Golob v. People, No. 06SC653.

• Decision Date: 24 March 2008
• Docket Number: No. 06SC653.
• Citation: 180 P.3d 1006
• Parties: Lucas GOLOB, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

180 P.3d 1006

Lucas GOLOB, Petitioner v. The PEOPLE of the State of Colorado, Respondent.

No. 06SC653.

Supreme Court of Colorado, En Banc.

March 24, 2008.

Rehearing Denied April 14, 2008.^*

Douglas K. Wilson, Colorado State Public Defender, Priscilla J. Williams, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Majid Yazdi, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.

Justice HOBBS delivered the Opinion of the Court.

In this opinion, we review an unpublished decision of the court of appeals.¹ Petitioner Lucas Golob appeals his conviction for criminal mischief arising from the January 5, 2001 break-in at the Custer County Road and Bridge Shop in Wetmore, Colorado. Golob argues that the judgment of conviction should be reversed because the trial court erred by: (1) allowing one of the prosecution's expert witnesses to testify that his findings were independently verified by a non-testifying witness, and (2) improperly limiting the testimony of the defense's expert witness.

We hold that the trial court improperly limited the testimony of Golob's expert witness after the prosecution had opened the door to this testimony and this error was not harmless beyond a reasonable doubt. Thus, we reverse the judgment of the court of appeals and remand this case to the court of appeals with instructions to return it to the trial court for further proceedings consistent with this opinion.

I.

On January 5, 2001, an intruder broke into the Custer County Road and Bridge Shop in Wetmore, Colorado, and stole property valued at more than $1,000. The intruder also caused several thousands of dollars in property damage to the shop. During the burglary, the intruder discharged a fire extinguisher, leaving a powdery residue throughout the shop. The next morning, the shop owner discovered that several items were missing from the store, including a pair of binoculars, a transceiver, and a camera. In addition, the intruder took two orange mesh vests which had been in a toolbox contained in a county truck parked near the shop. The police found partial shoeprints, made in the fire extinguisher residue, on a few sheets of copy paper that had been scattered on the floor during the break-in.

On April 7, 2001, the county sheriff's office obtained and executed a search warrant on Golob's home. During the search, the sheriff's deputies discovered two orange mesh vests within a backpack in a closet. The backpack also contained a pair of camouflage pants which were coated with a powdery substance. The sheriff's deputies did not locate any of the items missing from the shop.

Ten days later, on April 17, 2001, a sheriff's deputy collected a sample of the fire extinguisher residue from the inside of a desk drawer in the shop. The sheriff's office submitted the sample to the Colorado Bureau of Investigation ("CBI") for comparison with the powdery substance found on Golob's camouflage pants.

Agent Crippen conducted the comparison for the CBI. At trial, the district court certified Crippen as an expert in trace analysis and general forensic analysis. He testified that both substances were composed of ammonium phosphate and that they had identical characteristics. He further testified that ammonium phosphate is a common ingredient in fire extinguisher residue, as well as in detergents, fertilizers, and fire retardants. Crippen concluded that both samples were consistent with fire extinguisher powder and were chemically indistinguishable from each other. However, he could not determine whether the residue from the pants came from the discharged fire extinguisher.

With respect to the orange mesh vests, the shop supervisor testified that the recovered vests were similar to the vests missing from the truck, but could not positively identify them as the same vests.

The sheriff's office also submitted the shoeprints recovered from the crime scene to the CBI for comparison to the soles of a pair of boots owned by Golob. Agent Sollars conducted the comparison for the CBI. At trial, the district court certified Sollars as an expert in the examination and comparison of known footwear to footwear track impressions. Based on his comparison of Golob's boots to the partial shoeprints recovered from the crime scene, Sollars testified that Golob's left boot could not have made any of the shoeprints. However, he could not rule out the right boot as a possibility. As a result, he conducted further tests. He determined that Golob's right boot could have been the source of one of the recovered prints. He also determined that it was highly probable that the right boot made another of the recovered prints, although he could not make a definite match.

