People v. Jefferson

393 P.3d 493

The PEOPLE of the State of Colorado, Petitioner,

v.Dherl JEFFERSON, Respondent.

Supreme Court Case No. 14SC588

Supreme Court of Colorado.

April 24, 2017

Attorneys for Petitioner: Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Douglas K. Wilson, Public Defender, Jud Lohnes, Deputy Public Defender, Anne Stockham, Deputy Public Defender, Denver, Colorado

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court.

¶1 This case concerns the scope of a trial court's discretion to permit, deny, or restrict the jury's access during deliberations to a DVD containing the recorded statement of a child sexual assault victim, which DVD was admitted as an exhibit in a criminal trial. The People challenge the decision of a unanimous division of the court of appeals, People v. Jefferson , 2014 COA 77M, ––– P.3d ––––, which concluded that the trial court had abused its discretion in granting the jury unrestricted access to such an exhibit and that the error required reversal and a new trial.¹ According to the People, the division misconstrued our precedent, including DeBella v. People , 233 P.3d 664 (Colo. 2010), and the trial court acted within the bounds of its discretion.

¶2 We are not persuaded. Instead, we agree with the division that the trial court did not employ the requisite caution to ensure that the DVD would not be used in such a manner as to create a likelihood that the jury would accord it undue weight or emphasis. Specifically, the trial court relied on the court of appeals division's analysis in People v. DeBella , 219 P.3d 390, 396–97 (Colo. App. 2009), rev'd , 233 P.3d 664 (Colo. 2010), but this court reversed the decision in that case. By relying on an analysis that this court later rejected, the trial court thus misapplied the law and abused its discretion. Moreover, because the nature of the DVD and its importance to the case's resolution leave us with grave doubts as to the effect that unfettered access had on the verdict and the fairness of the proceedings, we cannot deem the error harmless.

¶3 Accordingly, we affirm the judgment of the court of appeals and remand the case to that court for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶4 In May 2007, the victim, then-three-year-old J.B., moved to Denver with her mother and older brother. Dherl Jefferson befriended the children's mother that summer, after which J.B. and her brother occasionally spent time at Jefferson's apartment playing video games and watching movies. The children called Jefferson "Uncle Dherl," and he helped the family financially from time to time. He also babysat the children "about four times" between early 2008 and March 2009. On these occasions, the children's mother would drop them off at Jefferson's apartment at 5:30 or 6 p.m. and then pick them up between midnight and 2 a.m. On two occasions, however, the children spent the night at Jefferson's apartment.

¶5 On March 9, 2009, J.B. disclosed to her mother that "Uncle Dherl" had "touched her in a bad way." Her mother asked whether this had happened more than once, and J.B. replied, "Yeah, every time we're over there." Her mother called the police.

¶6 The next day, J.B. repeated her allegations in more detail to a forensic interviewer. The police then arrested Jefferson, and the People charged him with, as pertinent here, one count of sexual assault on a child (with a pattern-of-abuse sentence enhancer) and one count of sexual assault on a child by one in a position of trust.

¶7 Jefferson pleaded not guilty, and his case proceeded to trial. The jury, however, deadlocked, and the court declared a mistrial. The prosecution then decided to re-try Jefferson. This case concerns the second trial, which took place in 2011, more than two years after the abuse had allegedly occurred.

¶8 At trial, then-seven-year-old J.B. could not recall many details about the alleged abuse. The prosecution's case against Jefferson thus hinged on the DVD of J.B.'s forensic interview and on the hearsay testimony of the forensic interviewer and of J.B.'s mother and brother.

¶9 As pertinent here, after the forensic interviewer had laid a foundation for the admission of the DVD of J.B.'s interview, the prosecutor moved to admit it. Jefferson's counsel acknowledged that the DVD was admissible under the statutory hearsay exception for statements of child sexual assault victims, section 13–25–129, C.R.S. (2016), and he stated that he had "no objection to [its] being played for the jury." He objected, however, to the DVD's "being admitted as an exhibit for the jury to consider over and over and over." Asked to clarify the basis for his objection, counsel explained that permitting jurors "to have possession" of the DVD would be "improper and would allow repetition [and] undue emphasis."

