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Martinez v. People

Supreme Court of Colorado, En Banc

April 24, 2017

Nerio Martinez, Petitioner
v.
The People of the State of Colorado, Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 10CA1840

          Attorneys for Petitioner: Douglas K. Wilson, Ned R. Jaeckle

          Attorneys for Respondent: Cynthia H. Coffman Ethan E. Zweig

          JUSTICE GABRIEL

         ¶1 In this case, we review for plain error a trial court's decision to allow the jury unfettered access, during its deliberations, to the out-of-court statements of three child sexual assault victims. These statements were memorialized in three DVDs and three transcripts thereof, all of which had been admitted as exhibits in the criminal trial of the petitioner, Nerio Martinez.[1] Martinez first raised the issue of jury access on direct appeal, arguing that allowing the jury unfettered access constituted reversible plain error. In a unanimous, unpublished opinion, a division of the court of appeals rejected this argument. People v. Martinez, No. 10CA1840, slip op. at 14 (Colo.App. Mar. 13, 2014). Without deciding whether the trial court had abused its discretion, the division concluded that any error in not limiting the jury's access to the exhibits during deliberations did not warrant reversal under the plain error standard.

         ¶2 We agree and therefore affirm the judgment of the court of appeals.

         I. Facts and Procedural History

         ¶3 Martinez began dating the victims' mother in April 2004, when the victims, three sisters, were approximately 7, 8, and 11 years old. Within three months, the victims and their mother had moved in with Martinez. Soon after that, the couple bought a house, and they married the next year. Martinez's repeated cheating, however, led to a tumultuous marriage. Over the course of five years and six different homes, the couple split up, reconciled, had a son, split up again, reconciled again, and ultimately divorced.

         ¶4 While divorce proceedings were pending in June 2009, allegations surfaced that Martinez had repeatedly sexually abused all three of his stepdaughters.[2] When the girls' mother learned of these allegations, she immediately called the police, who set up forensic interviews for the girls a few days later. In the interviews, all three sisters accused Martinez of similar acts of abuse, with the oldest sister describing five separate incidents between 2004 and 2007, the middle sister describing five incidents between 2005 and 2009, and the youngest sister describing seven incidents that occurred in a house to which the family had moved in 2008.

         ¶5 The police interviewed additional witnesses, including Martinez himself, and gathered what they could in the way of physical evidence. They ultimately retrieved, among other things, a semen-stained blanket, pornographic images and videos (including videos from teenage pornography websites), and a photo of one of the victims in her underwear. The police subsequently arrested Martinez.

         ¶6 In a seventy-count complaint and information, the People alleged that Martinez had sexually abused his three stepdaughters on seventeen separate occasions between September 2004 and January 2009. The seventy charges comprised seventeen counts of sexual assault on a child, seventeen counts of sexual assault on a child by one in a position of trust, seventeen counts of aggravated incest, fourteen counts of sexual assault on a child by one in a position of trust as part of a pattern of abuse, and five habitual criminal sentence enhancers. Martinez pleaded not guilty, and in May 2010, the case proceeded to a week-long trial.

         ¶7 The prosecution's case-in-chief lasted four days and included nineteen witnesses (but little physical evidence). As pertinent here, the forensic interviewer took the stand on the first day of testimony, before any of the victims. She described the forensic interviews that she had conducted with the victims and authenticated the DVD and the transcript of each interview. The prosecutor then offered and the court admitted into evidence the three DVDs and the three transcripts.

         ¶8 Thereafter, the prosecutor published the DVDs and the transcripts of the interviews, providing copies of the pertinent interview transcript for the jurors to read while each DVD played in open court.[3] The prosecutor then called each victim and elicited her testimony regarding the charged incidents related to her.

         ¶9 For the most part, the victims' trial testimony paralleled their out-of-court interviews. In both settings, the victims attributed their delayed outcries to their fears as to what might happen, including ending up in court, and their concern that their little brother-Martinez's biological son-would grow up without a father. Moreover, although the victims could not remember certain details, they had not forgotten any salient aspects of the charged crimes since providing their out-of-court statements. For example, although the oldest stepdaughter testified that parts of her memory were "blocked" with respect to the first time that Martinez had touched her, she remembered in detail the pertinent facts of this incident, and her description matched the description that she gave in her forensic interview. Specifically, in both contexts, she recalled that (1) the incident had occurred in a blue truck driven by Martinez, (2) the two had been on their way to the grocery store, (3) Martinez had begun tickling her, (4) he then put his hands down her pants and his fingers in her vagina, and (5) the incident ended with him putting her hands down his pants to show her his "ticklish spot" and to have her touch his penis. She also recalled Martinez's saying, "It tends to get messy."

         ¶10 In addition, the victims' accounts were supported by (1) the testimony of four friends in whom the girls had confided regarding the abuse as early as four years before trial and (2) one of the friends' mothers, who had notified the victims' mother after learning of the alleged abuse. The friend's mother testified that she had helped the victims' mother confront the victims about the abuse, and her testimony generally corroborated the victims' mother's account of that episode.

         ¶11 For his part, Martinez maintained that the victims had fabricated the allegations because they were angry that he had repeatedly cheated on their mother. Thus, when the prosecutor asked him why the victims would invent such allegations, Martinez replied, "Just to hurt me for what I've done to their mom."

         ¶12 Martinez also suggested that the girls had financial reasons to retaliate against him, testifying that until he left them, his income alone had supported the family. To this end, on cross-examination, defense counsel elicited testimony from the victims that when Martinez and their mother were together, Martinez spoiled the girls. Similarly, Martinez's goddaughter testified that the victims were "really mad" at Martinez when they learned that he had cheated on their mother, that they grew "even more mad" when their mother reconciled with him, and that they "were going to do whatever they could to get [Martinez] to get them whatever they wanted."

         ¶13 In the closing arguments that followed, both sides recognized the paramount importance of the victims' credibility-particularly in relation to their motives-to the resolution of the case. As pertinent here, the prosecutor began his argument by urging the jurors "to harken back to when you first saw the [DVDs] of each of those girls on those consecutive days, and I want you to think about your reaction[-]that first gut reaction[-]to how those girls came across." He then went over the timeline of the case and challenged Martinez's theory of defense, contending that the record lacked any evidence "that these children would have the kind of animosity, the kind of viciousness to go after [Martinez] in 2009 when they were one week away from getting completely separated from him legally through the divorce of the parties."

         ¶14 Defense counsel, in turn, began his closing argument by paraphrasing Martinez's trial testimony: "They hurt me for what I did to their mom." Counsel also acknowledged that the case reduced to a credibility determination, stating, "What we have is credibility of witnesses, and that's your job to make a determination based on all the evidence, " including the forensic interviews, which "you'll have an opportunity to review . . . again during your deliberation." He urged the jury to find that certain statements to which the victims had testified (e.g., "I don't want [Martinez] dead. I want him to suffer.") indicated that the victims had fabricated the allegations to retaliate against ...


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