Thе People of the State of Colorado, Plaintiff-Appellee, v. Jonathan Ray McFee, Defendant-Appellant.
Court of Appeals No. 13CA0032
COLORADO COURT OF APPEALS
June 30, 2016
2016COA97
Honorable Sheila A. Rappaport, Judge
City and County of Denver District Court No. 11CR2819. JUDGMENT AFFIRMED. Division II. Opinion by JUDGE HARRIS. Webb and Ashby, JJ., concur.
Douglas K. Wilson, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 2 McFee contends that admission of these statements constituted an evidentiary error that deprived him of a fair trial and that admission of the note violated his rights under the Sixth Amendment‘s Confrontation Clause. We agree that the note was a testimonial statement and that its admission violated McFee‘s constitutional rights. But, in part because we determine that the remaining statements were properly admitted, we conclude that the constitutional error was harmless beyond a reasonable doubt.
¶ 3 We reject McFee‘s remaining contentions of error and therefore affirm the judgment.
I. Background
¶ 4 L.E. was the in-house manager of a residential facility for patients with HIV and AIDS. Late one night, a resident discovered
¶ 5 A few months later, the police arrested McFee for the murder. He and L.E. had been in a long-term relationship and had been living together at the facility until shortly before L.E.‘s murder. By all accounts, the relationship was volatile. Numerous witnesses testified at trial that thеy had heard McFee threaten to kill L.E. Members of her family testified that L.E. had recounted repeated threats by McFee and had told them that she was afraid of him. Shortly before the murder, L.E. wrote a statement implicating McFee and gave it to her cousin for safekeeping.
¶ 6 When he was arrested, McFee was driving L.E.‘s car and, although the couple had apparently broken up a couple of days before the murder, he had a key to the facility on his key ring. According to the prosecution‘s evidence, there were no signs of burglary or forced entry into the facility on the night of L.E.‘s murder.
¶ 7 McFee was interviewed briefly by the police after his arrest. During a break in the interview, while he was alone in the room, the audio recording equipment picked up some of his mumbled words that sounded like, “I did it. That bitch.”
¶ 8 Police later tested the murder weapon. McFee‘s DNA was discovered on the handle of the knife.
¶ 9 The jury convicted McFee of first degree murder, and he was sentenced to life in prison without the possibility of parole.
II. Hearsay
¶ 10 Hearsay statements are out-of-court statements offered in evidence at trial to prove the truth of the matter asserted.
¶ 11 Some, but not all, hearsay statements implicate a defendant‘s Sixth Amendment rights under the Confrontation Clause. Davis v. Washington, 547 U.S. 813, 821 (2006). In Crawford v. Washington, 541 U.S. 36, 53-54 (2004), the Supreme Court held that the
A. The Hearsay Statements
¶ 12 Over McFee‘s objection, L.E.‘s mother testified that, on the evening of the murder, she spoke with L.E. on the phone. She testified that L.E. said McFee had threatened to kill her, and that “there‘s going to be trouble. . . [b]ecause [McFee‘s] acting like he used to act before.” L.E.‘s mother said that L.E.‘s voice was trembling and that she sounded afraid during the call.
¶ 13 L.E.‘s daughter testified that, two days before L.E.‘s murder, she had a telephone conversation with L.E. during which L.E.
¶ 14 L.E.‘s cousin testified that she was present during a phone call from McFee to L.E. that occurred about a month before L.E.‘s murder. According to the cousin, L.E. was crying during the call and, afterwards, she told the cousin that she was afraid of McFee beсause he had threatened to kill her. The cousin suggested that L.E. write a statement and agreed to hold it for her. L.E. prepared the following handwritten statement:
Driver‘s #98-324-056, Jonathan Ray McFee, 5/8/77, 5‘6” wt 230, eyes brown. To whom it may concern, I am given [sic] this information to my cusin [sic] because this man has given me threts [sic] on me and where I live. He says he is going to kill me, its [sic] just a matter of time. [Signature of L.E.]
Immediately after learning of L.E.‘s murder, the cousin turned the written statement over to the police, and it was introduced at trial over McFee‘s objection.
