People v. Cernazanu
2015 COA 122
Colo. Ct. App.2015Background
- Defendant Travis Cernazanu lived with his cousin and her daughter I.W.; J.K., a friend who slept over, alleged repeated sexual assaults by defendant when she was 6–8.
- J.K. reported the assaults to her mother C.D.; an investigation led I.W. to disclose a similar single assault by defendant when she was eight.
- Charges: two counts of sexual assault on a child and one pattern-of-abuse count related to J.K., and one sexual-assault count related to I.W.; jury convicted on all counts.
- At trial, the prosecutor elicited testimony from C.D. describing J.K.’s typical lying behavior and noting that J.K. did not recant in this instance (implying truthfulness).
- Defendant challenged that testimony as impermissible vouching for J.K.’s truthfulness; court found the testimony improper and concluded the error was not harmless, reversing and remanding for a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of C.D.'s testimony about J.K.'s behavior and non-recantation | Testimony described general character/behavior relevant to credibility and reliability of child statements | Testimony improperly vouched for J.K.'s truthfulness on a specific occasion (impermissible opinion of veracity) | Reversed: testimony impermissibly conveyed opinion J.K. was truthful about the assaults and was improperly admitted; error not harmless given credibility central to case |
| Effect of error on convictions for both victims | C.D.'s testimony was limited and incidental; J.K.'s statements independently admissible | Vouching substantially influenced verdicts for both J.K. and I.W. because of lack of corroboration | Court held reasonable probability the error undermined confidence in convictions for both victims; remand for new trial |
| Admissibility of J.K.'s out-of-court statements (child hearsay) | Trial court properly conducted required reliability hearing and statements were admissible | Defendant challenged hearsay admissibility | Trial court did not abuse discretion admitting child hearsay; factors supported reliability |
Key Cases Cited
- Wittrein v. People, 221 P.3d 1076 (Colo. 2009) (witness may not opine on another witness's truthfulness on a specific occasion)
- Eppens v. People, 979 P.2d 14 (Colo. 1999) (expert testimony cannot state child was "sincere")
- Gaffney v. People, 769 P.2d 1081 (Colo. 1989) (impermissible for witness to testify child was "very believable")
- Snook v. People, 745 P.2d 647 (Colo. 1987) (error in admitting testimony vouching for victim's credibility not harmless when credibility is focal)
- Koon v. People, 724 P.2d 1367 (Colo. App. 1986) (expert testimony about victim behavior may incidentally relate to credibility but must address a matter apart from specific-occasion veracity)
- Oliver v. People, 745 P.2d 222 (Colo. 1987) (witness may not testify to personal belief in victim's statements)
- People v. Cook, 197 P.3d 269 (Colo. App. 2008) (investigating officer's repeated assertions that child victims were believable can constitute reversible error when credibility is central)
- Rivera v. United States, 780 F.3d 1084 (11th Cir. 2015) (Rule 608(a) precludes opinion on another witness's truthfulness on a particular occasion)