People v. Saiz , 32 P.3d 441 ( 2001 )

Justice BENDER,

dissenting.

In my view, it is inexcusable for the trial court to fail to permit the defense to impeach the key prosecution witness by showing a videotape of an interview with a seven-year old child in which that child changed his eyewitness account of who killed his mother almost three years after the event. Trial judges possess broad discretionary powers to tailor and to limit relevant evidence, but this power should not be wielded, as it was here, to subvert our basic notions of fairness. Hence, I respectfully dissent from the majority opinion and would affirm the court of appeals' reversal of the defendant's conviection and order of retrial.

At age four, the son of the defendant, Anthony, witnessed his mother being shot to death. Shortly after the incident, Anthony told police that another person killed his mother, identifying his mother's boyfriend as the killer. Anthony was placed in the home of his father's sister until the fall of 1995. In November 1995, one month after he turned seven, Anthony was placed in the custody of his father. In the spring of 1996, however, social services removed Anthony from his father's home and gave custody to his maternal grandmother. Anthony's mother's sister, Aunt Leslie, also lived in his grandmother's home. Almost four months after living at this home, Anthony told police that his father, the defendant, and not the boyfriend, shot his mother. At this time Anthony was seven years old.

The defendant's trial occurred almost a year later. Anthony, now eight years old, told the jury that his father shot his mother. Anthony's testimony on direct contained confusing accounts of what happened the night of the murder. For instance, when questioned by the prosecutor, the following sequence of questions and answers occurred:

Q: Did your dad say anything about the shooting [that night]?

A: No.

@: Did he say whether or not to tell somebody that somebody else did it?

A: Yeah¹

On cross-examination Anthony denied that his Aunt Leslie provided him with details about the shooting such as telling him "that the gun was fired only once" and that "it had to have been [his] dad because if it had been someone else they would have shot [him] too." Because there was limited cireumstan-tial evidence linking his father to the killing, both the prosecution and defense focused their theories, evidence, and argument on the question of whether this young boy was now telling the truth. The prosecution claimed that the father coached the boy to lie by telling the police that the boyfriend did it, while the defense claimed that the victim's family coached the boy to lie and tell police that his father did it.

As a matter of trial tactics the defense attorney chose not to elicit Anthony's inconsistent statements during Anthony's cross-examination. Instead, the defense attorney attempted to discredit Anthony's eye-witness trial testimony of the killing during the cross-examination of the detective who interviewed Anthony on video in July 1996. During this interview, Anthony changed his account to say that his father killed his mother. The record does not indicate why the defense attorney chose to introduce the inconsistencies in Anthony's testimony through the detective instead of confronting Anthony directly. Common sense, however, tells us that Anthony was severely traumatized by his mother's murder and subsequent investigation, and that a confrontation with Anthony. the son of the defendant, on cross-examination might increase the harm already done to this child.

The majority implies that the defense attorney acted deficiently by failing to impeach Anthony while the boy was on the stand. See maj. op. at 445. Our statute and case law, however, permit impeachment of prior inconsistent statements by extrinsic evidence without first laying a foundation with the witness who made the inconsistent statement. § 16-10-201(1), 6 C.R.S. (2000) ("[The previous inconsistent statement may be shown by any otherwise competent evidence. ..."); People v. Stewart, 39 Colo.App. 142, 144, 568 P.2d 65, 67 (1977) (concluding that it was permissible under section 16-10-201 for a detective to testify as to a witness's prior inconsistent statement).

Further, under our law an inconsistent statement may be admitted both for impeachment purposes and as substantive evidence. § 16-10-201(1) ("[The previous inconsistent statement ... is admissible not only for the purpose of impeaching the testimony of the witness, but also for the purpose of establishing a fact to which his testimony and inconsistent statement relate."); People v. Dist. Court, 195 Colo. 570, 572-73, 580 P.2d 388, 389 (1978) ("[Slection 16-10-201 expressly allows use of these [inconsistent] statements as substantive proof...."). In other words, evidence of prior inconsistent statements may be used both to discredit a declarant and to prove the truth of the matter stated in the prior inconsistent statements.

Defense counsel possessed a videotape of the child's inconsistent statements made to police in an interview almost three years after the killing. This video conveys to the jury firsthand sense impressions of critical facts. See Jordan S. Gruber, Videotape Evidence, in 44 Am.Jur. Trials 171, 195 (1992). According to Colorado law, it was perfectly appropriate for defense counsel to seek to introduce impeachment evidence through the detective, not only for the purpose of discrediting the child's testimony, but also as substantive evidence of coaching by the child's aunt.

