Kogan v. People

KOGAN, Petitioner, George Edward PEOPLE State

Colorado, Respondent.

No. 85SC489. Colorado,

Supreme Court

En Banc.

9,May 1988.

Rehearing Denied June Borrillo, Denver, peti-

Theodore A. for tioner. Woodard, Gen., Atty.

Duane Charles B. Howe, Gen., Deputy Atty. Chief Richard H. Forman, Gen., Engle, Sol. Clement P. Asst. Gen., Denver, Atty. respondent. for ROVIRA, Justice. petitioner-defendant, Edward G. Ko- gan, appeals his conviction of four counts of sexual assault on a child. He contends that the evidence offered at trial was insuf- support finding ficient to that he was guilty charges beyond of the a reasonable doubt; insufficiently apprised that he was charges against him so as to be adequately prepared in his defense and be protected against jeopardy; double prosecu- trial court should have ordered the tion to select a act which to conviction; rely finally, improperly trial court his limited cross-ex- key prosecution amination of a witness. judgment acquittal, We cannot enter a as the evidence introduced at viewed light prosecu- in a most favorable tion, is sufficient find guilty charges beyond a reasonable Nevertheless, doubt. our concerns the cumulative effect of the errors commit- counts, relating to J.W. was dismissed us to reverse court cause ted the trial parents an- for a new trial. when her had moved to judgment remand —who her to Colo- other state —would return I. testify. rado to brought, the de- charges were When the Trial commenced November teacher in the a school fendant had been right jury The defendant to a waived District, Arapahoe County, School Sheridan was, therefore, trial and tried the court. years. Colorado, twelve approximately for People’s The as will discussed be- alleged were to The of sexual assault acts low, essentially the consisted of was a have occurred while concerning im- alleged of the three victims Elemen- grade at Ora Oliver fourth teacher proper touching by the defendant during 1982- tary the 1981-82 and School and de- classroom. The defendant testified never years. The defendant had 83 school allegations. The nied all of the court found teaching, suspended from nor guilty him of of sexual assault four counts any of accused or convicted ever been and, rejecting on a child the recommenda- crimes. department, probation sentenced tion February An was filed information imprisonment years him on each to three 1983, charging defendant with five the count, concurrently. to run in viola- counts sexual assault on child of opinion, unpublished In the court of an (1986), 18-3-405, 8B C.R.S. tion of section It con- appeals affirmed the conviction. in violation and four counts of child abuse trial presented the cluded that evidence 18-6-401, of section 8B C.R.S. support finding of was sufficient to C.M., J.W., V.A., and victims were particulars ade- guilt; that the of bill charged E.L. The initial information that did not err in quate; that the trial court perpe- of assault were two counts sexual to refusing require prosecution to elect upon trated C.M. November victim, rely specific act to each and to as information was amended to include one conviction; finally, for and on that act count of assault on a child and one sexual prejudiced by the defendant was abuse, allegedly acts count of child both limitation on the cross-exami- trial court’s upon perpetrated A.C. Dr. Cullen. nation of James general of informa- Given the nature de- granted consider the We certiorari to tion, for order the defendant moved (1) regarding: the suffi- fendant’s claims provide requiring prosecution him evidence; (2) partic- bill ciency of of particulars. grant- with a of bill ulars, se- requiring motion, it to the “best of ed the but limited rely upon specific act and to lect a knowledge be- attorney’s] [district conviction; (3) the limitation choice for lief.” was amended When the information on cross-examination. counts, the defend- to include additional particu- ant an amended bill of moved II. lars, requesting the information same A. original sought nine counts. The for the evidence contends that the People complied The defendant with an amended sup- was insufficient to introduced at trial responses “specific” as particulars finding guilt. port trial court’s objections The defendant’s the first bill. sufficiency (1986), 18-3-405, section 8B C.R.S. Under appeal. form a basis for committed when on a child is sexual assault subjects another knowingly pertaining “an actor ... 1 of the information Count sexual contact pre- spouse her not his or at the end of the V.A. was dismissed years victim is less than probable ... if the liminary hearing for lack years least four age the actor child cause. The five counts of abuse have construed the victim.” We at the older than dismissed on motion to mean “the contact” remaining “sexual beginning five the term of trial. Of the interviews, touching intimate further time he met of the victim’s intentional presence police parts by the actor ... with them the of a detec- arousal, gratification, or abuse.” sexual tive. (Colo. West,

People v. Following meeting, arranged Cullen 1986). to have interviews conducted at the school defendant’s first claim con- Op- Since the by police officers and directed Juanita tying sufficiency cerns the of the evidence pergard, psychologist, the school to sit in assaults, the evidence as him to sexual on the interviews. The detectives inter- discussed in adduced trial will be students from the defendant’s viewed some detail. (1982-83) (which present grade fourth class students), previ- 25 to 28 and his numbered trial Evidence offered at indicates (1981-82) (the grade ous fourth class K.M., a student the defendant’s 1982-83 class, present grade fifth which numbered class, grade spoke to her mother on fourth students). approximately 30 The students’ or about October about ages ranged years. from 9 to These improper touching in the defendant’s class- part interviews took the better of three mother called the school room. K.M.’s days tape and were not recorded. Students Cullen, principal, Dr. James October period rang- were interviewed a time gave girls him and the names four ing day, from one-half hour to a half a and talking among that K.M. stated were them- then sent back into the classroom. regarding improper touching. selves V.A., C.M., C.D., Those names were attended of the interviews Cullen several call, receiving B.P. After this Cullen went addition, police. conducted he requested classroom and approxi- also conducted another series of girls accompany the four named him students, mately twenty interviews with there, back to his office. Once he asked recorded, tape with the school they them if wanted to talk to him about attorney present. district’s something. she in on Because interviews sat first to talk. told the C.M. was the She proceeding too fast to transcribe “touching principal that the defendant was everything, Oppergard tried to summarize girls putting up his hands some police. Opper- what the students told the Initially she referred to their blouses.” gard police took notes of the interviews she thereupon V.A. said that the defend- V.A. attended and testified that Cullen asked recently put up his hand ant had tried to notes, destroy these her which Cullen blouse, had taken his hand out her but she Upon request produce denied. at trial to slapped girls him. The indicated that tapes, his Cullen stated that he did not touching improper happening to all have them and did not know where girls in the classroom. At no time tape recordings appar- were. Those have during meeting with did this initial Cullen notes, therefore, ently disappeared. Her girls any of the state that the defendant represent only contemporaneous record pants in placed his hand of the numerous and extensive interviews girls. the de- four C.M. never stated that of these students. placed fendant a hand on her breast. The key People. Cullen was a witness for the meeting lasted 15 to 20 minutes. attempt explain discrepancy To be- conversation, After this initial Cullen allegations tween the of students that the his office summoned the defendant into touching people improperly, defendant was suspended pay pending him with fur- many and the fact that adults in the school time, investigation. ther At that Cullen did building who the defendant’s went into not tell the defendant the names of the classroom unannounced never saw the de- allegations making the or their students improperly touching anyone, fendant Cul- specific nature. warning “early an len offered into evidence girls par- system” adopted by the defendant. The Cullen had the four and their testimony ents come to school on October 18 for essence of this was that She was not able to recall provided assumed it was. desk of the defendant’s placement occurred, early warning system period when the incident a time gentle about to walk of his who were the touch toe was detect individuals nor whether Cullen, According to a into his classroom. or forceful. person’s precede a shadow would 3-foot in E.L. was a student the defendant’s classroom, thereby giving going into the grade class, fourth and was 1981-82 pull his about seconds the defendant friend and classmate of A.C. She also tes- pants or shirt of female hands out of touching" the “bad tified that occurred (or the door was 3 or 4 seconds if student only at the defendant’s desk while class closed). in session. She also went to the de- testimony, several Following Cullen’s own fendant’s desk her accord—“lots” class, during former students testified day, by her count. typical —on a own She students, while at presence of other touching the bad occurred testified that desk, put his hand under his throughout year. breasts, shirts, their the victims’ rubbed that the defendant touched E.L. testified vagi- pants their near the put hands “lots.” was also her under her shirt She claims that The defense nal area. vaginal in her area and tes- touched “lots” finding credi- court erred her the defendant touched over tified that ble. panties panties and under her “lots her testimony of the three victims— acknowledged prior She state- both.” C.M.,E.L., similar, quite and A.C.—was one hand ment that the defendant had in of defendant’s only their accounts the grading papers pants, her and was with of regarding also the absence activities but explaining math to her. another or When detail, difficulty accompanying and desk, the it al- improperly touched at was remembering really happened in the what ways in front of other students who were classroom, they or felt at defendant’s what desk, position a where also the and the time. they her touched. could have seen a member of defendant’s C.M. was the a friend of E.L. and visited A.C. was grade She testified 1982-83 fourth class. testimony quite her home. Her sim- touching always the the occurred at ilar to A.C.’s account concerned E.L.’s. customarily group a of desk—and other allegations regarding the defendant’s be- at the students were desk—but a havior while she was also student recess, during never touched her defendant grade fourth class. defendant’s 1981-82 playground, on the or after school. C.M. touching” only Again, “bad occurred figured prominently in the so-called “toe the defendant’s desk while other students allegedly took incident.” defendant present in room. A.C. went to up legs his her put off his shoes and toes volition; defendant’s desk on her own vaginal two her her area while C.M. and of requested never or directed under- classmates—S.M. and C.D.—were she to his desk. She was at come neath defendant’s desk on their stom- week, times a while other desk several report. working on This incident achs a her. children were the desk with one for represented of the four counts argues that the evidence defendant was convicted. S.M. which the defendant People highly improba- is by the introduced he never testified at trial that under ble, contradictory, contrary and to human At the defendant’s desk C.M. supporting experience, falls short of could have been B.P. C.M. stated it finding guilty charges that he is of and did not and not C.D. under desk toe, beyond a reasonable doubt.1 if was know it away. colleagues par- parents right Former As to 1. evidence submitted allegations. of students of the defendant testi- denied all ents former testified and anything improper had never seen not believe that fied He further stated that did high permitted of anyone classroom and their in the defendant’s E.L. A.C. would have per- respect informing the defendant as teacher and improperly their touch them without 950 Gonzales,

