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People v. Buckner.

2022 COA 14. No. 17CA1079.  Kidnapping—Sexual Assault—Fourth Amendment—Prosecutorial Misconduct—Rape Shield Statute.

February 3, 2022

J.D. told police that she had been physically assaulted by an unknown assailant in an alley several blocks from her apartment. Four days later, she changed her story and told police that defendant, her neighbor, pulled her into his apartment and beat and sexually assaulted her. J.D. identified defendant as the perpetrator from a photo array. The prosecution secured a court order for a buccal swab from defendant and his DNA was detected on swabs from J.D.’s vagina, labia, and neck. Defendant filed a pretrial motion with an affidavit requesting an evidentiary hearing to determine the admissibility of evidence that J.D. had a history of making false allegations of sexual assault. The court summarily denied the motion. A jury convicted defendant of kidnapping and sexual assault. Defendant filed a timely motion for a new trial under Crim. P. 33 in which he argued that the district court erred by denying his request for a rape shield hearing. The court summarily denied the motion.

On appeal, defendant contended that the district court plainly erred by allowing prosecutors to improperly (1) comment on his refusal to consent to a DNA test as evidence of his guilt, and (2) ask the jury to render a guilty verdict to do justice for the victim. First, a cheek swab or saliva sample to obtain DNA is a search subject to Fourth Amendment protections. Here, the prosecutor used defendant’s refusal to voluntarily provide a DNA sample to infer his guilty knowledge or consciousness of guilt, a prohibited purpose. Second, a prosecutor may not pressure jurors by suggesting that a guilty verdict is necessary to “do justice” for a victim. Here, the prosecutor’s final statement to the jury in rebuttal closing argument did just that. The prosecutors’ remarks were therefore improper. Further, because the outcome of the case depended on the jury’s decision regarding whose story to believe, these combined comments undermined the fundamental fairness of defendant’s trial and cast doubt on the reliability of the jury’s verdict.

Defendant also argued that the district court erred by denying his renewed motion for a rape shield hearing in advance of his second trial. The rape shield statute creates a presumption that evidence of an alleged victim’s prior or subsequent sexual conduct is irrelevant to the criminal trial. However, a statutory exception allows a defendant to offer evidence of a victim’s history of false reporting of sexual assaults if the statutory procedure of filing a motion and affidavit stating the offer of proof is followed. Here, if the facts described in the affidavit were proved by a preponderance of the evidence at a hearing, they would sufficiently establish multiple instances of false reporting. Therefore, the district court erred by denying defendant a hearing on his motion.

The judgment of conviction was reversed and the case was remanded for retrial. If defendant renews his motion to admit evidence that J.D. has a history of false reporting of sexual assaults based on the same offer of proof, the district court must conduct an evidentiary hearing under the rape shield statute to determine whether such evidence is admissible.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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