[Copyrighted Material Omitted]
County District Court. No. 15CR1426. Honorable Katherine R.
Plaintiff-Appellee: Philip J. Weiser, Attorney General,
Patrick A. Withers, Assistant Attorney General, Denver,
Defendant-Appellant: Megan A. Ring, Colorado State Public
Defender, Britta Kruse, Deputy State Public Defender, Denver,
J., concurs. Berger, J., specially concurs.
Defendant, Michael Edward Bobian, appeals the judgment of
conviction entered on jury verdicts finding him guilty of
attempted second degree murder and first degree assault. We
[¶2] We consider and reject Bobian's
arguments that his conviction should be overturned because
the trial court erred by
• admitting improper expert testimony about blood
residue and tool markings; and
• permitting prosecutorial misconduct.
[¶3] The special concurrence discusses the
propriety of allowing a police detective to testify about the
consistency between eyewitnesses' statements at a crime
scene and their testimony at trial.
[¶4] The charges stemmed from an altercation
during a party at Stephanie Torres's apartment. Lindsey
Collins, who had been staying with Torres for a few days,
called a friend for a ride. The friend in turn called Bobian
and asked him to pick up Collins from Torres's apartment.
[¶5] Bobian and three of his friends entered
Torres's apartment unannounced. Annoyed by the presence
of strangers in her home, Torres became belligerent and told
them to leave. A fight then broke out between Torres and
Bobian's friends. Torres screamed for the victim, T.H.,
who was outside. The events that took place next were
disputed at trial.
[¶6] The victim testified that he ran
through the front door to Torres's aid, and Bobian
preemptively struck him on the head with a hatchet. After a
struggle, the victim was able to get control of the hatchet
from Bobian, and Bobian and his friends then fled the
[¶7] Collins took the stand for the defense
and gave a different account. She testified that when the
victim ran into the apartment and found Torres being attacked
by Bobian's friends, the victim struck Bobian from behind
and a second fight broke out. Collins testified that the
victim continued to attack Bobian, who was squatting on the
ground. At some point, Collins realized that Bobian and the
victim were fighting over a hatchet, and that the victim
[¶8] The jury acquitted Bobian of attempted
first degree murder but found him guilty of attempted second
degree murder and first degree assault.
[¶9] Bobian contends that the trial court
erred by admitting the testimony of the State's lead
detective about blood patterns and tool markings without
qualifying him as an expert. We conclude that any error was
Standard of Review and Applicable Law
[¶10] We review a trial court's
evidentiary rulings for an abuse of discretion. People v.
Stewart, 55 P.3d 107, 122 (Colo. 2002). A trial court
abuses its discretion when its ruling is manifestly
arbitrary, unreasonable, or unfair, or when it misapplies the
law. Rains v. Barber, 420 P.3d 969, 2018 CO 61, ¶ 8.
We will reverse only if " there is a reasonable
probability that [an error] contributed to [the]
defendant's conviction by substantially influencing the
verdict or impairing the fairness of the trial."
People v. Casias, 312 P.3d 208, 2012 COA 117, ¶ 61.
[¶11] In determining whether testimony is
lay or expert testimony, the court must look to the basis for
the opinion. Venalonzo v. People, 388 P.3d 868, 2017
CO 9, ¶ 23. If the witness provides testimony that could be
expected to be based on an ordinary person's experiences
or knowledge, then the witness is offering lay testimony.
Id. On the other hand, if the witness provides
testimony that could not be offered without specialized
experiences, knowledge, or training, then the witness is
offering expert testimony. Id.
[¶12]Police officers may testify as lay
witnesses based on their perceptions, observations, and
experiences. People v. Veren, 140 P.3d 131, 137
(Colo.App. 2005). But where an officer's testimony is
based on specialized
training or education, the officer must be properly qualified
as an expert. Id.
[¶13] In People v. Ramos, 388 P.3d
888, 2017 CO 6, ¶ 9, our supreme court held that an ordinary
citizen would not be expected to have the experience, skills,
or knowledge to differentiate reliably between cast-off blood
and blood transfer.
[¶14] Witnesses for both the State and the
defense testified that they saw the victim throw the hatchet
at the front door just as it closed after Bobian exited. The
victim, however, could not recall throwing the hatchet.
[¶15] Lead Detective Frederick Longobricco
was the prosecution's advisory witness and was present
throughout trial. He testified regarding the blood and tool
markings he saw on the front door, as well as the damage to
the wall that was allegedly caused during the altercation. He
had the following exchange with the prosecutor about blood
Q: [T]here's actually kind of a description for what
blood looks like when it's hit against the door like
that. What's that kind of blood called?
A: I have received training in blood pattern analysis and
depending on how blood strikes an object it will tell you
[¶16] At that point, defense counsel
objected to the testimony as expert testimony. After the
prosecutor responded that the detective was just describing
what he had done as a " regular police officer,"
the court overruled the objection and Detective Longobricco
testified as follows:
A: So when blood strikes a surface, how that blood reacts to
the surface will tell you most likely how that . . . blood
traveled. So in here when you see a close[-]up of it, the