March 26, 2019

Colorado Court of Appeals: Defense Counsel Waived Confrontation Clause Claim by Eliciting Testimonial Statements

The Colorado Court of Appeals issued its opinion in People v. Merritt on Thursday, September 25, 2014.

Confrontation Clause—Autopsy Report—Testimonial.

A hotel desk clerk found Welch’s body in the room where she had lived for about five years. Her throat had been cut and a large amount of blood was visible on her body and on the bed beneath her. Defendant, a security guard at the hotel, was charged with her death. He was found guilty of second-degree murder and was sentenced to thirty-six years in the custody of the Department of Corrections.

On appeal, defendant alleged that the court violated his rights under the Confrontation Clause by admitting an autopsy report prepared by a doctor who was not present at trial. Dr. Lear-Kaul performed an autopsy and authored a report detailing her findings and conclusions regarding the cause and manner of Welch’s death. Because Dr. Lear-Kaul was on maternity leave during the trial, her supervisor, Dr. Dobersen, testified regarding the autopsy report and the cause of death.

Given the state of the body, the nature of the crime scene, and the statutorily mandated cooperation between the coroner’s office and the district attorney’s office, it was reasonable for Dr. Lear-Kaul to assume that the report containing her findings and conclusions would be used in the eventual prosecution of a murder suspect. Therefore, the statements were testimonial. However, by asking Dr. Dobersen questions about alternative causes of death, which relied on facts contained in the autopsy report, defendant’s counsel intentionally opened the door on a particular line of questioning and effectively waived the right to confrontation. The judgment was affirmed.

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

Tenth Circuit: No Confrontation Clause Violation for Testimony of Anonymous Confidential Informants

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gutierrez de Lopez on Friday, August 1, 2014.

Maria Letitia Gutierrez de Lopez (Gutierrez), along with co-defendant Jesus Cabral-Ramirez (Cabral), was caught attempting to transport illegal aliens from El Paso, Texas to Denver, Colorado by federal law enforcement officers as part of a sting operation. In 2010, FBI and Border Patrol agents initiated “Operation Desert Tolls,” a joint investigation into alien-smuggling operations in New Mexico, Texas, and Colorado. In June 2011, agents apprehended “John Smith,” who agreed to become an informant for the FBI. In November 2011, Smith was contacted by Cabral, who offered to put Smith in touch with Gutierrez to “arrange for work” smuggling undocumented aliens away from the border. Gutierrez called Smith regarding the transport of a person later identified as Eneldo Valenzuela-Carrillo. The government recorded various conversations between Gutierrez and Smith and Cabral and Smith regarding the transport and payment. On November 21, 2011, Smith, Cabral, and Gutierrez began the transport of Valenzuela-Carrillo. Gutierrez picked up the payment money for the transport at a Walmart money center and distributed it to herself, Smith, and Cabral. However, federal agents arranged for Gutierrez’s vehicle to be stopped south of Santa Fe, where they took Valenzuela-Carrillo and another suspected alien into custody. Gutierrez was not arrested at that time.

In May 2012, Gutierrez was indicted by a federal grand jury on one count of conspiring to transport undocumented aliens, and she was arrested by FBI agents in June 2012. She pled not guilty. At trial, the government sought to prove that Valenzuela-Carrillo was unlawfully present in the United States, but they had deported him prior to trial, so they introduced testimony from Senior Border Patrol Agent Knoll instead to prove Valenzuela-Carrillo’s status as an undocumented alien. The government also used Knoll’s testimony to support their theory that Gutierrez intended to “further” Valenzuela-Carrillo’s illegal presence by transporting him away from the border. Over the defense’s objections, Knoll provided expert testimony on the alien smuggling trade. The government also offered testimony from two confidential informants, who requested anonymity because of the involvement of a Mexican drug cartel’s connection to the case. The two witnesses, who testified as “John Smith” and “James Jones,” testified regarding their roles in arranging transportation and payment with Gutierrez. The government supplied background information including criminal history, compensation figures for cooperating with the FBI, and immigration status, but refused to disclose their true identities.

