2015 COA 173
Colo. Ct. App.2015Background
- On January 25, 2011 two armed intruders robbed S.W.; one shot and killed her. Weapons and clothing were recovered from the scene.
- Investigations led to arrests of Dominic Marks and Edsgar Rocha-Lovatos; co-defendant Cody Richison later confessed and implicated Marks as the second robber.
- At trial the prosecution presented DNA testing of multiple items; some comparisons produced definitive matches with statistical probabilities, but several produced results labeled "inconclusive" or "no conclusion" (i.e., inclusion without accompanying statistics).
- Marks’s first trial ended in a mistrial; at the second trial a jury convicted him of first-degree felony murder, aggravated robbery, and first-degree burglary.
- Marks appealed, arguing (1) admission of "inconclusive" and "no conclusion" DNA testimony without statistical data violated CRE 702 and 403, and (2) the court erred by refusing his alternate-suspect jury instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of "inconclusive" and "no conclusion" DNA testimony without statistical probabilities | Evidence is relevant to show thoroughness of the investigation and therefore admissible | Such testimony is irrelevant or misleading absent statistical context and should be excluded under CRE 702/403 | "Inconclusive" results admissible (minimal probative value, not prejudicial). "No conclusion" results were erroneously admitted (misleading without statistics) but error was harmless given the overall evidence. |
| Refusal to give alternate-suspect jury instruction | No separate instruction required; the jury was properly instructed on elements and burden | Defendant entitled to instruction telling jurors they must acquit if reasonable doubt remains because another person may have committed the crime | Refusal was proper. An alternate-suspect theory is a traverse (not an affirmative defense) and not entitled to a separate substantive instruction; defendant could present the theory in closing and via a theory-of-defense instruction. |
Key Cases Cited
- People v. Shreck, 22 P.3d 68 (Colo. 2001) (governs admissibility of expert testimony under CRE 702)
- Fishback v. People, 851 P.2d 884 (Colo. 1993) (DNA match without statistical significance is essentially meaningless)
- People v. Rojas, 181 P.3d 1216 (Colo. App. 2008) (admission of DNA inclusion where statistics showed low population frequency was probative)
- Commonwealth v. Mattei, 920 N.E.2d 845 (Mass. 2010) (match or "cannot be excluded" testimony inadmissible without statistical data)
- People v. Huckleberry, 768 P.2d 1235 (Colo. 1989) (defendant not entitled to separate instruction on an alibi/traverse once theory-of-defense instruction available)
- People v. Coy, 620 N.W.2d 888 (Mich. 2000) (risk of unfair prejudice when inclusion testimony lacks statistical context)