DISTRICT COURT EAGLE COUNTY, COLORADO 885 E. Chambers Road P.O. Box 597 Eagle, Colorado Plaintiff: PEOPLE OF THE STATE OF COLORADO.

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1 DISTRICT COURT EAGLE COUNTY, COLORADO 885 E. Chambers Road P.O. Box 597 Eagle, Colorado Plaintiff: PEOPLE OF THE STATE OF COLORADO. Defendant: KOBE BEAN BRYANT. σ COURT USE ONLY σ Case Number: 03 CR 204 Div.: R ORDER RE: Defendant s Motion to Admit Evidence Pursuant to C.R.S and People s Motions in Limine #5 and #7 The underlying criminal charges in this case concern an allegation of sexual assault, through the actual application of physical force or physical violence, by the Defendant Kobe Bryant against the alleged victim. On July 18, 2003, criminal sexual assault charges were filed against Mr. Bryant pursuant to C.R.S (1)(a) and (4)(a), which provide in relevant portion as follows: (1) Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault if: (a) [t]he actor causes submission of the victim by means of sufficient consequence reasonably calculated to cause submission against the victim's will... [and] (4) Sexual assault is a class 3 felony if it is attended by any one or more of the following circumstances: (a) [t]he actor causes submission of the victim through the actual application of physical force or physical violence. C.R.S (1)(a) and (4)(a). A preliminary hearing was held, and the case against the Defendant was bound over to the District Court for trial. The defense later filed a Motion for Evidentiary Hearing pursuant to C.R.S (Colorado s Rape Shield statute) with four subsequent supporting offers of proof and affidavits. The defense seeks to offer evidence during trial of specific instances of prior and subsequent sexual conduct of the alleged

2 victim, including her alleged sexual conduct with the two outcry witnesses, as relevant to material issue(s) in the case. The prosecution has submitted two sealed Motions in Limine (Peoples #5 and People s #7). The Court has reviewed the Motions and the defense responses thereto, concerning a request to limit any testimonial evidence about the alleged victim s and any witness s prior or subsequent sexual activity and to prevent admission of certain physical evidence collected in this case. Based upon a finding of sufficiency in the offers of proof and affidavits, this Court granted the motion for evidentiary hearing pursuant to the statute. The Court has heard testimony from twenty-seven lay and expert witnesses, including the alleged victim, presented by both the defense and the prosecution. Hearings in this matter were conducted in camera, as prescribed by the statute. The testimony was taken over the course of nine days, concluding on June 22, 2004, and the Court also reviewed one affidavit of a witness. The defense now asks leave to offer during the trial in this matter certain evidence presented at the evidentiary hearings under C.R.S The prosecution objects to the introduction of any of the evidence as irrelevant and barred by the Rape Shield statute. This Order contains a summary of the Court s ruling on Defendant s Motion to Admit Evidence Pursuant to C.R.S and the People s Motions in Limine #5 and #7. The Court is also issuing a detailed Order under seal for three reasons: 1) it details the evidence, which is deemed relevant and admissible at trial in this matter, but which may be subject to further motions in limine. This will also provide the parties the opportunity to determine which evidence they will offer; 2) it contains details of evidence which were the subject of the suppression order and may be subject to further motions in limine; and 3) it contains details of evidence offered by the Defendant in this case, which were deemed irrelevant and inadmissible by this Court. C.R.S (Rape Shield) was the Colorado legislature s initial response to a national trend which began in 1974 to reform procedures concerning the prosecution of sexual assault charges. People v. McKenna, 585 P.2d 275, 278 (Colo. 1978). The statute states: Victim's and witness' prior history--evidentiary hearing (1) Evidence of specific instances of the victim's or a witness' prior or subsequent sexual conduct, opinion evidence of the victim's or a witness' sexual conduct, and reputation evidence of the victim's or a witness' sexual conduct shall be presumed to be irrelevant except: (a) Evidence of the victim's or witness' prior or subsequent sexual conduct with the actor; (b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing 2

