Kogan v. People

ERICKSON, Justice,

specially concurring in the result:

I agree with the majority’s conclusion that a new trial is required because of cumulative error. I also agree that the defendant’s motion for a judgment of acquittal was properly denied. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973). I write separately, however, because my analysis of the record requires reversal on a narrower, fact-specific basis.

The petitioner, Edward G. Kogan, does not question the sufficiency of the information in this case. See People v. Xericos, 186 Colo. 21, 525 P.2d 415 (1974) (indictment or information must give defendant sufficient notice of crime to enable him to prepare a defense and to permit him to plead double jeopardy as a bar to subsequent prosecutions). The prosecution concedes that a bill of particulars was necessary since the information did not sufficiently identify the time and nature of the alleged offenses to permit Kogan to interpose a defense. People v. Estorga, 200 Colo. 78, 612 P.2d 520 (Colo.1980). Since this was a trial to the court rather than a jury, the standard of review of the trial court’s rulings is whether there was an abuse of discretion. On the record, it is difficult for us to say that any of the errors asserted, standing alone, constitute an *962abuse of discretion. As the majority concludes, the cumulative effect of the errors committed by the trial court require that the defendant be granted a new trial. People v. Botham, 629 P.2d 589 (Colo. 1981).

The trial court’s requirement that the prosecution provide a bill of particulars “to the best of the prosecution’s knowledge and belief,” defeated the purpose behind the bill of particulars and was error. See Self v. People, 167 Colo. 292, 448 P.2d 619 (1968) (denial of bill of particulars within the discretion of trial court); Balltrip v. People, 157 Colo. 108, 401 P.2d 259 (1965) (same). Although the trial court granted petitioner’s motion for a bill of particulars, the requirement imposed by the court made the order tantamount to a denial of the motion. In this case, the broad language in the bill provided little more detail than the concededly general language in the information. The court’s failure to require that the bill specifically describe the acts charged prejudiced Kogan’s ability to interpose a defense and was error.

Under People v. Estorga, 200 Colo. 78, 612 P.2d 520 (1980), the court also erred when it refused to make the prosecution select the specific act relied on for conviction. Estorga addressed a motion to elect and said:

[WJhere there is evidence of many acts, any one of which would constitute the offense charged, the People may be compelled to select the transaction on which they rely for a conviction. The People are not required to identify the exact date of the offense, but they must individualize and select a specific act.

Id. at 81, 612 P.2d at 523; see Shier v. People, 116 Colo. 353, 181 P.2d 366 (1947); Wills v. People, 100 Colo. 127, 66 P.2d 329 (1937); Schreiner v. People, 95 Colo. 392, 36 P.2d 764 (1934); Laycock v. People, 66 Colo. 441, 182 P. 880 (1919). One of the purposes of the Estorga rule is to enable an accused to determine the specific act that he is alleged to have committed. Estorga, 200 Colo, at 81, 612 P.2d at 523. Due process demands that a defendant be afforded a meaningful opportunity to raise an effective defense at trial. In this case, as in Estorga, the defendant was unable to prepare a defense because at trial the prosecution failed to rely on specific conduct of the defendant.

Finally, the requirement of a foundation to cross-examine Dr. James Cullen, the school principal, about specific instances of students recanting their stories was error. See CRE 402; People v. Loscutoff, 661 P.2d 274 (Colo.1983) (limitation of cross-examination within trial court’s discretion); People v. Schuemann, 190 Colo. 474, 548 P.2d 911 (1976) (same). Cullen was a critical witness in the prosecution’s case since he was the school official responsible for assisting the police in its investigation of petitioner. By uncovering Cullen’s bias against Kogan, the excluded testimony would have brought into question both his credibility and the validity of his investigation of the alleged sexual misconduct. People v. Taylor, 190 Colo. 210, 545 P.2d 703 (1976). The foundational requirement imposed by the court erected an insurmountable obstacle to Kogan’s proposed cross-examination. In view of the record in this case, however, the error does not require reversal.

