People v. Miranda

410 P.3d 520

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

v.Rodel MIRANDA, Defendant–Appellant.

Court of Appeals No. 12CA1825

Colorado Court of Appeals, Div. III.

Announced August 14, 2014

Rehearing Denied September 4, 2014

John W. Suthers, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

The Law Office of Gregory Lansky, LLC, Gregory Lansky, Aurora, Colorado, for Defendant–Appellant

Opinion by JUDGE WEBB

¶ 1 A jury convicted Rodel Miranda of sex offenses involving his girlfriend's eleven-year-old daughter, E.S., and her friend, V.M. On appeal, he primarily contends the trial court erred either in admitting a DVD recording of E.S.'s entire forensic interview, rather than only those portions that constituted prior consistent statements, or, if the entire interview was admissible, then in allowing the prosecution to introduce the recording after E.S. had testified and been released, which allegedly violated his confrontation rights.

¶ 2 We conclude that under common law evidentiary principles, the entire recording was admissible as a prior consistent statement, because Miranda broadly attacked the credibility of E.S. Addressing a constitutional question unresolved by the United States Supreme Court or the Colorado Supreme Court, we further conclude that the Confrontation Clause permits admission of testimonial hearsay after the declarant has testified and been released, provided that the declarant testified concerning matters addressed in the declaration, the declarant was subject to cross-examination, and the defendant did not ask that the prosecution be required to recall the declarant for further cross-examination after the hearsay had been introduced. We reject Miranda's remaining contentions and therefore affirm.

I. Introduction

¶ 3 According to the prosecution's evidence, Miranda sexually assaulted E.S. twice. First, she awoke to Miranda pulling down her pants and touching her vagina. Second, and a year or more later, Miranda was driving E.S. and V.M. back to V.M.'s house; he stopped the car in a dark alley and proposed playing "truth or dare." During the game, Miranda dared E.S. to touch his penis and to place it in her mouth. She did both. V.M. did not want to play the game. The testimony about whether Miranda specifically dared her to do anything and what she did was inconsistent.

¶ 4 Miranda testified in his defense and denied all of the allegations. He asserted that E.S. had fabricated the allegations because she did not like his relationship with her mother, and had enlisted her friend to help.

¶ 5 II. The Trial Court Did Not Err in Admitting the Recorded Interview of E.S.

¶ 6 Miranda first contends the trial court erred in admitting the recorded interview of E.S. under section 13–25–129, C.R.S.2013, and the common law doctrine of prior consistent statements. Alternatively, he contends admission of the interview violated his constitutional right to confront E.S. We discern no ground for reversal.

A. Admission of Entire Recorded Interview

¶ 7 At a pretrial hearing, the court asked whether the prosecutor intended to offer E.S.'s interview during trial. She said that she would do so. The court deferred ruling.

1. Background and Preservation

¶ 8 In opening statement, defense counsel said: "Members of the jury, you're here this morning because of the inventive story of a young adolescent girl.... She used her friends to corroborate her story but it doesn't match up because it didn't happen." Counsel described E.S. as "a troubled adolescent girl" who "didn't like her mom's new man."

¶ 9 At trial, E.S. testified about the circumstances of the alleged assaults and was cross-examined. During direct examination, the prosecutor impeached her using prior inconsistent statements made during her forensic interview, which had not yet been admitted.¹ E.S. testified that her memory of the events had been better during the interview and that she had told the truth.

¶ 10 After E.S. was released as a witness, the prosecution offered the recording of E.S.'s forensic interview into evidence through the investigating officer. Defense counsel objected. The court heard extensive argument outside the presence of the jury.

¶ 11 As to admission of the entire interview, defense counsel explained:

My concern here is that if this entire video is going to be introduced in to evidence it would essentially allow bolstering of all the statements that [E.S.] gave on the stand today that were not inconsistent with things on the video....

The same argument is made on appeal.

¶ 12 The prosecutor responded that the entire interview was admissible under People v. Eppens, 979 P.2d 14 (Colo.1999), and People v. Elie, 148 P.3d 359 (Colo. App. 2006). Specifically, she asserted that it could be used to rehabilitate E.S. as a witness whose credibility had been attacked in defense counsel's opening statement and cross-examination.²

¶ 13 The court agreed to review the recording overnight. The next day, it admitted the entire interview under both section 13–25–129 and the theory of prior consistent statements to rehabilitate E.S., "whose cred[ibility] has been impeached by the defense and also ... to provide consistency as to the story—the versions of events she has been impeached on here."

