People v. Caldwell, No. 99CA1092.

Docket NºNo. 99CA1092.
Citation43 P.3d 663
Case DateSeptember 13, 2001
CourtCourt of Appeals of Colorado

43 P.3d 663

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Cris V. CALDWELL, Defendant-Appellant

No. 99CA1092.

Colorado Court of Appeals, Div. II.

September 13, 2001.

Rehearing Denied November 29, 2001.

Certiorari Denied April 15, 2002.


43 P.3d 666
Ken Salazar, Attorney General, Cheryl Hone, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee

David S. Kaplan, Colorado State Public Defender, Ann M. Aber, Deputy State Public Defender, James Grimaldi, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

43 P.3d 667
Opinion by Judge CASEBOLT

Defendant, Cris V. Caldwell, appeals the judgment of conviction entered upon a jury verdict finding him guilty of attempted first degree murder after deliberation, first degree assault, and two related crime of violence counts. We affirm.

Defendant shot at a sheriff's deputy while the deputy was attempting to stop defendant's vehicle. The deputy was not injured, although one of the bullets struck his bulletproof vest.

Two bullets were recovered from the deputy's vehicle. While defendant did not own a gun, he had access to one through a friend who was living at his house at the time of the shooting. According to the ballistics report, the bullets recovered from the deputy's car could have been fired only from that gun. In addition, the license plates of defendant's vehicle partially matched the description given by the deputy after the shooting, as did the general style of defendant's car.

A friend of defendant testified that defendant admitted he shot at the deputy because he did not want to be stopped and charged with driving under the influence of alcohol.

I.

On an issue of first impression, defendant contends that the trial court erred in admitting the testimony of a lay witness concerning ballistics and bullet trajectory. We disagree.

A nonexpert witness may testify to opinions or inferences, in addition to perceptions, as long as they are rationally based on the witness' own perceptions and are helpful to the jury in understanding the testimony or determining a fact in issue. CRE 701. If, however, the opinion or inference expressed is beyond common experience or is based on knowledge of a scientific, technical, or specialized nature, the witness must qualify as an expert in the relevant field. CRE 702.

A trial court has broad latitude in determining whether a lay witness is qualified to express opinions. Thus, only if there is an abuse of this discretion will the trial court's decision be disturbed on review. Hock v. New York Life Ins. Co., 876 P.2d 1242 (Colo.1994).

Here, a former police officer, employed as a crime scene technician at the time of the shooting, testified that after the shooting, he photographed and collected evidence from the deputy's patrol car. He also testified about the appearance and location of the two bullet holes on the outside of the car, the hole inside the car, and the dimpling of the metal inside the car. From his own observations and the use of a dowel and string, the technician testified that he tracked the paths of the two bullets, one that entered the vehicle just in front of the driver's side window near the spotlight and another that entered the vehicle through the metal frame behind the rear window, also on the driver's side. The photos of the vehicle depicting the bullet holes, fragments, and the dowel and string used by the technician were also introduced into evidence.

Defendant objected to the introduction of the photographs and to the witness' opinion testimony regarding the trajectory of the bullets. Defendant asserted that the witness was not qualified as an expert under CRE 702, and that such testimony was of a scientific nature, beyond the common experience of the jury. The trial court overruled the objections.

We note that, generally, expert testimony is required when introducing ballistics evidence, because such testimony is often introduced to explain how the shooting occurred, the position and proximity of the shooter in relation to the victim, and the existence or absence of self-defense. See, e.g., State v. Mincey, 130 Ariz. 389, 636 P.2d 637 (1981); State v. Saunders, 317 N.C. 308, 345 S.E.2d 212 (1986); State v. Walters, 551 A.2d 15 (R.I.1988).

Here, however, the witness' testimony included only his observations about the entry locations of the bullets and the path they traveled inside the vehicle. Such observations could just as easily have been made by the jury from the photographs. No special expertise is required to look at the hole made by the bullet and realize that it followed a straight-line path. See United States v.

43 P.3d 668
Pierson, 503 F.2d 173 (D.C.Cir.1974)(a layman, under certain circumstances, can look at a bullet hole in a wall and see whether it appears to come from one direction or another; no special expertise is required). Consequently, we perceive no abuse of discretion in the trial court's ruling allowing this lay witness' opinion testimony

Defendant's reliance on People v. Stewart, 26 P.3d 17 (Colo.App.2000)(cert. granted June 25, 2001), is misplaced. In that case, a division of this court determined that the trial court had abused its discretion in allowing a police officer, who had investigated the scene of an assault involving a motor vehicle, to testify regarding his experimentation with respect to, and his reconstruction of, the incident, without first qualifying him as an expert. The division found that while the testimony was not encumbered with scientific terminology and the trappings of complex theories, it involved considerably more than common experience and required practical knowledge of a scientific, technical, or specialized nature.

In contrast, here, the witness did not conduct any experiments or attempt to reconstruct the incident. Rather, he testified about the location of the bullet holes and the paths of the bullets that were evident from the photographs without any additional explanation. Thus, the witness was not conveying information that required a specialized or scientific knowledge to understand. Consequently, People v. Stewart, supra, is inapposite.

II.

Asserting a violation of his due process and confrontation rights, defendant contends that the trial court erred by admitting testimony from the prosecution's ballistics expert regarding the results of an independent examination of the bullets and weapon that confirmed his initial findings and hearsay statements by defendant's wife concerning defendant's guilt. We conclude that any error was harmless beyond a reasonable doubt.

CRE 801(c) defines hearsay as "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." Generally, unless a specific exception applies, hearsay statements are inadmissible. See People v. Griffin, 985 P.2d 15, 17 (Colo.App.1998).

