People v. Vigil

Page 916

127 P.3d 916

The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent, v. Joe VIGIL, Respondent/Cross-Petitioner.

No. 04SC532.

Supreme Court of Colorado, En Banc.

January 23, 2006.

Rehearing Denied February 13, 2006.^*

COPYRIGHT MATERIAL OMITTED

John Suthers, Attorney General, Karen E. Lorenz, Anthony J. Navarro, Lauren Edelstein Park, Assistant Attorneys General, Appellate Division, Denver, for Petitioner/Cross-Respondent.

David S. Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, for Respondent/Cross-Petitioner.

RICE, Justice.

Joe E. Vigil was convicted of sexual assault on a child. The child did not testify at trial. Over defense objection, the trial court admitted statements the child made to his father and his father's friend, statements the child made to the doctor who performed the sexual assault examination, and a videotape of statements the child made during a police interview. At the close of the evidence, the trial court provided the jury with an instruction that read, "Intoxication of the accused is not a defense to a criminal charge."

The court of appeals held that admission of the child's videotaped police interview violated the defendant's federal constitutional right to confront the witnesses against him and that the erroneous admission was not harmless. People v. Vigil, 104 P.3d 258, 263-65 (Colo.App.2004). On this ground, the court of appeals reversed Vigil's conviction and remanded the case for a new trial. Id. at 268. The court of appeals also examined the child's other hearsay statements and the intoxication jury instruction because the issues were likely to arise on retrial. Id. at 265.

We granted certiorari.¹ Upon review, we hold that admission of the child's statements to the doctor and the child's statements to his father and his father's friend did not deprive Vigil of his federal and state constitutional rights to confront the witnesses against him. In addition, we hold that admission of the child's videotaped police interview was not plain error. Finally, we hold that the trial court did not err in instructing the jury that "intoxication of the accused is not a defense to a criminal charge." Accordingly, we reverse in part and affirm in part the decision of the court of appeals and reinstate Vigil's conviction.

I. Factual and Procedural History

Defendant Vigil and John Kohl were visiting the home of Brett Brown. All the men were drinking alcohol. While Brown and Kohl were on the internet, Vigil sat in another room and played a game with Brown's seven-year-old son, JW, the victim in this case.

At some point, Vigil and the child moved into the child's bedroom. Around 10:00 p.m., the child's father went to check on Vigil and the child. When the father attempted to open the bedroom door, he encountered resistance. The father pushed his head into the room and saw Vigil positioned over the child. Vigil and the child both were partially undressed, and the father saw "skin to skin" contact. While the father comforted his child, Vigil fled the house. The child, who had tears in eyes and appeared scared and confused, told his father that Vigil "stuck his winkie in his butt" and that his "butt hurt."

Upon hearing this, the father ran outside after Vigil and watched Vigil run down the street, simultaneously pulling up his pants. Next, the child's father called 911. While the father was on the phone, Kohl, the father's friend, observed the child curled up, crying, and shaking. The father's friend asked the child if he were hurt. Two or three times the child told his father's friend that his "butt hurt."

A police officer responding to the father's call saw Vigil walking on a sidewalk near the father's home. When the police officer stepped out of his car, Vigil pulled out a knife and held it to his own throat. When the officer asked Vigil what he was doing, Vigil responded, "I done bad." Then Vigil stabbed himself in the throat and chest. At the hospital, Vigil told emergency room personnel that he wanted to die and that he "did a bad thing."

Later, the child and his mother went to the hospital with another police officer. Around 3:00 a.m. the police officer asked a doctor to perform a victim sexual assault kit. Before examining the child, the doctor spoke with the police officer to learn why the child was at the hospital and how law enforcement was involved. Next, the doctor performed a forensic sexual abuse examination on the child. When the doctor asked the child whether anyone had hurt him, the child said that someone had hurt him. When the doctor asked if the child felt pain, the child said, "It felt like a poop." During the examination, the doctor found bruising around the child's anus, and he took an anal swab. A forensic scientist analyzed the swab and discovered the presence of semen but did not identify the source of the semen. A few days after the alleged assault, a police officer conducted a videotaped interview of the child.