Gutierrez was convicted as charged. She appealed, contending that the district court erred in allowing (1) Knoll to testify regarding Valenzuela-Carrillo’s immigration status in violation of the Confrontation Clause and Federal Rules of Evidence regarding hearsay; (2) Knoll to offer expert testimony unhelpful to the jury; and (3) the two confidential informants to testify anonymously in violation of the Confrontation Clause. The Tenth Circuit addressed each claim in turn.

At trial, Knoll testified that he personally retrieved the two individuals from Gutierrez’s vehicle for processing. When he could not remember their names, the prosecution briefly showed him their immigration files to refresh his memory. Defense counsel objected, concerned that Knoll would introduce evidence from these forms regarding the two individuals’ immigration status, but the district court allowed the prosecution to show Knoll the files. On appeal, Gutierrez argued that this violated FRE 602 regarding personal knowledge, but the Tenth Circuit disagreed, finding that Knoll’s testimony supported a conclusion that he had personal knowledge of the immigration status of the two aliens. Gutierrez also argued that Knoll’s testimony violated the Confrontation Clause, but again the Tenth Circuit disagreed because Knoll was present at trial and defense had the opportunity to cross-examine him.

Next, Gutierrez asserted that Knoll’s testimony was unhelpful to the jury. Before trial, defense moved in limine to exclude Knoll’s proffered expert testimony on several grounds, but the district court denied the motion, reasoning that Knoll was qualified to testify as an expert due to his experience as a senior border patrol agent, and the testimony would be reliable and helpful to the jury. Defense counsel again objected at trial under FRE 702(a)’s helpfulness standard. The Tenth Circuit reviewed the district court’s decision to allow the testimony and found no abuse of discretion. The Tenth Circuit opined that Knoll’s testimony would allow insight into the alien smuggling trade and the function and locality of border patrol agents that the average juror would not have, and affirmed the district court.

Finally, turning to the testimony of the confidential informants, the Tenth Circuit found ample reason for protecting their identities. The government requested anonymity for security reasons, worried that if the names were released in open court, that information would make it back to the Mexican drug cartels to which the informants were connected. The government also noted that its investigation was ongoing and at least one of the informants would continue to provide information. The Tenth Circuit agreed with Gutierrez that the government failed to make an adequate showing of the need for secrecy, since the government’s assertions of risk to the informants were generalized statements that anyone who testifies against a cartel faces danger. However, despite the government’s inadequate showing of the need for secrecy, the Tenth Circuit ruled that Gutierrez was provided ample information for Confrontation Clause purposes, particularly because the two informants testified in person and the government provided significant impeachment material. The Tenth Circuit determined that any error resulting from the insufficient showing of the need for secrecy was harmless in light of Gutierrez’s adequate ability to cross-examine and impeach the witnesses.

Gutierrez’s conviction was affirmed.

Colorado Court of Appeals: Codefendant’s Guilty Plea Cannot Be Used as Evidence of Defendant’s Guilt

The Colorado Court of Appeals issued its opinion in People v. Rios on Thursday, July 17, 2014.

Second-Degree Murder—First-Degree Assault—Jury Instructions—Plea Agreement—Refusal to Testify—Use of Physical Force—Combat-by-Agreement—Self-Defense.

A fight between rival gangs resulted in the death of a 16-year-old (victim) after Lakiesha Vigil, a member of defendant’s gang, drove her car into a crowd of people who had moved their fight to a driveway. She hit the victim, pinning his upper torso against the wall. Vigil then drove the car out of the driveway. It was unclear whether defendant and/or defendant’s cousin, Anthony Quintana, hit the victim with a bat a few times before getting into Vigil’s vehicle. The victim died at the hospital several hours after the incident. Defendant was convicted of second-degree murder and first-degree assault.

On appeal, defendant argued that the trial court erred in failing to instruct the jury not to consider Quintana’s refusal to testify as evidence of his guilt, and erred in informing the jury about Quintana’s plea agreement. Quintana had entered into a plea agreement whereby he agreed to testify against defendant. However, when called to testify against defendant, Quintana refused to testify. The trial court thereafter erred by instructing the jury regarding Quintana’s guilty plea, because it may have given rise to an impermissible inference of defendant’s guilt, which was not cured by any limiting language. Further, this error was not harmless beyond a reasonable doubt. The Court of Appeals reversed defendant’s convictions, and the case was remanded for a new trial.