B. 128; dence. People 666 P.2d at Downer, v. 264, 268, 192 Colo. 557 P.2d process The due clauses of the United 835, (1976). Second, 838 the determination prohibit States and Colorado Constitutions credibility solely witnesses is any person ex- the criminal conviction province of the fact finder. Peo within the guilt beyond cept proof on a reasonable ple Franklin, v. 1, (Colo.1982); 645 P.2d 4 Winship, re 358, 364, In doubt. 397 U.S. Walker, People v. 113, (Colo. 666 P.2d 1068, 1072-1073, 120 90 S.Ct. 25 L.Ed.2d 368 1983). In (1970); weighing credibility Virginia, Jackson v. 307, of con 443 U.S. 2781, 2789, flicting testimony, judge 99 S.Ct. 61 the trial L.Ed.2d 560 who Gonzales, (1979); People v. heard and 666 P.2d observed the witnesses has (Colo.1983). 127 Where the sufficiency many advantages we do not have when we challenged appeal, evidence is our transcript. People Parks, v. review a 195 evidence, task is to determine whether the 344, 349, 579 P.2d Only whole, light viewed as a most when witness’ is palpably “so prosecution, favorable to the is sufficient totally incredible and so unbelievable” support a conclusion a reasonable properly this court reject it as a matter of person guilty that the defendant is Franklin, 4; law. 645 P.2d at charged beyond crimes a reasonable doubt. Brassfield, (Colo.1982). 652 P.2d Schoondermark, 699 P.2d Third, it is the function of the trial Mason, (Colo.1985); People v. courts, appellate courts, and not Gonzales, (Colo.1982). also See weigh the findings evidence and make (“the question at 127 relevant Walker, pertinent issues. 666 P.2d at whether, viewing after the evidence in a It is the fact finder’s function to light prosecution, most favorable to the weight consider and determine what should any rational trier of fact could find that given parts to all of the evidence. This each of the essential elements of the crime resolving conflicts, includes the incon- charged proven beyond a reason- sistencies, disputes in the evidence. doubt.”), quoting able Virginia. Jackson v. Jones, giving meaning standard, to this we 706, Aalbu, (1976); People v. P.2d 707 696 have stated that the evidence must be 796, (Colo.1985). P.2d 811 appellate An “both substantial and sup- sufficient” to permitted court is not to sit as a thirteenth port the guilt determination of beyond a juror and set aside a verdict because it People Bennett, reasonable v. doubt. 183 might have drawn a different conclusion 125, 130, 466, Colo. (1973). 515 P.2d 469 from the same evidence. Cokely People, v. determining In any whether rational trier 52, 57, 824, (1969). 168 Colo. 449 P.2d 827 might accept evidence, of fact the taken as whole, light a and in the most favorable to Fourth, a “modicum” of relevant ev prosecution, the as substantial and suffi- idence rationally support will not a convic support finding cient to a of the accused’s Gonzales, beyond tion a reasonable doubt. guilt beyond doubt, a reasonable this court 128; 666 P.2d at Virginia, Jackson v. 443 is accepted bound certain principles well U.S. at 99 S.Ct. at 2789. Finally, of law. in verdicts criminal cases not be based

First, prosecution the given “guessing, speculation, must be on conjecture.” Gonzales, every the benefit of Urso, 128; reasonable People inference 666 v. P.2d at might fairly which 292, 297, drawn from (1954). the evi- 129 Colo. 269 P.2d 711 son. At least six former any through students denied ever have sexual needs met child rela- seeing improperly the any tionships. defendant findings touch There were no as to the member of his profile 1981-82 or 1982-83 classes. Fi- defendant’s character and which would nally, the psychologist any way defense called a suggest pedophilac clinical in behavior. testify fact, testing to as to the psychologist results of his clinical the testified that the back- and evaluation of the ground defendant. He concluded and characteristics of the defendant are any the defendant did not alleged demonstrate in- counter-indicative of the behavior in the children, sexually terest nor did he desire to accusations.

951 victim is evidence to establish principles to the in insufficient these Applying questions, the intent to commit the crime second- believe that stant we contradictions, degree the de- and inconsistencies sexual assault. Given the to questions do rise level People’s appeal going case fendant raises as a confidently evidence, can state where weight the of the the resolution presented of law that the evidence finder, matter is directed to the fact we which to find insufficient acquittal. a judgment cannot enter defense of absolute denial guilty. The the cen by the defendant made

presented III. i.e., credibility; issue trial one of tral at in- The defendant contends that com allegations alleged of the victims as apprised charges against sufficiently of the by the with the denials offered de pared adequately prepare him him to to enable court, having The trial heard and fendant. against protect himself witnesses, posi the best observed jeopardy. encompasses This double claim credibility of all the tion evaluate sufficiency objection the defendant’s conflicting weigh evi witnesses and particulars bill of and the trial Franklin, 5; Walker, at 645 P.2d dence. require People elect court’s failure to court, acting P.2d at 113. The trial as 666 rely upon a act would finder, testimony fact heard all for conviction. chose children presented and to believe the cannot set rather than the defendant. We A. might simply a because we aside verdict from drawn a different conclusion have general language Given the nature of Marques, same evidence. 184 information, in the which described the de- 262, 270, (1974); echoing only by acts the statu- fendant’s 827; at Cokely, 168 P.2d tory language and which stated that Trujillo, very acts were committed within broad frames,2 time the defendant moved for a charged acts Viewing a and in the evidence as whole alleging information. As to the counts sex- prosecution, most light favorable to child, ual defendant re- assault fact find each rational trier of could quested prosecution particularize: charged the crime the essential elements of (a) place of “The act and occur- proven beyond a reasonable rely rence that the intends to Virginia, doubt. See Jackson U.S. ...”; 2789; supporting allegation S.Ct. v. Gon- (b) zales, particular date between the dates 666 P.2d at 127. “The alleged in the information in which the act Because vic- in- upon prosecution occurred tims, true, accepted provides if as suffi- rely.” information was tends to Similar evidence for a conviction on these cient sought alleg- respect with to those counts charges, not case we this is where can ing granted The child abuse. evidence insufficient as a mat- declare the motion, order, requiring only but limited its Thus, law. instant is unlike ter of case prosecution answer the to the 1363, Dererra, P.2d 1371 People v. 667 knowledge attorney’s] “best of [district (Colo.1983), declared that a where we and belief.” touching of by the defendant vague particulars of on ad- The bill submitted mid-thigh victim her “coming People responses stated that “said reflect mission that on” contact, speci- spouse example, to sexual and E.L. was less than 2. For count of the information 8 including day (15) years age "that between the 31st of fied August, was at fifteen of and [defendant] June, 1982, 1981, day E.L.; of in (4) 30th years in four older than violation least Colorado, County Arapahoe, [de- State SEXUALASSAULTON section 18-3-405 ... unlawfully, feloniously, and know- fendant] did A CHILD....” another, [E.L.], ingly subject namely not his 952 diligent specify