¶10 The court overruled the objection, admitted the DVD as an exhibit, and stated that it would allow the jury to review the DVD if and when a juror asked to do so. In so ruling, however, the court did not opine as to whether the jury would have unfettered access to the DVD. To the contrary, the court specifically left that question open and instructed Jefferson to re-raise his objection at the end of the trial, when the court would be able to consider all of the evidence presented and "make [the] particularized finding" required by "the DeBella case." At that time, the court would determine whether, "in [its] discretion," (1) the jury's review of the DVD needed to be supervised (i.e., the jury would need to request access to the DVD) or (2) the jury would "be allowed unsupervised access" to the DVD.

¶11 The prosecutor then played the forty-five-minute DVD for the jury. During the recorded interview, the forensic interviewer asked mostly open-ended questions, beginning with whether "something" had happened. J.B. explained that while she slept on "Uncle Dherl's" couch, he took her into his room and "d [id] that nasty stuff" to her. With J.B.'s input, the interviewer drew diagrams of Jefferson's living room, where J.B. had slept on the couch, and Jefferson's bedroom, where J.B. said Jefferson did "the stuff" to her. When the forensic interviewer asked J.B. to describe "the stuff," she replied that Jefferson "pulled down [her] panties" and then "rub[bed] [her] bottom" with his hand. She also said that "he turned [her] straight" on her back, got "on top of [her]," and did "sex stuff to her." When asked to clarify, she said that he "humped" her. The forensic interviewer then asked J.B. several questions about how Jefferson had "humped" her, and J.B. explained that he sat on her and moved his body "up and down." Asked how this made her body feel, she answered, "Wiggly." After further questioning, J.B. explained that Jefferson "kind of squish[ed]" her "va-jj" (i.e., her vagina) and made her body feel "mad." She was not sure exactly how often Jefferson had touched her, stating at first that it was "two times, I think. Or four" and later that it was "more than one time."

¶12 After the jurors watched the recording of J.B.'s forensic interview, the court admonished:

Ladies and gentlemen, in this case you just heard an out-of-court statement by [J.B.], which has been admitted into evidence. You're instructed that it's for you to determine the weight and credit to be given these statements.

In making this determination, you shall consider the age and maturity of the child, the nature of the statements, the circumstances under which the statements were made, and any other evidence which will be admitted in the trial which you choose to consider for that purpose.

¶13 The forensic interviewer then finished testifying, and J.B. took the witness stand. With leading questions, the prosecutor prompted J.B. to agree that "[some]thing bad happened when [she] spent the night at [her] Uncle Dherl's house." When asked about the details of the allegations, however, J.B. often answered with "I don't know" or "I don't remember." She could not remember, for example, whether Jefferson had used his wheelchair when he carried her into his room. She did remember, however, that once they were in his room, Jefferson had put her on his bed, "pulled down [her] panties," and "started rubbing [her] butt." On a body diagram, J.B. then circled her "butt." She did not remember whether he had touched her anywhere else that night or whether he had touched her again on a separate occasion. When, however, the prosecutor showed her a second body diagram and asked "where [her] Uncle Dherl's body touched her" when he was sitting on top of her, J.B. circled what she called her "pee-pee." She remembered telling the forensic interviewer that the incident had made her body feel "wiggly," but she could not explain what that meant.

¶14 The next day, which was the last day of the trial, the court revisited the question of whether to allow the jury unsupervised access to the DVD of J.B.'s forensic interview, as it had said it would do. The court noted that the case law, including "the [DeBella ] case"² and Frasco v. People , 165 P.3d 701 (Colo. 2007), required it to exercise its discretion and to consider certain "factors concerning why the DVD should go to the jury in an unsupervised way." In the court's view, the DeBella factors included (1) "whether or not the videotape was admitted as an exhibit and played for the jury in open court during the trial," (2) "whether inculpatory evidence was introduced at trial in addition to the videotape," and (3) "whether the jury was allowed to take notes which would preserve trial testimony in note form."³ The court found that all three factors were present, concluded that each one weighed in favor of unsupervised access, and noted that it was exercising its discretion to allow the jury unsupervised access to the DVD in the jury room.

¶15 Jury instructions and closing arguments followed, and J.B.'s forensic interview played an important role...