Defendant also argued that the trial court erred in instructing the jury on the use of physical force as a self-defense. The trial court erred in instructing the jury on the provocation exception to self-defense, because the evidence did not warrant giving these instructions. Accordingly, on retrial, if the same or similar evidence is presented, the trial court should not instruct the jury on the provocation exception to self defense.

Finally, the court’s combat-by-agreement instructions failed to instruct the jury that the prosecution had the burden of proving beyond a reasonable doubt mutual combat has been established. If this error arises on retrial, it also must be corrected.

Summary and full case available here.

Colorado Court of Appeals: Witness’s Factual Observation Admissible Despite Use of Word “Guilty” to Describe Defendant’s Appearance

The Colorado Court of Appeals issued its opinion in People v. Acosta on Thursday, July 3, 2014.

Discovery—Sanctions—Due Process—Relevant—Evidence—Ultimate Issue—Testimony—Summary Characterization—Hearsay—Bias.

Defendant attended a party in his apartment complex that was hosted by a couple he did not know. At least two children, including the 7-year-old victim, C.L., also were present. Defendant was asked to leave the party when someone observed him acting inappropriate with C.L. After speaking with C.L., the responding officer and a forensic interviewer determined that defendant had behaved inappropriately with her. Defendant subsequently was found guilty of sexual assault on a child.

On appeal, defendant asserted that the trial court erred by refusing to sanction the prosecution for withholding, until just before trial, the fourth interrogation of defendant, and for misrepresenting the content of the interrogation. However, defendant did not suffer any prejudice resulting from the late disclosure. Defendant received the evidence before the trial began, he was offered additional time to effectively review it but refused a continuance, and he was able to use the information during cross-examination of the detective. Additionally, the late disclosure was not willful. Hence, the trial court did not abuse its discretion in declining to sanction the prosecution for its late disclosure of evidence.

Defendant also asserted that the trial court erred by allowing J.H. to testify that defendant was “very guilty-looking” following the incident. A lay witness may testify about a summary conclusion based on the witness’s perception. Here, J.H. was physically present at the party where the assault occurred, and observed defendant immediately after the incident occurred with C.L. J.H. provided a summary characterization of her perception of how defendant looked and acted immediately following the incident. Therefore, the trial court did not abuse its discretion by allowing the challenged testimony.

Defendant further argued that the trial court erred by allowing C.L.’s father to testify that C.L. had attended a support group after the assault and had told him that thinking about the incident made her feel sick to her stomach. Because C.L.’s statements described her state of mind or physical condition resulting from the incident with defendant, the testimony did not violate the hearsay rules and was admissible.

Defendant additionally argued that admission of the father’s testimony violated the trial court’s orders and his right to an impartial judge when the court advised the prosecutor how the testimony might be admitted without providing discovery about the support group to defendant. The judge did not act as an advocate, and the testimony conformed with the court’s orders. Therefore, admission of this testimony was not error. The judgment was affirmed.

Summary and full case available here.

Colorado Court of Appeals: Error to Allow Jury Unfettered Access to Videotaped Interview of Child Sexual Assault Victim

The Colorado Court of Appeals issued its opinion in People v. Jefferson on Thursday, June 19, 2014.

Sexual Assault on a Child by one in a Position of Trust—Videotape—Evidence—Jury Deliberations.

Defendant was a friend of L.T., a mother of two small children. In 2008 and 2009, he watched the children four times, including two overnights, without their mother being present. On one of the overnights, he allegedly sexually assaulted J.B., L.T.’s 5-year-old daughter. A jury found defendant guilty of sexual assault on a child and sexual assault on a child by one in position of trust.

