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Russell v. People

Supreme Court of Colorado, En Banc

January 17, 2017

Brandi Jessica Russell, Petitioner/Cross-Respondent
v.
The People of the State of Colorado. Respondent/Cross-Petitioner:

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 11CA1929

         Judgment Affirmed.

          Attorneys for Petitioner/Cross-Respondent: Emeson Law, LLC Brian S. Emeson Denver, Colorado

          Attorneys for Respondent/Cross-Petitioner: Cynthia H. Coffman, Attorney General Ethan E. Zweig, Assistant Attorney General Denver, Colorado

          JUSTICE EID concurs in part and dissents in part, and JUSTICE COATS and JUSTICE HOOD join in the concurrence in part and dissent in part.

          OPINION

          RICE CHIEF JUSTICE.

         ¶1 First, this case requires us to determine whether a police officer's testimony that a defendant was under the influence of methamphetamine was lay or expert testimony. Because any error in admitting the officer's testimony as lay testimony was harmless given the otherwise overwhelming evidence, we decline to answer whether the trial court erred in admitting the testimony. Next, this case requires us to determine if Amendment 64 to the Colorado Constitution, which legalized possession of small amounts of marijuana, deprived the State of its power to continue to prosecute cases where there was a conviction for possession of less than one ounce of marijuana pending on direct appeal when the Amendment became effective. In light of our holding today in People v. Boyd, 2017 CO 2, __P.3d__, we hold that it did.

         I. Facts and Procedural History

         ¶2 In March 2010, defendant Brandi Jessica Russell and her husband brought their infant to a hospital with a broken femur. A doctor, worried that the child may have been abused, contacted a social worker who then contacted Grand County Department of Social Services. A social worker interviewed Russell and, worried she was on drugs, obtained a court order for a drug test. The drug test indicated that Russell had used amphetamine, marijuana, and methamphetamine. When asked about the results, Russell admitted that she had used methamphetamine. The police obtained a warrant and searched Russell's home, finding drug paraphernalia, marijuana, marijuana concentrate, [1] and methamphetamine.

         ¶3 The State charged Russell with child abuse resulting in serious injury, possession of one gram or less of a schedule II controlled substance (methamphetamine), and possession of marijuana concentrate. In June 2011, a jury acquitted Russell of the child abuse charge but found her guilty of the marijuana concentrate and methamphetamine charges. The jury also convicted her of possession of less than one ounce of marijuana, a non-included petty offense that Russell requested. In August 2011, the trial court sentenced Russell to two concurrent 4-year terms of supervised probation, 192 hours of community service, and a suspended 90-day jail sentence.

         ¶4 Russell filed a timely notice of appeal in September 2011. Ultimately, she made two challenges. The first challenge was to a police officer's lay testimony offered at trial in which the officer testified to his belief that Russell was using methamphetamine based on his observations of her and his many contacts with others using methamphetamine. Russell argued this testimony required the officer to be vetted as an expert. The court of appeals disagreed with Russell. People v. Russell, 2014 COA 21M, ¶ 29, __P.3d__. The second challenge was that Amendment 64, which became effective on December 10, 2012, and legalized the possession of up to one ounce of marijuana (defined as including marijuana concentrate) for personal use, should vitiate her marijuana convictions. See Colo. Const. art. XVIII, § 16. The court of appeals agreed with Russell and reversed on this point. Russell, ¶ 20. Russell appealed the expert testimony issue to this court, and the State appealed the Amendment 64 issue to this court. We granted certiorari.[2]

         II. Analysis

         A. Any error in allowing the officer's testimony as lay testimony was harmless.

         ¶5 Russell argues that it was error for the trial court to allow a police officer to testify, as a lay witness, to whether or not Russell was using methamphetamine based on the officer's observations of Russell. This court reviews a trial court's rulings on evidentiary issues for an abuse of discretion. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). "A trial court ...


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