*1 161, dismissing m Gould, the claims of Colo.App. decedent with (1970). prejudice. argues He that the trial court misinterpreted Cheney Hailey, 686 P.2d
II. (Colo.App.1984) requiring dis- argues next if 25(a)(1) Plaintiff even prej- missal under C.R.C.P. be with 25(a)(1) place read to C.R.C.P. the re suggests udice. The record that the trial sponsibility moving for substitution on a court did believe that the rule mandated plaintiffs attorney, waiting deceased for prejudice dismissal with and that opened filing an estate to be before making without discretion in ruling. its motion considered must be excusable ne Therefore, we conclude the matter must be glect. Again, disagree. we give remanded to the trial oppor- court the tunity to exercise its discretion in determin- case, plaintiffs’ attorneys par- In this had ing whether the dismissal should be ticipated filing of record from the time of prejudice. without death, complaint. After decedent’s Mr. Garcia remained their client. In a let- The is affirmed as to the dis- counsel, opposing they ter to stated their missal of decedent’s claims and the cause is open probate intention to estate for dece- remanded for by determination the trial dent the estate for and substitute her court whether such dismissal is with or litigation. They indicated that Mr. Gar- prejudice. without emotionally prepared partic- cia would to be ipate litigation by in the December 1984. CISE, JJ„ SMITH and VAN concur. appropriate Yet not taken un- actions were early February til 1985.
Neither a motion to extend nor a motion
alleging neglect excusable was filed. The
possibility neglect of excusable was until
early February 1985.
Neither a motion to extend nor a motion
alleging neglect excusable was filed. The possibility neglect only excusable Colorado, The PEOPLE the State of by passing plaintiffs’ raised reference Plaintiff-Appellee, opposing brief defendant’s motion to dis- miss, days suggestion filed some after FARLEY, Christopher Norvell Further, hearing of death. on this Defendant-Appellant. motion, response inquiry by to the trial court, plaintiffs’ attorneys one of stated No. 83CA0954. “[They] that: did not claim excusable ne- Appeals, Colorado Court of glect.” reason justify offered to Div. II. timely their failure to act was that attorneys they authority did not feel had 24, Oct. 1985. act on behalf deceased client Rehearing Denied Nov. 1985. they “got surviving estate until [their] assigned by probate client court.” We (Farley) Certiorari Granted Jan. 1986. cour; agree with the trial that these facts neglect. do not establish excusable Group
Farmers Insurance v. District
Court, supra.
III.
Finally, personal repre decedent’s
sentative contends that the trial court erred
1H7 Gen., Woodard, B. Atty. Duane Charles Howe, Gen., Atty. Richard H. Deputy Chief assault, Gen., Little, discussing Forman, R. Asst. “several times” David Sol. Denver, Gen., plaintiff-appellee. happened. with her what had Atty. for Thereafter, Vela, as fol- State Public De- counselor testified David F. Colorado Kline, fender, III, Deputy State lows: Duane M. Denver, Defender, defendant-ap- for
Public “Q: during you And that time were mak- *3 pellant. ing physical observations as to her de- meanor?
STERNBERG, Judge. Yes, A: sir. Defendant, Christopher Farley, Norvell Q: upon your And based observations entered appeals the of conviction what was her state of mind? finding guilty him of first on a verdict overruled) (objection ... made and ... degree degree and second sexual assault A: was in a state of shock. [The victim] kidnapping. His defense at trial was based appeared physically She slouched in prin- of on consent the victim. Defendant’s spoke softly. her—in her stature. She argument appeal trial cipal on is that the eye she When did have contact with ei- admitting he character- court erred what ther I or the officer it as if was she was testimony describing rape trauma izes as looking beyond us because shock syndrome. affirm. experiencing she at that was time. light If the evidence is viewed in the Q: upon your experience Based and with verdict, appears favorable to the it most thirty rape the some other victims is that approached the that the defendant typical response? a gas pump at a convenience store at about (objection overruled) ... made and ... a 5:30 a.m. He initiated conversation with Yes, typical. A: suggested activity. her in he sexual which Q: way? In what When she refused and tried to enter her go through A: Victims will several car, her, put an un- defendant threatened stages adjustment of emotional after a back, object against identified hard and One, experience. tramatic an ini- [sic] passenger ordered her to sit seat. numbness, stage anger tial of denial and nearby He then drove her car to a resi- stage and was shock. [she] neighborhood, parked, subject- and dential Q: you You said that talked to her sever- ed her to the sexual assault. happened. al times what about Without going you— into detail was what she told I. were her stories consistent or inconsist- during called as witness ent? employed by case-in-chief a counselor appeared A: She confused with refer- Victim Services Unit Colorado chronological things ence to the order of Springs Department, Police who holds a given opportunity and when she was an police Al- special commission as a officer. to take some time and think about what though the record does not reveal that transpired, she would correct herself and accepted counselor was offered or as an something this is also is seen in jury, expert witness before the she testi- victims, this confusion. fied on cross-examination that she held a Q: Why is that? degree major in bachelor of arts with a expe- A: Because shock that she’s sociology, that she had re- psychology and riencing. special training position for her with ceived Q: typical? That’s Services, and that she had counseled Victim Yes, A: sir. thirty alleged rape approximately victims employment. eighteen months of her On direct examination the counselor Q: your experience your
fied she had talked the victim for Based day you talked to approximately three hours on the observations when [her]
1H9 way way was the she talked and the she she either believed the victim or that she way your raped. view, she had been therefore, looked and the answered In our questions, being testimony given by was that consistent with the counselor con- victim? stitutes neither syndrome trauma evi- dence, impermissible nor an statement that Very A: consistent.”