reasonable and effort is nonetheless so indefinite in its statement time, place, particular child abuse subsections and charge of a that it does not af- specific acts which constitute the crimes ford the opportunity defendant a fair charged, light particular nature of procure trial, witnesses and for the offenses and the and cir- years tender especially through the preju- avoidance of ” cumstances of the victims-witnesses. surprise. dicial People Court, v. District People’s response quite general, was still 501, 503, 127, 198 Colo. (1979); 603 P.2d 129 allegedly impeded it because the de- Balltrip People, 401 defense, preparation fendant of his 259, 262 A particulars bill of appeal. forms a basis For exam- provide can protection against also a subse- 8, ple, particulars speci- count the bill of quent prosecution for the same offense. E.L., that, fies engaged the defendant Burgin, United States v. 1352, 621 F.2d “touching on breasts numerous times (5th Cir.1980). Moreover, 1359 where the legs,” and between in the classroom at Ora information is essential to the fail- School, Elementary Oliver on and between grant request ure to particu- for a bill of 1, September 30, 1981 and June 1982. may lars constitute reversible error. Unit- When the information was amended in No- Williams, ed States v. 504, 679 F.2d vember 1983 to include the additional (5th Cir.1982). counts, the defendant moved for an amend- Nevertheless, the defendant particulars, ed requesting bill of the same necessarily entitled to receive all the sought original information nine requested. People Lewis, information counts. The submitted an amended 985, 671 P.2d (Colo.App.1983). A mo responses bill of with similar to particulars tion for a bill of will be denied those in the first bill.3 which calls for conclusions of law or the legally Even in a sufficient accu legal prosecution’s theories behind the sation, may the defendant need additional case, or discovery which seeks to obtain information charged, as to the crime evidence which the which case he be entitled to a bill of Court, rely will v. District at trial. particulars. Torcía, 2 Wharton’s Crimi C. Colo, 129; Balltrip, 603 P.2d at nal Procedure (12th ed. 1975 & § 262; 401 P.2d Supp.1987). partic of a bill of Stratton, 376 (Colo.App. ulars is to enable the properly defendant to 1983). generally See 2 Wharton’s § prepare his defense in a case where the indictment, Here, although sufficient sought, advise in addition him, the defendant of charges against particulars regarding places acts and complete breasts, 3. The reflecting Touching touching Acts: on between original and amended counts of the informa- legs several times. tion, deleting dealing those counts Classroom, Elementary Place: Ora Oliver abuse, begin- child ning which were dismissed at the School pertinent part: reads in Dates: On and between Oct. 1982 & Oct. applicable. COUNT 1: Not COUNT 3: Victim: C.M. COUNT 8 Victim: E.L. back, breasts, Touching Acts: numer- Touching Acts: on breasts numerous times legs ous times and approximately between the legs. and between 5 times. Classroom, Elementary Place: Ora Oliver Classroom, Place: Elementary Ora Oliver School School Sept. Dates: On and between 1981 & June 1, Sept. Dates: On and between 1982 & Oct. 30, 1982 20 1982 COUNT 10 Victim: A.C. COUNT 4: Victim: C.M. rubbing Acts: Hands inside shirt back 8 to 9 Touching Acts: legs. with toes between the victim’s times, times and chest 2 to 3 and under bra rubbing bare chest. Classroom, Elementary Place: Ora Oliver Classroom, Elementary Place: Ora Oliver School 1, 20, Dates: On School and between Oct. 1982 & Oct. 1, Sept. 1982 Dates: On and between 1981 & June 30, COUNT 6: Victim: J.W. 1982

953 14, 291, (1978). re- 586 P.2d 15 Our standard occurrence, specific information more be same whether the alleged sexual of review should the of the garding the dates court denies a motion for a bill of trial assaults. grants subject motion particulars, the time is where general rule of limitation: Whether the bill offense, not material element is a produced sufficiently informs the de- as is the crime precise time at which the particular charges at issue fendant is not charged been committed to have given opportunity he is so that a fair 242, People, v. Colo. material. Marn 175 properly prepare his defense. See also 424, (1971). 247-48, 427 486 140, Hauck, A.2d 374 State v. 172 Conn. reviewing cases where courts (1976) comply (legitimate for state to 150 against ruled the defendant and found have date or requesting exact with court order adequate, prosecution’s response impor the Cline ability”). best of its dates to “the instant differences from the case tant Commonwealth, 362, Va.App. 3 349 bell v. Here, has out. the defendant stand Arm (1986); v. 676, State 679 S.E.2d provided which sets forth information 559, (1986); strong, Kan. 712 P.2d 1258 238 of precise terms the nature the conduct especially This true Wharton’s § 2 355. is Rubanowitz, v. alleging crime. the has how defendant not shown where the (conduct 231, (Colo.1984) 239 al 688 P.2d refusal of prejudiced his is defense constituting in par forth legedly theft set prosecution to to order the trial court detail). Nor the defendant been ticular re exact information with furnish more accounting of provided a with detailed 370, Sills, v. to dates. State spect 311 N.C. acts sufficient to sustain convic overt v. 379, (1982); State 382 317 S.E.2d Barbieri, 614 F.2d tion. United States v. Moesch, 738 S.W.2d (Mo.App.1987) 588 (10th Cir.1980). In other cases 719 (failure es provide precise time neither prosecution’s response was de where non-ac sential decisive where alibi or nor given adequate, the defendant clared defense). cess not a viable of, inter him which informed information alia, specific facts alleged two however, involved If, information about incidents, as the date of as well criminal time crime was commit when encompass sufficiently precise to a the act necessary is to enable the defendant ted Griffin, v. 386 State against period, N.W. guard or to one-week his defense crime, (Iowa App.1986), or the indictment prosecution for same 2d 529 subsequent (charging 2 provided. must lewd such information itself 355; Billingsly v. United daughters), as well Wharton’s § fondling of his States, (8th Cir.1926); defendant, apprised State given report 16 F.2d 754 police Hicks, (Tenn.1984). time, date, specific 54 666 S.W.2d location, descriptions of the as well as brief typical involving case a bill of In a McMillan, People v. 86 alleged incidents. particulars, trial court has denied or 308, 407 207 Ill.App.3d N.E.2d granted order for a bill and the issue Moreover, conceding that a even appellate the trial court review whether See, produced, People v. still a number e.g., need not be discretion. date abused its Colo, Court, par- bills 603 P.2d courts have found sufficient District 198 at narrowing Balltrip, 127; which succeeded ticular defendant must with which the by comparison, In the instant case time frame Walker, especially State See motion deal. granted (Me.1986) (state’s proof concen- for a limited its A.2d bill of days periods several dura- [prosecution’s] on two order “best of the trated tion; account forced to knowledge question is defendant not and belief.” The Willette, People v. moment); every waking qualifying whether instruction com (1985) N.Y.S.2d ports constitutional 109 A.D.2d with the defendant’s month for (indictment refers right apprised charges against to be count; day narrowed Donachy, him. each time particulars provided Rather, sufficient notice to de- sought it was for the State, fendant); Bonds v. Md.App. enabling the defendant de- (state’s (1982) particu- A.2d 572 bill of was, however, As it fense. the absence of specific lars named three dates on which any specific further detail as to acts and/or alleged might occurred). acts have forced the dates position defendant into the particulars provided relying the de- of an all-inclusive “denial” fendant, however, general concerning is so only defense. alternative would have any description specific allegedly acts trying to account for every moment by empty committed the defendant as to the classroom for one-year period —an “particular” meaning. Spe- the word of all impossible endeavor. People When the cific “touching acts were listed in terms of produced their evidence at it consisted back,” breasts, times,” “on numerous testimony by girls three in two different legs and “between the several times.” See classes of “lots and improper lots” of provided n. 3. Details are not even for the touching period (with over a of time one incident presumably could exception incident) of the toe ranging from put greatest forth particularity— with the six weeks to nine months. any Without involving the toe incident C.M. Nor does it greater specificity, the defendant was de- date, speak make sense to of “the on or prived of even an alibi defense. An ele- about, place” when the acts took when the mentary school single teacher confined to a dates of the crimes for which defendant conferences, classroom still gets attends (with actually prosecuted at trial cover sick, students, teachers, is aware of exception) periods one 3-week ranging parents coming into his or her class at fact, from 6 weeks to 9 months. In the bill particular points of time. particulars furnished little more infor- already provided mation than was In past, approved this court has or- information. The same broad and over-in- requiring ders provide alleged clusive time frames are in the bill particular bills of charges where the “are information, change only with the scope, involving broad in peo- a number of “touching” inclusion of and certain bod- ple allegedly and acts committed over a ily parts guide specific as the to the con- long period of time.” People v. District alleged. duct Court, 603 P.2d at 129. It is not clear from the record the extent spirit, the same the instant case also which the made a credible at- long frames, involves time alleged several tempt forth, put to narrow the time frames victims, and alleged numerous incidents of and which would be consistent with an improper sexual contact. The standard set order directing attorney the district to com- by the district court —to the “best of the ply knowledge to the “best of [his] attorney’s] knowledge and belief” [district belief,” (other alleging evidentiary than quickly —was reduced to nullity almost a problems witnesses). associated with child providing terms of the defendant with believe, however, We do that the combina- “particulars” preparation of his de- tion of the broad time frames and the ab- fense. sence of accompanying detail describ- ing judgment Because our emphasize acts greater need for specificity, adequately demonstrated a clear and produced bill as preju- in clear resulted showing prejudice caused dice to the prejudice, defendant. This fur- People’s response to his motion for a ther, substantially undercut the defend- Hauck, State v. 172 Conn. cf. ability ant’s to mount successful defense (1976) (but finding 374 A.2d charges. Barela, prejudice); no (but (Colo.App.1984) finding