Defense counsel laid a foundation for the admission of the videotape by questioning the detective about its contents, in other words, about what the boy said in the videotaped interview. The boy told the detective "that he knew his mom had been shot in the head because his Aunt Leslie told him that." The detective also testified that he made a pinky promise with the boy to tell the truth. The detective asked, "What do you remember, not what your Aunt told, just what do you remember?" The boy answered, "I don't know." Next, when questioned about whether the boy remembered anything from that night, he answered, "nut-huh." Defense counsel then established that the boy's statement was videotaped:

Q: He told you that he knew it was his dad who shot his mom because his Aunt Leslie had told him that if it wasn't his dad they would have killed Anthony too?

A: He made that statement in one portion of the interview.

Q: And you make a pinky promise with him?

A: I made a pinky promise with him to tell me the truth, yes.

Q: And you asked him, "What do you remember, not what your Aunt told, just what do you remember?"

A: That's correct.

And he said, "I don't know?"

Right at that point.

And you asked him, "Do you remember anything about that night?"

I did ask him that, yes. |p

And he said, "Nut-huh." ©

That is his initial, next statement. p

And that was videotaped, wasn't it? 0

That is correct. P

Next the defense attorney attempted to introduce the videotape of these portions of the interview. The prosecution objected, first on the basis that it was improper impeachment since the person being impeached was the child and not the detective, and second on the basis that the evidence was cumulative. In response, the defense attorney told the court that the video contained "something directly contrary to what [Anthony] said on the witness stand." Defense counsel argued that the jury was entitled "to see [the child] say something completely different." (Emphasis added.) He argued that it was not enough for the jury to hear the detective's testimony as to the content of the inconsistent statements "because it was not Anthony's words. I have Anthony's words on video."

The majority states that "[iJn the absence of an offer to do more than impeach Anthony by showing his prior inconsistent statement on videotape, the trial court did not abuse its discretion in excluding the videotape on the grounds that the defendant's offered purpose had already been accomplished by extrinsic evidence from Detective Weyler." Maj. op. at 451. An offer of proof must make the substance of the evidence known to the court and inform the trial judge what counsel expected to prove by the excluded evidence. CRE 103(a)(2); 1 Jack B. Weinstein and Margaret A. Berger, Weinstein's Federal Evidence 103-84 (Joseph M. MeLaughlin ed., 2d ed.2001). In this way, the proponent of evidence provides the trial court with contemporaneous knowledge about the proposed evidence, so that the judge can make a proper ruling on the evidence at the time it is offered. Weinstein, supra at 108-87² An offer of proof may be accomplished if the proponent makes a formal offer or if the grounds for offering the evidence were apparent from the context. Itin, 17 P.3d at 136; Weinstein, supra at 103-39.

In my view, defense counsel's argument that the jury should "see" and "hear" Anthony's statement on the video sufficiently informed the trial court of the probative value of the videotape not merely for the content of its statements, but for the way in which Anthony made his statements as well. Central to both parties' trial theories was the credibility of a young and traumatized witness who chauged his testimony and possessed different cognitive and developmental capabilities over time, including varying truth-telling capacities at age four, when he witnessed the event; at age seven, when he recanted his initial account; and at age eight, when he testified. The way in which he told his story at age seven, when he recanted and admitted to some degree of coaching by his aunt and that "he basically didn't remember what happened that night," is critical to the trial of this case. The trial court did not need additional offers of evidence to understand the potentially powerful, probative value of this video.

Merely stating the content of these inconsistent statements does not convey Anthony's cognitive development, demeanor, and body language at the time he made his statements. Empirical evidence has shown that when we communicate, we use words (or verbal forms) about 7% of the time and nonverbal forms 98% of the time. Albert Mehrabian, Communication Without Words, Psychol. Today, Sept. 1968, at 58. Non verbal forms of communication include touching, tone of voice, rate of speech, facial expressions, posture, and gestures. Id.

The notion that non-verbal cues are a vital tool for fully understanding a person's statements has deep cultural roots. See Center for Nonverbal Studies, Notable Quotables, at http://members.aol.com/nonver-bals/nvquotes.htm (Aug. 31, 2001) (quoting Ralph Waldo Emerson as saying, "[what you do speaks so loud that I cannot hear what you say," and quoting anthropologist Edward Sapir as saying in 1927, "we respond to gestures with an extreme alertness and, one might almost say, in accordance with an elaborate and secret code that is written nowhere, known by none, and understood by all"). This axiom has been absorbed by, commented upon, and assimilated by popular culture as well. For example, in the popular television sitecom "Seinfeld," Kramer says, "Ninety-four percent of our communication is nonverbal, Jerry." Seinfeld (NBC television broadcast, Jan. 29, 1998).

The detective's paraphrase of Anthony's statements could not and did not convey Anthony's non-verbal forms of communication. The video of the interview, however, aptly captures not only Anthony's words but also captures his nonverbal communication cues. Hence, the video possesses far more probative and persuasive force than the same statements repeated by someone else.

