Adams
County District Court No. 15CR1426 Honorable Katherine R.
Delgado, Judge
Philip
J. Weiser, Attorney General, Patrick A. Withers, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan
A. Ring, Colorado State Public Defender, Britta Kruse, Deputy
State Public Defender, Denver, Colorado, for
Defendant-Appellant
OPINION
TERRY
JUDGE
¶
1 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
affirm.
¶
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.
I.
Background
¶
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 apartment.
¶
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 appeared
injured.
¶
8 The jury acquitted Bobian of attempted first degree murder
but found him guilty of attempted second degree murder and
first degree assault.
II.
Expert Testimony
¶
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 harmless.
A.
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, 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, 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, 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, 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. B. Additional Facts
¶
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 patterns:
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
blood showed patterns of coming down, striking down.
Q: Okay. And is that called ...