¶ 15 McFee contends that the district court abused its discretion in admitting L.E.‘s hearsay statements to her mother, daughter, and cousin because the statements concerning McFee‘s threats did not fall within any exception to the rule against hearsay. With respect
B. Admission of L.E.‘s Statements to Her Family Members
¶ 16 Thе district court determined that all of L.E.‘s statements were admissible under
1. Standard of Review
¶ 17 Trial courts have considerable discretion in determining the admissibility of evidence, including application of the residual hearsay exception. Vasquez v. People, 173 P.3d 1099, 1106 n.7 (Colo. 2007). We will not disturb the trial court‘s evidentiary ruling absent an abuse of discretion. Id. A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, People v. Brown, 2014 COA 155M-2, ¶ 18, or is based on an
2. Discussion
¶ 18 Under
(A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
¶ 19 In evaluating the trustworthiness of a statement, we examine the nature and character of the statement, the relationship of the parties, the probable motivation of the declarant in making the statement, and the circumstances under which the statement was made. Brown, ¶ 20.
¶ 20 We are guided in our assessment by People v. Fuller, 788 P.2d 741 (Colo. 1990), a case with substantially similar facts. In Fuller, a close friend of the murder victim testified to a conversation with the victim that occurred two weeks before her death in which the victim reported that the defendant had choked her and threatened to kill her. Id. at 743. The supreme court determined that the statements were supported by circumstantial guarantees of trustworthiness because they were “spontaneous statements to [a] close friend[] that she had known for many years,” they were “not self-serving,” and the declarant “had no motive to lie.” Id. at 745-46. Further, the stаtements established the material fact that the defendant had a motive to kill the victim, and they were particularly probative because they described actual incidents of violence by the defendant against the victim. Id. at 746.
¶ 21 L.E.‘s statements are trustworthy for the same reasons: they were made spontaneously to close family members, were not self-serving, and L.E. had no motive to lie about McFee‘s threats. See id. at 745-46; see also People v. Jensen, 55 P.3d 135, 139 (Colo. App. 2001); cf. Brown, ¶ 31 (collecting cases in other jurisdictions applying the residual hearsay exception that find statements to
¶ 22 In addition, L.E. had personal knowledge of the threats she described, and there was no reason to question her ability to perceive or recount the threats. See Jensen, 55 P.3d at 139-40. And all of the witnesses also testified that when L.E. was recounting the threats, she appeared genuinely afraid and upset: her mother testified that L.E.‘s voice trembled; her daughter thought she sounded “nervous and unsafe“; and her cousin testified that she was crying. Thus, L.E.‘s demeanor at the time of the statements corroborates their content.1
¶ 23 Further, the statements relaying McFee‘s prior threats were offered to establish the material fact that the relationship between
¶ 24 As McFee appears to concede, L.E.‘s statements were more probative than the testimony of other witnesses who heard McFee express an intent to harm L.E. Her statements made clear that McFee was not just “blowing off steam” with friends when he said he wanted to kill L.E.; instead, L.E.‘s statements established that McFee had communicated those threats directly to her and that she took them seriously. See Fuller, 788 P.2d at 746 (finding that the victim‘s statements were highly relevant because they dеscribed actual incidents in which the defendant acted violently).
¶ 25 Finally, the interests of justice were served by admission of the statements because “they were reliable and they increased the likelihood that the jury would ascertain the truth.” Id.; Jensen, 55 P.3d at 140 (“[T]he interests of justice are also promoted by having the complete facts surrounding an incident available to the jury.“).
¶ 26 In sum, L.E.‘s statements to her family members in which she communicated McFee‘s threats satisfy Rule 807‘s requirements. Because the court properly admitted the statements under Rule 807, we need not address whether they were also properly admitted under Rule 803(3).
C. Admission of the Written Note
¶ 27 The district court considered, but rejected, McFee‘s argument that L.E.‘s note was a “testimonial” statement for purposes of the Confrontation Clause analysis. We agree with McFee that the district court erred in its determination, but we conclude that the error was harmless beyond a reasonable doubt.