Contrary to the majority's position, this video was not cumulative of the detective's testimony. Evidence, though cumulative to some extent, is admissible "if it sheds light on a material inquiry or illustrates the transaction at issue." Lira v. People, 166 Colo. 498, 501-02, 445 P.2d 62, 64 (1968) (citing 22A C.J.S. Criminal Law § 718). The detective repeated what Anthony said to the effect that Anthony recanted, admitted that he was partially coached by his aunt, and stated that he could not remember anything that happened that night. As such, these statements, which were inconsistent with Anthony's testimony, set forth the foundation for admission of the videotape into evidence and placed Anthony's inconsistent words in context. See People v. Barker, 101 Mich.App. 599, 300 N.W.2d 648, 650 (1981) (concluding that videotapes were not cumulative of officer's testimony elicited primarily for the purpose of laying the foundation for admission of the videotapes³

Therefore, the videotape was not cumulative, and I would so hold. See Grimes v. Employers Mut. Liab. Ins. Co. of Wis., 73 F.R.D. 607, 610 (D.Alaska 1977) ("Generally, photographic evidence is only cumulative of other photographic evidence of the same kind."); State v. Hunt, 53 Wis.2d 734, 193 N.W.2d 858, 867 (1972) (concluding that it was not cumulative to admit two videotapes of the same confession because "one of the tapes gave a better view of the facial expressions of [the declarant]").

I note that one commentator agrees with my conclusion that, provided the video is accurate and authenticated (neither of which was contested here), the evidentiary objection that the video is cumulative is misplaced unless the video replicates other admissible, photographic evidence:

The ... modern| ] view is that a videotape can properly only be cumulative of other types of photographic evidence, and perhaps only other photographic evidence of the same kind-that is, other videotapes or film motion pictures. Similarly, the modern view rejects the notion that the only way to defeat an objection as to cumula-tiveness is if the videotape is necessary to prove or disprove a material proposition, or if the videotape conveys information to the jury more thoroughly or more accurately than does testimony. Instead, the modern view holds that what is critical is whether the videotape is relevant and accurate, and aids rather than confuses the jury.

Gruber, supra, at 294 (footnotes omitted).

Additionally, I point out that our rules of evidence are to be construed "to secure fairness in administration ... to the end that the truth may be ascertained and proceedings justly determined." CRE 102; see also Berger v. Coon, 199 Colo. 133, 136, 606 P.2d 68, 70 (1980) (concluding that the policy underlying the Colorado Rules of Evidence is "to guarantee to each party an opportunity to present the testimony of adverse witnesses and to favor admissibility of their testimony so as to ascertain the truth within the bounds of fairness"). Use of a videotape of an interview is significantly more probative than a mere recitation of the content of that interview. "For jurors to see as well as hear the events surrounding ... [a] statement is a forward step in the search for the truth. And after all, the end for which we strive in all trials is that the truth may be ascertained and the proceedings justly determined." Hendricks v. Swenson, 456 F.2d 503, 507 (8th Cir.1972) (quotation marks omitted) (holding that where a proper foundation is laid, admission of the defendant's videotaped confession at trial did not violate the defendant's constitutional rights).

The jury should have had the opportunity to see this video in order to permit the defendant a fair opportunity to present his theory of defense-that Anthony did not remember what happened and was coached by his aunt. Criticism of defense counsel by the Majority for not expressly stating what were the contents of the video or playing of the video for the judge in my view is inappropriate. See maj. op. at 449. The majority's sanction of the trial court's exclusion of this key and critical piece of evidence impaired the defendant's constitutional right to present a defense and deprived him of his constitutionally guaranteed right to a fair trial.

Hence, I would hold that the trial court's exelusion of the video constituted an abuse of discretion and remand this case to the district court for a new trial.

I am authorized to state that Justice MARTINEZ joins in this dissent.

1 . Other examples of his confusion about what happened that night when questioned by the prosecutor are:

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2 . An offer of proof not only allows the trial court to make an informed ruling on the admissibility of evidence, it also preserves a right of appeal. CRE 103(a)(2); Itin v. Ungar, P.C., 17 P.3d 129, 136 (Colo.2000). In order to distinguish between the two purposes of an "offer of proof," one treatise on evidence uses the term an "offer of evidence" to describe an offer that allows the "trial court ... [to] rule intelligently on the admissibility of the offeror's evidence." 1 John Henry Wigmore, Wigmore on Evidence 768 (rev. ed.1983). An offer of proof, however, is required "because an appellate court needs an adequate basis for determining whether a trial court's error regarding an evidentiary matter is prejudicial or merely harmless." Id. at 864.

3 . I note that both the court of appeals and the majority viewed the videotape and conducted their respective contrary analyses of the probative value of the substantive content of the video. Because the trial court did not view the videotape, I believe such substantive comment is inappropriate and unnecessary to rule on the question raised in this appeal: Whether the trial court abused its discretion when it precluded the defense from introducing this videotape into evidence. My holding rests solely upon the defense attorney's offer of evidence made in the context of this case.