People v. Johnson

• Decision Date: 24 October 2002
• Docket Number: No. 00CA1639.,00CA1639.
• Citation: 74 P.3d 349
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Clifford JOHNSON, Defendant-Appellant.
• Court: Colorado Court of Appeals

74 P.3d 349

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Clifford JOHNSON, Defendant-Appellant.

No. 00CA1639.

Colorado Court of Appeals, Div. III.

October 24, 2002.

Rehearing Denied February 20, 2003.

Certiorari Denied July 21, 2003.

Ken Salazar, Attorney General, Wendy J. Ritz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge KAPELKE.

Defendant, Clifford Johnson, appeals the judgment of conviction entered upon a jury verdict finding him guilty of attempted first degree murder, first degree assault, first degree burglary, three counts of menacing, violation of a restraining order, two counts of child abuse, and crime of violence. He also appeals his habitual criminality adjudication and sentence. We affirm in part, reverse in part, and remand with directions.

Defendant and the victim were married, but separated at the time of the events at issue. According to the victim's statement to the police, shortly after she moved out of the marital home, defendant went to her place of business and, in the presence of their two young children, slashed her with a utility knife. Witnesses at trial corroborated that account. At trial, however, the victim changed her story, testifying instead that the knife was hers and that she was injured in a struggle with defendant. She testified that she fabricated her original account to the police because she was angry with defendant.

A senior judge, sitting by assignment, conducted the trial on the substantive charges. However, another judge presided at the habitual criminal hearing and imposed the sentence. Defendant requested a continuance of the hearing on the habitual criminal charges based on a statutory requirement that such a hearing be conducted by the judge who presided at the trial on the substantive charges. The court denied the motion, proceeded with the hearing, and adjudicated defendant a habitual criminal.

I.

Defendant first contends that the court violated his right to a fair trial by an impartial jury by allowing expert testimony concerning "battered woman's syndrome" and the "cycle of violence." We disagree.

During the trial, the prosecution called an expert in the areas of domestic violence and battered woman's syndrome to explain the cycle of violence and the reasons that domestic violence victims sometimes recant their stories. Defendant objected that, because there was no evidence of a longstanding violent relationship between defendant and the victim, such testimony would be irrelevant and of no assistance to the jury. The court allowed the testimony.

The determination whether a witness is qualified to render an opinion helpful to the jury is left to the discretion of the trial court and will not be disturbed absent a clear showing of an abuse of discretion. Huntoon v. TCI Cablevision, Inc., 969 P.2d 681 (Colo.1998). An abuse of discretion does not occur unless the trial court's ruling is manifestly arbitrary, unreasonable, or unfair. People v. Copeland, 976 P.2d 334 (Colo.App.1998), aff'd, 2 P.3d 1283 (Colo.2000).

CRE 702 governs a trial court's determination as to whether expert testimony should be admitted. People v. Shreck, 22 P.3d 68 (Colo.2001). The inquiry should focus on whether the substance of the testimony will be helpful to the jury and whether the witness is qualified to render an expert opinion on the subject in question. Brooks v. People, 975 P.2d 1105 (Colo.1999). This inquiry requires a determination of the reliability of the underlying principles, the qualification of the witness, and the usefulness of the testimony to the jury. People v. Shreck, supra.

If the testimony is admissible under CRE 702, the court must then determine whether the probative value of that evidence is substantially outweighed by the danger of unfair prejudice. CRE 403; Brooks v. People, supra.

We reject defendant's assertion here that opinion evidence regarding battered woman's syndrome and cycle of violence was irrelevant and unhelpful to the jury because there was no evidence of previous domestic violence. As the trial court noted, a police officer had testified that defendant acknowledged having been in prior violent altercations with the victim, although he denied having actually physically assaulted her. That evidence provided a sufficient foundation.

Further, in light of defendant's later testimony admitting that he had a prior conviction in California for spousal injury involving the victim here, any alleged foundational error in the admission of this evidence was harmless.

