People v. Griffin, 96CA2139.

• Citation: 985 P.2d 15
• Decision Date: 24 December 1998
• Docket Number: No. 96CA2139.,96CA2139.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Henry L. GRIFFIN, Jr., Defendant-Appellant.
• Court: Court of Appeals of Colorado

985 P.2d 15

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Henry L. GRIFFIN, Jr., Defendant-Appellant.

No. 96CA2139.

Colorado Court of Appeals, Div. V.

December 24, 1998.

Rehearing Denied February 18, 1999.

Certiorari Denied September 20, 1999.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Lauren A. Edelstein, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Ann M. Roan, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge BRIGGS.

Defendant, Henry L. Griffin, Jr., appeals the judgment of conviction entered on jury verdicts finding him guilty of second degree kidnapping, first degree sexual assault, second degree assault, and second degree sexual assault. We affirm.

A man dragged a woman into a van and sexually assaulted her. The victim identified defendant in a photo line-up and at trial. Defendant's step-grandfather testified that at the time of the assault defendant owned a van matching the description given by the victim. An expert in physical evidence testified that semen taken from the victim's vagina contained genetic markers found in defendant's blood; that samples of pubic hair taken from the victim were consistent with defendant's type of hair; and that four hairs found imbedded in the back of defendant's van were consistent with the victim's type of hair.

I.

Defendant contends the trial court erred by admitting inadmissible hearsay evidence when it allowed the prosecution's expert witnesses to bolster her testimony by stating her work had been subject to peer review. This, the defendant claims, violated his constitutional right to confront witnesses against him. We agree the evidence was not admissible but conclude the error was harmless.

A.

The prosecutor presented the testimony of an employee of the Colorado Bureau of Investigation (CBI). The trial court accepted the employee as an expert in serology and in hair and fiber analysis. Among other things, the expert testified that in her opinion, based on her comparison of numerous morphological characteristics, various pairs of hair samples were similar.

When the witness began describing the steps taken in making the comparisons, defense counsel objected. In a side-bar conference, counsel argued that the witness should not be permitted to testify that another examiner, not called as a witness at trial, had reached the same conclusions. The argument was that the testimony would be hearsay and would violate defendant's constitutional right of confrontation.

In response, the prosecutor acknowledged that the witness did not rely on the other expert in forming her opinions and, thus, did not argue the evidence was admissible under CRE 703. The prosecutor nevertheless argued the evidence was not hearsay and was admissible to show standard protocol.

The trial court concluded that the witness could describe the standard procedures for double-checking accuracy and whether that protocol was followed, but could not testify as to the opinion given by the other expert.

The following questioning then occurred:

Q: Agent, without indicating statements or conclusions of anyone, is it CBI that your work is checked? [sic]

A: It is critical we are subjected to peer review, yes.

Q: And was that done in this case?

A: Yes, it was; it's done in all cases.

B.

Defendant contends the testimony implies that the opinions of the peer, who did not testify, were the same as those of the testifying expert. He argues that the evidence was inadmissible hearsay because it was offered to prove the truth of the assertion that the various hair samples were similar. He further argues that the evidence was not admissible under CRE 703 because the peer did not provide facts or data upon which the testifying expert relied in forming the opinions she gave at trial.

The People in response acknowledge that the testifying expert did not rely upon the conclusions of the peer as a basis for the opinions she gave at trial, so as to bring the testimony within the scope of CRE 703. The People nevertheless assert that the testimony did not include any hearsay because the witness did not actually testify to any assertions made to her by the peer. Any inference that the jury might have drawn from the testimony was incidental. Further, even if the testimony did include an implied assertion that the peer's conclusions were the same, the intent was not to improperly bolster the credibility of the testifying expert, but merely to explain routine practices and procedures.

