July 18, 2019

Colorado Court of Appeals: Officer’s Testimony Regarding Speed of Vehicle was Expert Testimony Disguised as Lay Opinion but Error was Harmless

The Colorado Court of Appeals issued its opinion in People v. McGinn on Thursday, June 20, 2013.

Vehicular Eluding—Double Jeopardy—Merger—Lay Witness—Expert Testimony—Prosecutorial Misconduct.

Defendant Glenn McMinn appealed the judgment of conviction entered on a jury verdict finding him guilty of four counts of vehicular eluding, four counts of eluding a police officer, and one count of menacing. The judgment was affirmed.

McMinn and his girlfriend got into a fight, and he called the police. When Police Officer Anderson arrived at his house, McMinn was already in his pickup truck. He backed out of his driveway and accelerated. Because there was packed snow and ice on the road, the truck slid sideways, striking the officer. McMinn then led the police on a chase before being apprehended.

McMinn contended that under double jeopardy principles, his four convictions for vehicular eluding must be merged and his four convictions for eluding a police officer also must be merged. A defendant may be charged with multiple offenses of vehicular eluding arising from a single criminal episode when he or she has performed discrete acts of eluding one or more peace officers, each constituting a new volitional departure in the defendant’s course of conduct. Here, four officers, including Anderson, testified about being individually eluded during, and each had individual facts. Thus, the evidence supports separate convictions here.

McMinn also contended that the trial court plainly erred in allowing Sergeant Pinson to testify, as a lay witness, to calculations regarding the speed of the truck, and to opine, based on these calculations, that the truck was a deadly weapon. His testimony in fact was expert testimony presented in the guise of lay opinion, and the error in admitting such testimony was obvious and substantial. Because this evidence was cumulative of other evidence properly presented at trial, however, the erroneous admission of Sergeant Pinson’s expert opinions does not warrant reversal.

McMinn further argued that reversal was required due to prosecutorial misconduct in closing argument. Although some of the prosecutor’s comments may have been improper, they weren’t so obvious to undermine the fundamental fairness of the trial or cast serious doubt on the reliability of the judgment of conviction, especially when considered in the light of the evidence presented.

Summary and full case available here.

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