During his direct testimony, the prosecutor provided Sollars with an expert report prepared by the defendant's foot impression expert, Anthony Cox. The prosecutor then questioned Sollars about the report's findings:

Prosecution: The proverbial bottom line [in the Cox report] states what?

Sollars: [quoting the Cox report] "My conclusion is that the identifying marks on the soles from [Golob]'s boots do not conclusively match the boot prints taken from the piece of paper."

Prosecution: In your opinion, does that conclusion contradict your analysis and your conclusion? How do you compare and contrast that?

Sollars: In some regards. I'm not sure if [Cox] looked at all the tracks because there were some that were eliminated. When it says do not conclusively match, then to me that would fall into the probable range. Just another way of saying it.

Prosecution: You're not telling this jury that in either one [Sollars's or Cox's] of your analyses on the two [recovered shoeprints] that it conclusively was, in other words, the dead bang positive identification. Is that accurate?

Sollars: Yes, sir.

Sollars testified that it is CBI policy that any highly probable or positive track impression identification must "be independently verified [] by another examiner before any verbal or written release of the results." He also testified that another CBI examiner independently verified his conclusions that the right boot could have been the source of one of the recovered shoeprints and that it was highly probable that the right boot made another recovered shoeprint. Defense counsel did not object to this testimony.

During presentation of his case, Golob called Cox to testify about the recovered prints. Cox worked for several years as a cobbler at a boot repair shop and, at the time of trial, worked as a certified pedorthist.² In both of those positions, he gained extensive knowledge about foot tread design, wear patterns, and analyzing foot impressions. However, Cox never received any formal forensic training in shoeprint comparison. Instead, his expertise was based on his years of practice constructing and repairing shoe soles, as well as his study of a reference book on the subject, Foot Impression Evidence by William Bodziak. The trial court certified Cox as an expert on sole impressions and the court permitted him to testify as to specific characteristics of Golob's boots. However, upon the prosecution's objection, the trial court excluded any testimony regarding his comparison of the prints recovered at the crime scene with the soles of Golob's boots.

The jury found Golob guilty of criminal mischief. He was acquitted of burglary and theft charges. He was subsequently sentenced to four years probation. On appeal, the court of appeals affirmed the conviction.

II.

We hold that the trial court improperly limited the testimony of Golob's expert witness after the prosecution had opened the door to this testimony and this error was not harmless beyond a reasonable doubt.

A. Hearsay Verification of Prosecution's Expert Testimony

At trial, Agent Sollars testified about the shoeprint evidence for the prosecution. On direct examination, Sollars stated that he had received independent verification of his conclusions that Golob's right boot could have made one of the recovered prints and that it was highly probable that Golob's right boot was the source of another. He went on to explain that according to CBI lab protocol, "any results of highly probable or positive have to be independently verified [] by another examiner before [the results are released]." On redirect, the prosecutor again inquired about CBI standard operating procedures and whether Sollars had gotten a second opinion on his highly probable conclusion. At no time did Golob object to this testimony. Finally, during rebuttal closing argument, the prosecutor compared Sollars's testimony to Cox's testimony. He stated, "And ask yourself who had some independent verification. . . . Who had the report verified? It was Agent Sollars."

The court of appeals held that Sollars's testimony regarding the independent verification of his results was inadmissible hearsay. However, the court of appeals also concluded that, the error did not fundamentally undermine the fairness of the trial. The court reasoned that the guilty verdict did not depend on the independent verification, but on two related circumstances: (1) the fact that the "bootprints recovered from the scene plainly matched prints made from Golob's boot," and (2) the items recovered from Golob's backpack — the orange mesh vests and the camouflage pants coated with the chemical residue — indicated that he had been at the crime scene.

Hearsay is "a statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." CRE 801(c). Unless an exception applies, hearsay statements are generally inadmissible. CRE 802.

The prosecution contends that the references to independent verification of Sollars's conclusions were not hearsay because they were offered only to explain CBI's protocol for conducting...