3 that the act or acts charged were or were not committed by the defendant. (2) In any criminal prosecution under sections to , , , , and , or for attempt or conspiracy to commit any crime under sections to , , , , and , if evidence, that is not excepted under subsection (1) of this section, of specific instances of the victim's or a witness' prior or subsequent sexual conduct, or opinion evidence of the victim's or a witness' sexual conduct, or reputation evidence of the victim's or a witness' sexual conduct, or evidence that the victim or a witness has a history of false reporting of sexual assaults is to be offered at trial, the following procedure shall be followed: (a) A written motion shall be made at least thirty days prior to trial, unless later for good cause shown, to the court and to the opposing parties stating that the moving party has an offer of proof of the relevancy and materiality of evidence of specific instances of the victim's or witness' prior or subsequent sexual conduct, or opinion evidence of the victim's or witness' sexual conduct, or reputation evidence of the victim's or witness' sexual conduct, or evidence that the victim or witness has a history of false reporting of sexual assaults that is proposed to be presented. (b) The written motion shall be accompanied by an affidavit in which the offer of proof shall be stated. (c) If the court finds that the offer of proof is sufficient, the court shall notify the other party of such and set a hearing to be held in camera prior to trial. In such hearing, the court shall allow the questioning of the victim or witness regarding the offer of proof made by the moving party and shall otherwise allow a full presentation of the offer of proof including, but not limited to, the presentation of witnesses. (d) An in camera hearing may be held during trial if evidence first becomes available at the time of the trial or for good cause shown. (e) At the conclusion of the hearing, if the court finds that the evidence proposed to be offered regarding the sexual conduct of the victim or witness is relevant to a material issue to the case, the court shall order that evidence may be introduced and prescribe the nature of the evidence or questions to be permitted. The moving party may then offer evidence pursuant to the order of the court. C.R.S

4 Prior to the enactment of the Rape Shield statute, wide latitude was given in cross-examining the alleged victim of a sexual assault, particularly in a case where consent was the defense, with little or no analysis applied to discern whether the sexual conduct of the alleged victim had any logical connection with her credibility or whether her prior consent to intercourse with another at a different time had any logical bearing on whether she consented to sex with the defendant. Id. at 278. To address this concern, the Colorado legislature adopted the Rape Shield law in order to provide sexual assault victims greater protection from humiliating and embarrassing public fishing expeditions into their past sexual conduct. Id. The law provides that, except in certain circumstances, evidence of an alleged victim s or a witness prior or subsequent sexual conduct is presumed irrelevant. The statute does, however, provide certain enumerated exceptions to the presumption. The statute also provides the sexual assault defendant with an opportunity to overcome this presumption and to show the relevance of the proposed evidence of sexual conduct through offer of proof, affidavit and an in camera pretrial evidentiary hearing. The trial court reviews the proposed evidence to determine whether the sexual conduct of the alleged victim or witness is relevant to a material issue to be decided in the case. If the trial court so determines, the evidence then may be presented at the trial of the matter. McKenna and its progeny have implemented the legislature s stated purpose of barring the admission of irrelevant evidence in a sexual assault case. See e.g. People v. Martinez, 634 P.2d 26 (Colo. 1981); People v. Murphy, 919 P.2d 191 (Colo. 1996); People in the interest of K.N., 977 P.2d 868 (Colo. 1999); People v. Melillo, 25 P.3d 769 (Colo. 2001); People v. Harris, 43 P.2d 221 (Colo. 2002); and also People. v. Johnson, 671 P.2d 1017 (Colo. App. 1983); People v. Moreno, 739 P, 2d 866 (Colo. App. 1987); People v. Braley, 879 P.2d 410 (Colo. App. 1993). The Defendant seeks to offer two different types evidence in the trial of this case, the admissibility of which is governed by the Rape Shield statute. First, the Defendant asserts that certain physical evidence in this case, as well as related tests and expert opinion, is not subject to the presumption of irrelevancy. The Defendant argues that said evidence amounts to specific instances of sexual activity showing the source or origin of semen or that it constitutes similar evidence of sexual intercourse offered for the purpose of showing that the act charged was not committed by the Defendant. See C.R.S (1)(b) and CRE 404(b). Second, the Defendant seeks to introduce evidence of these alleged specific acts of sexual intercourse and conduct of the alleged victim, and of two prosecution witnesses. The Defendant contends this evidence is relevant to material issues in this case of credibility and bias. In determining whether the evidence proffered by the defense is relevant to a material issue in the case, the Court must be guided by Colorado Rule of Evidence (CRE) 401, which defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. CRE 401. Colorado courts recognize that [t]he Colorado Rules of Evidence strongly favor the admission of 4