Considering the nature of the crime, cases of sexual assault on minors are emotionally charged and present substantial potential for prejudice to the defendant. Typically, there is little evidence to support the victim’s allegations and the trier of fact must rely solely on the relative credibilities of the victim and defendant in deciding whether to convict. Children are also highly susceptible to suggestion and may not fully understand the seriousness of the charges they make. Wilson v. United States, 271 F.2d 492 (D.C.Cir.1959). In this case, the stories of each victim were inconsistent and became more detailed as the police investigation progressed. Juanita Oppergard, the school psychologist, attended police interviews of the students and stated that they were “pointed,” “direct,” and used leading questions. Testimony indicated that a number of other girls had been sexually molested by Kogan but their testimony was not offered at the trial. The victims who testified at trial attended the same school and their undetailed accounts *963of Kogan’s behavior were quite similar. Even though all the students in Kogan’s classes were interviewed by police and some eighty-eight witnesses were endorsed by the’ prosecution, the testimony of the victims was largely uncorroborated. Neither Kogan nor his counsel had the opportunity to participate in the police interviews of the victims and other children and the interviews were not tape recorded. The defendant also could not obtain the tape recordings of approximately twenty other interviews conducted by Cullen. See Cheatwood v. People, 164 Colo. 334, 435 P.2d 402 (1967) (prosecution has affirmative duty to give defendant exculpatory evidence). Under the circumstances, the cumulative effect of the errors committed by the trial court precluded petitioner from receiving a fair trial.

Accordingly, I agree that the case should be reversed and remanded for a new trial.

VOLLACK, Justice,

concurring in part and dissenting in part:

I agree with the majority’s holding that the evidence presented in this case was sufficient to support the trial court’s verdict as a matter of law. However, I disagree with the majority’s finding of cumulative error requiring reversal. I do not believe that the bill of particulars in this case rendered the defendant unable to prepare an adequate defense. I also do not consider the trial court’s limitation of defense counsel’s cross-examination of Dr. Cullen an abuse of the trial court’s discretion. Accordingly, I concur in Part II and dissent from Parts III and IV.

I.

The majority holds in Part III that the bill of particulars provided by the prosecution rendered the defendant unable to prepare an adequate defense, and that error occurred when the trial court denied the defendant’s motion at the end of the prosecution’s case-in-chief to compel the prosecution to elect a specific act. I disagree.

A.

The defendant asserts that because of the descriptions of the sexual acts in the bill of particulars, he was inadequately apprised of the charges against him and therefore unable to prepare an adequate defense. Because the trial court’s ruling on this matter was discretionary and the record does not show that the defendant was unable to prepare his defense or that he was otherwise prejudiced, I believe this assertion is without merit.

“An order for a bill of particulars normally rests within the sound discretion of the trial judge.” People v. District Court, 198 Colo. 501, 503, 603 P.2d 127, 128 (1979). The purpose of a bill of particulars “is to enable the defendant to properly prepare his defense” if the indictment is so indefinite “that it does not afford the defendant a fair opportunity to procure witnesses and prepare for trial.” Id. at 503, 603 P.2d at 129 (emphasis added) (citing King v. United States, 402 F.2d 289 (10th Cir.1963)). The decision whether it is appropriate to order a bill of particulars therefore depends on the trial judge’s determination, given the particular facts of a case, “whether the requested information is necessary for the defendant to prepare his defense and to avoid prejudicial surprise.” Id. at 504, 603 P.2d at 129 (emphasis added).

At the outset I would note that although the record is unclear, it appears that this issue was not properly preserved for appeal. No objections appear after the prosecution filed the amended bill of particulars. The record does show that the trial court entered a minute order on November 14, 1983, which stated: “Defendant will not challenge Bill of Particulars any further.” A transcript of the motions hearing was not included as a part of the record on appeal, so it cannot be ascertained whether the defendant withdrew his objection, or whether the court instructed the defendant that it would not entertain further challenges. “Where ... there has been no showing to the contrary by the appellant, we must presume that the district court’s order accurately reflects what occurred at *964the hearing.” Parker v. Glazner, 645 P.2d 1319, 1320 n. 1 (Colo.1987). Without the transcript we must presume that the defendant decided not to challenge the bill of particulars, as indicated in the trial court’s minute order. I would therefore hold that the sufficiency of the bill of particulars was not properly preserved for appellate review.

