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People v. Jefferson

Supreme Court of Colorado, En Banc

April 24, 2017

The People of the State of Colorado, Petitioner:
Dherl Jefferson, Respondent

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 11CA1465

          Attorneys for Petitioner: Cynthia H. Coffman Erin K. Grundy

          Attorneys for Respondent: Douglas K. Wilson Jud Lohnes Anne Stockham


         ¶1 This case concerns the scope of a trial court's discretion to permit, deny, or restrict the jury's access during deliberations to a DVD containing the recorded statement of a child sexual assault victim, which DVD was admitted as an exhibit in a criminal trial. The People challenge the decision of a unanimous division of the court of appeals, People v. Jefferson, 2014 COA 77M, ___ P.3d___, which concluded that the trial court had abused its discretion in granting the jury unrestricted access to such an exhibit and that the error required reversal and a new trial.[1] According to the People, the division misconstrued our precedent, including DeBella v. People, 233 P.3d 664 (Colo. 2010), and the trial court acted within the bounds of its discretion.

         ¶2 We are not persuaded. Instead, we agree with the division that the trial court did not employ the requisite caution to ensure that the DVD would not be used in such a manner as to create a likelihood that the jury would accord it undue weight or emphasis. Specifically, the trial court relied on the court of appeals division's analysis in People v. DeBella, 219 P.3d 390, 396-97 (Colo.App. 2009), rev'd, 233 P.3d 664 (Colo. 2010), but this court reversed the decision in that case. By relying on an analysis that this court later rejected, the trial court thus misapplied the law and abused its discretion. Moreover, because the nature of the DVD and its importance to the case's resolution leave us with grave doubts as to the effect that unfettered access had on the verdict and the fairness of the proceedings, we cannot deem the error harmless.

         ¶3 Accordingly, we affirm the judgment of the court of appeals and remand the case to that court for further proceedings consistent with this opinion.

         I. Facts and Procedural History

         ¶4 In May 2007, the victim, then-three-year-old J.B., moved to Denver with her mother and older brother. Dherl Jefferson befriended the children's mother that summer, after which J.B. and her brother occasionally spent time at Jefferson's apartment playing video games and watching movies. The children called Jefferson "Uncle Dherl, " and he helped the family financially from time to time. He also babysat the children "about four times" between early 2008 and March 2009. On these occasions, the children's mother would drop them off at Jefferson's apartment at 5:30 or 6 p.m. and then pick them up between midnight and 2 a.m. On two occasions, however, the children spent the night at Jefferson's apartment.

         ¶5 On March 9, 2009, J.B. disclosed to her mother that "Uncle Dherl" had "touched her in a bad way." Her mother asked whether this had happened more than once, and J.B. replied, "Yeah, every time we're over there." Her mother called the police.

         ¶6 The next day, J.B. repeated her allegations in more detail to a forensic interviewer. The police then arrested Jefferson, and the People charged him with, as pertinent here, one count of sexual assault on a child (with a pattern-of-abuse sentence enhancer) and one count of sexual assault on a child by one in a position of trust.

         ¶7 Jefferson pleaded not guilty, and his case proceeded to trial. The jury, however, deadlocked, and the court declared a mistrial. The prosecution then decided to re-try Jefferson. This case concerns the second trial, which took place in 2011, more than two years after the abuse had allegedly occurred.

         ¶8 At trial, then-seven-year-old J.B. could not recall many details about the alleged abuse. The prosecution's case against Jefferson thus hinged on the DVD of J.B.'s forensic interview and on the hearsay testimony of the forensic interviewer and of J.B.'s mother and brother.

         ¶9 As pertinent here, after the forensic interviewer had laid a foundation for the admission of the DVD of J.B.'s interview, the prosecutor moved to admit it. Jefferson's counsel acknowledged that the DVD was admissible under the statutory hearsay exception for statements of child sexual assault victims, section 13-25-129, C.R.S. (2016), and he stated that he had "no objection to [its] being played for the jury." He objected, however, to the DVD's "being admitted as an exhibit for the jury to consider over and over and over." Asked to clarify the basis for his objection, counsel explained that permitting jurors "to have possession" of the DVD would be "improper and would allow repetition [and] undue emphasis."