1. Standard of Review and Preservation
¶ 28 We review de novo whether the admission of evidence violated a defendant‘s rights under the Confrontation Clausе. People v. Phillips, 2012 COA 176, ¶ 85. A preserved constitutional error requires reversal unless the People prove beyond a reasonable doubt that the error was harmless. Hagos v. People, 2012 CO 63, ¶ 11.
¶ 29 The People contend that McFee objected to admission of the note on hearsay grounds, but not on the ground that the note was
¶ 30 Ordinarily, a general hearsay objection is insufficient to preserve a Confrontation Clause claim. See People v. Vigil, 127 P.3d 916, 929 (Colo. 2006). But here, McFee‘s objection prompted the district court to consider whether L.E.‘s note was a testimonial statement that implicated McFee‘s confrontation rights under the Sixth Amendment.
¶ 31 A claim is preserved for appeal if the trial court was “presented with an adequate opportunity to make findings of fact and conclusions of law” on the issue. People v. Melendez, 102 P.3d 315, 322 (Colo. 2004); cf. People v. Syrie, 101 P.3d 219, 223 n.7 (Colo. 2004) (“In the absence of such findings and conclusions, we will not consider arguments injecting an issue not adequately presented to the trial court.“) (emphasis added). The purpose of the contemporaneous objection rule is to conserve judicial resources by alerting the trial court to a particular issue so that it has an opportunity to correct any error. People v. Pahl, 169 P.3d 169, 183 (Colo. App. 2006). An objection is sufficiently specific when it
¶ 32 Thus, because the trial court specifically addressed the Confrontation Clause claim and determined that none of the hearsay statements, including the note, were testimonial, the Confrontation Clause claim is properly preserved, and we will review any error under the constitutional harmless error standard.
2. Discussion
¶ 33 The Sixth Amendment‘s Confrontation Clause guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right. . . to be confronted with the witnesses against him.”
¶ 34 We determine whether a hearsay statement is testimonial by considering whether, in light of all of the circumstances, viewed objectively, the statement was made “with a primary purpose of creating an out-of-court substitute for trial testimony.” Ohio v. Clark, 576 U.S. 237, 135 S. Ct. 2173, 2180 (2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011)); Arteaga-Lansaw v. People, 159 P.3d 107, 109 (Colo. 2007) (whether a statement is testimonial is “ultimately a function of [its] purpose“).
¶ 35 The Clause applies to volunteered statements as well as statements obtained through questioning, see Davis, 547 U.S. at 822 n.1, and to documents. See Bullcoming v. New Mexico, 564 U.S. 647, 660-61 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 311 (2009). In each case, we must determine whether the declarant‘s purpose was to establish facts that might be relevant to a later criminal prosecution. Davis, 547 U.S. at 822; see Hinojos-Mendoza v. People, 169 P.3d 662, 667 (Colo. 2007) (lab report was testimonial because its sole purpose was to anаlyze a substance in
¶ 36 Statements may be testimonial even if they are not made to law enforcement officers. Clark, 576 U.S. at __, 135 S. Ct. at 2181. What matters is whether, in light of the relevant circumstances, the statement was made for the requisite purpose. Id.
¶ 37 The relevant circumstances include whether there was an ongoing emergency at the time the statements were made, the formality and spontaneity of the statements, the environment in which the statements were given, and the identity of the person to whom the statements were made. Id.; see also Phillips, ¶ 70. And in evaluating the purpose of the statements, we consider the purpose that a reasonable declarant in those circumstances would have had, rather than the declarant‘s subjective or actual purpose. People v. Medrano-Bustamante, 2013 COA 139, ¶ 41 (cert. granted Sept. 8, 2014).
¶ 38 The attendant circumstances demonstrate that L.E. intended the note to aid in the prosecution of McFee and to serve as a
¶ 39 Statements are nontestimonial when made for the purpose of enabling police to address an ongoing emergency. Davis, 547 U.S. at 822. But L.E. did not write the note during an emergency, and she did not seek immediate police intervention. The note did not relay “what is happening,” in an effort to get help, but instead recorded “what happened,” and what she thought would eventually happen based on McFee‘s prior conduct. See id. at 830 (distinguishing nontestimonial statements to a 911 operator about current threats from testimonial statements to police officers about past events). Although the note recounted L.E.‘s fear for her life and her belief that McFee would eventually kill her, it did not relay an “immediate danger.” See Arteaga-Lansaw, 159 P.3d at 109 (Statements were testimonial because “any danger or need for immediate assistance ha[d] passed.“); Raile v. People, 148 P.3d 126, 133 (Colo. 2006) (no ongoing emergency, and thus stаtements were testimonial, where declarant did not ask for help and was not in current danger).