As a result, the bill of particulars must be analyzed under the plain error standard: “whether an appellate court, after reviewing the entire record, can say with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.” Wilson v. People, 743 P.2d 415, 420 (Colo.1987). The facts of this case do not support such a conclusion, especially since this was a trial to the court. A review of the defense asserted in this case shows that a date-specific bill of particulars would not have made a substantial difference in the defense presented, and would not have caused the judge to arrive at a different conclusion. The judge’s findings reflect that his decision turned on the credibility of the witnesses.1

Even if this issue is properly before this court, I do not believe that the prosecution’s inability to provide a more detailed bill of particulars rendered the defendant unable to prepare his case, especially in light of the nature of his defense. As in District Court, the allegations here involved “ ‘a course of conduct rather than one incident.’ ” Id. at 503, 603 P.2d at 128. We upheld the trial court’s limited grant of a bill of particulars in District Court, and there the “prosecution was not required to indicate the specific days or hours that the alleged acts were committed.” Id.

The defendant concedes that the prosecution was not required, in this case, to allege a specific date and time for each touching incident. Having so conceded, he apparently asserts that the description of the acts in the bill of particulars rendered him unable to present a defense. Some examples of the acts described are “[hjands inside shirt rubbing back ... and chest ... and under bra rubbing bare chest” and “[tjouching on breast numerous times and between legs.” The touching incidents occurred in the defendant’s classroom. I do not believe that these descriptions of the acts were so inadequate as to amount to reversible error. It is difficult to imagine how descriptions like “[tjouching on breast,” “touching between legs,” and “[tjouching with toes between the victim’s legs” could have been more detailed and would have resulted in the preparation of a different or better defense.

A defendant is entitled to “a fair opportunity to procure witnesses.” District Court, 198 Colo, at 503, 603 P.2d at 129. Here, several of the defendant’s peers and students testified on his behalf, and the victim of each count of which the defendant was convicted testified and was avail*965able for cross-examination at trial. A bill of particulars must afford the defendant a fair opportunity to prepare his defense for trial. Id. The defendant asserted the defense of complete denial. He elected to testify at trial and stated that he had “never” in any manner attempted to touch any student in a sexual manner, and did not put his hand in any students’ pants or on their breasts.2 In the case of an alibi defense, it may be necessary to provide a defendant with an exact date or time in order for him to prove his location at the date and time the offense was committed. Where, as here, the defendant did not dispute that he was present in the classroom, and his defense was that he did not commit any of the acts with which he was charged, I fail to see how a more specific description of the acts would enable him to prepare a more effective defense.

The remaining purpose of a bill of particulars is to “avoid prejudicial surprise” to the defendant. Id. at 504, 603 P.2d at 129. Again, the defendant has made no showing of either prejudice or surprise. The allegations were sufficiently specific in nature to apprise the defendant of the evidence that would be presented by the prosecution at trial, even though exact dates and times were unavailable. I find nothing in the record to indicate that the defendant was taken by surprise at trial, and the purpose of a bill of particulars is to protect the defendant from prejudicial surprise. District Court, 198 Colo, at 504, 603 P.2d at 129; Balltrip v. People, 157 Colo. 108, 113, 401 P.2d 259, 262 (1965); People v. Lewis, 671 P.2d 985, 989 (Colo.App.1983); see Crim.P. 7(g), 7B C.R.S. (1984). The defendant did not make an offer of proof establishing the manner in which he was prejudiced, and has not demonstrated how he suffered prejudicial surprise at trial.

The majority notes that the trial court granted the defendant’s motion for a bill of particulars and described the order as “limited ... requiring only that the prosecution answer the bill to the ‘best of the [district attorney’s] knowledge and belief.’ ” Majority, slip op. at 15. The majority then concludes: “Our standard of review should be the same whether the trial court denies a motion for a bill of particulars, or grants the motion subject to limita-tion_” At 953 (emphasis added). I do not agree; the limitation imposed in this case hardly had the practical effect of denying the defendant’s motion. Presumably, the district attorney would and did answer the bill to the best of his knowledge and belief. I would hold that the trial court did not abuse its discretion in ruling that the bill of particulars was adequate, especially since the record does not show prejudicial surprise to the defendant.