The bill of no sought by prejudice), defendant for discovery purposes, pro we hold that the failure or to gain legal access to the People’s theories. vide more information in terms of thereupon denied the defend- narrowing of the time particular and acts motion, ruling as follows: ant’s error.4 frame was opinion that the time It’s the Court’s alleged are suffi- have frames that B. cient, Attorney District the has case, People’s the close the At the charge one as to all inci- to file elected requiring moved for order the defendant may have occurred within the dents that specific act People to “select times in the com- time—dates and stated relying for conviction.” they are ... specific infor- plaint or the counts the motion People responded the defendant’s feeling mation. It is the Court’s as follows: pre- thereby Attorney the District has required by view is we are prosecut- [O]ur own vented their actions act, only to elect an estab the law to ing specific charges any other and must set frame an act within the time lish rule ask that the Court as in all instances count, counts be the active forth in the have occurred within this time 3, 4, 8, 10. Our bill of ing counts and frame. particu particulars and amended bill arguments that the Dis- There were that due to the nature of the indicate lars Attorney trict had that on established recollection, the nature of the children’s separate each date an offense of the to, act, subjected acts were alleged Dis- had occurred. The nature ages of their and lack of time because precluded prose- Attorney trict is from anchor, impossible it is fact cuting separate as counts their them any specific People to able to establish be period al- specifying the time actions act. leged. require deny I the motion to date, Attorney District elect a

Although the Court has heard evidence, Attorney’s as the District acts, possibly we could not establish any specific as to whether it be incident frame. I specific act with the time don’t or as other are a so, incidents which do required we are and this believe allegations result of a common of their why gave in fact the defense ad- we manner, design, mode scheme or are of our vance notice before trial desire one could only such that conviction evidence, go similar as with transaction had. immediately as notice before well our feel

together with brief. We that we This motion con- denial of the defendant’s only have to that there show Court Estorga, stitutes error. least an of sexual contact was at act P.2d 520 during complaint, the time frame In Estorga, defendant was convicted into our as blended There, on a sexual assault minor. satisfactory and and that would be suffi- here, charges broadly were framed cient for the Court. contact, general allegations of sexual fact, we can’t elect an act. It presented would no as to specifics that, do impossibility alleged prose- be an for me to dates of the offenses. The upon the based evidence Court cution evidence of several acts introduced heard, At and we don’t think that we’re of sexual contact. the close People’s required to do the defendant moved that so. girls points spe- suspended the four 4. The defendant out that when more fendant was went out, provided as to principal. pointed cific information was alleged the acts to see As the defense information, he was able to if V.A. not touched until October a successful as illustrated in the mount part group possible that of a how was it she was information, dropping of count 1 of the court's dealing principal meeting to see for weeks about slapping allegedly with the incident in- giv- improper touching, why her name V.A., preliminary hearing volving after en to 15 as an K.M.’s mother before October probable determine cause. V.A. claimed that continual im- victim of only her on one touched proper touching? 15, 1982—the date the de- occasion—October concerning the ac- specif- leaves the rationale to elect a order the court preparation, defense which is a rely on cused’s sexual assault and to of ic instance compelling one and is at the heart court de- for conviction. The instance rights process to due and a fair reversed, holding defendant’s motion and we nied the trial. that: acts, many there is evidence issuing ruling, [W]here In the district court did its constitute the

any one of which would properly analyze the defendant’s re- not People may com- charged, the offense First, although quest. the defendant the transaction on which pelled to select preferred prosecution would have that the People they rely for a conviction. specific information as to provide more required identify the exact are not alleged in the time frames the infor- both offense, they must indi- alleged, see date of the but mation and the criminal acts specific III.A., act. request and select a part vidualize neither the defendant’s reference to the bill of nor with 612 P.2d at 523. specific of a act should be so to election State, v. Burlison Citing 501 S.W.2d narrowly as a search for a understood (Tenn.1973), “important we stated that the “specific date.” What requiring specific of a reasons for election sought particularized information as to was pre- enabling in “the defendant act” lie acts, specific which would allow for the specific pare and make his defense to adequate preparation of an defense. Sec- charge,” assuring jurors “that some ond, ruling suggests the trial court’s that it and others on do not convict on one offense Estorga balancing Id. separate offense.” rights against prohibiting limitations Estorga and the A difference between prosecuting People from the defendant for Estorga that in the trial was instant case is alleged one more than act within the time jury, jury erroneous instruction to a and an period covered under each count of the compounded trial court's er have just information. But because the specific respect ror with to the election of a were limited to one conviction for each Nevertheless, relied act. those cases we (covering or months count as it did weeks general Estorga upon in for the rule re time), grouping does not mean that sev- garding specific acts do not the election eral acts in one count re- without cases, jury rule to cases. In those limit the quiring specific to select a act required prosecution to select rely on which would for conviction upon going rely for a act which it was relating preparation concerns satisfies conviction, only remaining and the issue the defense. was the time when such election could be opinion, appeals In its the court of stated (before compelled any the introduction of “[g]iven specificity of the testimo- evidence, during progress of the ny ... there can be no doubt as to which case), People’s or at the close of the with upon transaction the trial court relied being the consensus rule at the close of Apart At conviction.” 947. from severe People, See Shier People’s case. allegations doubts “lots and lots” of (1947); Wills P.2d 366 touching over broad time frames can be (1937); People, 100 Colo. 66 P.2d 329 specific testimony, classified as an exami- People, 95 Colo. Schreiner v. People’s response nation of the to the de- (1934); Lay People, cock prosecu- fendant's motion reveals that the (1919).5 182 P. 880 relying upon specific tion was not trans- Estor- underlying

Of contrary, the two rationales action as to each count. To the ga, dealing jury unanimity given prob- with obvi- admitted that here, ously that still lems associated victims has no relevance fundamental, Moreover, Burlison, upon equally immediately “is the case we relied viction touching accused, Estorga, Supreme rights Court held the constitutional of an the Tennessee upon depend instance and should not a demand there- election of a rely which the intends to for con- for.” 501 S.W.2d at 804. par- reference to the bill discussed with impossible testimony “it is in fact and their ticulars, By allowing the fact part III.A. able to establish People to be any act pick and choose within act,” not feel “that we’re finder and did charged, court feel it becomes did the time frames do so.” Nor broad required to necessary. impossible to use an nearly election was for a defendant that such an prose- having a defense. alibi as at trial to People proceeded specific act within a more select a cution relating to an incident introduce frame, time the defendant was particular child, followed evi by the remembered contradictory presenting from foreclosed generally incidents—which of similar dence evidence, general as to other than a denial “lots” of whatev testimony of consisted charges, by other stu- and statements all original respect to the alleged with er was dents, parents, and teachers that scheme, plan, prove common incident—to touching in his improper never observed 16-10-301, section design pursuant Certainly, the defendant’s classroom. arguments (1986). Contrary to 8A C.R.S. more would have been cross-examination People, do not believe by the we presented if could have examined the effective he scheme or presentation of common recollections of a more witnesses on their section 16-10- design pursuant to evidence act or limited time frame. specific Estorga selec the need for an 301 obviates requires that “where Estorga tion. For is to be contrasted with The instant case acts, many any one of there is evidence Estorga decided since a number of cases the offense would constitute which courts have held that which Colorado People must individu charged, ... the ... People In v. Estorga applicable. is not specific and select a act.” alize Green, (Colo.App.1982), 658 P.2d added). (emphasis at 523 612 P.2d separate tried on three the defendant was unspecified allega Introducing general and assault. Each count was counts of sexual touching private bodily of “lots” of tions single specific transaction. premised on a by testimony that such parts followed although the introduced At touching of occasions to occurred on “lots” transaction, the of more than one evidence plan prove scheme or does not common segregated and identified evidence was strict com compliance with the constitute the informa- particular the count of Estorga. mands of Barela, 689 P.2d 689 tion. In prosecution impossible If finds it the upheld (Colo.App.1984), the trial upon it is identify specific act which se- Estorga that an court’s determination conviction, how can the going rely for a Barela, required. But lection was not court se- or the court? If the defendant continued demonstrated “a the evidence act, then the court assumes lects resulting in the crime pattern of conduct” participates role prosecutorial abuse), such that election of a (felony child charging process, clearly function. not its improp- and instance would be specific date “find- instant the trial court’s P.2d at 691. In the instant case er. 689 ings” rather brief and contain no ref- accused of comparison, the defendant was upon act its erence to a acts, any one of which would numerous But even if the court judgment was based. of sexual assault on a support a conviction findings explicit of fact with had made Collins, child. See also act, point discussion of a (Colo.1986) (defendant’s reliance on “selection” would have been of no as- court need not Estorga misplaced, the trial preparation defense since sistance to require to elect between trial was over. only charged when one transac- crimes occurred); People Wright, 678 leg Estorga one is di tion Because (defendant charged (Colo.App.1984) ability the defendant’s rected toward committing crime specific charge, with alternative means prepare to a his defense count, single not with two distinct within a concerns underscore the some of the same counts, and evidence separate rights this issue as were offenses single district, regarding a transac- presented during school which a number tion). apparently prior students recanted state- given police gave ments incon- position in this seems People’s case sistent seriously undermining statements argument that the evi- premised upon by prosecu- information relied dentiary involving difficulties children in during investigation tion their of the de- assault cases mandate a different sexual example, prepared by fendant. For case, of the child sexual assault we are stances where certain students had recant- unwilling given during po- to deviate from our rule that ed statements the initial acts, many any present “where there is evidence of lice interview. Because Cullen was during one of which would constitute the offense the interviews with the school dis- charged,” Estorga, 200 attorney, trict’s the defense wanted to de- P.2d at the accused should be able to termine if he was aware that a number of crime(s) prepare a defense to the for which specifically changed named students had charged upon specific so, he is based a incident If inquiry their minds. a further line of of unlawful conduct. concerned whéther had informed the Cullen police and the of the recanta-