¶ 40 L.E.‘s purpose in writing the note was not to seek help to prevent an imminent attack by McFee (indeed, McFee was apparently incarcerated at the time) but to ensure that, if he attacked her in the future, police could find him and punish him. To that end, the note was more than a mere casual remark or statement. Cf. Clark, 576 U.S. at __, 135 S. Ct. at 2181 (nontestimonial statements were “informal and spontaneous“); Phillips, ¶¶ 116, 122 (informal questioning produced nontestimonial statements). In addition to accusations of past criminal conduct and the prediction that McFee would make good on his threats, the note provided information from McFee‘s driver‘s license, including a physical description, that would have helped police locate and identify him if L.E. were unable to assist them. And the note bore L.E.‘s signature, much like an affidavit, though less formal. These features of the note demonstrate that L.E.‘s primary purpose in writing it was to аid in the investigation and prosecution of McFee in the event of her murder.
¶ 41 Though L.E. gave the note to her cousin, and not directly to someone principally charged with uncovering and prosecuting criminal behavior, we conclude that the note falls into that narrow
¶ 42 Other courts have characterized similar notes as testimonial statements. In State v. Sanchez, 177 P.3d 444 (Mont. 2008), the defendant was charged in the shooting death of his girlfriend. The prosecution introduced a note written by the victim shortly before her death:
To whom it concerns:
On July 8, 04 around 10:30 p [sic] Raul Sanchez Cardines told me if I ever was cought [sic] with another man while I was dating him, that he would kill me. . . .
So if I unexspetly [sic] become sick and on the edge of death, and perhaps I die no [sic] you will have some answers.
[Signature of victim.]
¶ 43 In concluding that the note qualified as a testimonial statement, the Montana Supreme Court observed that its purpose was to explain the victim‘s untimely death, not to prevent or mitigate future harm. The note could establish or prоve facts to “answer questions regarding how, why, and by whom she had been harmed or killed.” Id. at 452-53. And, like the note here, the note‘s substance and “comprehensive salutation” demonstrated that the
victim‘s intended audience was law enforcement officials, even though the note was not directly addressed to the police. Id. at 453.¶ 44 The victim in State v. Jensen, 727 N.W.2d 518 (Wis. 2007), wrote a note and gave it to her neighbor with instructions to turn it over to the police if anything happened to her. In the note, addressed to the city police department and two named detectives, the victim wrote, “if anything happens to me, [the husband] would be my first suspect. . . . I pray I‘m wrong [and] nothing happens . . . but I am suspicious of [the husband‘s] . . . behaviors [and] fear for my early demise.” Id. at 522. The victim‘s husband was later charged with first degree murder in the poisoning death of the victim, and the prosecution sought to introduce the note at his trial. Id. at 520-22. The supreme court characterized the note as testimonial on the ground that a reasonable person in the victim‘s position would have anticipated that the note — which accused her husband of murder and even referred to him as a “suspect” — would be used against him at a later trial. Id. at 527-28.
¶ 45 Finally, in Miller v. Stovall, 608 F.3d 913 (6th Cir. 2010), cert. granted, judgment vacated, and case remanded, 565 U.S. __, 132 S. Ct. 573 (2011)2, the declarant committed suicide after helping the defendant kill her husband. He left behind a suitcase containing evidence of the conspiracy and a suicide note that also implicated the defendant. The Sixth Circuit concluded that because the declarant had deliberately assembled evidence of the crime and, in the suicide note, instructed that the evidence be delivered to the police, it was foreseeable that the suicide note would also be used in the prosecution of the defendant. Id. at 925. Accordingly, the note was a testimonial statement and its admission at trial violated the defendant‘s Sixth Amendment rights. Id. at 926.