         ¶10 The court overruled the objection, admitted the DVD as an exhibit, and stated that it would allow the jury to review the DVD if and when a juror asked to do so. In so ruling, however, the court did not opine as to whether the jury would have unfettered access to the DVD. To the contrary, the court specifically left that question open and instructed Jefferson to re-raise his objection at the end of the trial, when the court would be able to consider all of the evidence presented and "make [the] particularized finding" required by "the DeBella case." At that time, the court would determine whether, "in [its] discretion, " (1) the jury's review of the DVD needed to be supervised (i.e., the jury would need to request access to the DVD) or (2) the jury would "be allowed unsupervised access" to the DVD.

         ¶11 The prosecutor then played the forty-five-minute DVD for the jury. During the recorded interview, the forensic interviewer asked mostly open-ended questions, beginning with whether "something" had happened. J.B. explained that while she slept on "Uncle Dherl's" couch, he took her into his room and "d[id] that nasty stuff" to her. With J.B.'s input, the interviewer drew diagrams of Jefferson's living room, where J.B. had slept on the couch, and Jefferson's bedroom, where J.B. said Jefferson did "the stuff" to her. When the forensic interviewer asked J.B. to describe "the stuff, " she replied that Jefferson "pulled down [her] panties" and then "rub[bed] [her] bottom" with his hand. She also said that "he turned [her] straight" on her back, got "on top of [her], " and did "sex stuff to her." When asked to clarify, she said that he "humped" her. The forensic interviewer then asked J.B. several questions about how Jefferson had "humped" her, and J.B. explained that he sat on her and moved his body "up and down." Asked how this made her body feel, she answered, "Wiggly." After further questioning, J.B. explained that Jefferson "kind of squish[ed]" her "va-jj" (i.e., her vagina) and made her body feel "mad." She was not sure exactly how often Jefferson had touched her, stating at first that it was "two times, I think. Or four" and later that it was "more than one time."

          ¶12 After the jurors watched the recording of J.B.'s forensic interview, the court admonished:

Ladies and gentlemen, in this case you just heard an out-of-court statement by [J.B.], which has been admitted into evidence. You're instructed that it's for you to determine the weight and credit to be given these statements.
In making this determination, you shall consider the age and maturity of the child, the nature of the statements, the circumstances under which the statements were made, and any other evidence which will be admitted in the trial which you choose to consider for that purpose.

         ¶13 The forensic interviewer then finished testifying, and J.B. took the witness stand. With leading questions, the prosecutor prompted J.B. to agree that "[some]thing bad happened when [she] spent the night at [her] Uncle Dherl's house." When asked about the details of the allegations, however, J.B. often answered with "I don't know" or "I don't remember." She could not remember, for example, whether Jefferson had used his wheelchair when he carried her into his room. She did remember, however, that once they were in his room, Jefferson had put her on his bed, "pulled down [her] panties, " and "started rubbing [her] butt." On a body diagram, J.B. then circled her "butt." She did not remember whether he had touched her anywhere else that night or whether he had touched her again on a separate occasion. When, however, the prosecutor showed her a second body diagram and asked "where [her] Uncle Dherl's body touched her" when he was sitting on top of her, J.B. circled what she called her "pee-pee." She remembered telling the forensic interviewer that the incident had made her body feel "wiggly, " but she could not explain what that meant.

         ¶14 The next day, which was the last day of the trial, the court revisited the question of whether to allow the jury unsupervised access to the DVD of J.B.'s forensic interview, as it had said it would do. The court noted that the case law, including "the [DeBella] case"[2] and People v. Frasco, 165 P.3d 701 (Colo. 2007), required it to exercise its discretion and to consider certain "factors concerning why the DVD should go to the jury in an unsupervised way." In the court's view, the DeBella factors included (1) "whether or not the videotape was admitted as an exhibit and played for the jury in open court during the trial, " (2) "whether inculpatory evidence was introduced at trial in addition to the videotape, " and (3) "whether the jury was allowed to take notes which would preserve trial testimony in note form."[3] The court found that all three factors were present, concluded that each one weighed in favor of unsupervised access, and noted that it was exercising its discretion to allow the jury unsupervised access to the DVD in the jury room.