IV. Cullen, If tion of these witnesses. as the Finally, alleges responsible that the school official most for assist- improperly ing trial court police investigation limited his cross-ex- in its defendant, had, fact, amination of participated Cullen. We will address this in issue, evidence, remaining likely since it is concealment of material that would, course, pursue defense would major bearing similar line of of have a on questioning People retry if the the defend- his bias as a witness.

ant. defense, therefore, inquiring The was not asserting

Cullen was a critical witness in the Peo- of for Cullen of ple’s against falsity case the defendant. He was truth or of these matters —whether Oppergard, aware that Juanita actually the school the children had recanted their psychologist, police previous only pur- took notes of the initial statements —but pose light credibility interviews with the students from the de- shedding of on the of classrooms, fendant’s and key prosecution admitted that he witness.

had occasion to review her summaries of began inquire As defense counsel these interviews. Cullen was also aware about instances where students that information derived from these inter- previous testimony during had recanted preparation views was used in the of attorney interview with the school district’s charges against the defendant. presence, People in objected Cullen’s filed, charges hearsay grounds. expressed

After the Cullen was The court present during approxi- regarding relevancy the interviews of of this concerns mately attorney testimony.6 20 students the defendant’s counsel After done, they’ve In the words of the court: but I’m concerned about the information, directly by the and simply I think issues raised it’s too far out. We can talk everybody’s everything just about motives for I think it is too far afield in terms of limitation on his cross-examination Cul- number of students had pointed out that a Cullen, testimony in front of prejudicial their to his recanted len was proceed, defendant to the court allowed therefore, constituted abuse of discre- subject to this limitation: tion. going All I is right. What am to do right of a defendant in a criminal you ques- this: I’ll allow to ask these prosecution to confront adverse witnesses tions, only after the basis for the panoply fundamental element questions by your ex- is established own protections constitutional afforded those amination of the witnesses who would Alaska, accused of crimes. Davis v. you If can establish establish that. U.S. 94 S.Ct. 39 L.Ed.2d 347 you recall your I’ll allow own (1974); Rubanowitz, questions. Dr. him these Cullen and ask 243; People Loscutoff, objec- But I’ll sustain the point at this Const, (Colo.1983). YI; tion. U.S. amend. See Const, II, art. 16. Cross-examina- § went on counsel to ask principal tion is the means which the students, “any those Cullen whether believability of witness and the truth in the presence who the detectives had told Davis, they Oppergard had seen his are tested. Juanita U.S. blouses, Kogan’s pants Mr. hands in Further, expo- 94 S.Ct. at 1110. say changed story then their testifying sure of a witness’ motivation in them, your did not see it? Did proper important is a function of his knowledge, your presence, change their right. constitutionally protected Id. at story yes objected or no?” The — 316-17, 94 1110-1111.7 S.Ct. at grounds no foundation yet approval Davis was cited with for the witness established to know 210, Taylor, 190 545 P.2d 703 what Opper- the children had told Juanita (1976). In we held that that case cross-ex- gard. objection The court overruled the liberally amination should extended be to because defense counsel limited the permit thorough inquiry into the motives question presence.” “in his to The defense of witnesses. permitted ask thus to whether stu- general opposed dents in limits, —as tending Within broad evidence changed students —had their stories. Cul- prejudice, to show bias or or to throw by saying: len “I think answered there was light upon witnesses, inclination of change a few students and in the must, may permitted. The trial court things they happen, amount of time saw however, its sound discretion exercise specifically, they saw happen, what preclude inquiries probative that have no yes.” counsel went on Defense to ask: force, irrelevant, or are which have people “The changes they were that said credibility little effect on the witness’ but something pants, had seen in the and then substantially impugn would his moral they anything, but particularly did not see character. changes see in that did not the hands Colo, 212-13, 190 P.2d at Id. at pants?” in the responded: To which Cullen (citations omitted). also See “I think occurred a number of that times.” Walker, (“cross-examina- argues The defendant trial court’s 666 P.2d at 122 relevancy, story perceptions and in view of the amount of time to test the witness’ going apparently memory, sire into we this. but the cross-examiner tradition- Le., discredit, ally impeach, been allowed to Alaska, Supreme In United Davis v. States particular the witness.... A more attack on given Court underscored the broad fense de- latitude credibility the witness’ is effected means of probing potential a witness’ counsel revealing directed toward cross-examination bias on cross-examination: biases, possible prejudices, or ulterior motives Subject always to the broad discretion of a directly they may relate witness as repetitive judge preclude unduly trial personalities issues or in the case at hand. harassing interrogation, the cross-examiner is 415 U.S. at 94 S.Ct. at 1110. only permitted to delve into the witness’ by questions major bearing focus on the mo- have a tion on his bias as a liberally permitted.”). tive of a witness witness. Such evidence—used to illustrate principal's state of mind—was not be- Moreover, Taylor, we went on to state ing offered for the truth of the matter in- party that a who on cross-examination asserted. See CRE 803. Since evi- quires by a into bias is not bound denial changed testimony dence of on behalf of witness, him contradict with Colo, only the children was used the evidence of other witnesses. 190 testing possible bias, Cullen’s there (noting at 545 P.2d at 705 Colorado no need to have to establish a majority jurisdic- than foundation more “liberal” permitting testimony by for the introduction of such tions in introduction of evidence witnesses). summoning testify. as to bias of first the children to 706; Taylor, 190 at 545 P.2d at right This cross-examination Wise, Angelopoulos v. is, course, tempered by a trial court’s 293 P.2d authority prohibit cross-examination on wholly matters irrelevant and immaterial to Contrary appeals, to the court of we be- bias, prejudice, or other issues at trial. lieve the trial court’s limitation of the Rubanowitz, 243; Loscutoff, prejudicial cross-examination was to the de- Dangers 661 P.2d at 277. exist in too p. judgment, fendant. 948. In our See readily admitting extrinsic evidence relat right defendant was denied his to effective ing to bias. The trial court is therefore key prosecution cross-examination of a wit- charged seeing the “sideshow accept ness. We cannot the conclusion Taylor, not take the circus.” does over the cross-examination as limited at Colo, 213, 545 P.2d at 706. Since the permitted adequately trial the defendant to right of constitutional confrontation neces Davis, develop the issue of bias. 415 U.S. sarily depends upon particular circum at 1111. S.Ct. particular proceeding, stances of a criminal testimony Cullen’s did much more at trial we have stated that such determination is explain design than the interior of the de- committed to the sound discretion of fendant’s classroom. His was a Rubanowitz, trial court. 688 P.2d at 243. arsenal, key weapon prosecution’s judgment, our the trial court incriminating and succeeded defend- placed unnecessary and unwarranted ob “early ant. It was Cullen who devised the path stacles in the of the defendant’s cross- warning system” explain why to no adults examination of Cullen. These restrictions any improper touching had ever seen in the prejudicial ability to the defendant’s defendant’s classroom. Cullen directed the competent to mount a and there that, investigation; investigation initial fore, constituted an abuse of discretion. record, appearing presumed from the from cross-examining regarding guilty, When Cullen the outset the defendant was specific instances of only different or inconsist- useful evidence was that di- children, ent stories prede- defense coun- rected toward substantiation of this sel’s impeaching was not the stu- termined outcome. Cullen’s behavior has a impeaching bearing credibility, dents—but rather Cullen re- material on his and af- garding possible against posture bias the de- fects the total of this case. The falsity fendant. The truth or inquiry of the defendant’s line of was directed stu- dents’ statements exposing light about the defendant was toward of numerous and —in issue; not specific changed then at the rationale behind this accounts of or inconsistent inquiry uncovering might potential pros- line of what commitment to —a ostensibly impartial have been stated the children in Cullen’s ecute on behalf of the presence, seeking principal.8 the concealment of which would and truth school investigatory procedures 8. The used in the in- inaccuracies used to convict the innocent. At techniques study stant case fell far short of recom- least one has found that “the least accu- mended in the reports literature to maximize the search rate were obtained from child witnesses minimize, possible, preconceived for truth and to the extent when the interviewer harbored Accordingly, judgment court of the Colora- speculate whether the cannot We reversed, Appeals is and the reasoning do Court accepted line of have would for remand case is remanded that court fully been allowed to proceedings trial court for further we do it. But conclude present opinion. consistent with benefit was entitled to have the court trial theory it in fully put before defense of the ERICKSON, J., specially concurs. judgment. See make an