage, also resided with the family. J.P. lived across the street from the Thomas' Bass Circle home. He and L.T. were good friends.

On July 11, 1985, Susan Frey-Thomas and Mack Thomas separated and Susan, L.T. and T.T. moved out of the Bass Circle house. Soon afterwards, and after the dissolution of the marriage, Mack Thomas remarried and his new wife moved into the Bass Circle house. After the Thomas-Frey separation, L.T. and T.T. visited their father at his home on two weekends: August 4-7, 1985, and September 13-15, 1985.

Testimony at trial concerned sexual abuse of L.T. and J.P. by Thomas that included genital fondling and oral and anal sex. We granted certiorari to consider two issues: first, whether the trial court properly admitted videotaped depositions of L.T. and J.P. into evidence; and second, whether the prosecution adequately specified the acts of sexual assault upon which the jury was to base its decision. We will address each of these issues in turn.

II.

Pursuant to the trial court's order, videotaped depositions of L.T. and J.P. were taken at the C. Henry Kempe Center for the Treatment and Prevention of Child Abuse and Neglect. The same procedure was followed in both depositions. The child was taken into a room with two therapists, one selected by the prosecution and one by the defendant. The judge, the court reporter, the prosecutor, the defendant and the defense counsel went into another room. By using a one-way mirror and videotape monitors, they could see and hear what was happening in the room in which the child was being questioned by the therapists. The therapists were not in electronic communication with the attorneys or the defendant, but it was possible for notes to be passed in to the therapists. Rather than having the judge administer an oath at the start of the depositions, one of the therapists explained to the child that it was important to tell the truth and asked the child whether he or she knew the difference between telling the truth and lying. 1 The child was questioned first by the therapist chosen by the prosecutor and then by the therapist chosen by the defendant. Each deposition was videotaped and later shown to the jury at trial.

Thomas argues that the videotaped depositions were not taken in compliance with the requirements of section 18-3-413, 8B C.R.S. (1986), and that their admission into evidence violated his right to confront the witnesses against him. We disagree.

A.

Section 18-3-413, 8B C.R.S. (1986), provides:

(1) When a defendant has been charged with an unlawful sexual offense, as defined in section 18-3-411(1), 2 and when the victim at the time of the commission of the act is a child less than fifteen years of age, the prosecution may apply to the court for an order that a deposition be taken of the victim's testimony and that the deposition be recorded and preserved on video tape.

(2) The prosecution shall apply for the order in writing at least three days prior to the taking of the deposition. The defendant shall receive reasonable notice of the taking of the deposition.

(3) Upon timely receipt of the application, the court shall make a preliminary finding regarding whether, at the time of trial, the victim is likely to be medically unavailable or otherwise unavailable within the meaning of rule 804(a) of the Colorado rules of evidence. Such finding shall be based on, but not be limited to, recommendations from the child's therapist or any other person having direct contact with the child, whose recommendations are based on specific behavioral indicators exhibited by the child. If the court so finds, it shall order that the deposition be taken, pursuant to rule 15(d) of the Colorado rules of criminal procedure, 3 and preserved on video tape. The prosecution shall transmit the video tape to the clerk of the court in which the action is pending.

(4) If at the time of trial the court finds that further testimony would cause the victim emotional trauma so that the victim is medically unavailable or otherwise unavailable within the meaning of rule 804(a) of the Colorado rules of evidence, the court may admit the video tape of the victim's deposition as former testimony under rule 804(b)(1) of the Colorado rules of evidence.

In this case, the prosecution did not seek to take videotaped depositions of L.T. and J.P. at the outset but filed several notices of its intent to offer hearsay statements of L.T. and J.P. The prosecution wished to offer these statements under both section 13-25-129, 6A C.R.S. (1987), the child victim hearsay statute, and CRE 803(24), the residual exception to the hearsay rule.

As the trial court held, section 13-25-129's requirements control over the more general requirements of CRE 803(24). People v. Diefenderfer, 784 P.2d 741, 752 (Colo.1989). Under section 13-25-129, a child's out-of-court statements regarding sexual acts must have "sufficient safeguards of reliability." § 13-25-129(1)(a); Diefenderfer, 784 P.2d at 748. If the child is not available to testify at trial, there must also be "corroborative evidence of the act which is the subject of the statement." § 13-25-129(1)(b)(II); Diefenderfer, 784 P.2d at 748. 4

At a hearing following the filing of the notices, the trial court found that both L.T. and J.P. were competent but for purposes of section 13-25-129, were likely to be unavailable to testify at trial in an open courtroom session. The trial court then suggested that videotaped depositions of L.T. and J.P. be conducted. 5 After the hearing, the prosecution filed motions requesting the court to order videotaped depositions and the court did so.

Before ordering a videotaped deposition pursuant to section 18-3-413(3), a trial court must make a preliminary finding that at trial the child "is likely to be medically unavailable or otherwise unavailable within the meaning of rule 804(a) of the Colorado rules of evidence." In its hearing concerning the hearsay statements offered pursuant to section 13-25-129, the trial court found that both L.T. and J.P. were likely to be unavailable to testify at trial. 6 A child is "unavailable" as a witness for purposes of section 13-25-129 if "the child's emotional or psychological health would be substantially impaired if [the child] were forced to testify and ... such impairment will be long standing rather than transitory in nature." Diefenderfer, 784 P.2d at 750. We believe that this definition also describes a form of "medical unavailability" for the purpose of section 18-3-413(3). 7 To meet the requirements of the confrontation clause of the sixth amendment to the United States Constitution, discussed below, we further interpret section 18-3-413 to require a finding that the potential long-term substantial impairment be the result of trauma that would be caused by testifying in the presence of the defendant, rather than trauma that would be caused merely by testifying in open court. See Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 3169, 111 L.Ed.2d...

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