People v. Cauley

• Citation: 32 P.3d 602
• Decision Date: 07 June 2001
• Docket Number: No. 99CA1930.,99CA1930.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dirk O. CAULEY, Defendant-Appellant.
• Court: Colorado Court of Appeals

32 P.3d 602

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dirk O. CAULEY, Defendant-Appellant.

No. 99CA1930.

Colorado Court of Appeals, Div. V.

June 7, 2001.

Certiorari Denied October 15, 2001.¹

Ken Salazar, Attorney General, Miles D. Madorin, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

Haddon, Morgan & Foreman, P.C., Rachel A. Bellis, Denver, CO, for Defendant-Appellant

Opinion by Judge TAUBMAN

Defendant, Dirk O. Cauley, appeals the judgment of conviction entered upon a jury verdict finding him guilty of criminally negligent child abuse resulting in death. We affirm.

On the night of January 30, 1998, defendant called 911, and subsequently, an ambulance brought his three-month-old daughter to the Summit County medical facility. Because of the massive head trauma, she was transported to a children's hospital in Denver. Based upon her head trauma, the hospital treated her situation as a case of possible child abuse. The daughter died a few days later after being removed from the life support system.

The prosecution's theory at trial was that defendant's daughter was a victim of shaken baby syndrome and that defendant killed her by shaking her. It argued that his daughter's injuries were not consistent with his explanation of the events.

According to defendant's testimony at trial, he and his daughter had been lying on his bed when he heard the phone ring. Defendant got up with his daughter and ran to answer the phone, but he tripped and fell, landing on his daughter.

After a jury trial, defendant was convicted and sentenced to fourteen years in the Department of Corrections. He now appeals that judgment of conviction.

I. Prior Injury Evidence

Defendant first contends that the trial court abused its discretion by allowing two expert witnesses to testify pursuant to CRE 703 about the healing rib fractures that they discovered during the daughter's autopsy and that formed a basis for one expert's opinion that the injuries were caused by shaken baby syndrome. We find no abuse of discretion.

Specifically, defendant contends that, even though the prosecution sought to admit this evidence only under CRE 703 and conceded that it was not admissible under CRE 404(b), CRE 703 cannot properly be used as a backdoor approach to admit evidence that otherwise would be excluded under CRE 404(b). He argues that, although it was admitted only under CRE 703, the evidence of his daughter's healing rib fractures should have been excluded by application of CRE 404(b) because it was character evidence of an uncharged act offered to establish intent and absence of accident concerning the charged offense. We disagree.

Trial courts have considerable discretion in determining the admissibility of evidence. Therefore, absent an abuse of discretion, an appellate court will not overturn a trial court's evidentiary determination. People v. Ibarra, 849 P.2d 33 (Colo.1993). Such an abuse of discretion occurs only when the court's evidentiary ruling is manifestly arbitrary, unreasonable, or unfair. People v. Wallen, 996 P.2d 182 (Colo.App.1999).

Here, in a pretrial motion, the prosecution sought to admit evidence from the autopsy showing that the daughter had four healing rib fractures. It initially sought admission of these autopsy findings pursuant to CRE 404(b) as prior acts evidence and also pursuant to CRE 702 and 703 as a basis for the expert opinions of the coroner and the pediatrician, even though the coroner ultimately did not use this evidence as a basis for his opinion that the daughter suffered from shaken baby syndrome. At a pretrial hearing, the prosecution dropped its request that the evidence be admitted pursuant to CRE 404(b), but continued to seek admission of the evidence pursuant to CRE 703.

In an extremely thorough and detailed order, the trial court granted the prosecution's motion. The trial court anticipated the supreme court's decision in People v. Shreck, 22 P.3d 68 (Colo. 2001), in concluding that admission of expert evidence is controlled by CRE 702, rather than by the test set forth in Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).

