Boulder County District Court No. 11CR789 Honorable Thomas F. Mulvahill, Judge
Cynthia H. Coffman, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Dean Neuwirth P.C., Dean Neuwirth, Denver, Colorado, for Defendant-Appellant
¶ 1 Defendant, George J. Ruibal, appeals his judgment of conviction and sentence to forty years imprisonment entered on a jury verdict finding him guilty of second degree murder. Addressing an issue of first impression, we conclude that the trial court did not abuse its discretion in admitting expert testimony premised on the theory that victim "overkill" suggests that a perpetrator in a domestic violence situation had a real or perceived emotional attachment to the victim.
¶ 2 Therefore, we affirm the judgment. We also affirm Ruibal's sentence.
¶ 3 The victim, D.P., was fatally beaten sometime during a December weekend in 2007. She died in the apartment that she and Ruibal shared. On the following Monday evening, Ruibal's coworker drove him home. Ruibal invited the coworker up to his apartment, and the two discovered D.P.'s body on the couch.
¶ 4 The prosecution charged Ruibal with D.P.'s murder. At trial, Ruibal presented an alternate suspect defense, asserting that D.P. was randomly assaulted by their neighbor, J.D., during a trip to the grocery store on Saturday evening. J.D. is a large man with a history of domestic violence. According to Ruibal, D.P. returned from the store bearing visible bruises, but refused to go to the hospital. He further alleged that D.P. was alive when he left for work on Monday morning, and that he was unaware of the severity of her injuries until he returned that evening. The prosecution theorized that, in an act of domestic violence, Ruibal assaulted D.P. in their apartment on Saturday evening, and that D.P. died sometime on Sunday or Monday from injuries sustained in the beating.
¶ 5 The prosecution introduced the testimony of a forensic pathologist on evidence of "overkill." The pathologist explained that "overkill" means multiple injuries to one area of the body. He further stated that when he perceives "overkill" during an autopsy, he informs the police that the perpetrator likely had a real or perceived emotional attachment to the victim. He based his expert opinion on both a scientific treatise and his own experience.
¶ 6 The jury convicted Ruibal of second degree murder, and the trial court sentenced him to forty years in prison followed by five years of mandatory parole.
II. Domestic Violence Expert Testimony
¶ 7 Ruibal contends that the trial court erred when it did not give a limiting instruction during the testimony of the prosecution's domestic violence expert. Specifically, he asserts that CRE 404(b) and section 18-6-801.5(5), C.R.S. 2014, required the court to give a limiting instruction for the testimony of the domestic violence expert, because her testimony placed previously admitted Rule 404(b) evidence within the context of an abusive relationship. We disagree.
A. Standard of Review
¶ 8 In addressing Ruibal's contention, we must consider when CRE 404(b) and section 18-6-801.5(5) require the trial court to give a limiting jury instruction, a question of statutory interpretation which we review de novo. People v. Steen, 2014 CO 9, ¶ 9, 318 P.3d 487, 490.
B. Applicable Law
¶ 9 CRE 404(b) and section 18-6-801.5 permit a trial court to admit evidence of other acts of domestic violence between a defendant and a victim if offered to show common plan, scheme, design, identity, modus operandi, motive, guilty knowledge, or some other purpose. People v. Torres, 141 P.3d 931, 934 (Colo.App. 2006); People v. Gross, 39 P.3d 1279, 1282 (Colo.App. 2001). In such cases, the trial court must instruct the jury as to the limited purpose for which the other act evidence is admissible. § 18-6-801.5(5).
¶ 10 The prosecution called seven witnesses who testified to prior instances of domestic violence between Ruibal and D.P. Before each witness's testimony, the court read to the jury the limiting instruction required by section 18-6-801.5(5), and included a written version in the final jury instructions.
¶ 11 After the CRE 404(b) witnesses testified, the prosecution presented the testimony of a domestic violence expert who explained the dynamics of an abusive relationship. She testified that the crux of domestic violence is the exertion of power and control by the relationship's abusive member. Specifically, she testified that the act of strangulation is an intimate act in which the abuser looks into the face of the victim, and that abusive relationships undergo a recurring three-stage "cycle of violence, " in which the level of violence exerted escalates over time.
