People v. Martinez

486 P.3d 412

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Joseph Samuel MARTINEZ, Defendant-Appellant.

Court of Appeals No. 17CA1583

Colorado Court of Appeals, Division VII.

Announced October 8, 2020

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE LIPINSKY

¶ 1 Victim impact testimony packs a punch at a criminal trial. Trial courts may understandably be inclined to give the victim and the victim's family the catharsis of describing the effect on them of the crime with which the defendant is charged. But the admissibility of such evidence can deprive the defendant of the right to be judged based on the jury's rational deliberation, rather than on jurors’ visceral reaction upon hearing how the defendant's alleged acts affected the victim. "A fair and impartial jury is a key element of a defendant's constitutional right to a fair trial under both the United States and Colorado Constitutions." People v. Abu-Nantambu-El , 2019 CO 106, ¶ 14, 454 P.3d 1044, 1047 (citations omitted).

¶ 2 Today we decide that a trial court erred by allowing a jury to hear victim impact evidence — "that evidence relating to the victim's personal characteristics and to the physical, emotional, or social impact of a crime on its victim and the victim's family," Smith v. State , 119 P.3d 411, 416 (Wyo. 2005) — during the guilt/innocence portion of a sexual assault trial. The evidence had the potential to shift the jury's focus improperly from deciding whether the defendant, Joseph Samuel Martinez, committed the crime to whether a guilty verdict would assuage the trauma of A.R., the victim.

¶ 3 Under the circumstances of this case, however, the admission of the victim impact evidence constituted harmless error. The guilty verdict rested on the jury's implicit but necessary finding that Martinez lacked credibility in claiming that A.R. had consented to engage in sex with him. Thus, the admission of the victim impact evidence did not affect Martinez's substantial rights and there is no reasonable probability that it contributed to his conviction.

¶ 4 We reject Martinez's other arguments and affirm his judgment of conviction entered on the jury verdict finding him guilty of sexual assault on a victim incapable of appraising the nature of her conduct.

I. Background Facts and Procedural History

A. The Incident

¶ 5 The trial in this case rested on a single factual dispute — whether Martinez had known that A.R. was too intoxicated to consent to sex. Every other material fact was undisputed.

¶ 6 A.R. recalled consuming three drinks in three hours at a Denver bar. Her last memory of the evening was checking her phone and using the restroom at the bar at around 9:00 p.m. A.R.’s bank records reflected that she continued to make purchases at the bar, in addition to the three drinks, as the evening wore on.

¶ 7 A.R. next remembered lying on the ground at a Regional Transportation District (RTD) light-rail station. She recalled that an RTD officer helped her board a train and that she felt "very confused, very disoriented," and "[v]ery, very drunk." While on the train, A.R. noticed that her sweatshirt was inside out and that she was missing her identification card, bus pass, debit card, lunch bag, and items she had purchased before visiting the bar. She later discovered that her marijuana pipe and marijuana were also missing. A.R. did not remember much about the initial train ride or that she had transferred trains.

¶ 8 A.R. arrived at the light-rail station nearest her home shortly before 2:00 a.m. She remembered borrowing a stranger's cell phone to call a cab. A.R. recalled that the cab driver was "nice," but did not remember the specifics of their conversation. When she reached her home, A.R. awakened her mother to ask for money to pay the cab driver. Because A.R. was "stumbling" and "slurring her words," A.R.’s mother said she believed A.R. was "completely drunk."

¶ 9 The next day, after experiencing painful bowel movements and seeing blood in the toilet, A.R. told her mother that she "th[ought] something bad happened." A.R. and her mother went to the hospital, where A.R. underwent a sexual assault examination. A nurse collected DNA, blood, and urine samples from A.R. The examination revealed that A.R. had a small but "significant" rectal tear, a small abrasion to her knee, and a sore thumb. The DNA obtained during A.R.’s examination matched that of Martinez. A DNA test of Martinez's saliva confirmed the match.

¶ 10 When a detective notified A.R. of the DNA match and showed A.R. a picture of Martinez, A.R. said she did not recognize him. Based on this information, the prosecution charged Martinez with one count of sexual assault on a victim incapable of appraising the nature of her conduct, pursuant to section 18-3-402(1)(b), C.R.S. 2019.

