Campbell v. People
| Decision Date | 08 June 2020 |
| Docket Number | Supreme Court Case No. 18SC144 |
| Citation | 464 P.3d 759 |
| Parties | Brandon D. CAMPBELL, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
Attorneys for Petitioner: Megan A. Ring, Public Defender, Chelsea E. Mowrer, Deputy Public Defender, Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General, Elizabeth Rohrbough, Senior Assistant Attorney General, Denver, Colorado
En Banc
¶1 During Brandon D. Campbell's trial for burglary, an expert from the Denver Crime Lab testified that a DNA sample taken from Campbell matched a DNA profile developed from a soda can found at the burglary scene as well as a profile developed from a partially eaten plum found at another residential burglary. The plum profile had been developed at an out-of-state lab; the technician who tested the plum did not testify. Although Campbell objected to evidence of the other burglary on CRE 404(b) grounds, he did not argue that allowing the Denver Crime Lab expert to testify about the plum profile violated his confrontation rights. The jury convicted Campbell of second degree burglary and first degree criminal trespass.1
¶2 The People also charged Campbell with three habitual offender counts. In its amended complaint, the prosecution identified one of Campbell's prior felony convictions by case number, jurisdiction, and date, but mislabeled the conviction in that case as "Possession of a Schedule IV Controlled Substance" when instead he had been convicted of felony trespass. At the habitual criminal hearing, the prosecution presented the records associated with the case number identified in the amended complaint and established that Campbell had been convicted of felony trespass. Although the defense acknowledged receiving the records in discovery and did not object to their admission, it argued that the prosecution constructively amended the charging document by failing to prove Campbell had been convicted of possession of a controlled substance as alleged in the amended complaint. The trial court found that, despite the mislabeled offense, Campbell had adequate notice of the charges. It therefore adjudicated Campbell a habitual offender.
¶3 Campbell appealed, arguing for the first time that the admission of the Denver Crime Lab expert's surrogate testimony about the plum DNA profile violated his confrontation rights. Campbell also renewed his contention that the trial court erroneously allowed the prosecution to constructively amend the habitual offender charge against him. The court of appeals rejected both contentions.
¶4 We granted Campbell's petition for a writ of certiorari to review his Confrontation Clause and constructive amendment claims.2 We now hold that (1) any error in allowing the Denver Crime Lab expert to testify about the plum DNA profile was not plain, and (2) the mislabeled offense in the habitual offender count did not result in a constructive amendment requiring reversal. Accordingly, we affirm the judgment of the court of appeals and remand with directions to return the case to the trial court for resentencing and correction of the mittimus in accordance with the court of appeals’ decision.
¶5 As the victim in this case returned home one night, he opened his garage door to discover a car that did not belong to him and several strangers in his garage. The victim's home had been ransacked, and approximately $30,000 in property had been taken. The burglars fled, and the victim could not identify them. As police searched the home for evidence, the victim found an opened soda can that had not been consumed by him or his family. A technician at the Denver Police Department Crime Laboratory analyzed a sample from the mouth of the can and created a DNA profile that was matched to Campbell's DNA profile in the Colorado Bureau of Investigation's CODIS database.
¶6 Campbell was arrested and charged with burglary, theft, and criminal trespass, along with three habitual criminal counts under section 18-1.3-801, C.R.S. (2019). The prosecution obtained another DNA sample from Campbell to confirm the CODIS match. After providing the sample, Campbell filed a "Request for Live Testimony from All Laboratory Employees and Technicians" under section 16-3-309(5), C.R.S. (2019), which requires the prosecution to call laboratory technicians if the defendant requests such testimony at least fourteen days before trial. Campbell's request sought testimony from "any employee or technician from the Colorado Bureau of Investigation or any employee of the Denver Police Department" involved in testing.
¶7 The DNA profile from the soda can was later matched to a DNA profile developed from a partially eaten plum discovered at the scene of another residential burglary. The plum evidence had been tested at a lab in Virginia, and the DNA profile was developed there.