On appeal, defendant contended that the trial court abused its discretion when it gave the jury during deliberations unrestricted and unsupervised access to the videotaped forensic interview of J.B. The trial court admitted the videotaped interview as child hearsay under CRS § 13-25-129. However, the trial court abused its discretion in allowing the jury unfettered access to the statements during deliberations. During her live testimony during trial, almost two years after the alleged assaults, J.B. was unable to remember many details about what had happened between her and defendant. Thus, J.B.’s credibility was the main issue at trial, and the video, which was taken a day after J.B. first reported the assaults to her mother, filled in the gaps of her testimony. Furthermore, the court gave no limiting instruction regarding the jury’s use of the video. These errors created grave doubt as to the error’s effect on the verdict or the fairness of the trial proceedings. Therefore, defendant’s convictions were reversed and the case was remanded for a new trial.

Summary and full case available here.

Colorado Court of Appeals: Evidence of Gangs Inadmissible as Res Gestae and Under CRE 404(b); Reversal Required

The Colorado Court of Appeals issued its opinion in People v. Trujillo on Thursday, June 5, 2014.

Speedy Trial—Continuance—Witness—Gang Evidence—CRE 404(b)—Res Gestae Evidence.

A jury found defendant guilty of second-degree kidnapping, robbery, third-degree assault, and menacing. On appeal, defendant contended that his convictions must be dismissed because the trial court granted the prosecution a continuance beyond his speedy trial deadline to obtain the testimony of a crucial witness (Gonzales). The prosecution moved to continue defendant’s trial to secure Gonzales’s testimony, which was crucial to the People’s case. Further, the record supports the prosecution’s exercise of due diligence to secure Gonzales’s testimony. The prosecution asserted that a plea agreement with Gonzales would soon be reached, after police could confirm her statements, and that this agreement would require her to testify against her accomplices. Therefore, the trial court did not err in continuing the trial to allow the prosecution to secure Gonzales’s testimony.

Trujillo further argued that his convictions should be reversed because the trial court erroneously admitted excessive evidence about gangs over his objection. The prosecution introduced gang evidence through Gonzales’s testimony, plus the testimony of a police detective gang specialist, a police officer, and a gang expert, and through photographs of Trujillo’s gang tattoos. The gang expert’s testimony about the size and structure of the Sureños gang, the Sureños culture, and the rules of the Sureños, as well as Gonzales’s testimony about Trujillo’s tattoos, the meaning of “green light,” and the shooting of another gang member, were inadmissible under CRE 404(b) and as res gestae evidence, because the prosecution did not show the connection between the charged crimes and the evidence presented. This error was not harmless, so the judgment was reversed and the case was remanded for a new trial.

Summary and full case available here.

Colorado Court of Appeals: Opinion Testimony that Witnesses Were Not Coached Impermissible and Warrants New Trial

The Colorado Court of Appeals issued its opinion in People v. Bridges on Thursday, May 22, 2014.

Sexual Abuse—Forensic Interview—Credibility—Testimony.

S.B., defendant’s daughter, alleged that he had sexually abused her. At trial, there was no physical evidence that defendant had sexually abused S.B., and the only direct evidence of the abuse was S.B.’s trial testimony and the video of her forensic interview in which she described the abuse. The jury found defendant guilty of one count of sexual assault on a child (no pattern), one count of aggravated incest, and one count of enticement of a child.

On appeal, defendant argued that the court erred by allowing the forensic interviewer to testify that S.B. and A.Q., S.B.’s stepsister, had not been coached in their respective forensic interviews. An interviewer may not usurp the jury’s role of assessing the credibility of a particular witness’s statement by offering an ultimate conclusion about the statement’s truthfulness. Here, the forensic interviewer’s testimony that S.B. and A.Q. had not been coached constituted conclusions about their truthfulness in their respective interviews. This was impermissible opinion testimony about the credibility of another witness’s statement. The court erred by admitting it over defendant’ objection. Because it could not be concluded that admission of this statement did not substantially influence the verdict or impair the fairness of the trial, the judgment of conviction was reversed and the case was remanded for a new trial.

Summary and full case available here.

Colorado Court of Appeals: Time Spent in Interlocutory Appeal Properly Excluded from Speedy Trial Time Period

The Colorado Court of Appeals issued its opinion in People v. Curren on Thursday, May 8, 2014.