The trial court concluded that the evidence of healing rib fractures is the type of evidence reasonably relied upon by medical experts in forming their opinions about shaken baby syndrome and that such evidence was relevant here to the experts' conclusions that the cause of death was nonaccidental. The court also found that the evidence would not overwhelm or mislead the jury because it was based upon scientific medical research, observation, and opinion. The court went on to say that, based on Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), the evidence need not show that defendant inflicted the prior injuries and that a limiting instruction would be given regarding this evidence. Finally, the court concluded that the evidence was relevant and that its probative value was not substantially outweighed by any danger of unfair prejudice.

A. Testimony of the Coroner

We find no abuse of discretion in the trial court's allowing the testimony of the coroner regarding the rib fractures.

We will not reverse a conviction because of an erroneous evidentiary ruling if the error is harmless. Crim. P. 52(a). Harmless error is any error that does not substantially influence the verdict or affect the fairness of the proceedings. People v. Snook, 745 P.2d 647 (Colo.1987).

Here, the coroner, qualified as an expert in forensic and clinical pathology, testified on direct examination that he found healing rib fractures during the autopsy. This testimony was relevant to provide context to the coroner's observations and was not linked to any conduct by defendant. Thus, its probative value was not substantially outweighed by the danger of unfair prejudice. See CRE 402, 403. Further, the coroner stated that he did not rely on this evidence in reaching his conclusion that the daughter had suffered from shaken baby syndrome. Consequently, even if we assume that its admission was erroneous, any error was harmless.

B. Testimony of the Pediatrician

We also find no abuse of discretion in the court's allowing the pediatrician, who observed the autopsy, to testify regarding the rib fractures as a basis of her opinion that the daughter had died as a result of shaken baby syndrome.

Pursuant to CRE 702, experts may offer opinion testimony. CRE 703 describes the permissible bases of opinion testimony as follows:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Here, the pediatrician, qualified as an expert in pediatric medicine and child abuse, testified that during the autopsy, the coroner observed four healing rib fractures on the daughter. According to the pediatrician, the presence of rib fractures in a child of that age was "very worrisome" because the child would have been unable to roll over or cause harm to herself, and the ribs of a child that young are extremely flexible and difficult to break. Therefore, the presence of rib fractures indicated nonaccidental trauma in an infant. The pediatrician did not testify that defendant had caused these fractures.

After this testimony, the court gave the following limiting instruction to the jury:

At this time you are instructed that you are not to consider [the evidence of broken ribs] for any purpose other than the limited purpose for which it was admitted. You are instructed that the injury to ribs is being offered because it is the type of evidence upon which experts in the field of child abuse rely ... to conclude that trauma is non-accidental in nature. There is no evidence to establish that Dirk Cauley inflicted the injuries to the ribs. You must consider the evidence only for the limited purpose that it is being admitted.

Defendant argues that, even though the evidence was offered under CRE 703, which allows an expert to rely upon evidence that is otherwise not admissible, its admissibility is also governed by CRE 404(b), which limits the admission of prior bad acts evidence. Otherwise, defendant contends, experts will be able to circumvent freely the procedural safeguards contained in CRE 404(b). We disagree.

Contrary to defendant's contention, we conclude that the trial court did not abuse its discretion in allowing the pediatrician to testify that the rib fractures were a basis for her conclusion that the daughter died as a result of shaken baby syndrome.

Here, the evidence of healing rib fractures was not admitted pursuant to CRE 404(b), and it was not offered to establish defendant's intent or the absence of accident concerning the charged offense. The expert's opinion was based upon facts reasonably relied on by experts in the medical field, and the information was relevant to the trier of fact to determine the cause of the daughter's death. See CRE 703. To prevent any undue prejudice, the trial court gave a limiting instruction, informing the jury that the evidence was to be used for a limited purpose and that there was no evidence linking defendant to the past injuries. In addition, the trial court carefully conducted the balancing test under CRE 403 by weighing the probative value of this evidence against any possible unfair prejudice that could result from its admission. Thus, the evidence was properly admitted.

Our conclusion is supported by People v. Gordon, 738 P.2d 404 (Colo.App.1987), in which the court held that a pediatrician qualified as an expert in the field of child abuse could testify as to the discrepancy between what the defendant reported had happened to his daughter and what the autopsy revealed. There, the pediatrician concluded that the baby's death...