The Colorado Court of Appeals issued its opinion in People v. Marks on Thursday, December 3, 2015.
Robbery—Murder—DNA Evidence—Expert Testimony—Jury Instruction—Theory of Defense.
On January 25, 2011, two armed men forced their way into the home of S.W., a marijuana dealer, in search of money and marijuana. The robbery was interrupted by the arrival of S.W.’s husband and son. As S.W.’s husband struggled with the robber who was carrying a shotgun, the other robber fired his handgun. One of the bullets struck S.W. and killed her. Marks was charged with the crime.
On appeal, Marks contended that the trial court erred in admitting evidence of “inconclusive” and “no conclusion” DNA results without evidence of their statistical significance. The “inconclusive” DNA results were harmless because they were irrelevant and didn’t prove anything. However, the “no conclusion” testing result meant that it could be determine that a person was included as a possible contributor, but the “statistical weight” could not be provided for the result and, therefore, it did not reveal a conclusion. That left the jury with only half the necessary information: that Marks was included, or could not be excluded, as a possible contributor to the DNA on various items of evidence. Without the probability assessment, the probative value of the “no conclusion” results were substantially outweighed by the risk of unfair prejudice and misleading the jury. The district court therefore abused its discretion in admitting that evidence. Given the remaining evidence admitted at trial, however, the error was harmless.
Marks also contended that the trial court erred in refusing to give his tendered jury instruction regarding evidence that an alternate suspect, Rocha-Lovatos, committed the crime. Marks was only entitled to a theory of defense instruction, which he declined to submit. Therefore, the trial court did not err in refusing to give the tendered alternate suspect instruction.