People v. Whitman

205 P.3d 371

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joshua J. WHITMAN, Defendant-Appellant.

No. 04CA1428.

Colorado Court of Appeals, Div. IV.

November 29, 2007.

As Modified on Denial of Rehearing December 27, 2007.

John W. Suthers, Attorney General, Katharine J. Gillespie, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Priscilla J. Gartner, Deputy State Public Defender, Elisabeth Hunt White, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge BERNARD.

Defendant, Joshua J. Whitman, appeals the judgment of conviction entered upon a jury verdict finding him guilty of two counts of sexual assault on a child. He also appeals the sentence imposed. We affirm.

I. Background

RW and JW (the girls) are sisters who were six and seven years old, respectively, in 2003. Defendant is the girls' uncle. In early 2003, defendant would frequently sleep at his brother's home, where the girls lived.

The girls told their grandmother that defendant sexually assaulted them several times in their home while their parents were sleeping. Defendant was charged with two counts of sexual assault on a child, allegedly occurring between January 1, 2003, and February 26, 2003, and a jury subsequently convicted him of both counts. The trial court sentenced him to two concurrent terms of ten years to life in prison.

II. Voir Dire

Defendant claims the trial court improperly denied his challenge for cause of a prospective juror, whom defendant subsequently removed from the jury with a peremptory challenge. We disagree.

We review the trial court's ruling on a challenge for cause for an abuse of discretion. Carrillo v. People, 974 P.2d 478, 485-86 (Colo.1999). Because the trial court's ruling affects a defendant's substantial rights, it cannot be deemed harmless error if the court erroneously denies a challenge for cause to a prospective juror, the defendant uses a peremptory challenge to remove that juror, and the defendant exhausts all peremptory challenges. Id. at 486-87.

The juror here previously worked for a victim advocacy organization on a college campus for seventeen years, but changed careers five years before defendant's trial was held. The juror continued to volunteer as a board member for the organization, and participated in raising funds for it. She encountered the trial prosecutor once years before, when she brought a victim to court to testify in an unrelated case.

The juror assured the trial court she would be fair and impartial, citing her training. She understood and believed in the presumption of innocence, she agreed the charges against defendant were not evidence, and she stated she would acquit defendant if the prosecution's evidence was insufficient to establish his guilt beyond a reasonable doubt.

The trial court denied defendant's challenge for cause because the juror served primarily as an administrator of the program when she worked for the victim advocacy organization; never testified in a case; did not participate in the prosecution of alleged offenders beyond taking victims to the district attorney's office or to court; had not been involved in the day-to-day operations of the organization for five years; and focused on the organization's financial affairs in her present capacity as a board member.

The record indicates the prospective juror was not a "compensated employee of a public law enforcement agency" for purposes of section 16-10-103(1)(k), C.R.S.2007, and Crim. P. 24(b)(X)(II). There is no information to establish the victim advocacy organization was a "police-like division of government that has the authority to investigate crimes and to arrest, to prosecute, or to detain suspected criminals." Ma v. People, 121 P.3d 205, 211 (Colo.2005) (defining the term "law enforcement agency" in § 16-10-103(1)(k)); see also People v. Speer, 2007 WL 3025312, ___ P.3d ___, ___ (Colo.App. No. 05CA0206, Oct. 18, 2007) (TSA employees were not compensated employees of a law enforcement agency); People v. Gilbert, 12 P.3d 331, 335-36 (Colo.App.2000)(volunteer victim advocate not employee of law enforcement agency).

Defendant relies on People v. Rogers, 690 P.2d 886, 887-88 (Colo.App.1984), and People v. Reddick, 44 Colo.App. 278, 280, 610 P.2d 1359, 1361 (1980), and contends there are several factors about the juror's association with the victim advocacy organization that, in combination, required removing her from the jury for cause. We are not persuaded.

Rogers and Reddick are both distinguishable. In Rogers, a division of this court concluded a challenge for cause should have been granted in a first degree murder case when a juror was a fire fighter who had a close daily association with police and prosecutors; was familiar with the crime scene in the case; and worked with a person who had attended the murder victim.

In Reddick, the division determined a challenge for cause should have been granted when a juror took a real estate law class from the prosecutor, and thought him to be intelligent; was married to a police officer; was acquainted with a police officer who would testify for the prosecution; thought the name of a police officer who would testify for the defense sounded familiar; and made ambivalent statements about being fair and impartial.