¶ 46 Like the notes at issue in Sanchez, Jensen, and Miller, L.E.‘s note was clearly intended to be used as a substitute for her testimony in the event McFee followed through on his threats to kill her. The record does not suggest any explanation for the note, other than a desire and intent by L.E. to provide proof of facts that would assist the police in a later prosecution. See United States v. Brooks, 772 F.3d 1161, 1170 (9th Cir. 2014) (“[O]ur conclusion that
¶ 47 Thus, because the primary purpose of the note was to create an out-of-court substitute for trial testimony and aid in police investigation, we conclude that the note was testimonial. And because the victim was unavailable at trial3 and McFee had no prior
¶ 48 However, we further conclude that this error was harmless beyond a reasonable doubt. “The inquiry in a harmless error analysis is ‘whether the guilty verdict actually rendered in this trial was surely unattributable to the error,’ and ‘not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered.‘” Phillips, ¶ 93 (quoting People v. Fry, 92 P.3d 970, 980 (Colo. 2004)). In determining whether a violation of the Confrontation Clause is harmless beyond a reasonable doubt, we consider “(1) the importance of the statements to the prosecution‘s case, (2) the cumulative nature of the statements, and (3) the overall strength of the prosecution‘s case.” People v. Frye, 2014 COA 141, ¶ 16 (quoting People v. Allen, 199 P.3d 33, 37 (Colo. App. 2007)); accord Arteaga-Lansaw, 159 P.3d at 110.
¶ 49 While the note was highly probative evidence that McFee had previously threatened to kill L.E., and that she believed he was
¶ 50 And McFee‘s threats were not the only evidence of his motive nor the only evidence that he had committed the crime. Several witnesses testified that McFee was jealous and controlling and that his relationship with L.E. was marked by acrimony and bouts of rage. As well, McFee‘s DNA was on the murder weapon; he possessed a key to the residence; there was no evidence of forced entry on the night of the murder; and he failed to contact L.E.‘s daughter, with whom he had a parental-type relationship, after the
¶ 51 Given all this, we are confident that the verdict was not attributable to the erroneous admission of L.E.‘s note. We therefore conclude that the error was harmless beyond a reasonable doubt. See Raile, 148 P.3d at 135 (Confrontation Clause error was harmless beyond a reasonable doubt where improperly admitted statements were similar to other statements presented at trial and statements were not critical to prosecution‘s case).
III. Limitation on Cross-Examination
¶ 52 McFee contends that the trial court also violated his confrontation rights by improperly limiting the scope of his cross-examination of a prosecution witness.
¶ 53 Carlos Grider, a resident at the facility, discovered L.E.‘s body and called 911. He testified that he had seen McFee at the facility that afternoon and evening. Grider also said that a couple of months before the murder, McFee had told him that “he loved [the
¶ 54 On cross-examination, Grider acknowledged that his testimony on direct examination was, at times, inconsistent with, or included details not provided in, his prior statements to the police. He also conceded that, just before trial, he told investigators for the first time that he had seen McFee near the residence right before he discovered L.E.‘s body. He attributed the inconsistencies and the late disclosures to his mental health problems. Grider said that he suffered from mental illness, and the discovery of L.E.‘s body led to “post-traumatic stress [and] a whole lot of different things.” He described the experience as “very traumatizing,” and as a result, his “memory ha[d] not been the very absolute best” in that “some parts [were] very clear, [but] some parts [were] very vague.”
¶ 55 McFee contends on appeal that the district court erred in prohibiting him from asking Grider additional questions about his mental health — specifically, whether he had been found incompetent to stand trial three years before L.E.‘s murder and whether, at the time of trial, he was on any medication.
¶ 56 A defendant has a constitutional right to confront and cross-examine witnesses, Krutsinger v. People, 219 P.3d 1054, 1061 (Colo. 2009), but the right is not absolute or unlimited. People v. Larsen, 2015 COA 157, ¶ 30. The scope and limits of cross-examination are matters within the sound discretion of the trial court, and absent an abuse of that discretion, we will not disturb the court‘s rulings on appeal. People v. Conyac, 2014 COA 8M, ¶ 91.
