Jefferson County District Court No. 10CR406 Honorable Philip J. McNulty, Judge.
John W. Suthers, Attorney General, Jay C. Fisher, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Lynn Noesner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
¶ 1 Defendant, Daryll Glenn Brown, appeals the judgment of conviction entered on jury verdicts finding him guilty of first degree murder – felony murder, second degree murder, and burglary. We affirm the judgment and remand the case for correction of the mittimus.
¶ 2 The victim, defendant's ex-wife, was murdered in her home in the middle of the night. After their divorce, the victim and defendant had shared custody of their four-year-old son but lived apart. According to the prosecution, defendant entered the victim's home with a key he had kept, struck her several times with a wine bottle, and then strangled her to death. Defendant's defense at trial was that he was at his home sleeping when the murder occurred.
II. Issues on Appeal
¶ 3 Defendant argues that his convictions must be reversed because the trial court (1) violated his right to present a defense by prohibiting him from presenting evidence about how the case was investigated by the police; (2) violated the hearsay rule and his right of confrontation by admitting hearsay statements pursuant to CRE 807; and (3) erred by failing to suppress evidence obtained when police executed a warrant for a search of his car. We disagree.
A. Right to Present a Defense
¶ 4 Defendant argues that the trial court violated his rights by precluding him from presenting evidence tending to show that the police investigation into the case was deficient. Specifically, he contends that the court erred by (1) limiting his cross-examination of the prosecution's DNA expert about the inherent limitations of one type of DNA testing that was done and (2) not allowing him to introduce evidence, through his investigator, about the police's failure to investigate a suspicious vehicle that had reportedly been in the victim's neighborhood two days before the murder. We discern no basis for reversal.
1. Standard of Review and Applicable Law
¶ 5 We review for abuse of discretion the trial court's evidentiary rulings. People v. Warrick, 284 P.3d 139, 145 (Colo.App. 2011). "A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair." Id.
¶ 6 An erroneous evidentiary ruling may rise to the level of constitutional error if it deprives a defendant of his or her right to present a defense or to conduct meaningful cross-examination on material issues. People v. Beilke, 232 P.3d 146, 149 (Colo.App. 2009). However, a defendant's right to present a defense is violated "only where the defendant was denied virtually his [or her] only means of effectively testing significant prosecution evidence." Krutsinger v. People, 219 P.3d 1054, 1062 (Colo. 2009); see People v. Osorio-Bahena, 2013 COA 55, ¶ 17. Thus, when an evidentiary limitation does not deprive a defendant of his or her only means of testing prosecution evidence, reversal is required only if any error substantially influenced the verdict or affected the fairness of the trial. Krutsinger, 219 P.3d at 1064.
2. DNA Testing
¶ 7 The prosecution presented evidence through an expert in DNA analysis and comparison about testing that was performed at the crime scene. On direct examination, the expert testified that he had performed a type of DNA analysis known as autosomal analysis on several items from the victim's bedroom and found a DNA profile that matched hers. He also testified that due to the presence of high concentrations of female DNA, some of the items were tested by a different process, Y-STR testing, which focuses solely on male DNA found on the Y chromosome. The expert testified that Y-STR profiles are not unique to each individual, as autosomal DNA profiles are, and that all the males in a family usually have the same Y-STR profile. The expert testified that certain Y-STR profiles obtained from the crime scene matched defendant's profile.
¶ 8 Defense counsel objected that the expert's testimony might be confusing to the jury because defendant's son could have been the source of the DNA. The court overruled the objection, stating: "I think [the expert] testified to that before he started this testimony. So I don't think there's any confusion on this." Later, the expert stated that since defendant and his son both have the same Y-STR profile, defendant's son was a potential source of the Y-STR evidence that was detected in the victim's home.
¶ 9 On cross-examination, defense counsel emphasized this point:
Q: Just so the jury is completely clear on this, any Y-STR profile that you have testified about that matches [defendant], also matches [his son]?
A: That's correct. Both of them have the same Y-STR profile.
Later, defense counsel asked the expert, "So in doing just the Y-STR testing you wouldn't really have a way to exclude any females from this sample who are not [the victim]?" The prosecution objected to the question based on relevancy, stating that defendant had not sought to present any female alternate suspects. Defense counsel argued that the type of testing was relevant to show that the police investigated inadequately because they ...