January 21, 2019

Colorado Supreme Court: Admission of “Overkill” Theory Without Specific Findings Was Error

The Colorado Supreme Court issued its opinion in Ruibal v. People on Monday, December 3, 2018. 

Ruibal petitioned for review of the court of appeals’ judgment affirming hisconviction for second degree murder. Over defense objection and without taking evidence or making any findings as to reliability, the trial court admitted expert testimony to the effect that the victim’s injuries in this case demonstrated “overkill,” a formal term describing multiple injuries focused on one area of the victim’s body, which includes blows about the head and face that are numerous and extensive, indicating that the assailant likely had either a real or perceived emotional attachment to the victim. Relying on case law from several other jurisdictions, a treatise dealing with related kinds of injuries, and the witness’s own experience with autopsies involving similar injuries, the court of appeals concluded that the expert opinion was sufficiently reliable and that the trial court had implicitly found as much by granting the prosecution’s proffer.
The supreme court holds that because the trial court made no specific finding that the theory of “overkill” espoused by the witness was reliable, nor was the reliability of that theory either supported by evidence in the record or already accepted in this jurisdiction, its admission amounted to an abuse of discretion. Because there was, however, overwhelming evidence of the defendant’s guilt quite apart from the expert testimony, the error was necessarily harmless. Accordingly, the judgment of the court of appeals is affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Police Officer’s Testimony Defining Street Slang for Drug Considered Expert Testimony

The Colorado Court of Appeals issued its opinion in People v. Bryant on Thursday, April 19, 2018.

Assault—Expert Testimony—Jury Instructions—MirandaWarning—Voluntary Statements—Evidence.

While high on PCP, defendant assaulted two teenagers. After defendant’s arrest, police officers interviewed him and he admitted that he was under the influence of PCP, which he initially referred to as “sherm.” Defendant told officers that they could retrieve the substance from his sock, which they did. Before trial, defendant filed several motions to suppress. The court denied all of the motions, ruling that defendant’s statements were made voluntarily and that he had validly waived his Miranda rights. Defendant was convicted of unlawful possession of a controlled substance and two counts of third degree assault.

On appeal, defendant contended that the trial court erred by ruling that his statements to the police were voluntary. He argued that the police exploited his intoxicated state during their interrogation. Here, by the time they reached the police station, defendant was calm, coherent, and cooperative. The interview lasted no more than 15 minutes; there was no evidence that defendant’s demeanor changed during the interview; and there was no evidence of psychological coercion. The trial court did not err by finding that defendant’s statements to police were voluntary.

Defendant also contended that his statements should have been suppressed because police failed to obtain a valid waiver of his Miranda rights. Defendant contended that he was so intoxicated and confused when he was advised of his Miranda rights that he did not make a knowing and intelligent waiver of those rights. The record supports the trial court’s finding that defendant was not intoxicated when he waived his Miranda rights. The trial court did not err by finding that defendant validly waived his Miranda rights.

Defendant also contended that the trial court reversibly erred by allowing Officer Fink to testify as a lay witness regarding the meaning of the term “sherm.” This testimony was not based on Officer Fink’s personal knowledge or investigation of defendant’s case, but was based on his training and experience as a police officer. Although the trial court erred by allowing Officer Fink to testify as a lay witness, the error was harmless because the testimony was cumulative of other evidence presented at trial that served to prove the “knowingly” element of the possession charge.

Defendant next contended that the trial court erred by improperly instructing the jury. First, the instruction that voluntary intoxication was not a valid defense to the charged crimes could not have confused the jury, particularly because it was a brief and correct statement of the law. Second, the pattern instruction on mens rea was legally correct and informed the jury to apply a subjective standard rather than on objective standard. There was no error in the manner in which the trial court instructed the jury.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Expert Testimony that Child Did Not Seem to be Coached Proper Under Circumstances

The Colorado Court of Appeals issued its opinion in People v. Heredia-Cobos on Thursday, October 19, 2017.

Sexual Assault—Child—Forensic Interviewer—Expert Testimony—Credibility—Defendant’s Theory of the Case—Evidence—Prior Acts—CRE 404(b).

Defendant was convicted of sexual assault on his 9-year-old great niece, Y.P.