         ¶15 Jury instructions and closing arguments followed, and J.B.'s forensic interview played an important role in the arguments. The People used J.B.'s recorded words to prove the allegations against Jefferson, and Jefferson argued that the interview was suggestive and that its contents were inconsistent with J.B.'s trial testimony. During her rebuttal argument, the prosecutor then told the jury:

[T]he [DVD] is part of evidence [sic]. And if you want to review it again, you certainly can do so in the jury room. And then you can review it and decide for yourself. And I'm not going to argue about what was said or was not said in the [DVD].[4]

         ¶16 After the arguments, the court excused the jury to deliberate. About four hours later, the jury returned with a verdict, finding Jefferson guilty of one count of sexual assault on a child and one count of sexual assault on a child by one in a position of trust. The jury further found, however, that the prosecution had not proved beyond a reasonable doubt that Jefferson had committed the sexual assault as part of a pattern of abuse. The court entered a judgment of conviction and, at the subsequent sentencing hearing, imposed an indeterminate prison term of ten years to life with lifetime mandatory parole.

         ¶17 Jefferson appealed, arguing that the trial court had reversibly erred in giving the jury "unrestricted and unsupervised access" during deliberations to the DVD of J.B.'s forensic interview. Jefferson, ¶ 8. The division ultimately agreed, concluding that although the trial court had affirmatively exercised its discretion when it decided not to exercise control over the jury's access to the DVD, the court had abused that discretion by relying on the factors outlined in the court of appeals division's opinion in DeBella, 219 P.3d at 396-97. Jefferson, ¶ 16. The division viewed the pertinence of the factors discussed by the DeBella division as "at best, unclear, " given that this court later reversed the division's decision. Id.; see DeBella, 233 P.3d at 668.[5]

         ¶18 Nor did the division deem the factors on which the trial court had relied persuasive on their merits. It regarded two of the factors-(1) that the DVD had already been admitted into evidence and played in open court and (2) that the jury had been allowed to take notes-as "insufficient to support a reasonable conclusion that the trial court need not control the jury's access" to the DVD. Jefferson, ¶¶ 20-23. The division considered the third factor-the existence of other incriminating evidence-irrelevant to the question of juror access and salient only "to whether any error in refusing to restrict such access was harmless or reversible." Id. at ¶ 24.

         ¶19 In light of the foregoing, the division concluded that the trial court should have exercised "some form of control over the jury's access to, or consideration of, the victim's videotaped statements." Id. at ¶ 18. The division suggested, for example, that the trial court might have (1) replayed the DVD for the jury in open court under the supervision of court personnel, (2) instructed the jury to watch the DVD no more than a specific number of times, or (3) instructed the jury not to give any special weight to the DVD. Id. at ¶ 19.

         ¶20 The division further concluded that the trial court's error was not harmless because it cast "grave doubt" on the verdict or the fairness of the proceedings. Id. at ¶¶ 25-26. In so ruling, the division specifically noted that, like the videotape in DeBella, the DVD of J.B.'s interview had played a "gap-filling role, " supplying details of the assault that had been missing from J.B.'s testimony. Id. at ¶ 29. The division thus reversed the judgment of conviction and remanded the case for a new trial. Id. at ¶ 38.

         ¶21 The People petitioned for certiorari, and we granted the petition to consider their argument that the division misinterpreted our precedent by requiring a trial court to impose restrictions on the jury's access to witnesses' videotaped statements during deliberations.

         ¶22 We begin by clarifying the issue now before us. We then address the applicable standard of review. Finally, we proceed to discuss the merits of the People's challenge.

         II. The Issue Now Before Us

         ¶23 As an initial matter, we note that the People characterized the question before us as whether the division had erroneously expanded DeBella to require actual restrictions on a jury's access to testimonial electronic exhibits, rather than a case-by-case analysis of whether restrictions are appropriate. This recitation, however, misstates the division's holding. Specifically, notwithstanding the People's argument to the contrary, the division did not require actual restrictions on jury access to electronically recorded exhibits. Nor did the division expand DeBella. Rather, as set forth above, the division perceived an abuse of discretion under DeBella because the trial court had relied on factors that, in the division's view, did not alleviate the risk that the jurors would give the DVD at issue undue weight.

         ¶24 Accordingly, we view the question presented as whether the trial court abused its discretion in allowing the jurors ...

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