5 relevant evidence. People v. McGraw, 30 P.3d 835, 838 (Colo. App. 2001). CRE 402 provides [a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Colorado, by these rules, or by other rules prescribed by the Supreme Court, or by the statutes of the State of Colorado. Evidence which is not relevant is not admissible. CRE 402. However, CRE 403 also provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. CRE 403. Finally, in making a determination about the admissibility of the evidence offered, the Court must consider CRE 404 which states: (a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except: (1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same or if evidence of the alleged victim's character for aggressiveness or violence is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution; (2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; (3) Character of witness. Evidence of the character of a witness as provided in Rules 607, 608, and (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. CRE 404. This Court determines that certain evidence, proposed to be offered by the defense and objected to by the prosecution, is relevant to a material issue(s) in this case, as discussed below and in the separate sealed Order, and will permit the evidence to be 5

6 offered at the trial of this matter. The Court determines that certain other evidence, offered by the defense and objected to by the prosecution, is not relevant to any material issue in this case, and therefore may not be offered at the trial of this matter, unless circumstances later warrant. The Court hereby CONCLUDES that the following evidence is relevant to material issues in this case: 1) All evidence, whether direct or circumstantial, of the alleged victim s sexual conduct within approximately 72 hours preceding her physical examination conducted at Valley View Hospital in Glenwood Springs on July 1, This evidence is relevant to the following: a) determination of the cause of the injuries observed by the nurse examiners; b) source of the DNA and other bodily fluids found; and c) expert opinions concerning the physical findings. This evidence is also res gestae and is admissible under that defense theory. 2) All physical evidence taken by law enforcement and the nurse examiners from the alleged victim, including all items of clothing and swabs from the physical examination. This evidence is relevant to the following: a) determination of the cause of the injuries observed by the nurse examiners; b) specific instances of sexual activity showing the source or origin of semen, sperm and DNA; c) expert opinions concerning the physical findings; and d) credibility. Further, this Court is persuaded that this evidence is not subject to the statutory presumption of irrelevancy established by our Rape Shield statute, because this evidence regards specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts charged were or were not committed by the defendant. C.R.S (1)(b) This evidence is also admissible as res gestae. 3) The Court will permit the introduction of evidence regarding the general nature of the relationship between the alleged victim and each outcry witness. Such evidence may include whether sexual intimacy was and is a part of each relationship, but only as detailed and limited in the Court s sealed Order. 4) The Court summarizes its findings as to the other acts evidence as follows: a) the proffered evidence does not relate to a material fact of consequence to the determination of the action ; b) the evidence is not logically relevant, i.e. it does not have any tendency to make the existence of a material fact more or less probable than it would without the evidence; c) were there any logical relevance, it is clearly not independent of an intermediate inference, prohibited under 404(b) that the alleged victim has bad character; d) as noted by the court repeatedly above, any probative value of this other act evidence is substantially outweighed by the danger of unfair prejudice. See People v. Spoto, 795 P.2d 1314 (Colo. 1990); People v. Garner, 806 P.2d 366 (Colo. 1991). 5) The Court further concludes that any and all other evidence of specific instances of sexual intercourse and conduct of the alleged victim or witnesses, including 6

7 opinion and reputation evidence other than those enumerated above and in detail in the sealed order are irrelevant, and may not be offered at trial. The Court hereby ORDERS as follows: (1) The Defendant s Motion to Admit Evidence is GRANTED in part and DENIED in part. (2) The People s Motion in Limine #7 concerning certain physical evidence taken from the alleged victim by the nurse examiners is DENIED. (3) The People s Motion in Limine #5 Re: Any Evidence of Prior or Subsequent Sexual Activity of the Victim or Witnesses is GRANTED in part and DENIED in part. (4) The Court further ORDERS that the parties have until July 28, 2004 to file any evidentiary motions which may arise as a result of this order, and also extends the plea negotiation deadline to that date. Done this 23rd day of July,

8 CERTIFICATE OF MAILING I hereby certify that I have, on this day of, 2004, faxed a true and correct copy of the above ORDER to: Mark Hurlbert District Attorney Fifth Judicial District P.O. Box 726 P.O. Box 295 Edwards, CO Terrence P. O Connor, Esq. Heckman & O Connor, P.C. Eagle, Colorado Fax: Fax: Counsel for Defendant Ingrid Bakke, Esq. John Clune, Esq. Boulder County District Attorney s Office Wheeler & Clune, LLC P.O. Box 471 Alpine Bank Building, Suite 101 Boulder, CO Avon, CO Fax: Fax: Counsel for Jane Doe Pamela Robillard Mackey, Esq. Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, PC 150 East Tenth Avenue Denver, Colorado Fax: Counsel for Defendant 8