On appeal, defendant contended that the district court abused its discretion by allowing the forensic interviewer who had interviewed Y.P. to testify that Y.P. didn’t show any signs of having been coached. Although such testimony ordinarily is improper (because it’s tantamount to vouching for the child’s credibility), in this case the testimony was admissible to rebut defendant’s defense theory that Y.P. had made up the allegations. Because defendant opened the door to this testimony, it was not error to allow it.

Defendant also contended that the district court erred by allowing evidence of his prior acts of a sexual nature involving other relatives in violation of CRE 404(b). He argued that the prior acts were too dissimilar to his alleged assault of Y.P. to be admissible. Evidence that defendant physically assaulted two female relatives who lived with him was probative of defendant’s intent to sexually assault another female at his home and was relevant to refute his claim that Y.P. fabricated the allegation. Further, the other act evidence was especially relevant because Y.P.’s testimony was the only direct evidence of defendant’s guilt. Thus the potential for unfair prejudice did not outweigh the evidence’s probative value, and the district court did not err in admitting evidence of these acts. Additionally, evidence that defendant masturbated in front his 19-year old niece several times (although he did not physically assault her) was also relevant and no more potentially prejudicial than the evidence of the acts involving the other two relatives. But even assuming that allowing this evidence was error, any error was harmless.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Amendment to Rule 26 Does Not Mandate Exclusion of Non-disclosed Expert Testimony

The Colorado Supreme Court issued its opinion in Catholic Health Initiatives Colorado v. Earl Swensson Associates, Inc. on Monday, October 2, 2017.

Expert Testimony—Discovery Sanctions.

In this case, the Colorado Supreme Court considered whether an amendment to Colorado Rule of Civil Procedure 26(a)(2)(B) providing that expert testimony “shall be limited to matters disclosed in detail in the [expert] report” mandates the exclusion of expert testimony as a sanction when the underlying report fails to meet the requirements of Rule 26. The court concluded this amendment did not create mandatory exclusion of expert testimony and that instead, the harm and proportionality analysis under Rule 37(c) remains the proper framework for determining sanctions for discovery violations. Accordingly, the court made its rule to show cause absolute and remanded the case for further proceedings.

Summary provided courtesy of Colorado Lawyer.


Colorado Court of Appeals: Set-Off to Other Liable Parties Should be Applied to Jury Verdict before Contractual Limitation

The Colorado Court of Appeals issued its opinion in Taylor Morrison of Colorado, Inc. v. Terracon Consultants, Inc. on Thursday, May 18, 2017.

Contract—Limitation on Liability—Setoff—Jury Award—Statutory Costs—Prejudgment Interest—Post-Judgment Interest—Expert Testimony—Willful and Wanton—Settlement Statute—Costs.

Taylor Morrison of Colorado, Inc. (Taylor) was the developer of a residential subdivision. Taylor contracted with Terracon Consultants, Inc. (Terracon) to provide geotechnical engineering and construction materials testing services for the development of the subdivision. Taylor and Terracon agreed to cap Terracon’s total aggregate liability to Taylor at $550,000 (Limitation) for any and all damages or expenses arising out of its services or the contract. After homeowners notified Taylor about drywall cracks in their houses, Taylor investigated the complaints and then sued Terracon and other contractors for damages relating to those defects. After trial, the jury awarded Taylor $9,586,056 in damages, but also found that Terracon’s conduct was not willful and wanton. The court concluded that the Limitation includes costs and prejudgment interest and applied it to reduce the jury’s $9,586,056 damages award to $550,000. It also deducted the $592,500 settlement received from the other liable parties to arrive at zero dollars. The court found that neither party prevailed for purposes of awarding statutory interest and further concluded that neither Terracon’s deposit of $550,000 into the court registry nor its email to Taylor addressing a mutual dismissal constituted a statutory offer of settlement that would have allowed Terracon a costs and fees award.

On appeal, Taylor contended that the trial court erroneously deducted the setoff from the Limitation instead of deducting it from the jury damages verdict. The correct approach is to first apply the setoff against the jury verdict and then apply the contractual limitation against this reduced amount. Thus, Terracon’s liability according to the Limitation should have been a final judgment of $550,000 for Taylor.

Taylor next contended that the trial court erred when it concluded that the Limitation, by its terms, includes statutory costs and prejudgment interest. The pertinent contract language states that the Limitation applies to “any and all” expenses “including attorney and expert fees.” Thus, the Limitation’s language covers costs associated with interpreting and enforcing the contract.

