dissenting.
The majority reverses this conviction because it concludes that the trial court erred in admitting hearsay statements of the victim and her brother without giving contemporaneous cautionary instructions. I agree that the court erred in this regard; however, since cautionary instructions were given at three different times during the testimony of the witnesses and a fourth time as one of the regular instructions, I see no prejudice to defendant that requires reversal.
As noted in the majority opinion, nine witnesses testified in greater or lesser detail concerning hearsay statements of the child victim and her brother. During the testimony of the fifth witness the prosecution brought to the court’s attention the requirements of § 13-26-129(2), C.R.S. (1987 Repl.Vol. 6A), and of People v. McClure, ITd P.2d 864 (Colo.1989) and subsequent cases. At that time, the court gave the instruction quoted in the majority opinion. Significantly, the instruction alerted the jury to hearsay testimony by both previous and future witnesses.
That instruction was given on the afternoon of the second day of trial. A nearly identical instruction was given after two other witnesses testified on the next morning. One of these was an expert who testified with great detail regarding the victim’s hearsay statements. Thereafter, after the People rested, the court gave the instruction for the third time. Finally, for the fourth time, an almost identical instruction was given the jury verbally and in typed form as part of the charge.
Section 13-25-129(1), C.R.S. (1987 Repl. Vol. 6A) requires the trial court to give a cautionary instruction on credibility when a child victim’s hearsay statement is admitted under that statute. In McClure, our supreme court interpreted the statute to require the giving of a contemporaneous instruction, as well as one at the end of the case. There, only the general instruction on witness credibility was given. The court reversed the conviction because there was serious doubt as to the reliability of the jury’s verdict.
Cases decided after McClure have held that, depending upon the circumstances, failure to give a contemporaneous instruction may not be plain error if the instruction is given at other times. See People v. Diefenderfer, 784 P.2d 741 (Colo.1989). There, similar to the situation in this case, the instruction was given when one witness testified but not when another did and was given at the close of the case. The judgment of conviction was upheld.
In People v. Flysaway, 807 P.2d 1179 (Colo.App.1990), this court reviewed several of the post-McClure cases and upheld a conviction in which the required cautionary instruction was given only at the conclusion of the case.
Thus, while the failure of the trial court to give a contemporaneous instruction as each witness testified about a child victim’s hearsay statement is error, and while it is inexplicable why counsel in cases tried after the McClure decision was announced do not tender and request contemporaneous instructions, nevertheless, here, in my view, the error does not require reversal.
Reversal is mandated here only if we interpret McClure as laying down a bright line per se rule that failure to give contemporaneous instructions is reversible error. As is obvious from McClure itself and subsequent cases, no such per se standard was adopted. Rather, under McClure, reversal is mandated only if the error in not giving the instruction contemporaneously with the testimony of each and every witness so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Compare People v. McClure, supra with People v. Wood, 743 P.2d 422 (Colo. *711987). See also People v. Miller, 821 P.2d 881 (Colo.App.1991).
Based on this standard, the case should not be reversed on this issue.
None of the other contentions raised by the defendant constitute reversible error; therefore, I would affirm the conviction.