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People v. Bobian

Court of Appeals of Colorado, Sixth Division

December 19, 2019

The People of the State of Colorado, Plaintiff-Appellee,
Michael Edward Bobian, Defendant-Appellant.

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[Copyrighted Material Omitted]

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          Adams County District Court. No. 15CR1426. Honorable Katherine R. Delgado, Judge.


          For Plaintiff-Appellee: Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Attorney General, Denver, Colorado.

          For Defendant-Appellant: Megan A. Ring, Colorado State Public Defender, Britta Kruse, Deputy State Public Defender, Denver, Colorado.

         Welling, J., concurs. Berger, J., specially concurs.


          TERRY, Judge.

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         [¶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, 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

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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.

          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 ...

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