Taylor further argued that the trial court erred in ruling that the Limitation does not include prejudgment interest within its cap on liability. The Limitation caps Terracon’s liability for “any and all injuries, damages, claims, losses, or expenses.” (Emphasis in original.) Because prejudgment interest is a form of damages, the Limitation also covers prejudgment interest. Taylor also asserted that post-judgment interest is not covered by the Limitation. The Court of Appeals agreed because post-judgment interest is not an element of compensatory damages.

Taylor next argued that the trial court’s exclusion of expert testimony concerning willful and wanton conduct was reversible error. Here, the court allowed the experts to testify about the factual conduct and opine on Terracon’s performance using characterizations within their expertise, but prevented testimony about legal concepts outside their expertise and whether a legal standard was met.

Terracon argued on cross-appeal that the trial court erred by not awarding it costs under Colorado’s settlement statute. Terracon’s deposit of $550,000 into the court registry pursuant to C.R.C.P. 67(a) was not a settlement offer because Taylor did not have the option to reject it. The statute requires both an offer and a rejection; thus the statute was not triggered, and Terracon is not entitled to costs. Further, Terracon’s email did not comply with C.R.S. § 13-17-202 because this alleged “settlement offer” contained nonmonetary conditions that extended the offer beyond the claims at issue. Therefore, there was no error in denying costs to Terracon.

The judgment was reversed as to the final award and the case was remanded with instructions. The judgment and orders were affirmed in all other respects.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Trial Court Erred in Admitting Non-expert Testimony on Sexual Predator Grooming

The Colorado Supreme Court issued its opinion in Romero v. People on Monday, May 1, 2017.

Criminal Law—Expert Testimony—Jury Access to Exhibits.

This case required the Colorado Supreme Court to address two issues it recently addressed in two other cases, People v. Jefferson, 2017 CO 35, and Venalonzo v. People, 2017 CO 9. Specifically, the court resolved (1) whether a trial court commits plain error when it fails to limit, sua sponte, a jury’s access to recorded statements during jury deliberations, and (2) whether a trial court abuses its discretion when it allows a police officer to testify as a lay witness about the concept of grooming in the context of sexual predation. The court held that a trial court does not commit plain error when it does not limit a jury’s access to recorded statements without an objection, and that a trial court abuses its discretion when it allows a witness to testify about grooming without qualifying that witness as an expert. The court therefore reversed defendant’s convictions and remanded the case for a new trial.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Testimony that Could Not Be Offered Without Specialized Knowledge is Expert Testimony

The Colorado Supreme Court issued its opinion in Venalonzo v. People on Monday, February 6, 2017.

 Criminal Trials—Evidence.

In this case, the Colorado Supreme Court considered the admissibility of testimony under  CRE 701 and 702. The court held that in determining whether  testimony is lay testimony under CRE 701 or expert testimony under CRE 702, trial  courts must look to the basis for the opinion. If the witness provides testimony that could be expected to be based on an ordinary person’s experiences or knowledge, then the witness is offering lay testimony. If, on the other hand, the witness provides testimony that could not be offered without specialized experiences, knowledge, or training, then the witness is offering expert testimony. Applying that rule in this case, the court concluded that some portions of a forensic interviewer’s testimony were admissible as lay opinion but that others were inadmissible expert testimony in the guise of lay opinion. The court also addressed the admissibility of testimony under CRE 608(a) and concluded that some of the interviewer’s and the victim’s mother’s testimony was inadmissible under CRE 608(a) as it improperly bolstered the credibility of the child victims.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Officer who Testified About Blood Transfer Should Have Been Qualified as Expert

The Colorado Supreme Court issued its opinion in People v. Ramos on Monday, February 6, 2017.

Criminal Law—Expert Testimony.

This case, like the recently announced case Venalonzo v. People, 2016 CO 9, required the Supreme Court to address the difference between lay and expert testimony. Specifically, it required the court to resolve one issue—whether an ordinary person would be able to differentiate reliably between blood castoff (i.e., blood droplets from waving a hand around) and blood transfer (i.e., blood transferred by physical contact). Applying the test announced in Venalonzo, the court held that an ordinary person would not be able to testify reliably about the difference between blood cast-off and blood transfer. Therefore, the court affirmed the court of appeals’ holding that the trial court abused its discretion by not qualifying the police detective’s blood testimony as expert testimony.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Expert Testimony Relating to Victim’s Veracity Erroneously Admitted

The Colorado Court of Appeals issued its opinion in People v. Relaford on Thursday, June 30, 2016.

