People v. Larry D. Buckner
17CA1079
| Colo. Ct. App. | Feb 3, 2022Background
- Victim J.D. initially told police she was attacked in an alley, then retracted and identified neighbor Larry Buckner as the assailant; a SANE documented genital and bodily trauma.
- Buckner’s DNA (from a court-ordered buccal swab) was found on J.D.’s vagina, labia, and neck; no spermatozoa were detected.
- Defense theory: J.D. was beaten by her (then-underage) girlfriend, then had a consensual encounter with Buckner; witnesses testified Buckner had medical issues affecting erections and that J.D. had visible injuries before alleging Buckner assaulted her.
- At the second trial prosecutors played Buckner’s recorded jail interview and argued (in closing) that he “refused” to give DNA and, in rebuttal, urged the jury to give J.D. her “day of justice.” Defense did not object at trial.
- Buckner sought a rape-shield evidentiary hearing to admit evidence that J.D. had a history of false reports of sexual assault (allegedly two incidents involving J.B.); the trial court denied the hearing.
- The court of appeals reversed the convictions and remanded for retrial, and held the trial court erred by denying a rape-shield hearing because the offer of proof was sufficient and “reporting” need not be to authorities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutor’s comment that defendant "refused" DNA (implying guilt) | Comment was fair argument about interview demeanor and corroborated by evidence (defendant equivocated) | Prosecutor mischaracterized equivocation as a refusal and impermissibly used a constitutional right (refusal to consent to warrantless search) to infer guilt | Reversal: comment was improper and, given case facts and credibility dispute, contributed to plain error requiring retrial |
| Prosecutor’s plea to "do justice" for the victim in rebuttal | A permissible appeal to jurors’ sense of duty to find facts and hold guilty those proven beyond a reasonable doubt | Impermissible pressure on jurors to convict for victim’s sake, especially as last argument before deliberations | Reversal: statement improper; timing and cumulative effect with DNA comment undermined trial fairness |
| Denial of rape-shield evidentiary hearing; scope of "history of false reporting" under § 18-3-407(2) | People argued defendant’s offer did not show multiple false reports and that “reporting” must be to authorities | Buckner argued his affidavit alleged two prior false reports (including private admissions and a Facebook accusation) and warranted a hearing | Remand: court erred in denying hearing; “reporting” in § 18-3-407(2) need not be to law enforcement and offer of proof was sufficient to require an in camera hearing |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda custodial-interrogation principles)
- Domingo-Gomez v. People, 125 P.3d 1043 (Colo. 2005) (limits on prosecutorial argument and ethical duties)
- United States v. Prescott, 581 F.2d 1343 (9th Cir. 1978) (refusal-to-consent evidence invites an impermissible inference of guilt)
- United States v. Clariot, 655 F.3d 550 (6th Cir. 2011) (exercise of constitutional rights is not evidence of guilt)
- Wainwright v. Greenfield, 474 U.S. 284 (1986) (same principle regarding exercise of rights)
- Florida v. Royer, 460 U.S. 491 (1983) (context on consent and waiver of rights)
- People v. Weiss, 133 P.3d 1180 (Colo. 2006) (interpretation of rape-shield statute and requirement for multiple false reports to admit evidence)
- People v. McKenna, 585 P.2d 275 (Colo. 1978) (purpose of rape-shield protections and need for a preliminary showing)
- People v. Bennett, 515 P.2d 466 (Colo. 1973) (no legal distinction between direct and circumstantial evidence)