B.

The defendant asserts, and the majority agrees, that the trial court abused its discretion and committed reversible error under People v. Estorga, 200 Colo. 78, 612 *966P.2d 520 (1980), when it declined to require the prosecution to elect a specific act. Specifically, the trial judge ruled that he would not “require the district attorney to elect a specific date.” Although this issue overlaps to some extent with the arguments and rationale regarding the bill of particulars, I address it separately because of factual distinctions between Estorga and the case at bar. I would conclude that the trial court did not abuse its discretion.

First, an express purpose for requiring the prosecution to “individualize and select a specific act” is to avoid the possibility “that some jurors do not convict on one offense and others on a separate offense.” Estorga, 200 Colo, at 81, 612 P.2d at 523 (footnote omitted). The danger of non-unanimity, of course, is not present in a trial to the court.

The second factual distinction is that the prosecution’s failure to elect a specific act for the jury to consider in Estorga “was compounded” because the trial court gave an erroneous jury instruction. No such error could have occurred in the case at bar. Id. at 81-82, 612 P.2d at 523.

Third, this case was tried to a judge, not a jury of laypersons. The trial judge as trier of fact is required to weigh conflicting evidence, judge the credibility of witnesses, and draw reasonable inferences from the evidence. People v. Atencio, 187 Colo. 226, 529 P.2d 636 (1974); Garcia v. People, 172 Colo. 329, 473 P.2d 169 (1970); Bean v. People, 164 Colo. 593, 436 P.2d 678 (1968). A different standard is appropriate, under some circumstances, when the trier of fact is a judge and not the jury. See, e.g., People v. Kirkland, 174 Colo. 362, 483 P.2d 1349 (1971) (In a trial to the court rather than to a jury, the judge as trier of fact has considerably more leeway in granting a motion for judgment of acquittal.); Self v. People, 167 Colo. 292, 448 P.2d 619 (1968) (When trial is to the court rather than to a jury, the time of the admission of a confession is far less subject to serious objection.).

The defendant’s case was tried to a judge who presumably heard and understood the district attorney’s direct examination of the victims. With two of the three victim-witnesses, the district attorney elicited certain testimony to establish the act on which the state sought conviction, and presented the remainder of the witness’ testimony as evidence of similar transactions. With victim E.L., the prosecution had E.L. testify about a particular incident, and then continued direct examination after explaining: “Judge, I’d like to offer similar transaction evidence relative to other incidents within the same time frame, pursuant to statute, pursuant to my previously filed brief with the Court.” When the court asked if the defense had an objection, defense counsel responded: “Fine.” When victim C.M. testified, she gave testimony about a particular incident, and the prosecutor then stated that he wished to “go into another brief area concerning similar transactions with this victim,” to which defense counsel responded “[n]o objection.” The prosecutor neglected to draw this distinction during the testimony of victim A.C. The testimony of V.A., who was not named as a victim, was offered only as similar transaction evidence.

The record reflects that defense counsel made a motion at the close of the prosecution’s case-in-chief that the prosecution be required to select a specific act. I agree with the majority that this was the proper time for requiring the prosecution to elect, if election has not already occurred. Slip op. at 26. However, I think the prosecution’s direct examination provided the necessary election between acts charged and similar transactions.

On the defendant’s contention that the convictions leave him subject to a double jeopardy violation, the court’s own ruling specifically disposes of that possibility.3

*967In my view, the record shows that the prosecution expressly elected between incidents during the presentation of its case-in-chief, offering certain evidence to establish a particular incident of assault, and other evidence as similar transactions. I believe the election which took place during direct examination was sufficient. The issue of whether the similar transaction evidence was appropriately admitted has not been raised, and the defense expressly agreed to its admission at trial.

Considering the nature of the defense, the absence of a jury or a flawed jury instruction which “compounded” the error in Estorga, and the method in which the testimony was presented, I would conclude that the facts of this case do not rise to the level of error in Estorga. I would affirm the discretionary rulings of the trial court.

II.

In Part IV, the majority holds that the trial judge committed error in limiting defense counsel’s cross-examination of Cullen, the school principal.4 I disagree with the majority’s conclusion that the limitation of certain questioning was “prejudicial to the defendant’s ability to mount a competent defense, and therefore, constituted an abuse of discretion.” Slip op. at 37.