¶ 12 However, the domestic violence expert, qualified under CRE 702, did not specifically reference any prior acts of domestic violence between Ruibal and D.P., and her testimony was not admitted through CRE 404(b) or section 18-6-801.5(2). Rather, she merely explained the general dynamics that exist in abusive relationships. See § 18-6-801.5(1) ("[D]omestic violence is frequently cyclical in nature, involves patterns of abuse, and can consist of harm with escalating levels of seriousness."). Furthermore, the expert was unfamiliar with the facts of Ruibal's case, and did not opine on the specifics of the relationship between Ruibal and D.P.
¶ 13 In fact, the trial court expressed concerns that an instruction similar to the one given during the CRE 404(b) testimony could prejudice Ruibal. The court explained that by giving such an instruction for a witness who was not a fact witness, it could lead the jury to consider the expert's testimony as "fact evaluative, " and not for its intended purpose of providing background on the nature of domestic violence.
¶ 14 Based on these circumstances, we conclude that the trial court did not err when it declined to give a limiting instruction during the testimony of the prosecution's domestic violence expert.
III. "Overkill" Testimony
¶ 15 Ruibal contends that the trial court abused its discretion when it permitted a pathologist to present expert testimony regarding victim "overkill." His contention here is twofold. First, he asserts that the trial court violated CRE 702 and People v. Shreck, 22 P.3d 68, 77 (Colo. 2001), when it admitted scientifically unreliable "overkill" testimony without making a specific finding as to its reliability. Second, he argues that the trial court violated CRE 703 when it permitted the introduction, through expert testimony, of inadmissible hearsay evidence. We perceive no reversible error.
A. Standard of Review
¶ 16 We review a trial court's CRE 703 ruling for an abuse of discretion. See People v. Valencia, 257 P.3d 1203, 1206 (Colo.App. 2011). Further, trial courts have broad discretion to determine the admissibility of expert testimony, and we will not overturn a court's decision absent a showing of an abuse of discretion. Estate of Ford v. Eicher, 250 P.3d 262, 266 (Colo. 2011).
¶ 17 Ruibal objected to the "overkill" testimony and to the prosecution's alleged CRE 703 violation; therefore, we review for harmless error and will reverse only if the error "substantially influenced the verdict or affected the fairness of the trial proceedings." Hagos v. People, 2012 CO 63, ¶ 12, 288 P.3d 116, 119.
B. CRE 702
¶ 18 CRE 702 permits the testimony of expert witnesses, qualified by their knowledge, skill, experience, training, or education, if the trial court determines that it will assist the trier of fact to understand the evidence or determine a fact in issue. Shreck, 22 P.3d at 77.
¶ 19 Before admitting expert testimony, a trial court must consider whether (1) the scientific principles underlying the testimony are reasonably reliable; (2) the expert is qualified to opine on such matters; (3) the expert testimony will be helpful to the jury; and (4) pursuant to CRE 403, the evidence's probative value is not outweighed by the danger of unfair prejudice. Id. Finally, "[w]hen the trial court makes a determination of relevance and reliability under CRE 702, it is required to issue specific findings regarding its analysis." Estate of Ford, 250 P.3d at 266.
¶ 20 Here, the prosecution introduced the testimony of a forensic pathologist on evidence of "overkill." He testified that when he observes multiple injuries to one area of the body, he informs the police that the perpetrator likely had a real or perceived emotional attachment to the victim. The prosecution introduced the pathologist's testimony to put D.P.'s injuries in context for the jury, and to prove that the perpetrator likely had an emotional attachment to her, thus tending to disprove Ruibal's alternate suspect theory.
¶ 21 Before admitting the pathologist's testimony, the court held a hearing to determine its admissibility. Specifically, it considered one scientific treatise that addressed the theory of "overkill" in its section on sharp force injuries. After the parties presented their arguments, the court concluded that the "overkill" testimony would be helpful to the jury by putting into context the type and nature of the injuries suffered by D.P. The court also concluded that the testimony satisfied CRE 403 because its probative value outweighed any danger of unfair ...