2. Standard of Review

¶ 14 "A trial court has substantial discretion in deciding questions concerning the admissibility of evidence." Eppens, 979 P.2d at 22. "Absent an abuse of this discretion, a trial court's evidentiary rulings will be affirmed." Elie, 148 P.3d at 362. A trial court abuses its discretion when its ruling on admissibility of evidence is "manifestly arbitrary, unreasonable, or unfair." People v. Salazar, 2012 CO 20, ¶ 39, 272 P.3d 1067.

3. Law

¶ 15 "[P]rior consistent statements may be used for rehabilitation when a witness's credibility has been attacked, as such statements are admissible outside CRE 801(d)(1)(B)." Eppens, 979 P.2d at 21. Determining "how much of a prior consistent statement is admissible is based upon its relevance and probative use." Elie, 148 P.3d at 362. This calculus turns on the scope of impeachment and the attack on the witness's credibility.

¶ 16 Where a witness's testimony is attacked solely based on "specific facts," "only prior consistent statements regarding those specific facts are relevant and admissible." Id. By contrast, where "the impeachment is general and not limited to specific facts ... the jury should have access to all the relevant facts, including consistent and inconsistent statements." Id. Such broader access "give[s] the jury a complete picture of [the witness's] credibility" and places the testimony in context. People v. Banks, 2012 COA 157, ¶ 39, 412 P.3d 417 (cert. granted on other grounds June 24, 2013); see also People v. Tyler, 745 P.2d 257, 259 (Colo.App.1987).

¶ 17 Deciding what constitutes general impeachment is vested in the trial court's discretion. See McLaughlin v. BNSF Ry. Co., 2012 COA 92, ¶ 14, 300 P.3d 925 (no abuse of discretion in admitting transcript of witness's interview where "counsel challenged [the witness's] testimony" and "more generally challenged his description of the incident and his injuries").

4. Application

¶ 18 Defense counsel did not limit opening statement or cross-examination of E.S. "to one specific statement," but made "a general attack on the victim's credibility." People v. Halstead, 881 P.2d 401, 403–04 (Colo.App.1994). In opening statement, as discussed above, Miranda attacked E. S.'s credibility and motivation. And in cross-examination, without using E.S.'s prior statements to impeach her, defense counsel generally attacked her credibility and motivation by questioning her about her mother's relationship with Miranda, whether she "like[d] going over to Rodel's house," if she "didn't really like him that much," her history of pulling out her own hair, the car ride with V.M., her experience playing truth or dare with her friends, and incidents of E.S. having looked at Miranda's pornography.

¶ 19 These attacks make the division's analysis in Banks particularly instructive. There, "[d]efense counsel argued that the witnesses lied to protect themselves or to help with their other prosecutions, thereby questioning the overall truthfulness of the witnesses regarding all of their statements." Banks, ¶ 39. For this reason, the division concluded that the witnesses' entire "recorded statements could be used for rehabilitation," even though "each video has consistencies and inconsistencies with what the witnesses have said in court." Id. at ¶¶ 39, 42 (internal quotation marks omitted); see also Elie, 148 P.3d at 363 (Because defendant was "cross-examined regarding [the witness's] motive for testifying" and challenged "almost every aspect of his account of the crime," a division of this court concluded that defendant had generally placed the witness's credibility in question and the witness's prior consistent statements were admissible.).

¶ 20 Similarly here, because "the prior statements were relevant and admissible to give the jury a complete picture of [her] credibility," Banks, ¶ 39, the trial court acted well within its broad discretion in admitting the entire recorded interview.³ Having so concluded, we need not address the interview's admissibility under section 13–25–129 or CRE 613(a).

B. Confrontation Clause

¶ 21 Miranda asserts that even if the entire recording was admissible to rehabilitate E.S., the trial court violated his confrontation rights by admitting it after E.S. had testified and been released.⁴ We conclude that on the particular circumstances presented, a confrontation violation did not occur.

1. Background and Preservation

¶ 22 Below, in challenging admission of the recording on confrontation grounds, defense counsel argued:

I believe what the DA is talking about there about introducing that video so they could see her mannerisms and all of that, that would implicate Mr. Miranda's confrontation rights

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