Delta County District Court No. 88CR59. Honorable Charles R. Greenacre, Judge.
John W. Suthers, Attorney General, John J. Fuerst III, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Sarah A. Kellogg, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
[¶1] Defendant, Philip Michael Bonan, appeals the order denying his motion for postconviction relief under Crim. P. 35(c), in which he asserts that newly discovered evidence entitles him to a new trial. Because we conclude that academic theories addressed in research studies do not constitute evidence, and, therefore, cannot constitute new evidence, we affirm.
[¶2] In 1988, Bonan was charged with four counts of sexual assault on a child -- position of trust, and four counts of second degree assault on a child. The charges stemmed from allegations by Bonan's ex-girlfriend's three young children that he had sexually assaulted them while living with them from July to November 1986. Although Bonan admitted to pushing and hitting the children on several occasions, he denied sexually assaulting them.
[¶3] During trial, the prosecution relied on expert testimony from therapists and psychologists who had interviewed the children and had provided therapy to them. Specifically, the experts testified that behavioral observations helped them conclude that the children had been sexually abused.
[¶4] A jury convicted Bonan as charged. A division of this court affirmed the convictions, rejecting Bonan's claim that the trial court improperly admitted expert testimony that the children were truthful and had been sexually abused. People v. Bonan, (Colo.App. No. 89CA0937, Dec. 15, 1994) (not published pursuant to C.A.R. 35(f)).
A. 1998 Crim. P. 35(c) Motion
[¶5] In August 1998, Bonan filed a pro se motion for postconviction relief asserting that he was entitled to a new trial because newly discovered research indicated that suggestive interviewing techniques could lead to false implanted memories. The public defender filed a second motion for postconviction relief omitting the newly discovered evidence claim. The trial court concluded that " the only motion for postconviction relief that has to be addressed is the one filed by the public defender," but denied both motions without an evidentiary hearing.
[¶6] A division of this court concluded that the trial court should have considered both motions, but nonetheless rejected the claims in Bonan's pro se motion. People v. Bonan, (Colo.App. No. 98CA2532, Sept. 7, 2000) (not published pursuant to C.A.R. 35(f)). The division remanded for consideration of three allegations of ineffective assistance of counsel. Id.
[¶7] On remand, the public defender filed another motion for postconviction relief, alleging not only the claims on which the division of this court had remanded, but also additional claims of ineffective assistance of counsel. In December 2003, the trial court issued a written order denying Bonan's claims for relief.
[¶8] Bonan did not appeal this ruling; rather, in April 2004, he filed a motion for sentence reconsideration, alleging numerous claims for postconviction relief. The motion focused on trial counsel's failure to present expert testimony challenging the interview techniques of the prosecution's expert witnesses. In support of his motion, Bonan cited several psychological studies published between 1986 and 1995 addressing the suggestive manipulation of children. The trial court again denied his motion. Bonan did not appeal that ruling.
B. 2006 Crim. P. 35(c) Motion
[¶9] In February 2006, Bonan filed a motion for postconviction relief under Crim. P. 35(c), asserting that " recent scientific research has produced an undisputed body of facts that renders the state's expert opinion testimony
foundationless [sic]" and " contradict[s] the state's experts' proposition that they were capable of determining whether a child's report is accurate." The motion characterized the ...