Here, the juror had no familiarity with the facts of the case; was not closely acquainted with the prosecutor; did not have regular working relationships with law enforcement officers; and was not familiar with any of the law enforcement officers who would testify in defendant's case. Her association with the victim advocacy organization alone was not enough to require removing her from the jury for cause. See People v. Woellhaf, 87 P.3d 142, 151 (Colo.App.2003) (juror worked with sexual assault victims), rev'd on other grounds, 105 P.3d 209 (Colo.2005); People v. Gilbert, 12 P.3d at 336 (juror was volunteer victims' advocate); People v. Serpa, 992 P.2d 682, 684 (Colo.App.1999)(juror was associated with county victim assistance group).

When these facts are combined with the prospective juror's clear statements that she would be fair and impartial and follow the law, the record does not support defendant's claim that the prospective juror would likely be biased against him. Thus, we conclude the trial court did not abuse its discretion in denying defendant's challenge for cause.

III. The Girls' Testimony

Defendant contends the court abused its discretion by adopting certain procedures during the girls' testimony. We disagree.

The trial court has discretion to exercise reasonable control over interrogation of witnesses and presentation of evidence. CRE 611. Absent an abuse of discretion, the court's rulings will not be disturbed on review. People v. Caldwell, 43 P.3d 663, 670 (Colo.App.2001).

When RW was first called to the stand, she seemed withdrawn and unwilling to testify. The prosecutor called a recess, and, outside the jury's presence, told the trial court RW was afraid. The prosecutor asked the court to allow RW's teenage sister to bring RW into court and to sit near her while RW testified.

The trial court granted the prosecutor's request, overruling defendant's objection. The trial court observed that the teenage sister would not testify as a witness, allowed the sister to sit in a chair next to the witness stand, ordered that the sister would not be allowed to communicate with RW during her testimony, indicated the jury would not be informed of the sister's identity, and instructed the jury it was not to draw any inferences from the sister's presence.

The sister carried RW into the courtroom in the jury's presence. RW was crying. Once the questioning began, RW became more composed, and answered all the questions put to her by both the prosecutor and defense counsel. RW did not communicate with her sister during her testimony.

A. Emotional Witness

The fact that RW cried before the jury when her teenage sister carried her into the courtroom is not cause for reversal. When child witnesses are involved, some displays of emotion in court are inevitable, particularly when the subject matter is as traumatic as sexual assault. Where the defendant points to no specific prejudice resulting from the witness's display, and our review of the record discloses none, we will not disturb the conviction. See People v. Ned, 923 P.2d 271, 276-77 (Colo.App.1996).

There is no indication in the record that the brief display of emotion exhibited by RW would mandate reversal of defendant's conviction. See People v. Thatcher, 638 P.2d 760, 769 (Colo.1981) (emotional displays by victim's husband during closing argument did not require mistrial); People v. Montgomery, 743 P.2d 439, 441-42 (Colo.App.1987) (victim's crying during defense counsel's closing argument did not require mistrial).

B. Sister's Presence

A division of this court has indicated a victim witness advocate or a specially trained member of the court staff may assist a child witness who is uncomfortable testifying in court. People v. Rogers, 800 P.2d 1327, 1329 (Colo.App.1990). Other states permit child witnesses to have another person present near the witness for emotional support during the witness's testimony. These persons may include foster parents, close relatives, and social workers. Gadberry v. State, 46 Ark.App. 121, 128, 877 S.W.2d 941, 945 (1994) (social worker); Boatright v. State, 192 Ga. App. 112, 115, 385 S.E.2d 298, 301 (1989)(foster parent); State v. Reeves, 337 N.C. 700, 727, 448 S.E.2d 802, 816 (1994)(stepmother); State v. Johnson, 38 Ohio App.3d 152, 154, 528 N.E.2d 567, 569 (1986)(relative); State v. Dompier, 94 Or.App. 258, 261, 764 P.2d 979, 980 (1988) (foster parent); Commonwealth v. Pankraz, 382 Pa.Super. 116, 126, 554 A.2d 974, 979 (1989)(grandmother). Congress has explicitly authorized the use of adult attendants to accompany a child while he or ...