¶8 The DNA analyst from the Denver Crime Lab then compared Campbell's DNA sample with the profiles developed from the soda can and the plum and determined that they all matched. The prosecution notified the defense of the testing and results. Campbell never filed an additional or amended request for live testimony requesting that the Virginia analyst testify. Instead, Campbell moved to exclude the evidence of the other burglary, including the plum DNA profile, under CRE 404(b). The court denied the motion and allowed the prosecution to introduce evidence of the later burglary to show identity.
¶9 At trial, the defense renewed its objection to the introduction of evidence from the later burglary on CRE 404(b) and due process grounds. The court overruled the objection and allowed the DNA analyst from the Denver Crime Lab to testify as an expert.
¶10 The expert explained that she developed the DNA profiles for the soda can sample and Campbell's sample, but did not participate in the Virginia lab's testing of the plum sample. She testified that Campbell's profile, the soda can profile, and the plum profile all matched.
¶11 On cross-examination, the expert acknowledged that DNA can be transferred and that it is not possible to determine when or how DNA was deposited on an object. She also conceded that both the soda can and plum samples tested negative for saliva and that she could not say the DNA came from Campbell's saliva, only that the DNA profile matched Campbell's.
¶12 During closing arguments, defense counsel did not dispute that it was Campbell's DNA on the soda can and the plum, but instead argued that the prosecution failed to prove that Campbell had deposited the DNA on either object during the burglaries. The jury ultimately convicted Campbell of second degree burglary, theft, and first degree criminal trespass.
¶13 The matter then proceeded to a hearing on the habitual criminal charges. One of the habitual offender counts alleged that Campbell was convicted of a felony in case number 06CR3890 in Denver District Court on September 14, 2006, but mislabeled the conviction in that case as "Possession of a Schedule IV Controlled Substance." In fact, Campbell's conviction in case number 06CR3890 was for felony trespass.
¶14 During the hearing on the habitual offender charges, the prosecution introduced into evidence the "pen pack"3 corresponding to case number 06CR3890 that had been provided to the defense in discovery. These records plainly reflected that Campbell's prior conviction associated with Denver District Court case number 06CR3890 concerned felony trespass, not possession of a controlled substance.
¶15 Defense counsel did not object to the admission of the pen pack. Instead, during closing, counsel argued that the prosecution failed to prove that Campbell had been convicted of possession of a controlled substance as alleged in the information. The parties and the court agreed this was "a notice issue." The trial court concluded that Campbell was not prejudiced by the variance because the prosecution alleged and proved that Campbell was convicted of "a felony." The court proceeded to adjudicate Campbell a habitual criminal, concluding that the prosecution had shown beyond a reasonable doubt that Campbell had sustained three prior felony convictions.
¶16 On appeal, Campbell argued that (1) allowing the Denver Crime Lab expert to testify about the plum profile violated his confrontation rights and (2) the prosecution constructively amended the habitual criminal charge by identifying the prior conviction in 06CR3890 as "Possession of a Schedule IV Controlled Substance" in the information but proving instead the prior conviction in that case was for felony trespass at the habitual criminal hearing. The court of appeals rejected both arguments. People v. Campbell , No. 14CA1097, ¶¶ 16, 64, 2018 WL 654997 (Feb. 1, 2018).
¶17 First, the division reasoned that Campbell failed to preserve the confrontation claim because his pretrial request for testimony referred only to personnel from the Colorado Bureau of Investigation and the Denver Police Department, and he failed to object to the plum profile testimony on Confrontation Clause grounds in subsequent written objections or during trial. Id. at ¶ 18. Accordingly, the division reviewed the claim for plain error. Id. at ¶¶ 19–29. At the time of trial, no Colorado case had addressed the issue of expert testimony based on DNA profiles generated by non-testifying technicians. Id. at ¶ 22. And although the U.S. Supreme Court addressed the issue in Williams v. Illinois , 567 U.S. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), the fractured decision failed to produce a test endorsed by a majority of the justices. Campbell , ¶¶ 22–25. Because no clear holding could be derived from the Williams decision, the division concluded that any error in admitting the expert testimony here was not so obvious that the trial court should have intervened absent a confrontation objection. Id. at ¶ 29. Thus,...
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