The expert did not testify concerning the specific facts of this case or indicate that he had any knowledge of the actual relationship between defendant and the victim. Rather, the thrust of the expert's testimony was that victims of spousal abuse often recant their accusations of abuse. The expert went on to list several factors that can lead to such recantations.

Significantly, "[i]n cases involving domestic violence, expert testimony concerning the reasons for victims' recantations is admissible." People v. Lafferty, 9 P.3d 1132, 1135 (Colo.App.1999). The victim here had changed her story, and thus the expert's testimony was relevant to the victim's credibility, a key issue in the case.

With respect to the admissibility of this opinion evidence under CRE 403, we find no abuse of discretion.

In reviewing a trial court's ruling on admissibility of evidence under CRE 403, we "must afford the evidence the maximum probative value attributable by a reasonable fact finder and the minimum unfair prejudice to be reasonably expected." People v. Gibbens, 905 P.2d 604, 607 (Colo.1995). Given that the opinion evidence here was relevant to the issue of the victim's credibility and that the expert did not testify regarding the specific relationship between defendant and the victim, the probative value of the evidence was not substantially outweighed by any unfair prejudicial effect.

Further, while we recognize that People v. Shreck, supra,

states that a trial court must make specific findings as to its determinations under CRE 403 and 702, we find no basis for reversal here for lack of sufficient findings.

The reliability of the principles underlying the battered woman opinion evidence is well recognized. See People v. Lafferty, supra; People v. Yaklich, 833 P.2d 758 (Colo.App.1991)

. Moreover, its helpfulness to the jury here in gauging the victim's credibility is plain. Similarly, as discussed, the evidence was admissible under the balancing test of CRE 403.

Accordingly, we conclude that any error by the court in failing to make specific findings is harmless under the circumstances.

II.

Defendant next contends that his conviction for attempted first degree murder must be reversed because the elemental jury instruction omitted the "after deliberation" component of the mens rea element. We perceive no basis for reversal.

Because defendant failed to object to the jury instruction at trial, we review under a plain error standard and will reverse only if the error so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. Crim. P. 52(b); People v. Fichtner, 869 P.2d 539 (Colo.1994).

A person commits criminal attempt if, "acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense." Section 18-2-101(1), C.R.S.2002. A conviction for attempted first degree murder requires proof that the defendant acted with the intent to kill and after deliberation. Gann v. People, 736 P.2d 37 (Colo.1987); People v. Caldwell, 43 P.3d 663 (Colo.App.2001). The jury instruction defining attempted murder should thus include "after deliberation" as a required element of the offense, and the omission of that element constitutes error. See Gann v. People, supra; People v. Caldwell, supra. Nevertheless, such omission "is not plain error so long as the instructions, read and considered in their entirety, clearly instruct the jury as to the required mens rea." Gann v. People, supra, 736 P.2d at 39.

Here, the instruction advised the jurors that to find defendant guilty of attempted first degree murder, they must find beyond a reasonable doubt that he "intentionally engaged in conduct constituting a substantial step toward the commission of Murder in the First Degree." Another instruction informed the jurors that to be guilty of first degree murder, one must have acted with the intent to kill and after deliberation.

Taken together, the jury instructions here, like those in Gann and Caldwell, informed the jurors that to find defendant guilty of attempted first degree murder, they must find that he intentionally engaged in conduct constituting a substantial step toward committing first degree murder, a crime that requires deliberation. Thus, the instructions, considered as a whole, adequately advised the jury of the required mens rea for the offense. Therefore, we find no plain error.

Further, even if we were to apply the more rigorous standard for alleged constitutional error, we would find no basis for reversal. Under the circumstances, we are confident beyond a reasonable doubt that the instructional error did not contribute to the guilty verdict obtained. Accordingly, the error was harmless. See Griego v. People, 19 P.3d 1 (Colo.2001)

.

III.

Defendant next contends that his child abuse convictions must be reversed because the jury instruction omitted the required element that the child be "unreasonably" placed in danger. We disagree.

Because defendant failed to object to the jury instruction at trial, we again review the instruction under a plain error standard. See People v. Fichtner, supra.

As relevant here, a person commits...