A criminal defendant has the right to conduct liberal cross-examination of prosecution witnesses. People v. Crawford, 191 Colo. 504, 506, 553 P.2d 827, 829 (1976). “Absent a showing of abuse or manifest prejudice, limitation of cross-examination does not constitute reversible error.” People v. Moreno, 192 Colo. 314, 315, 558 P.2d 440, 442 (1976).

During cross-examination of Dr. Cullen, defense counsel sought to question the school principal about students who may have recanted their statements. Dr. Cullen was the second witness for the prosecution; the victims were scheduled to testify after Dr. Cullen. The court’s understanding was that defense counsel was “asking these questions of [Dr. Cullen] only for the purpose of determining his credibility as a witness in this case.”5 The court advised defense counsel that it would allow this line *968of questioning “after the basis for the questions is established by your own examination of the witnesses who would establish that. If you can establish that in your own case, I’ll allow you to recall Dr. Cullen and ask him these questions.”

To the extent that defense counsel was attempting to impeach the victims, who had not yet testified, this ruling was correct in that it provided for cross-examination of Cullen in rebuttal after the victims had testified. The defense could have recalled Dr. Cullen, but did not. To the extent that defense counsel was attempting to impeach the principal, this ruling was not reversible error because a trial court is permitted to limit questions related to irrelevant side issues. United States v. Spivey, 508 F.2d 146 (10th Cir.), cert. denied, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975). It was within the trial court’s discretion to hold that details of the conflicting stories, given by children who never testified and were not victims named in charges against the defendant, were not relevant to the question of whether the defendant had committed the acts described in the information.6 The limitation of “cross-examination of a witness concerning general credibility is within the sound discretion of the trial court.” People v. Evans, 630 P.2d 94, 97 (Colo.App.1981).7

For these reasons, I believe the defendant was fairly tried and convicted by the trial judge sitting as the trier of fact. I would uphold the defendant’s convictions.

I am authorized to say that Justice MUL-LARKEY joins in this concurrence and dissent.

. The trial court made these findings:

[T]he primary matter that the Court has to consider is whether the persons who are now listed as victims testified truthfully in their testimony.
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[T]he Court is convinced by the evidence that [C.M.] was telling the truth when she advised that she was touched on her breast by the defendant.
The Court believed that beyond a reasonable doubt, and that all the other requirements of the statute have been met, considering the law that is applicable to the charge made, and therefore finds Edward Kogan guilty of sexual assault on a child as to [Count Three].
As to Count Four, the Court listened to the testimony of [C.M.] and believes that the defendant removed his foot from his shoe and used his toe to touch [C.M.] between the legs as she was lying underneath his desk and therefore violated the statute of sexual assault on a child ... I therefore find him guilty of sexual assault on a child as to Count Fourt [sic].
As to Count Eight, having listened to the evidence concerning [E.L.], the Court is of the opinion that Mr. Kogan did touch [E.L.] both on her breast and on the intervening clothing around and next to her vaginal area and therefore finds Mr. Kogan guilty ... as to that count.
As to Count Ten, ... the Court, having heard the evidence, finds that the defendant did touch and subject [A.C.] to sexual contact as defined by the statute, ... and that [A.C.] was touched on her breasts by the defendant. ... I therefore find him guilty of sexual assault on a child relative to Count Ten.

. Portions of the defendant’s testimony were:

Q Did you ever rub [E.L.'s] tummy?
A No.
Q Did you ever rub your hand across her breasts, even by mistake?
A No.
Q Ever touch her nipples?
A No.
Q Did you ever put your hand or hands in [E.L.’s] pants, even to the first joint of any finger?
A Negative.
Q Never?
A Never.
Q How about [A.CJ? Did you ever rub her back with your hand on the outside when she was sitting on your lap?
A Rub her back?
Q Yes.
A I don’t know. I might have.
Q Okay. Would that have been with your hand?
A I would assume.
Q All right. And did you think that’s inappropriate touching?
A No.
Q Now, did you ever rub her on her back with your hands inside of her shirt on the back? A No.
Q Never happen?
A Never.
Q Did you ever move your hand to the front and touch her on the front, under her shirt? A Never.
Q How about on the outside of her shirt? A Never.
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Q So you’re saying you never put your hand on top of her bra, or underneath her bra? A 1 think I answered that. I said I didn’t,