informed order to VOLLACK, J., part dis- concurs Davis, 94 S.Ct. at 415 U.S. part. sents permit- should counsel have Defense MULLARKEY, J., joins from expose to the trial court facts in the concur- ted rence and dissent. acting finder “could as fact related draw inferences appropriately ERICKSON, Justice, specially If reliability of the Id. witnesses.” concurring in the result: permitted to de- counsel had been defense agree majority’s I with the conclusion questioning, by, for exam- velop this line is required that a new trial because in- confronting Cullen with ple, agree I cumulative error. also changed incon- the students’ stances of judgment motion for of ac- a testimony, quite possible it is sistent quittal properly denied. meaningful dif- have effected a this would Bennett, 183 Colo. 515 P.2d 466 ac- believability the court ference however, my separately, I write because Cullen, placed a and could have corded requires analysis of the record reversal significantly perspective different on the narrower, fact-specific a basis. result, investigation. As a school district’s petitioner, Kogan, Edward does G. adequately feel that the defendant has we informa- question sufficiency limita- prejudice the trial court’s shown Xericos, tion in this case. See tion of cross-examination. (indict- (1974) briefly holding we an- To review the give defendant ment or information must have today, nounce we detrmined that him to notice of crime to enable sufficient as a evidence introduced viewed permit defense and to him to light whole and most favorable jeopardy to subse- plead double as a bar find the prosecution, sufficient to prosecution con- quent prosecutions). The guilty charges beyond was neces- cedes that a Nevertheless, doubt. insuffi- reasonable sary the information did not suffi- since regarding ciencies ciently identify the time and nature the trial the failure of court to order permit Kogan inter- alleged offenses to to elect a act pose Estorga, defense. conviction, rely for which to and limitations (Colo.1980). P.2d 520 Since error. cross-examination all constitute trial to the court rather than a this was a pre- effect The cumulative of these errors trial jury, the standard review of the receiving a fair cluded the from rulings is there was an court’s whether 589, Botham, People record, v. 629 P.2d trial. See it is discretion. On the abuse of (Colo.1981); People Reynolds, say 194 errors 603 v. for us to of the difficult 545, (1978). alone, 543, 1286, asserted, standing an 575 1289 constitute Colo. restricting suggestive questioning; in- happened. what Interviewers the use notions about terviewing parents re- ques- preconceptions students with their tended to direct surroundings; avoiding tioning suspicions the use of adult to confirm so as their own laxed assaults; discussing alleged vi- reports." sexual obtain accurate Good- labels in deotaping rather than to interviews; keeping the num- Helgeson, Chil- all man Child Sexual Assault: & Law, at 192-200. Memory to minimum. Id. dren’s and the 40 U.Miami L.Rev. ber of interviews 59, 181, (1985-86). Lying?, Among 73 A.B.A.J. also Are The Children 195 the recommended See 1987) ("[c]hildren may interpret re- (May techniques to elicit the most truthful accounts or dif- Using highly peated as for more interviews demands from child victims: unbiased and information_”). interviewers; professionals severely as trained ferent in Estorga, majority As the con- abuse of discretion. the defendant was unable to cludes, pros- cumulative effect of the errors a defense because at trial the require rely specific ecution failed to by the trial court conduct committed a new trial. Peo- granted the defendant. defendant be Botham, (Colo.1981). ple v. P.2d 589 Finally, requirement of a foundation Cullen, to cross-examine Dr. James requirement The trial court’s principal, specific school about instances of provide particulars prosecution a bill of “to recanting students their stories was error. prosecution’s knowledge the best 402; People Loscutoff, See CRE v. belief,” defeated the behind (Colo.1983) (limitation P.2d 274 of cross-ex- particulars and was error. See the bill discretion); amination within trial court’s People, 167 Colo. 292, 448 P.2d 619 Self v. Schuemann, People v. 474, 190 Colo. (1968) (denial of bill of within (1976) (same). P.2d 911 Cullen awas crit- court); Balltrip v. the discretion of trial prosecution’s ical witness in the case since People, 108, (1965) 157 Colo. 401 P.2d 259 responsible he was the school official for (same). Although granted the trial court assisting police investigation in its petitioner’s motion for a bill of petitioner. By uncovering Cullen’s bias requirement imposed by made against Kogan, the excluded the order tantamount to a denial of the brought question would have into both his language motion. this the broad credibility validity investiga- and the of his provided in the bill little more detail than tion of sexual misconduct. concededly general language in the in Taylor, v. 210, 190 Colo. require formation. The court’s failure to (1976). requirement The foundational specifically describe the acts imposed by the court erected an insur- charged prejudiced Kogan’s ability to inter Kogan’s mountable obstacle to proposed pose a defense and was error. cross-examination. In view of the record Estorga, Under 200 Colo. case, however, the error does not re- (1980), 612 P.2d 520 the court also erred quire reversal. when it refused to make the crime, Considering the nature of the specific select the act relied on for convic- cases of sexual assault on minors are emo- tion. Estorga addressed a motion to elect tionally charged present substantial and said: potential prejudice to the defendant. acts, many there is evidence of [WJhere Typically, support there is little evidence to any one of which would constitute the allegations the victim’s and the trier of fact charged, offense People may be com- rely solely must on the relative credibilities pelled to select the transaction on which deciding victim and defendant they rely for a conviction. The high- whether to convict. Children are also required identify are not the exact ly susceptible suggestion offense, they date must indi- fully understand the seriousness of the vidualize and select a act. charges they make. Wilson v. United Id. 523; see 612 P.2d at Shier States, (D.C.Cir.1959). 271 F.2d 492 In this People, (1947); 116 Colo. 181 P.2d 366 case, the stories of each victim were incon- People, Wills v. 100 Colo. 66 P.2d 329 sistent and became more detailed as the (1937); People, Schreiner v. police investigation progressed. Juanita (1934); Laycock People, 36 P.2d 764 66 Oppergard, psychologist, the school attend- 182 P. 880 One of the police ed interviews of the students and purposes of the Estorga rule is to enable “direct,” “pointed,” stated that accused to determine the act leading questions. and used Testimony in- that he is to have committed. girls dicated that a number of other Estorga, 81, 612 P.2d at 523. sexually Kogan by molested their process Due demands that a defendant be testimony was not offered at the trial. The meaningful opportunity afforded a to raise victims who testified at trial attended the case, an effective defense at trial. this same school and their undetailed accounts A. similar. quite were Kogan’s behavior Kogan’s students though all the Even asserts that because of The defendant police by interviewed classes in the descriptions of the sexual acts endorsed witnesses were eighty-eight ap- inadequately he was some bill charges against of the him and prised of the prosecution, by the’ prepare adequate an unable to Nei- therefore largely uncorroborated. victims ruling trial court’s Because the defense. oppor- his counsel had the Kogan nor ther discretionary and the matter was on this police interviews participate tunity to does not show that record other children and of the victims prepare to his defense or that was unable The tape recorded. not interviews were I prejudiced, believe this he was otherwise tape not obtain also could defendant merit. assertion is without twenty approximately other recordings particulars “An a bill of nor order for See Cullen. interviews conducted sound discretion of mally rests within the 334, 435 People, 164 Colo. Cheatwood Court, People v. District judge.” the trial (1967) affirma- (prosecution has 127, 128 (1979). exculpatory give defendant duty tive to particulars “is to The of a bill circumstances, evidence). Under the properly prepare enable the defendant errors committed effect cumulative is so indefi if the indictment his defense” precluded petitioner from court by the trial not afford the defendant nite “that it does trial. receiving a fair opportunity procure witnesses a fair agree I that the case should Accordingly, prepare trial.” Id. trial. remanded for a new be reversed and added) (citing King (emphasis P.2d at 129 States, (10th F.2d 289 Cir. v. United 1963)). appropri it is The decision whether VOLLACK, Justice, concurring in particulars therefore ate to order bill dissenting part: part and determination, judge’s depends on the trial holding that agree majority’s I facts of a given particular in this case was presented the evidence requested information is nec “whether support the trial court’s ver- sufficient his essary for the defendant However, I dis- of law. dict as a matter prejudicial sur to avoid defense finding majority’s of cumu- agree with the (empha prise.” Id. 603 P.2d at 129 I do not requiring reversal. lative error added). sis particulars in this that the bill of believe although I note that At the outset would pre- unable to case rendered the defendant unclear, appears that it the record I not defense. also do pare adequate ap- preserved for properly not issue was limitation of de- trial court’s consider the prose- appear after the peal. objections No of Dr. cross-examination fense counsel’s particulars. cution filed the amended discre- the trial court’s Cullen an abuse of the trial record does show II and Accordingly, I concur Part tion. November minute order on entered a III and IV. dissent from Parts not “Defendant will which stated: any further.” Particulars

