Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Cooper

Court of Appeals of Colorado, Fifth Division

February 21, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Kerry Lee Cooper, Defendant-Appellant. Opinion of Blind Expert Historical Evidence Presented Relating to that Opinion

          El Paso County District Court No. 13CR2453 Honorable Michael P. McHenry, Judge

          Philip J. Weiser, Attorney General, Charlotte M. Powers, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          BERGER, JUDGE

         Richman, J., concurs Román, J., concurs in part and dissents in part

         I. Introduction and Summary

         ¶ 1 The principal issue in this appeal of a criminal prosecution for menacing, assault, harassment, and cruelty to an animal, is the propriety of the admission of "blind" expert testimony regarding the dynamics of abusive intimate relationships.

         ¶ 2 A "blind" or "cold" expert knows little or nothing about the facts of a particular case, often has not met the victim, and has not performed any forensic or psychological examination of the victim (or the defendant). See Fed. R. Evid. 702 advisory committee's note to 2000 amendments; see also Christopher Tarver Robertson, Blind Expertise, 85 N.Y.U.L. Rev. 174 (2010).[1]

         ¶ 3 Colorado courts repeatedly have recognized the value of blind expert testimony in appropriate cases. Venalonzo v. People, 2017 CO 9, ¶¶ 32-34; People v. Wittrein, 221 P.3d 1076, 1081 (Colo. 2009); People v. Relaford, 2016 COA 99, ¶¶ 26-30; see also People v. Fortson, 2018 COA 46M (Berger, J., specially concurring). When the actions of a victim are counterintuitive to what an ordinary juror might expect, this type of expert testimony may be crucial in explaining to the jury what social science has learned about the behavior patterns of people who are involved in violent relationships. Venalonzo, ¶¶ 32-34. Without this testimony, jurors may well reach incorrect decisions because they do not have the background to understand such counterintuitive actions. Relaford, ¶ 30. Nothing in this opinion questions the admissibility of such testimony in the proper case.[2]

         ¶ 4 But, there are substantial risks attendant to the admission of blind expert testimony that cannot be ignored. When blind expert testimony is used to persuade the jury to make findings of historical fact that are not supported by evidence presented to the jury, the trial process is corrupted, and the defendant may, as a result, be deprived of a fair trial.[3]

         ¶ 5 We conclude that virtually all of the blind expert testimony presented in this case was wholly irrelevant to the issues properly before the jury. We further conclude that the admission of this evidence was highly prejudicial. Accordingly, we reverse the convictions and remand for a new trial.

         II. Facts and Procedural History

         ¶ 6 Kerry Lee Cooper and L.K. were in an intimate relationship and living together at the time of the alleged assault. In the early hours of a morning in the summer of 2013, L.K. woke up in a panic attack. She felt like she could not breathe. It was very hot in the room, so L.K. asked Cooper to plug in the nearby fan. Cooper turned on the fan and placed it on the floor. L.K. was unhappy with the positioning of the fan and the two began to argue.

         ¶ 7 According to L.K.'s testimony, Cooper then shoved the running fan into L.K.'s face, cutting her face with the blades.[4] L.K. grabbed a flashlight from the nightstand and hit Cooper on the head with it. Cooper dropped the fan and began hitting L.K. in the face and ribs with his closed fist. L.K. crawled to the window and screamed for help. Cooper told L.K. to shut up and grabbed her by the jaw, inserting his fingers into her mouth. She bit one or more of his fingers. Cooper then grabbed a tire iron located just outside the bedroom and told L.K. to stop screaming or he would hit her with it. When she did not, he hit her twice with the tire iron.

         ¶ 8 Cooper testified that he did not punch L.K., grab her jaw, or pick up the tire iron and hit L.K. with it. According to him, L.K. asked him to reposition the fan, and, when she became unhappy with the way he had positioned it, he threw the fan on the end of the bed, at which point L.K. hit him with the flashlight and bit his hand when he attempted to take the flashlight away from her to protect himself.[5] Cooper did not deny, however, that he pushed L.K in her forehead.

         ¶ 9 Cooper's daughter, who lived close by, heard the screaming and called the police. Officers obtained statements from Cooper and L.K. and observed injuries on both of them.

         ¶ 10 At trial, over Cooper's repeated objections, the prosecution presented extensive testimony from an expert witness about (1) characteristics of domestic violence relationships; and (2) the "power and control wheel," a tool developed purportedly to explain the ways an abusive partner can use power and control to manipulate a relationship.

         ¶ 11 The jury acquitted Cooper of the menacing and cruelty to animal charges but convicted him of third degree assault and harassment.

         III. Claimed Errors

         ¶ 12 On appeal, Cooper asserts that (1) the trial court erred in admitting the blind expert witness testimony both on reliability and relevance grounds; (2) the prosecutor engaged in prosecutorial misconduct during closing argument; and (3) the court committed plain error when it did not give a special unanimity instruction on the assault charge.

         ¶ 13 We agree that the expert testimony was inadmissible because it was irrelevant and highly prejudicial; therefore, we reverse the convictions and remand for a new trial. To provide guidance on remand, we reject Cooper's claim that he was entitled to a modified unanimity instruction. We decline to address the alleged claims of prosecutorial misconduct because we do not know whether those statements will recur at the retrial.

         IV. The Vast Bulk of the Blind Expert Testimony Was Irrelevant[6]

         ¶ 14 Only relevant evidence is admissible. CRE 402. Irrelevant evidence is not admissible. Id. The question here is whether expert opinions regarding domestic violence had any relevance or "fit" to the facts that were presented to the jury at trial.