The People subsequently charged Vigil with one count of sexual assault on a child. After hearing argument and testimony on a number of pretrial motions, the trial court made the following rulings: 1) the child was unavailable to testify at trial; 2) the child's statements to his father that Vigil "stuck his winkie in his butt" and that his "butt hurt" as well as the child's statement to his father's friend that his "butt hurt" were admissible as excited utterances; 3) the child's statement to the doctor indicating that he was hurt by a man was admissible under the hearsay exception for statements made for purposes of medical diagnosis and treatment; 4) relevant portions of the child's videotaped interview with the police officer were admissible pursuant to section 13-25-129, C.R.S. (2005), the hearsay exception for Statements of a Child Victim of Unlawful Sexual Offense Against a Child or of Child Abuse.

At the trial, the doctor testified that the child's history and physical exam were consistent with attempted anal intercourse. At the close of the evidence, the trial court provided the jury with an instruction that read, "Intoxication of the accused is not a defense to a criminal charge." The jury found Vigil guilty of sexual assault on a child.

On appeal Vigil argued that the trial court violated his constitutional right of confrontation by admitting the child's videotaped police interview, the child's statements to his father and his father's friend, and the child's statements to the doctor. Vigil also argued that sexual assault on a child is a specific-intent crime to which voluntary intoxication is a defense.

In People v. Vigil, 104 P.3d 258 (Colo.App.2004), the court of appeals reversed Vigil's conviction. Addressing the constitutional challenges, the court of appeals examined Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and determined that, regardless of a statement's reliability, a trial court may not admit a non-testifying witness's out-of-court testimonial statements against an accused unless the witness is unavailable and the accused had a prior opportunity for cross-examination. Vigil, 104 P.3d at 261-62 (citing Crawford, 541 U.S. at 68, 124 S.Ct. 1354).

The court of appeals found that the child's videotaped statements to the police constituted testimonial hearsay because the child made the statements in response to structured police questioning, which qualified as police interrogation within Crawford's discussion of testimonial evidence. Vigil, 104 P.3d at 262. Consequently, the court held that the trial court erred in admitting the child's videotaped police interview where Vigil had not had an opportunity to cross-examine the child. Id. at 264. Next, the court applied a constitutional harmless error analysis and held that admission of the child's videotaped statements constituted reversible error because the statements provided the most detailed account of the incident and because the videotape allowed the jurors to hear from the child. Id.

Because Vigil's other arguments involved issues likely to arise on retrial, the court of appeals examined two additional confrontation issues involving the child's statements to his father, his father's friend, and the doctor. First, the court found that the trial court properly admitted the child's statements to his father and his father's friend. Id. at 265. Noting these statements were not solemn or formal and were made to persons unassociated with government activity, the court determined that the statements were non-testimonial and that by admitting them the trial court did not violate Vigil's federal constitutional rights. Id. Then the court applied the analysis set forth in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and People v. Dement, 661 P.2d 675 (Colo.1983), to determine whether the trial court violated Vigil's confrontation rights under the state constitution. The court determined that there was no state confrontation clause violation because the child was unavailable and the statements fell under the firmly rooted excited utterance exception to the hearsay rule. Vigil, 104 P.3d at 265.

Next, the court of appeals concluded that the trial court erred by admitting the child's statements to the doctor. Vigil, 104 P.3d at 265. Emphasizing that the doctor spoke with a police officer before eliciting the statements, that he was not a person unassociated with government activity, and that he "necessarily understood that the information he obtained would be used in a subsequent prosecution for child abuse," the court concluded that the child's statements to the doctor were testimonial. Id. Finally, the court held that the trial court erred in instructing the jury that "intoxication of the accused is not a defense to a criminal charge." Id. at 267.

Petitioner and Cross-Petitioner sought further review, and we granted certiorari.

II. The Hearsay Issues

In Crawford v....