Sexual Assault—Child—Testimony—Truthfulness—Bad Acts or Character Evidence—Colorado Sex Offender Lifetime Supervision Act.

A jury convicted Relaford of 27 offenses related to sexual assaults against two child victims, and the trial court sentenced him to an aggregate indeterminate term of 204 years to life under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), CRS §§ 18-1.3-1001 to -1012.

Relaford appealed the judgment and sentence. He argued that the therapist’s testimony regarding the circumstances in which a child might fabricate claims of sexual assault and her statement that she had never encountered sexual assault fabrications in any other circumstances constituted impermissible opinion testimony that the victims in this case were not lying.  The Court of Appeals agreed, and this evidence should not have been presented to the jury. However, because defense counsel failed to object to the testimony, the error was not obvious, and there was substantial evidence to prove Relaford’s guilt, it was not plain error to admit the therapist’s statements.

Relaford also argued that the trial court reversibly erred in admitting numerous sex toys and pornography found at his home. Although Relaford conceded that the admission of evidence regarding sex toys that the children identified was proper, he argued that the trial court erred in admitting evidence of the other sex toys and the pornography that the children didn’t identify because it was irrelevant and constituted impermissible bad acts or character evidence. Some of this evidence probably should not have been admitted, but any error in this respect was harmless, given the substantial evidence to prove Relaford’s guilt and the prosecutions argument to the jury not to consider this evidence as other bad acts.

Additionally, Relaford contended that SOLSA is unconstitutional. Relaford did not raise the constitutional challenges at trial, and the Court thus declined to review them. However, the Court stated that even if it were to exercise its discretion to review Relaford’s constitutional claims it would conclude that he is not entitled to relief; several divisions of the Court previously considered constitutional challenges to SOLSA and concluded it is constitutional.

The judgment and sentence were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Inconsistent Answers on Special Interrogatories Do Not Render Verdict Invalid

The Colorado Court of Appeals issued its opinion in People v. Rail on Thursday, February 25, 2016.

Sexual Assault on a Child—Jury—Polling—Verdict Forms—Interrogatories—Waiver—Simple Variance—Expert Witness—Colorado Sex Offender Lifetime Supervision Act of 1998.

B.H. testified that beginning when she was about 5 years old and continuing for several years, Rail showed her sexually explicit photos and then subjected her to sexual contact.

On appeal, Rail contended that his convictions for sexual assault on a child (SAOC) and the pattern enhancer cannot stand because the jury’s answers to the unanimity and pattern interrogatories conflicted with each other and with the guilty verdict on the SAOC charge, thus constituting structural error. The jury received separate verdict forms for both the SAOC and the sexual assault on a childposition of trust (SAOC-POT) charges. The trial court polled the jury, but the partial polling left two inconsistencies unresolved: First, on the SAOC general verdict form, the jury found Rail guilty, while it indicated on the unanimity interrogatory that none of the four incidents had been proved. Second, the jury’s answers to the unanimity interrogatory marked the four incidents as not proved, but on the pattern interrogatory, it marked those same four incidents as proved. The Court of Appeals held that inconsistent interrogatory answers do not constitute structural error. Because defense counsel did not object to the inconsistencies when the trial court announced the verdicts and did not request further polling, Rail waived appellate review of this issue.

Rail next contended that the trial court’s response to a jury question during deliberations constructively amended the information as to the SAOC charge, requiring reversal. The Court found that by allowing the jury to find Rail guilty of a sexual assault that occurred outside the time frame alleged in the information, the trial court allowed a simple variance from the information, not a constructive amendment to it. Because Rail failed to show how he was prejudiced by the simple variance, reversal was not required.

Rail further asserted that the trial court violated his constitutional rights to due process and a fair trial by admitting expert testimony on the general behavior of child sexual abuse victims. Because the expert’s testimony was reliable, did not impermissibly bolster B.H.’s credibility, and was not unfairly prejudicial, the trial court did not abuse its discretion in qualifying the witness as an expert and permitting her to testify regarding the behavior of child sex abuse victims.

Rail also challenged the constitutionality of the Colorado Sex Offender Lifetime Supervision Act of 1998. The Court found this argument meritless.

The judgment of conviction was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.