2019 COA 183
Colo. Ct. App.2019Background
- At a party in Stephanie Torres’s apartment, an altercation occurred; defendant Michael Bobian was accused of striking the victim (T.H.) with a hatchet as the victim ran to assist Torres.
- Witness accounts conflicted: the victim and prosecution witnesses said Bobian attacked as the victim entered; defense witness Lindsey Collins said the victim attacked Bobian and the parties struggled over the hatchet.
- Physical evidence included blood patterns and indentations/marks on the front door and a hole in drywall; the timing and location of the blood were disputed only as to details relevant to self‑defense.
- Detective Frederick Longobricco (the prosecution’s advisory witness) testified without being qualified as an expert about blood "cast‑off" patterns and whether door marks were consistent with a hatchet strike; defense objected as expert testimony.
- Bobian was acquitted of attempted first‑degree murder but convicted of attempted second‑degree murder and first‑degree assault; he appealed challenging admission of the detective’s testimony and alleged prosecutorial misconduct (including eliciting consistency testimony and closing remarks).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of detective’s blood‑pattern and tool‑mark testimony | Testimony was ordinary police observation and helpful lay testimony about what the detective saw. | Testimony required specialized training and thus expert qualification; admission improperly conferred an "aura of expertise." | Court: It was expert testimony and admitting it was error, but error was harmless (blood pattern did not bear on contested self‑defense issue and prosecutor did not rely on it in closing). |
| Prosecutor eliciting testimony that witnesses’ trial testimony was "consistent" with earlier statements; other closing arguments | Consistency inquiries and remarks were permissible argument and description of the evidence; not vouching for truth. | Eliciting a prosecution‑aligned witness’s opinion that other witnesses were consistent improperly vouched and invaded jury’s credibility role; some closing comments were improper. | Court: Even if some questions were arguably improper, no plain error—responses were equivocal, remarks were within permissible argument, and any prejudice was not plain or substantial. |
| Cumulative error from alleged evidentiary and prosecutorial errors | Errors viewed together did not prejudice the verdict; each was harmless. | Combined errors undermined trial fairness and require reversal. | Court: No cumulative prejudice; combination did not cast serious doubt on reliability of conviction. |
Key Cases Cited
- People v. Stewart, 55 P.3d 107 (Colo. 2002) (standard of review for evidentiary rulings).
- Krutsinger v. People, 219 P.3d 1054 (Colo. 2009) (harmless‑error inquiry where evidentiary error did not substantially influence verdict).
- Domingo‑Gomez v. People, 125 P.3d 1043 (Colo. 2005) (prosecutor’s heightened ethical duties and limits on eliciting inadmissible testimony).
- Wittrein v. People, 221 P.3d 1076 (Colo. 2009) (witnesses may not opine that another witness was telling the truth on a particular occasion).
- Eppens v. People, 979 P.2d 14 (Colo. 1999) (prohibition on testimony about another witness’s sincerity).
- Gaffney v. People, 769 P.2d 1081 (Colo. 1989) (limits on testimony regarding believability of another witness).
- Snook v. People, 745 P.2d 647 (Colo. 1987) (testimony about predisposition to fabricate is improper).
- People v. Padilla, 638 P.2d 15 (Colo. 1981) (instructions and lesser‑included offense sequencing guidance).
- People v. Avila, 944 P.2d 673 (Colo. App. 1997) (contextual review of closing argument impropriety).
- Lucero v. People, 615 P.2d 660 (Colo. 1980) (cumulative‑error principles and reversal standard).
- United States v. Toledo, 985 F.2d 1462 (10th Cir. 1993) (Tenth Circuit considered closeness of admitting officer testimony about consistency; admitted without plain‑error reversal).
- United States v. Cass, 127 F.3d 1218 (10th Cir. 1997) (caution in admitting out‑of‑court statements to explain course of police investigation).
- Dickerson v. Commonwealth, 174 S.W.3d 451 (Ky. 2005) (prohibiting witness testimony that another witness’s statements were consistent absent charge of recent fabrication).
- State v. Jennings, 716 S.E.2d 91 (S.C. 2011) (expert/interviewer reports stating consistency impermissibly implied truthfulness).
- State v. McKerley, 725 S.E.2d 139 (S.C. Ct. App. 2012) (forensic interviewer’s testimony that statements were ‘‘consistent’’ treated as opinion of truthfulness).