B. Discussion
¶ 57 The district court determined that an incompetency finding three years before the murder was too remote to be relevant. We agree.
¶ 58 A witness‘s prior mental health condition is relevant for impeachment purposes only if the witness suffered from the condition close in time to the events at issue. See United States v. Diecidue, 603 F.2d 535, 551 (5th Cir. 1979) (prior incompetency determination and subsequent treatment for mental illness were not probative, and therefore properly excluded on cross-examination, where competency determination occurred twelve years before incident at issue); see also United States v. Kohring, 637 F.3d 895, 910 (9th Cir. 2011) (mental health of witness not relevant for impeachment when proponent of evidence does not establish or allege that the witness suffered from mental instability at the time of the alleged crime); United States v. Butt, 955 F.2d 77, 82-83 (1st Cir. 1992) (“Rather, federal courts appear to have found mental instability relevant to credibility only where, during the time-frame of the events testified to, the witness exhibited a pronounced disposition to lie or hallucinate, or suffered from a severe illness, such as schizophrenia, that dramatically impaired her ability to perceive and tell the truth.“) (emphasis added); Velasquez v. United States, 801 A.2d 72, 80 (D.C. 2002) (precluding evidence of the witness‘s mental condition three years after the offense where there was no evidence that the condition persisted at the time of the trial); State v. Stewart, 925 P.2d 598, 602 n.3 (Utah Ct. App. 1996) (noting that “[m]any other courts also have concluded that evidence of a witness‘s mental health history which is not contemporaneous with the witness‘s observations or testimony in the case is irrelevant and inadmissible” and collecting cases).
¶ 59 United States v. Robinson, 583 F.3d 1265 (10th Cir. 2009), the case McFee relies on, is consistent with this authority. In Robinson,
¶ 60 In fact, the informant was abusing illegal and prescription drugs at the time of his admission to the mental health facility and might have been “under the influence at the time of the alleged firearm sale.” Id. at 1272. He also had a long history of mental health problems and, at the time he was hospitalized, was suffering from auditory and visual hallucinations and was experiencing psychosis, conditions that would have affected his “ability to perceive or to recall events or to testify accurately.” Id. at 1275 (citation omitted).
¶ 61 The Tenth Circuit reversed. The court emphasized that the mental health testimony sought by the defendant concerned events that occurred “just days before trial began,” id., and would have
¶ 62 Here, we are presented with substantially different facts that require a different resolution. The incompetency finding occurred three years before L.E.‘s murder and four years before Grider testified as a witness. See United States v. Infelise, 1992 WL 7835, at *1 (N.D. Ill. Jan. 8, 1992) (because evidence of mental incapacity of a witness must relate to the time period about which the witness will testify, еvidence of hospitalization for drinking three years after relevant events and three years before trial was not relevant). McFee did not argue, much less produce evidence tending to show, that Grider‘s ability to recall events or testify accurately was compromised because of the earlier incompetency finding.
¶ 63 Perhaps more to the point, Grider admitted during cross-examination that his memory was vague as to certain details, based
¶ 64 We likewise perceive no abuse of discretion by the district court in precluding a question about Grider‘s then-current use of prescription medications. McFee did not present a good faith basis to ask the question. Nor did he argue to the district court that medication compromised Grider‘s ability to “testify lucidly at trial,” Robinson, 583 F.3d at 1273 (citation omitted). And Grider‘s use of medications at the time of trial — if any — had no bearing on his ability to perceive or process events that occurred a year earlier.
¶ 66 We therefore discern no error in the court‘s limitation on cross-examination.
IV. Admission of Lay Opinion Testimony Regarding McFee‘s Recorded Statement
¶ 67 Approximately two weeks after the murder, McFee voluntarily submitted to a recorded interview with the police. While the detective was out of the room, the recording equipment captured McFee saying something to himself.