However, errors in the admission of evidence, even of constitutional dimension, do not require reversal of a criminal conviction if the error is harmless beyond a reasonable doubt. To determine whether such an error is harmless, an appellate court must examine the facts of the case to determine whether the error affected the outcome of the case. Topping v. People, 793 P.2d 1168 (Colo.1990). For example, if the evidence is merely cumulative and does not substantially influence the verdict or affect the fairness of the trial proceedings, any error in its admission is harmless. See People v. Fuller, 788 P.2d 741 (Colo.1990).

A.

On direct examination, the prosecution's ballistics expert testified that he had no doubt that the bullets recovered from the deputy's car were fired from the gun retrieved from the friend who had been staying at defendant's home. In addition, he testified that pursuant to an internal policy, his findings were subjected to a peer review process. When asked whether the review process confirmed his findings, defendant objected, asserting that such evidence was hearsay. The trial court overruled the objection, and the expert testified that the second examination confirmed his conclusions.

Because the challenged statement was merely cumulative of the expert's own uncontested findings, and there was other evidence to support defendant's conviction, we conclude that the challenged statement did not substantially influence the verdict or affect the fairness of the trial proceedings. Thus, even if we assume that the challenged statement constituted inadmissible hearsay, any error occasioned by the admission of this statement was harmless beyond a reasonable doubt. See People v. Griffin, supra (concluding that erroneous admission of hearsay statement regarding confirmation of expert's conclusion was harmless beyond a reasonable

43 P.3d 669
doubt because it was merely cumulative and defendant's guilt was supported by other evidence).

Here, defense counsel cross-examined the prosecution's expert, but made no attempt to challenge or discredit the expert's conclusion that the bullets came from the gun that was in defendant's house. Instead, he limited his inquiries to whether the witness was biased in favor of the police and prosecution. In addition, defendant did not present his own expert to refute any of the findings and opinions of the testifying expert.

Further, during closing argument, defense counsel did not argue that the expert's conclusions were erroneous, but rather focused on the fact that the prosecution could not positively place defendant with that gun at the time of the shooting.

Accordingly, we find no grounds for reversal here.

B.

Defendant also asserts his wife's statements to the deputy regarding his guilt should not have been admitted. Again, we conclude that any error in the admission of this testimony was harmless beyond a reasonable doubt.

Here, the deputy testified that approximately three months after the shooting, he went to defendant's house to...

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37 practice notes
  • People v. Whitman, No. 04CA1428.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 29, 2007
    ...presentation of evidence. CRE 611. Absent an abuse of discretion, the court's rulings will not be disturbed on review. People v. Caldwell, 43 P.3d 663, 670 When RW was first called to the stand, she seemed withdrawn and unwilling to testify. The prosecutor called a recess, and, outside the ......
  • People v. Richardson, Court of Appeals No. 15CA0526
    • United States
    • Colorado Court of Appeals of Colorado
    • August 23, 2018
    ...with other witnesses’ testimony, and defense counsel had ample opportunity to challenge her on cross-examination. See People v. Caldwell , 43 P.3d 663, 667 (Colo. App. 2001) (The trial court did not err in admitting a lay witness’ testimony on ballistics based on the witness’ observations b......
  • People v. Collins, No. 06CA1173.
    • United States
    • Colorado Court of Appeals of Colorado
    • May 29, 2008
    ...in one instruction rather than omitting an essential element from the elemental instruction describing the offense. People v. Caldwell, 43 P.3d 663, 671 (Colo.App.2001) ("The preferable practice is to include the mens rea element of an offense in the instruction defining the As for the burg......
  • People v. Grant, No. 03CA1034.
    • United States
    • Colorado Court of Appeals of Colorado
    • January 25, 2007
    ...references to improper definition of "after deliberation" during jury voir dire and closing argument not plain error); People v. Caldwell, 43 P.3d 663, 672 (Colo.App.2001) (prosecution's isolated misstatement concerning "after deliberation" standard not plain VIII. Sufficiency of Evidence D......
  • Request a trial to view additional results
37 cases
  • People v. Whitman, No. 04CA1428.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 29, 2007
    ...presentation of evidence. CRE 611. Absent an abuse of discretion, the court's rulings will not be disturbed on review. People v. Caldwell, 43 P.3d 663, 670 When RW was first called to the stand, she seemed withdrawn and unwilling to testify. The prosecutor called a recess, and, outside the ......
  • People v. Richardson, Court of Appeals No. 15CA0526
    • United States
    • Colorado Court of Appeals of Colorado
    • August 23, 2018
    ...with other witnesses’ testimony, and defense counsel had ample opportunity to challenge her on cross-examination. See People v. Caldwell , 43 P.3d 663, 667 (Colo. App. 2001) (The trial court did not err in admitting a lay witness’ testimony on ballistics based on the witness’ observations b......
  • People v. Collins, No. 06CA1173.
    • United States
    • Colorado Court of Appeals of Colorado
    • May 29, 2008
    ...in one instruction rather than omitting an essential element from the elemental instruction describing the offense. People v. Caldwell, 43 P.3d 663, 671 (Colo.App.2001) ("The preferable practice is to include the mens rea element of an offense in the instruction defining the As for the burg......
  • People v. Grant, No. 03CA1034.
    • United States
    • Colorado Court of Appeals of Colorado
    • January 25, 2007
    ...references to improper definition of "after deliberation" during jury voir dire and closing argument not plain error); People v. Caldwell, 43 P.3d 663, 672 (Colo.App.2001) (prosecution's isolated misstatement concerning "after deliberation" standard not plain VIII. Sufficiency of Evidence D......
  • Request a trial to view additional results

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