. The trial court held:

AH right. It's the Court's opinion that the time frames that have been alleged are sufficient, that the district attorney has elected to file one charge as to all incidents that may have occurred within the time — dates and times stated in the complaint or the specific counts in the information. It is the Court’s feeling that thereby the district attorney is prevented by their own actions in prosecuting *967any other specific charges and must ask that the Court rule as in all instances that may have occurred within this time frame.
There were arguments that the district attorney had established that on each separate date an offense of the alleged nature had occurred. The district attorney is precluded from prosecuting them as separate counts by their actions in specifying the time period alleged. I deny the motion to require the district attorney to elect a specific date, as the district attorney’s evidence, whether it be as to any specific incident or as to the other incidents which are a result of their allegations of a common mode or manner, scheme or design, are such that only one conviction could be had.

. Because the majority found reversible error in Part III and orders the case remanded for a new trial, I do not believe it necessary for the majority to address the issue of Cullen’s cross-examination.

. The defendant’s offer of proof was that

If [Cullen], as an individual that initiated this proceeding ... based upon certain information in his possession, and then he learns that that information is incorrect, I think he has a duty ... to inform the police that these individuals in fact did not see anything. And
if he didn’t inform the police or Mr. Kogan, that is a concealment, in my opinion, of material evidence that has a bearing on his stance in the case.

The court responded:

I think it’s simply too far out. We can talk about everybody’s motives for everything they’ve done, but I’m concerned about the issues directly raised by the information, and I think it is just too far afield in terms of relevancy, and in view of the amount of time that we apparently are going into this—

After further objections and argument, the court again held:

[I]f you desire to impeach [these girls] on their own testimony about what they’ve told other people at different times and prior existing statements, I’ll certainly allow that, but at this point I think we're just going too far afield, to try and take every statement that may have been made by Dr. Cullen or by any • party and then finally say that someone said something different at a later time.
We could be in trial two months if we do that, and I am simply not going to do that. I’ll certainly allow you to examine the witnesses who have direct knowledge of what occurred here, and I will allow you to impeach them by appropriate means under the law and allow you to call other witnesses after they have testified.

. CRE 402 provides for the exclusion of evidence which is not relevant. CRE 403 permits the court to exclude evidence after the judge has balanced considerations of undue delay and waste of time against the relevance of the evidence. 7B C.R.S. (1984). Such a ruling is within the trial court’s sound discretion. People v. Schwartz, 678 P.2d 1000 (Colo.1984); People v. Abbott, 638 P.2d 781 (Colo.1981).

. The trial court heard testimony which has not been mentioned in the majority opinion. At Kogan’s trial, the judge heard testimony from Dr. Cullen, the current principal at Ora Oliver Elementary School, and John Gordon, the principal at that school from 1979 to 1981.

Gordon testified that during the 1979-80 school year he "received a complaint from a parent about Mr. Kogan seating students on his lap, and I spoke with him in that regard.” Gordon testified that he warned Kogan "that that should not happen again.”
Gordon testified that in the 1980-’81 school year, he received a complaint from another parent that Kogan had been rubbing her daughter's back in an inappropriate fashion. Gordon again warned Kogan, telling him that his conduct was “unprofessional” and “should not occur," and the student was removed from Ko-gan’s classroom and transferred into another fourth grade class. Gordon also agreed that in 1981 he met with the incoming principal, Dr. Cullen, and told Cullen to “keep an eye on Ed [Kogan]."
Dr. Cullen testified that prior to Kogan’s suspension in October 1982 he had “talked to Mr. Kogan twice previously in relation to touching students.” One discussion was initiated when Cullen “saw a girl sitting on [Kogan’s] lap.” Another discussion was instigated at the request of the superintendent of schools who had been in the building and evidently observed Kogan's conduct. Cullen stated that he “was concerned that Mr. Kogan had been continuing to have contact that [he] considered inappropriate with female students in the classroom.”