Interlocutory Appeal—Speedy Trial—Attorney–Client Privilege—Waiver—Rebuttal Witness.

In 2002, defendant was charged with two counts of first-degree murder after deliberation, two counts of felony murder, two counts of conspiracy to commit first degree murder, two counts of conspiracy to commit aggravated robbery, and two counts of aggravated robbery. The jury convicted defendant on the two felony murder counts and one count of aggravated robbery. However, defendant’s convictions were vacated, and he was granted a new trial because his trial attorney had represented him while having an actual conflict of interest. The prosecution filed an appeal to challenge this ruling, which tolled the speedy trial period. The appeal was denied, and the jury convicted defendant of accessory after the fact to first-degree murder.

On appeal, defendant asserted that the trial court violated his statutory and constitutional rights to a speedy trial. For purposes of CRS § 18-1-405(6)(b), an appeal attacking a dismissal of one or more counts is considered interlocutory and the period of delay attributable to the appeal is properly excluded from the speedy trial period. Here, the prosecution’s appeal was not frivolous and addressed whether the post-conviction court properly vacated defendant’s convictions for first-degree murder and aggravated robbery. Further, nothing in Crim.P. 35(c)(3)(V) requires the prosecution to seek a stay to toll the speedy trial period. Finally, defendant suffered no prejudice from the delay. Therefore, the speedy trial period was tolled during the prosecution’s appeal, and defendant’s statutory and constitutional speedy trial rights were not violated.

Defendant next asserted that the trial court violated his rights to remain silent, to testify, to counsel, and to attorney–client privilege by allowing the prosecution to call his first trial attorney to testify against him at his second trial. Here, defendant waived the attorney–client privilege by testifying about his communications with his previous counsel, which opened the door to rebuttal testimony regarding that representation. The prosecution called defendant’s previous counsel to testify as a rebuttal witness to refute certain parts of defendant’s testimony in his case-in-chief. Therefore, the trial court did not abuse its discretion in allowing defendant’s first trial attorney to testify against him as a rebuttal witness at his second trial.

Summary and full case available here.

Tenth Circuit: State Court’s Refusal to Consider Merits of Claim Because It Was Previously Determined Was Not a Proper Basis for Denying Federal Habeas Review

The Tenth Circuit Court of Appeals published its opinion in LeBere v. Abbott on Friday, October 18, 2013.

Kent LeBere is serving a 60-year term of imprisonment imposed by a Colorado court as a result of his conviction for second-degree murder and second-degree arson. In his 28 U.S.C. § 2254 petition for habeas relief, he contended the State relied on perjured testimony and withheld potentially exculpatory evidence material to his defense in violation of Brady v. Maryland, 373 U.S. 83 (1963). The only question presented was whether federal courts may consider his claim. It involved the interplay between state and federal procedural rules.

After LeBere began serving his sentence and while his direct appeal was pending, Ronnie Archuleta, a key witness against him, recanted his testimony. LeBere moved for a new trial based upon that newly discovered evidence. His new trial motion became a collateral part of his direct appeal, which was denied. LeBere then brought this habeas petition claiming, for the first time, a Brady violation based on the undisclosed acts of a detective who allegedly encouraged Archuleta to lie at the trial. The district judge abated these habeas proceedings to permit LeBere to exhaust his new claim in the state courts. He then filed a petition for post-conviction relief with the Colorado trial court asserting the Brady claim. The petition was not decided on the merits; post-conviction relief was denied because the Brady claim was part and parcel of his newly discovered evidence claim, which was addressed and decided on direct appeal. Importantly, the Brady issue was not considered to have been procedurally barred because it was not timely raised; it was considered to have been subsumed in the new trial motion and, in effect, decided when the new trial motion was denied. And since it had been decided on direct appeal, under Colorado procedures it could not be revisited in post-conviction proceedings (successive bar). LeBere returned to federal court with the Brady claim. The district judge concluded it was procedurally barred by Colorado’s successive bar rule.

LeBere contended Colorado’s successive bar had no effect on the availability of habeas review of his particular claims. The Tenth Circuit held he was correct.