¶ 68 At trial, the detective testified that when he played the recorded interview, he thought he heard McFee say: “What do I need to give a statement about? Motherfucker. I did it. That bitch.” He had the audio recording enhanced to eliminate background noise, and, according to his testimony, the enhanced
¶ 69 At trial, McFee objected to the detective‘s testimony on the ground that the jury could simply watch the video: “Judge, it‘s my understanding that we‘re reviewing the vidеo and they are likely to introduce it. I think that‘s the best evidence, not his testimony about what he viewed on that video.” On appeal, he contends that the court admitted the testimony in violation of
A. Standard of Review
¶ 70 Ordinarily, we review the district court‘s evidentiary rulings for an abuse of discretion. People v. Warrick, 284 P.3d 139, 141 (Colo. App. 2011). And, if we discern an error, we will reverse only if the error was not harmless. People v. Robles, 302 P.3d 269, 274 (Colo. App. 2011), aff‘d, 2013 CO 24. But here, we agree with the People that McFee‘s objection in the district court on “best evidence” grounds was not sufficient to preserve a claim of error under
¶ 71 Plain error is error that is obvious and substantial, and that so undermines the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. Hagos, ¶ 14.
B. Discussion
¶ 72 In the district court, the prosecutiоn did not offer any basis for admission of the testimony, but, on appeal, the People claim that its introduction was proper under
¶ 73 Under
¶ 74 A lay witness may give a summary opinion of another person‘s behavior, motivation, or intent if the witness had sufficient
¶ 75 And a witness can testify regarding the identity of a person depicted in a photograph or on a videotape if there is some basis for сoncluding that the witness is more likely to correctly identify the defendant than is the jury. Robinson v. People, 927 P.2d 381, 384 (Colo. 1996).
¶ 76 Lay opinion testimony is permitted under
¶ 77 While a lay witness may, under certain circumstances, provide opinion testimony regarding an ultimate issue to be decided by the trier of fact, the witness cannot be called merely for the purpose of “tell[ing] the jury what result to reach.” People v. Collins, 730 P.2d 293, 306 (Colo. 1986). The detective‘s testimony was nothing more than a suggestion that the jury interpret McFee‘s words as “I did it,” rather than as “they think I did it.”
¶ 78 Still, even if we assume that the error was obvious, we discern little, if any, prejudice from the testimony, and certainly not the kind of prejudice that would cast doubt on the reliability of the verdict. Ordinarily, the risk of admitting improper lay opinion testimony of this type is that the jurors will assume that the witness is in a better position to interpret or understand the
¶ 79 Accordingly, while it was improper for the detective to state an opinion as to the words uttered by McFee, the jury had no reason to accept his opinion and could evaluate McFee‘s words for itself. Cf. Collins, 730 P.2d at 305 (witness may opine on ultimate issue because jury is free to disregard the opinion).
¶ 80 McFee contends that the district court erred in admitting testimony by the prosecution‘s blood pattern expert that was beyond the scope of his expertise. We disagree.
A. The Expert‘s Testimony
¶ 81 At trial, the prosecution endorsed an expert in “blood stain pattern analysis and crime scene reconstruction.”5 The expert offered two opinions that McFee contends were beyond the scope of his expertise: first, that the circumstances of the crime scene indicated that the victim knew her attacker, and second, that the stabbing was particularly violent and suggested “overkill.”
¶ 82 With respect to the testimony concerning the identity of the attacker, the prosecutor asked “whether or not [L.E.] may or may
¶ 83 However, on cross-examination, defense counsel twice pointed out that the expert knew, as he was conducting his investigation, that someone known to L.E. had been arrested for the crime. He then asked the expert if he was familiar with the concept of confirmation bias.
¶ 84 On redirect, the prosecutor asked, “Counsel wаs asking you about the fact that the assailant was known to the victim, and whether or not that affected your determination or not, I think was the question.” She continued, “[W]hat about this scene indicated to you, other than the information you had that he was potentially known to the victim, that, in fact, the assailant was known to the victim?” In response to defense counsel‘s objection, the court ruled, “I think you can ask him . . . that the information that he received was that someone known to the victim had been arrested, and did that influence your opinion, yes or no?” The prosecutor argued that she should be able to ask whether the scene was consistent with his opinion that the attacker knew the victim, in light of defense counsel‘s suggestion that the expert‘s opinion was improperly
Q: Detective, counsel was asking you about the effect the knowledge had on you that you were given information that the persоn that was arrested, or the suspect, was known to the victim.