         ¶ 15 To illustrate our analysis, the chart that appears in the Appendix catalogues each opinion expressed by the expert witness and the historical evidence, if any, presented to the jury that had any relationship to the expressed opinion.

         A. Standard of Review

         ¶ 16 We review a trial court's evidentiary ruling for an abuse of discretion. People v. Welsh, 80 P.3d 296, 304 (Colo. 2003). A trial court abuses its discretion if its ruling is manifestly arbitrary, unreasonable, or unfair, id., or if it misconstrues or misapplies the law, People v. Glover, 2015 COA 16, ¶ 10.

         B. Admissibility of Expert Testimony

         ¶ 17 CRE 702 governs the admission of expert testimony. Exercising its gatekeeper function, the trial court must "focus on the reliability and relevance of the proffered evidence" and determine "(1) the reliability of the scientific principles, (2) the qualifications of the witness, . . . (3) the usefulness of the testimony to the jury," and (4) whether the evidence meets the test of CRE 403. People v. Shreck, 22 P.3d 68, 70 (Colo. 2001). Recently, the supreme court again explained the trial court's gatekeeper function:

[T]he trial court's inquiry should be broad in nature and take into consideration the totality of the circumstances of each specific case, focusing on both the reliability and relevance of the evidence. In light of the wide range of factors that may be considered in any individual case and the liberal nature of the standard, we imposed upon trial courts admitting evidence pursuant to CRE 702 an obligation to first determine and make specific findings on the record, not only as to the reliability of the scientific principles upon which the expert testimony is based and the qualifications of the witness giving that testimony, but also the usefulness of such testimony to the jury, including specific findings with regard to the court's obligation pursuant to CRE 403 to ensure that the probative value of the evidence would not be substantially outweighed by any of the countervailing considerations enumerated in the rule.

Ruibal v. People, 2018 CO 93, ¶ 12 (citations omitted).

         ¶ 18 Expert testimony should be admitted only when the expert's opinions will be helpful to the fact finder. People v. Valdez, 183 P.3d 720, 723 (Colo.App. 2008). "Helpfulness to the jury hinges on whether the proffered testimony is relevant to the particular case: whether it 'fits.'" People v. Martinez, 74 P.3d 316, 323 (Colo. 2003).

Fit demands more than simple relevance; it requires that there be a logical relation between the proffered testimony and the factual issues involved in the litigation. That is, even if good grounds exist for the expert's opinion, it must be validly and scientifically related to the issues in the case. That particular expert testimony fits or is valid for one facet or purpose of a proceeding does not necessarily compel the conclusion that it fits all facets. Therefore, the admissibility of evidence must be evaluated in light of its offered purpose.

Id. (citations omitted).

         ¶ 19 There are two substantial risks associated with the admission of blind expert testimony. The first is that, as the supreme court recognized in Venalonzo (and as the trial court explicitly recognized in this case), most, if not all, expert testimony has the tendency to bolster the credibility of one or more witnesses. Venalonzo, ¶¶ 32, 36. When an expert explains why a witness might have acted in a counterintuitive manner, that explanation may bolster the credibility of that witness. Id.

         ¶ 20 But, "while such 'testimony may incidentally give rise to an inference that a victim is or is not telling the truth about the specific incident,' 'this fact alone is insufficient to deny admission of the evidence, because expert testimony generally tends to bolster or attack the credibility of another witness.'" Relaford, ¶ 30 (quoting People v. Koon, 724 P.2d 1367, 1370 (Colo.App. 1986)). That is, the bolstering effect is acceptable when the expert testimony is necessary to educate the jury regarding matters about which the ordinary juror has no knowledge. When that is not the case, however, the bolstering effects of expert testimony are unacceptable.

         ¶ 21 The second danger of blind expert testimony is that the jury may find or infer that historical facts existed based solely on the expert's testimony, rather than on the historical evidence presented to the jury.[7] On at least two occasions the supreme court has recognized a similar danger in other contexts.

         ¶ 22 In the jury instruction context in Castillo v. People, 2018 CO 62, the supreme court addressed the first aggressor exception to self-defense and, more specifically, whether an erroneously given first aggressor instruction was harmless when there was no evidence supporting the instruction. A division of this court had reasoned that even if there was no evidence to support it, the error was harmless because if there was no evidence to support the instruction, the jury would simply disregard it. Id. at ¶ 47.

         ¶ 23 Rejecting that analysis, the supreme court stated that "we have repeatedly expressed concern that jurors might try to fit facts into an erroneously given instruction." Id. at ¶ 59. As the supreme court concluded in an earlier case, "[d]uring deliberations, it is possible that the jury may have wondered why it was given the instruction, decided that it must have been for some purpose, and forced the evidence to fit the instruction, thereby denying [defendant] his claim to self-defense." Kaufman v. People, 202 P.3d 542, 562 (Colo. 2009). The Castillo court relied on its earlier decision in Barnhisel v. People, 141 Colo. 243, 246, 347 P.2d 915, 917 (1959), where the court observed that an instruction which correctly states the law but is not supported by evidence erroneously "implies or assumes the existence of evidence not in the record."

         ¶ 24 The supreme court also explained that the danger of giving a jury instruction that is not supported by the evidence is "exacerbated by the prosecution's misleading comments during its closing ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.