the counselor believed the victim was tell- ing the truth. A. argues
Defendant this diagnosis amounts to a scientific B. support trauma calculated that, Defendant contends even if the propositions that the victim in fact counselor’s statements are not viewed as raped telling and that the victim was syndrome, evidence of trauma they regarding Citing truth her assault. case require special psychiatric medical or *4 jurisdictions rejecting law from other it as competence that possess, she did not and unduly prejudicial, unreliable and defend- are therefore improper inadmissible as lay urges syndrome ant that trauma testi- opinion 403, 701, under CRE and 702. He mony is inadmissible. points specifically to two elements of her testimony We do not view this as First, testimony. her statements that the Instead, trauma evidence. we behavior and demeanor of the victim were opinion hold that it was admissible as typical of and consistent with that of mony properly and was received under and, second, victims her statements that CRE 701 and 702. the in victim was a state of shock. We reject this contention. may
A lay testify witness in the portion The the opinions long testimony complained form of of or inferences so as go of here did further than opinion expressed by the or observations inference is ration the counselor of the victim. The ally perceptions helpful on his counselor based and is go through stated that “victims will several understanding testimony to the in the stages adjustment of emotional determining after a or a fact issue. CRE 701. If, however, experience” traumatic and that the victim opinion the or inference ex was in “that state of shock.” These state- pressed beyond experience common or is scientific, may suggest ments be construed to a medi- knowledge on of based techni cal, scientific, cal, nature, psychiatric authority be- specialized the rules of evi yond that of the counselor. We note that require qualify dence the witness to as an hearing the court in an in camera held expert subject the matter that is the accepted it had the counselor as an testimony. basis of his CRE 702. victims, expert on the behavior of Rulings upon qualification of a wit- although jury. this was not done before the expert ness as an and the admissibili- event, any expert may In the fact that the ty of evidence are matters committed to the formally qualified not been and ac- have court, of the sound discretion trial not be cepted expert an from as witness detracts showing absent a clear of abuse disturbed statements, authority rather behind Rubanowitz, of discretion. 688 Indeed, enhancing than it. it was the de- (Colo.1984); People P.2d 231 v. District brought fendant in cross-examination who Court, (Colo.1982). training qualifica- out the educational and Here, testimony complained counselor. tions of the general. short and It was unencum was When, here, by terminology per and the a witness has bered scientific sonally physical trappings theory activity and consisted almost observed another, “sensory summarizes his im exclusively of the witness’ observations of and thereof,” Significantly, pressions the witness’ conclusions the demeanor of the victim. opinion People, admissible. Elliott v. 176 Colo. the counselor did not state an are CRE 701. The The other contentions of error are with- P.2d merit. testimony solidly grounded out counselor’s was training, and and her experience in her is affirmed. testimony a direct comment con- was not credibility cerning of the victim. See CISE, J., concurs. VAN Hillman, (Colo.1981). Wise v. SMITH, J., dissents. People Gallegos, See also SMITH, Judge, dissenting. (Colo.1982). part opinion majority In I of its has respect portion to that of the With determined that the of a female testimony relating counselor’s to the victim police officer it was admissible because shock, being in we note that defendant’s “Rape not Evi- only the objections addressed counselor’s by doing neatly dence” so has avoided concerning typical nature of statements legal questions the difficult technical and Also, because noth the victim’s demeanor. involved the use of such evidence. The ing in motion for new trial defendant’s majority approves the reception this tes- of the use term raised the issue timony merely on the basis “shock,” plain consider it under the we of, upon, and conclusions based admis error standard. conclude that alleged observed behavior testimony, of this does not constitute sion lay person by a under CRE 701. 52(b).
plain error.