First of all, let me ask you: did that have any effect on your reconstruction or your opinion in this case?
A: No, ma‘am.
Q: And based on your evaluation of the evidence and the scene, was that consistent with your opinion?
A: Yes, ma‘am.
¶ 85 With respect to the “overkill” testimony, the prosecution asked whether the expert had formed any opinion about the crime based on the nature of the wounds inflicted. The expert responded, “[I]t‘s my opinion, not just based on the reconstruction, just the sheer violence and overkill and the depth of the wounds, that —.” When the prosecution asked for a definition of “overkill,” defense counsel objected on the ground that the response was beyond the expert‘s area of expertise. The court ordered the prosecutor to rephrase, and the expert testified as follows:
Q: You indicated something to the effect of the depth of the wounds, and this was overkill. What does that mean?
A: Well, almost like, just what it stаtes: This is overkill. Not only does she have stab wounds, but she has stab wounds within stab wounds. This was just anger.
Defense counsel‘s objection to the answer was overruled.
B. Standard of Review
¶ 86 We review a trial court‘s decision to admit expert testimony for an abuse of discretion, and will not overturn the court‘s ruling unless it is manifestly erroneous. People v. Douglas, 2015 COA 155, ¶ 58. This broad discretion “reflects the superior opportunity of the trial judge to gauge both the competence of the expert and the extent to which his opinion would be helpful to the jury.” People v. Williams, 790 P.2d 796, 798 (Colo. 1990) (citation omitted). Whether opinion testimony is within a particular witness‘s expertise is also a matter addressed to the sound discretion of the trial court. People v. Watson, 53 P.3d 707, 711 (Colo. App. 2001).
¶ 87 Because defense counsel made a contemporaneous and specific objection, if we determine that the district court abused its
C. Discussion
¶ 88 A witness must be qualified as an expert before testifying about his or her expert opinions. People v. Stewart, 55 P.3d 107, 124 (Colo. 2002). Even after a witness has been qualified as an expert, however, the witness‘s expert opinion testimony must still be limited to the scope of his or her expertise. See Melville v. Southward, 791 P.2d 383, 388 (Colo. 1990); People v. Gomez, 632 P.2d 586, 593 (Colo. 1981).
¶ 89 The trial court did not err in permitting the expert to testify that the crime scene was consistent with the theory that the victim knew her attacker. The district court sustained defense counsel‘s objection to the prosecutor‘s questioning, but when defense counsel raised the issue on cross-examination, it was proper for the district court to allow the prosecutor to attempt to “dispel any unfavorable innuendo” created by the expert‘s testimony on cross-examination. Gomez, 632 P.2d at 593 (citation omitted). Once defense counsel
¶ 90 As for the “overkill” testimony, we need not decide whether the court erred in admitting the expert‘s testimony because any error was surely harmless. The expert‘s observation that L.E. sustained “wounds within wounds” was essentially cumulative of the properly admitted testimony of the medical examiner who performed the autopsy. The medical examiner testified that some of L.E.‘s wounds had “multiple wound tracks,” indicating that the knife went into the body, came out of the body, and then went back in at a slightly different angle. Thus, the jury was already aware, from a properly qualified expert, that the victim suffered “wounds within wounds.”
¶ 91 The medical examiner, however, could not conclude if the multiple wound paths were caused by the victim moving, the attacker making up and down motions with the knife, or some combination of the two. But based on the bloodstain evidence, the expert testified, without objection, that L.E. was stationary when she was stabbed, and that there were no signs of a struggle. Thus, considering the expert‘s testimony in light of the medical examiner‘s testimony, the jury would have reasonably inferred that the attacker repeatedly stabbed L.E. in the same place. That repeated stabbing is a sign of anger is a further logical inference that the jury
¶ 92 Accordingly, any error in admitting the expert‘s brief reference to evidence of “overkill” was harmless.7
VI. Conclusion
¶ 93 The judgment is affirmed.
JUDGE WEBB and JUDGE ASHBY concur.