challenge Bill of hearing was motions transcript A I. record on part of the included as a III majority holds in Part whether be ascertained appeal, so it cannot provided prosecu- by objection, defendant withdrew pre- the defendant unable tion rendered court instructed whether the error adequate and that pare an chal- further not entertain it would denied the when the trial court no occurred has been ... there lenges. “Where appellant, prose- end of the contrary motion at the showing court’s the district compel prosecu- presume case-in-chief to we must cution’s occurred at what accurately reflects disagree. order specific act. I to elect a tion “ Glazner, hearing.” volved ‘a course of Parker v. conduct rather than ” (Colo.1987). Without the one incident.’ 1320 n. Id. at 603 P.2d at 128. upheld grant that the de- We transcript presume must the trial court’s limited of we Court, challenge particulars the bill of not to District fendant decided “prosecution in the trial court’s required indicated there the was not to as specific days I therefore hold that indicate the or hours minute order. would particulars the bill of sufficiency of acts were committed.” Id. properly preserved appellate was not prosecu- The defendant concedes that the review. case, required, allege tion was not in this to result, particulars touching the bill of As a must date and time for each analyzed plain conceded, Having apparent- under error standard: incident. so court, appellate ly description “whether an after review- asserts that the acts record, ing say particulars entire can with fair the bill of rendered him unable present examples assurance that the error so undermined the a defense. Some “[hjands fundamental fairness of the trial itself as the acts described are inside shirt reliability rubbing to cast serious doubt on the back ... chest ... and under judgment rubbing “[tjouching of conviction.” bra bare chest” and Wilson v. (Colo.1987). People, 743 P.2d legs.” The breast numerous times and between support touching facts of this case do not such a The incidents occurred in the de- conclusion, especially since this was a trial fendant’s classroom. I do not believe that descriptions to the court. A review of the defense these of the acts were so inad- date-spe- equate asserted this case shows that a as to amount to reversible error. It particulars imagine cific bill of descriptions would not have is difficult to how like breast,” “[tjouching “touching made a substantial difference in the de- between presented, legs,” “[tjouching fense and would not have with toes between judge caused the legs” arrive at a different the victim’s could have more been judge’s findings conclusion. The reflect detailed and would have resulted in the credibility preparation that his decision turned on the of a different or better de- the witnesses.1 fense. properly