B. Martinez's Trial

¶ 11 At Martinez's trial, A.R. and her mother testified about the impact of the alleged sexual assault on A.R., including that, following the incident, A.R. exhibited signs of depression and had a "close suicidal scare." Martinez's counsel objected to the relevancy of this testimony and, after the district court overruled his objection, moved for a mistrial. The court denied Martinez's motion, but permitted him to cross-examine A.R. and her mother on issues related to A.R.’s mental health. Martinez's counsel pursued this line of cross-examination.

¶ 12 In addition to discussing the impact of the alleged sexual assault, A.R. testified that her light-rail commute from downtown Denver typically took an average of between an hour and an hour-and-a-half. On the night of the incident, however, it took A.R. three hours and eleven minutes to return home from downtown Denver.

¶ 13 The detective who investigated the alleged sexual assault testified next. Although the prosecutor had neither designated him nor qualified him as an expert witness, the detective testified that A.R.’s injuries and demeanor during their interview were consistent with the types of injuries and demeanor he had seen in other victims of sexual assault.

¶ 14 An expert witness in the fields of "forensic toxicology" and "the effect of alcohol and controlled substances on the human body" (the toxicology expert) also testified for the prosecution. Based on the level of alcohol in A.R.’s urine sample taken during her sexual assault examination and the average alcohol elimination rate for a female with A.R.’s weight, the toxicology expert opined that A.R.’s peak blood alcohol concentration on the night of the incident had been between 0.3 and 0.4 percent. The expert said that A.R. would have had to consume between nine and eleven drinks over a two-and-a-half-hour period to reach that level of intoxication.

¶ 15 The expert further opined that a person who has consumed that amount of alcohol can "blackout," meaning that he or she is conscious but is not forming memories. The expert testified that she would expect to see outward signs of impairment from a person in a blackout state.

¶ 16 Finally, the prosecutor introduced into evidence video-recordings from several RTD light-rail stations on the night of the incident. The videos showed A.R. stumbling, falling while crossing light-rail tracks, sleeping on station benches and platforms, missing trains, and getting on a wrong train.

¶ 17 Martinez's defense rested on his contention that he and A.R. had engaged in consensual sex. He said that A.R. approached him and a group of friends and asked one of his friends whether he wanted to have sex with her. According to Martinez, after his friend rejected A.R.’s advances, A.R. handed out marijuana to Martinez and his friends and then had sex with him. He testified that he spent between forty and fifty-five minutes conversing with A.R. before they had sex. He said that A.R. "looked fine," "was coherent," "was walking fine," and that nothing about her appearance made him believe that she was too drunk to know what she was doing.

¶ 18 The cab driver who drove A.R. home from the light-rail station testified that, while A.R. would "maybe fail a breathalyzer," "she was functioning just fine," did not have any issues entering or exiting the cab, did not have any problems communicating her address, did not "pass out," and did not vomit.

¶ 19 An expert in "forensic psychology related to alcohol, blackouts, and memory impairment" (the psychology expert) also testified for Martinez. The psychology expert opined that people can engage in complex activities during blackouts and that blackouts can, but do not always, cause "substantial impairments due to the alcohol." The expert further explained that people who experience blackouts often try to fill in the gaps in their memory by creating false memories that align with their assumptions and expectations of themselves.

¶ 20 During closing argument, the prosecutor did not mention the impact of the alleged sexual assault on A.R. Rather, the prosecutor focused on two points. First, she argued that Martinez had tailored his testimony about A.R.’s missing marijuana to fit the evidence he had heard while attending the trial. Second, she asserted that, regardless of the competing expert testimony and A.R.’s lack of memory of the incident, the video-recordings from the light-rail stations conclusively proved that, on the night of the incident, A.R. exhibited outward signs of impairment that showed her incapacity to appraise the nature of her conduct.

¶ 21 The jury found Martinez guilty of sexual assault on a victim incapable of appraising the nature of her conduct. The district court sentenced Martinez to an indeterminate sentence pursuant to the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA). §§ 18-1.3-1001 to - 1012, C.R.S. 2019.

II. Analysis

¶ 22 Martinez presents four principal arguments on...