People v. Bobian, Court of Appeals No. 16CA0746

• Docket Nº: Court of Appeals No. 16CA0746
• Citation: 461 P.3d 643
• Case Date: December 19, 2019
• Court: Court of Appeals of Colorado

461 P.3d 643

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Michael Edward BOBIAN, Defendant-Appellant.

Court of Appeals No. 16CA0746

Colorado Court of Appeals, Division VI.

Announced December 19, 2019

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 by JUDGE TERRY

461 P.3d 646

¶ 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, 420 P.3d 969. 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, 312 P.3d 208.

¶ 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, 388 P.3d 868. 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 , 2017 CO 6, ¶ 9, 388 P.3d 888, 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 cast[-]off?

A: Yes.

Q: Also there's kind of a hole back there by — behind the kitchen or behind the table there [and] you also took note of that as well, didn't you?

A: Correct. There's an indentation or a hole in the wall, in the drywall. And there appears to be blood next to it. The blood next to it appears to be a smear of some sort. That means that blood was on an object, came in contact with another object. It didn't actually travel through the air. We didn't know why that hole in the wall was there. That was one of the discussions I had with [another officer]. ...

....

Q: [L]ooking at [exhibit] 27, [i]s this again kind of the pattern that you're talking about here with the door?

A: Correct. This is the slit that we see. We believed that was connected to the incident. And then the cast[-]off blood pattern as it travels down, you can see a thinner tail at the top — or a thinner [tail] on one side of it and a deeper or more large base on the end. ...

....

Q: And you're noting there both this kind of pattern of dashes straight down in the line in the left that's seemed to being marked nick marks [sic] almost from something hitting it; is that right?

A: Correct. They were consistent with something striking ... the door.

¶ 17 Detective Longobricco described the marks on the door:

A: This is the slit mark or the indentation at the top. This became my concern because I wanted to know if that was consistent with the stories that we were hearing in the interviews.

Q: And that's the story that [Torres] said of [the victim] hitting the hatchet against the door?

A: Correct. I wanted to look at this and document it to see if it was consistent with a hatchet strike.

Q: Did you end up doing that?

A: Based on just the — my response as a police officer, I believed that it was consistent due to the width, the depth and the height was consistent [sic]. If somebody hit it with a sledge hammer ....

¶ 18 At this point, defense counsel moved to strike this testimony as expert testimony, but the court overruled the objection. The

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detective then testified, "So if somebody hit it with a hammer or sledge hammer, it would leave a different type of mark, not a thin mark."

C. Discussion

¶ 19 Bobian contends that Detective Longobricco's testimony about blood patterns and tool markings amounted to improper expert testimony. Though we agree that it was expert testimony and was improperly admitted, we conclude that the error was harmless.

¶ 20 The detective's reference to the blood evidence as "cast-off" required specialized knowledge that an ordinary person would not have, and he purported to rely on his training in blood pattern analysis. See Ramos , ¶ 9 (stating that an ordinary person without the testifying officer's nineteen years of experience would not have been able to provide testimony distinguishing cast-off blood from blood transfer). Detective Longobricco's testimony on this issue was therefore expert testimony, and the court erred by admitting his opinions about how the blood got onto the surface of the door, whether it was "cast-off" blood or a "smear" of blood, and how the blood traveled when it hit the surface. See id. at...