Even if this issue is A oppor- before this defendant is entitled to “a fair court, I prosecu- tunity procure do not believe that the witnesses.” District inability provide Court, tion’s a more detailed 603 P.2d at 129. Here, rendered the peers several of the defendant’s behalf, especially unable in students testified on his and the light of the nature of his defense. As in victim of each count of which the defend- Court, allegations District in- here ant was convicted testified and was avail- findings: 1. The trial legs court made these used his toe to touch between the [C.M.] lying she underneath his desk and primary matter that the [T]he Court has to therefore violated the statute of sexual assault persons consider is whether the who are now guilty on a child ... I therefore find him truthfully listed as victims testified in their sexual assault on a child as to Count Fourt testimony. [sic]. Eight, having As to Count listened to the by Court is convinced the evidence that [T]he [E.L.], concerning evidence the Court is of the telling [C.M.] was the truth when she advised opinion Kogan that Mr. did touch both [E.L.] by that she was touched on her breast intervening clothing on her and on the breast defendant. vaginal around and next to her area and beyond The Court believed that a reason- Kogan guilty doubt, therefore finds Mr. ... as to that require- able all the and that other met, count. ments of the ing statute have consider- Court, Ten, having As applicable charge to Count ... the law that is made, evidence, Kogan heard the finds that the defendant and therefore finds Edward subject guilty of did touch and to sexual contact [A.C.] sexual assault on a child as to [Count statute, as defined ... and that Three]. [A.C.] Four, As to Count her breasts the defend- the Court listened to the was touched on guilty and believes that the de- ant. ... I therefore find him of sexual [C.M.] fendant removed his foot from his shoe and assault on a child relative to Count Ten. 129; Balltrip People, A bill at trial. for cross-examination able Lewis, (1965); People a defendant particulars must afford the of (Colo.App.1983); see prepare his defense opportunity fair 7(g), de- 7B C.R.S. The defend Crim.P. trial. The defendant asserted Id. proof not make an offer of estab denial. He elected ant did complete fense of preju lishing “nev- the manner he was testify stated that he had at trial and diced, he attempted any and has not demonstrated how to touch any er” in manner manner, put prejudicial surprise suffered at trial. and did not in a sexual student pants or on their any his students’ hand majority notes The that the trial of an it In the case alibi breasts.2 granted the defendant’s motion for bill provide necessary to “lim- particulars and described the order as him date or time in order for with an exact requiring only prosecution ited ... time prove location at the date and the bill to the answer ‘best of [district ” Where, as committed. the offense was knowledge attorney’s] Ma- and belief.’ here, dispute he did not the defendant slip op. majority at 15. then jority, The classroom, his de- present in the was “Our review concludes: standard any of he did commit fense not was same the trial court should be the whether charged, I fail which was acts with motion for a or denies a specific description of more to see how a grants subject motion to limita- enable him to the acts would tion_” added). I do (emphasis At 953 more effective defense. in this agree; imposed the limitation not practical of de- hardly had effect case partic- remaining purpose The of a bill of Presum- nying the defendant’s motion. prejudicial surprise” to ulars is to “avoid and did ably, attorney the district would 129. Id. at 603 P.2d at defendant. knowledge the bill to the best of his answer Again, showing no the defendant made trial I would hold that and belief. surprise. allega- prejudice either ruling abuse court did not its discretion sufficiently specific tions in nature to were adequate, particulars that the bill was apprise the defendant of the evidence that does not show especially since record presented by prosecution at would be surprise to prejudicial the defendant. trial, though exact and times even dates I nothing find unavailable. B. indicate that record to asserts, majority by surprise taken The defendant dis- trial its protect agrees, of a court abused un- prejudicial committed reversible error surprise. defendant from Dis- cretion and 78, 612 Court, Estorga, 200 Colo. trict 603 P.2d at der your Okay. Q been with were: Would that have Portions hand? Q you tummy? ever rub Did [E.L.'s] assume. A I would A No. inappro- right. you Q did that’s All And think Q you your ever rub across her Did hand touching? priate breasts, even mistake? No. A A No. Now, you Q her back with did ever rub her on nipples? Q Ever touch her the back? your inside shirt on hands of her A No. No. A put your Q you Did ever hand or hands in happen? Q Never joint pants, even to the first [E.L.’s] A Never. finger? your you Q to the front ever move hand Did Negative. A front, on her shirt? her under and touch Q Never? Never. A A Never. Q on of her shirt? How about the outside you Q rub her about Did ever [A.CJ? How Never. your A hand on when she the outside back lap? sitting your your saying you put you’re Q hand So never A Rub her back? bra, top Q her bra? of her or underneath Yes. didn’t, might I I I said A know. I have. A 1 think answered that. I don’t (1980), require subject when it declined to sion is far less objec- P.2d 520 to serious tion.). Spe- to elect a act. judge cifically, the trial ruled that he would judge defendant’s case was tried to a “require attorney the district to elect a presumably who heard and understood the specific Although over- date.” this issue attorney’s district direct examination of the laps arguments to some extent with the victims. With two three victim-wit- regarding particu- and rationale the bill of nesses, attorney the district elicited certain lars, separately I address it because of testimony to establish the act on which the Estorga factual distinctions between and conviction, sought state presented the the case at bar. I would conclude that the remainder of the testimony witness’ as evi- trial court did not abuse its discretion. dence of similar transactions. With victim First, express purpose E.L., requiring prosecution testify had E.L. about prosecution incident, particular to “individualize and select a and then continued specific a act” is to avoid possibility direct explaining: examination after jurors “that some do not “Judge, convict on one I’d like to offer similar transaction separate offense and others on a offense.” evidence relative to other incidents within 81, Estorga, frame, pursuant statute, 612 P.2d at 523 the same time to (footnote omitted). danger pursuant The of non-una- my previously to filed brief with course, nimity, of present is not in a trial the Court.” When the if court asked the court. objection, defense had an defense counsel responded: “Fine.” When victim tes- C.M. The second factual distinction is that the tified, gave testimony particu- she about a prosecution’s specific failure to elect a act incident, prosecutor lar and the then stated jury to consider in Estorga “was “go that he wished to into another brief compounded” gave because the trial court concerning area similar transactions with jury an erroneous instruction. No such victim,” to which defense counsel re- error could have occurred in the case at sponded objection.” prosecutor “[n]o 81-82, bar. Id. at 612 P.2d at 523. neglected during to draw this distinction Third, judge, this case was tried to a of victim A.C. testimo- jury laypersons. a judge The trial V.A., ny victim, who was not named as a required weigh trier of fact is conflicting only was offered as similar transaction evi- evidence, judge witnesses, the credibility of dence. and draw reasonable inferences from the The record reflects that defense counsel Atencio, evidence. 187 Colo. prosecu- made a motion at the close of the (1974); 529 P.2d 636 People, Garcia v. prosecution tion’s case-in-chief that the (1970); Colo. 473 P.2d 169 Bean v. required agree to select a I act. People, (1968). 164 Colo. 436 P.2d 678 majority with the proper that this was the A appropriate, different standard is under requiring prosecution elect, time for circumstances, some when the trier of fact if already Slip election has not occurred. See, judge is a and not jury. e.g., However, op. prosecu- at 26. I think the Kirkland, People v. 174 Colo. 483 P.2d provided tion’s direct examination the nec- (1971) (In a trial to the court rather essary charged election between acts jury, than judge to a as trier of fact has similar transactions. considerably leeway granting more a judgment acquittal.); motion for On the defendant’s contention that Self People, (1968) 448 P.2d 619 subject convictions leave him ato double (When trial violation, is to the court rather jeopardy ruling than to a the court’s own jury, the time of the specifically disposes admission of a confes- possibility.3 of that 3. The trial court held: have occurred within the time—dates and complaint right. times opinion AH stated It's the Court's frames counts in the that have been are information. It is the Court’s suffi- time cient, attorney feeling thereby attorney that the district elected to the district charge file one prevented by prosecuting as to all incidents that actions in their own limitation majority’s conclusion that the view, shows that the record my “prejudicial questioning inci- was between of certain expressly elected ability compe- case-in- of its to mount during presentation the defendant’s dents therefore, to establish chief, offering evidence constituted an certain tent assault, and other incident of particular Slip op. at 37. of discretion.” abuse I believe similar transactions. evidence as right defendant has the A criminal during direct place took the election prose- liberal cross-examination conduct The issue of sufficient. examination Crawford, cution witnesses. evidence similar transaction whether has not been appropriately admitted showing of manifest abuse or “Absent agreed to raised, expressly the defense of cross-examination prejudice, limitation at trial. its admission reversible error.” Peo- does not constitute Considering the nature of Moreno, P.2d ple v. jury a flawed jury of a or the absence “compounded” the error instruction which Cullen, During of Dr. cross-examination in which Estorga, and the method in sought question the counsel to defense I would conclude testimony presented, was may who principal about students school rise to the case do not the facts of this that their statements. Dr. Cullen have recanted Estorga. I affirm in would of error level prosecution; second witness for was the rulings trial court. discretionary testify scheduled to after the victims understanding was The court’s Dr. Cullen. II. “asking these defense counsel was that pur- only for the questions of Cullen] IV, [Dr. holds that majority In Part determining credibility as a pose of limiting de- judge committed error trial The court advised in this case.”5 witness of Cul- fense counsel’s cross-examination line that it would allow this len, disagree defense counsel principal.4 I the school Kogan, police inform the or Mr. specific charges if he didn’t and must ask that other concealment, my opinion, may of mate- is a that that the Court rule as in all instances bearing has a on his stance rial evidence that time frame. have occurred within this arguments at- in the case. that the district There were separate responded: torney each court had established that on simply too far out. We can talk nature I think it’s date an offense everything attorney precluded everybody’s is motives for The district occurred. about done, by separate prosecuting they’ve counts about the them as but I’m concerned from information, specifying period directly by the time and their actions in raised issues deny require alleged. just to I the motion far afield in terms of it is too I think relevancy, date, attorney as the to elect a time district in view of the amount of and evidence, attorney’s it be as to going whether apparently district any specific into this— are that we inci- argument, incident or as to the other objections and After further allegations of of their dents which are a result again held: manner, or de- scheme girls] a common mode sign, impeach you [these desire [I]f only one conviction could they’ve are such that what told own about their be had. prior exist- people at different times other that, statements, certainly ing allow but at I’ll majority reversible error in 4. Because the found just going too far point think we're this afield, I remanded for a new Part III and orders the case trial, try every take statement necessary majori- I do not believe it by any Dr. Cullen or been made have ty cross-exami- to address the issue of Cullen’s (cid:127) finally say said party that someone and then nation. something time. at a later different if we do in trial two months We could be proof was that 5. The defendant’s offer that, simply going to do that. am not and I you certainly examine the wit- [Cullen], allow I’ll individual that initiated If as an knowledge of what direct who have proceeding certain infor- nesses ... based this here, you to im- I will allow possession, then he learns occurred in his mation incorrect, by appropriate means under peach I them is think that that information you other witnesses to call police and allow duty that these law has a ... to inform the anything. have testified. And after individuals in fact did not see for questioning “after the basis concerning general credi- tion of a witness your exam- questions is established own bility is discretion of the within the sound would Evans, ination of witnesses who estab- trial court.” you your If lish that. can establish that (Colo.App.1981).7 you I’ll Dr. Cullen own allow to recall questions.” him these and ask reasons, I believe defend- For these by the fairly and convicted tried ant was counsel extent defense was To the I sitting trier fact. judge as the trial victims, impeach who had attempting to convictions. uphold the defendant’s would testified, ruling this was correct yet provided cross-examination it say that Justice MUL- I am authorized to the victims had in rebuttal after Cullen and dis- joins in concurrence LARKEY this recalled The defense could have testified. sent. Cullen, the extent but did not. To Dr. impeach attempting counsel defense ruling not reversible principal, permitted a trial court

error because questions to irrelevant side

limit related Spivey, 508 F.2d United States v.

issues. denied, cert. Cir.), (10th 421 U.S. (1975). L.Ed.2d It

95 S.Ct. the trial court’s discretion to

was within stories, conflicting details of

hold that never testified and

given by children who against charges not victims named defendant, were not relevant had

question of whether the acts the inform

committed described limitation “cross-examina-

ation.6 provides 6. CRE 402 for the exclusion evi- inappropriate back in an fashion. Gordon permits which is not CRE 403 dence the court relevant. again Kogan, telling warned him that his con- judge to exclude evidence after has “unprofessional” duct was and “should not oc- delay of undue balanced considerations cur," and the removed student was from Ko- against waste of time the relevance of the evi- gan’s classroom transferred into another ruling 7B C.R.S. dence. in the trial court’s sound discretion. Schwartz, Such with- grade agreed also fourth class. Gordon that in incoming principal, 1981 he met with the Dr. (Colo.1984); People Cullen, “keep eye and told Cullen to on Ed Abbott, (Colo.1981). 638 P.2d 781 [Kogan]." prior Kogan’s Dr. Cullen testified that sus- testimony The trial court heard not pension majority opinion. he had “talked mentioned in October 1982 to Mr. been Kogan’s At judge Kogan previously touching heard from twice in relation to Cullen, principal at Ora Dr. Elementary current Oliver students.” One discussion was initiated when School, Gordon, prin- and John sitting [Kogan’s] girl lap.” Cullen “saw a cipal at that school from 1979 to 1981. instigated request Another discussion was during Gordon testified that the 1979-80 superintendent who of schools had been year complaint from school "received a building evidently Kogan's observed Kogan seating parent about Mr. students Cullen he “was conduct. stated that concerned regard.” lap, spoke and I with him in that Gor- Kogan continuing that Mr. had been to have Kogan testified that he "that don warned inappropriate contact that [he] considered again.” happen should female students in the classroom.” Gordon testified in the 1980-’81 school par- year, complaint he received a from another daughter's Kogan rubbing her ent that notes standard for defendants ac- constitutional attorney in presence Cullen’s stated of rights cused of those crimes. But the one child: “Do not use this witness. depend upon the accused should not Changes Although her mind.” these inter- specifying involved in difficulties criminal tape Cullen, views were recorded fact, one, act. In it is in cases such as this produce tapes trial, stating failed to questions with substantial and close involv- that he did not have them and was not guilt ing a determination of the defendant’s they’ve aware “of whether been erased or doubt, beyond a reasonable that concerns not.” regarding notice and the need to adequate During Cullen, defense are most acute. cross-examination of special attempted inquire While we are sensitive to the nature into in-

Case Details

Case Name: Kogan v. People

Court Name: Supreme Court of Colorado

Date Published: May 9, 1988

Citation: 756 P.2d 945

Docket Number: 85SC489

Court Abbreviation: Colo.