In his Rule 35(c) post-conviction proceedings, LeBere presented his Brady claim to the state courts. But the post-conviction court did not resolve the Brady claim on the merits. Instead, it declined review under a Colorado rule barring post-conviction review of a claim raised and resolved in a previous proceeding. See Colo. R. Crim. P. 35(c)(3)(VI). Generally, when a state court dismisses a federal claim on a procedural ground, the doctrine of procedural default forecloses federal  review. Coleman v. Thompson, 501 U.S. 722 (1991). The question, then, was whether the application of the state’s successive bar presented a barrier to federal review. The Tenth Circuit concluded it did not.

Cone v. Bell, 556 U.S. 449 (2009) controlled the outcome of this case. In Cone, the Supreme Court decided a state court’s refusal to consider the merits of a claim because the claim was previously determined was not a proper basis for denying federal habeas review. As in Cone, LeBere raised a state-law nondisclosure claim on direct appeal and, based on the same facts, a Brady claim on post-conviction review. And, as in Cone, the post-conviction court applied the state bar on successive claims in declining to reach the merits. If the application of the successive bar in Cone did not affect the availability of federal review, the same should be true for a nearly identical rule here.

REVERSED and REMANDED.

Tenth Circuit: Felon in Possession of Firearm Conviction Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Spence on Tuesday, July 9, 2013.

Following a jury trial, Benjamin Spence was convicted of possessing a firearm and ammunition after former conviction of a felony, in violation of 18 U.S.C. § 922(g)(1) and § 924(e)(1). The trial court excluded the defendant’s father’s proffered testimony that it was his gun the defendant possessed. He appealed his conviction, arguing the district court erred in excluding his father’s proposed testimony and, by doing so, deprived him of his Fifth and Sixth Amendment right to present a defense.

The Tenth Circuit held that the testimony was properly excluded due to its limited probative value and potential to confuse the issues and mislead the jury. The court affirmed.

Colorado Supreme Court: No Confrontation Clause Violation when Supervisor Testified As to Lab Testing

The Colorado Supreme Court issued its opinion in Marshall v. People on Monday, July 1, 2013.

Sixth Amendment—Confrontation Clause—Testimonial Statements—Laboratory Supervisor.

Petitioner was charged with driving under the influence of drugs, careless driving, and possession of drug paraphernalia after lab results revealed she had methamphetamine in her system when she caused a car accident. At trial, the People called the supervisor of the Colorado Department of Health toxicology lab to testify about petitioner’s level of intoxication. During her testimony, the People sought to admit the lab result showing that petitioner had methamphetamine in her urine. Although the lab supervisor did not conduct the urinalysis test herself, she supervised the testing process, reviewed all the data generated by the test, made the determination that the data accurately determined that petitioner had methamphetamine present in her urine, and certified the test results. Over petitioner’s objection, the trial court admitted the lab report without the testimony of the lab technician who actually performed the test.

The Supreme Court affirmed the district court’s ruling regarding the admission of the lab report. Admission of the lab report did not violate the Confrontation Clause because the lab supervisor managed the testing process, reviewed all data generated, determined that the data accurately showed that petitioner had methamphetamine present in her urine, and certified the results. She therefore did not provide “surrogate” testimony of the sort found to be problematic in Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705 (2011).

Admission of the lab report also did not violate CRS § 16-3-309(5), which provides that, on a defendant’s timely request, the lab employee who “accomplished the requested analysis” must be made available to testify at trial. According to the plain meaning of “accomplish,” the lab supervisor accomplished the analysis because she performed the final analysis of the data required to certify the results as accurate. Therefore, the lab supervisor’s testimony satisfied the statutory provision.

The trial court also denied petitioner’s motion for judgment of acquittal on the paraphernalia possession charge. Acting in its appellate capacity, the district court upheld the trial court’s decision. Because the People conceded that there was no evidence presented that petitioner possessed drug paraphernalia, the Court held that the county court erroneously denied petitioner’s motion for judgment of acquittal on this charge, and reversed the district court’s judgment in this regard.

Summary and full case available here.

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.