We conclude that the evidence was inadmissible hearsay. However, we note at the outset that neither party raised the issue before the trial commenced or presented any authority in support of their arguments at trial. This left the trial court to resolve, in the midst of trial, a conceptually complex issue. See generally 2 McCormick on Evidence §§ 246 & 250 (J. Strong 4th ed.1992); R. Bacigal, Implied Hearsay: Defusing the Battle Line Between Pragmatism and Theory, 11 S. Ill. Univ. L.Rev. 1127 (1987).

1.

CRE 801(c) defines hearsay as "a statement other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." Under CRE 801(a): "A `statement' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him to be communicative." The rule is identical to its federal counterpart.

The rule addresses the classic dilemma of the implied assertion. That dilemma is how to treat a statement or conduct by a person out of court, not subject to cross-examination at trial, described by a witness at trial, from which a fact finder could infer a separate fact.

On the one hand, the statement or conduct described by the testifying witness can be treated as containing hearsay. This is because, even though a separate assertion is only implied, it remains an assertion made out of court by a witness not subject to cross-examination. On the other hand, the statement or conduct can be treated as containing no hearsay. This is because the fact to be proved was not literally asserted, but only inferred from separately described statement or conduct. CRE 801(a), like its federal counterpart, resolves the dilemma by focusing solely on whether the assertion or conduct by the out-of-court witness was intended to imply to the testifying witness a separate fact in question at trial. See generally 2 McCormick on Evidence, supra; R. Bacigal, supra.

At first blush, the issue before us appears to present a typical example of an implied assertion by a witness not subject to cross-examination, the testifying expert's peer. However, while not discussed by the parties, upon closer examination the issue presented here in fact involves, not an implied assertion by the peer, but an implied assertion by the testifying expert. In context, the assertion is that the peer expressly informed the testifying expert that the peer had conducted appropriate examinations and reached the same conclusions as the testifying expert.

The statements made by the out-of-court witness, the peer, were oral or written assertions, obviously intended to be communicative. Although these statements were implied by the testifying witness, they were nevertheless offered in evidence to help prove the truth of the matters asserted. Under any approach, the peer's assertions were "statements" that fell within traditional notions of hearsay. See CRE 801(a) & 801(c); Hutchinson v. Groskin, 927 F.2d 722 (2d Cir.1991)(improper to use testifying expert as a conduit for hearsay statements of another expert that bolster the testifying expert's opinion).

We reject the People's argument that we should conclude to the contrary because the testifying expert was merely describing standard protocol, and she did not intend to imply any assertion made to her by her peer. The argument ignores that the testifying expert did not merely state, for example, that it was standard protocol to double-check work, thus describing standard protocol without creating an inference that another person had formed the same opinions. Instead, the expert expressly referred to peer review of her conclusions.

Furthermore, the argument focuses on the communicative intent of the wrong person. Under CRE 801(a), whether an implied assertion is a "statement" is determined by focusing, not on the communicative intent of the person testifying, but on that of the person out of the courtroom who is not subject to cross-examination at trial.

Whatever may have been the communicative intent of the testifying expert, the implication of her testimony was that the person not subject to cross-examination, her peer, intended to communicate to her assertions made out of court. They were offered in evidence to help prove the truth of the matters asserted. Thus, the peer's statements, even though implied, were inadmissible hearsay. See CRE 801(a) & 801(c).

2.

We further agree that the hearsay was not admissible under CRE 703. That rule permits an expert to testify to facts and data that need not be admissible in evidence if they formed the basis of the expert's opinion and are of the type reasonably relied upon by experts in the field.

The use of facts and data to which CRE 703 applies is distinct from the use here. As acknowledged by the People, the testifying expert did not use the peer's conclusions as a basis for her findings and opinions. The conclusions merely bolstered her findings and opinions. See Hutchinson v. Groskin, supra; C.S.I. Chemical Sales, Inc. v. Mapco Gas Products, Inc., 557 N.W.2d 528 (Iowa App.1996)

("important distinction" between the introduction of information or an opinion of a nontestifying expert as a basis for a testifying expert's opinion and the use of that information to corroborate the testifying...