Crim.P.
holding ignore
Not
does this
*5
evidentiary
traditional
rules and elevate
II.
substance,
greater
form over
of much
but
deliberations,
During
jury
its
sent a
opens
concern to me is the fact that it
wide
stating
note to the court
it could not reach
proof, in
the door for a method of
cases of
responded
a unanimous verdict. The court
best,
type,
questionable
is
this
which
at
your
as follows: “Please reread
instruc-
by recognized
when
even
offered
behavior-
your
and continue
deliverations.”
tions
al scientists.
plain
Defendant asserts this was
error.
“Rape
Syndrome”
The term
Trauma
re-
disagree.
group
fers to a
of what
to
common
seem be
symptoms or characteristics
behavioral
ob-
The instruction does not contain
actually
in women who have
served
been
the clear exhortations to adhere to con
or,
subjected
“Rape”
to the trauma of
what
present
science that are
in the modified-Al
our statute refers to as “sexual assault.”
charge
len
found at COUI—Crim No.
trial,
In
the context
a
evidence of
States,
(1983).
38:14
Allen v.
United
purportedly demonstrating
studies
common
492,
154,
H21
Liddell,
(Mont.1984):
symptoms
no
How
whatsoever.
ever,
Kansas,
permitted Burgess Holstrom,
even
which first
&
Rape
Syn-
Trauma
testimony,
severely
drome,
such
has
limited its
131 Am.J. of Psychiatry
(1974).
Bressman,
rule in
236 Kan.
Moreover,
State v.
these same symptoms may fol-
(1984).
event,
low any psychologically traumatic
merely rape.
not
Psychiatric
American
In
Supreme
Bressman the Kansas
Court
Ass’n, Diagnostic & Statistical Manual
rejected
testimony
emergency
of an
(3rd Ed.1980).
Mental Disorders
§
physician
room
who
previously
had
treated
For these
testimony
reasons
concerning
purported rape
30 to 50
victims and saw
Rape
Syndrome
Trauma
or the “typical
alleged
immediately
following
help
victim”
cannot
in its fact
testimony
the incident.
It held her
to be
finding function; rather it
can
mislead
showing
inadmissible because there was no
prejudice
it.
Taylor, supra.
State v.
(1)
expert
that she was trained as an
(2)
psychiatry or
the basis for her
Because
not all victims of
display
generally accepted
conclusions were
in the Rape
Trauma
symptoms and
Yet,
case,
psychiatry.
field of
in this
also because the
symptoms
same
are often
majority approves
type
the same
displayed
trauma,
as a result of other
there
mony, given by minimally
a
lay
trained
logical inconsistency
is a
in the admission
officer,
person,
police
under CRE 701 of such
in attempting
prove
requiring
without
that the witness demon-
rape has,
fact,
that a
occurred. One
qualifications
expertise.
any
strate
logically
cannot
infer that a fact exists
Thus,
adopt
if
even
we were to
a rule merely
showing
from a
that other facts are
permitting
Rape
Syn-
the use of
not inconsistent with its existence. For
evidence,
drome
of the wit-
example:
physician
cannot determine
ness in this
far
case falls
short of that
patient
suffering
that a
from specific
required by
adopted
the states that have
merely
patient’s
disease
because that
such a rule.
symptoms are not
with the ex-
inconsistent
Attorney
General concedes that at
only patients
istence
disease—unless
expressly rejected
least three states have
who have the
symp-
disease exhibit the
*6
use of Rape
Syndrome
Trauma
evi
toms.
fact,
prove
dence to
rape,
that a
oc
Lest it be asserted that the admission of
Bledsoe,
curred.
People
v.
36 Cal.3d
here was harmless—it
Cal.Rptr.
should be noted that there was evidence
Saldana,
(Minn.
v.
State
N.W.2d
concerning the critical issue of consent
1982);
Taylor,
State v.
The courts that have such evi-
dence have done so on the basis that the literature indicates there is no
scientific
typical rape many victim. In as as fifteen develop
per cent of the cases a victim will