People v. Murphy

• Decision Date: 21 March 2019
• Docket Number: Court of Appeals No. 17CA0397
• Citation: 490 P.3d 439
• Court: Colorado Court of Appeals
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Justine Lynn MURPHY, Defendant-Appellant.

490 P.3d 439

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Justine Lynn MURPHY, Defendant-Appellant.

Court of Appeals No. 17CA0397

Colorado Court of Appeals, Division I.

Announced March 21, 2019

Rehearing Denied May 9, 2019

Philip J. Weiser, Attorney General, Megan C. Rasband, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE TAUBMAN

¶1 Defendant, Justine Lynn Murphy, appeals her judgment of conviction entered on a jury verdict finding her guilty of distributing methamphetamine and contributing to the delinquency of a minor. She contends that the district court erred in permitting unendorsed and unqualified expert testimony under the guise of lay opinion, and that this testimony improperly commented on the meaning of the body language of K.H., a prosecution witness. We reverse and remand for a new trial.

I. Background

¶2 K.H., then fifteen, attended a concert with his thirty-five-year old stepsister, Murphy, in January 2016. The following day, K.H. met with his middle school counselor and assistant principal after one of his teachers expressed concern because K.H. appeared ill. K.H. disclosed to the counselor that he had used methamphetamine the night before while partying with Murphy before the concert. When the counselor asked K.H. if his sister "was a good person to be hanging out with," he responded, "no[,] because his sister does meth and his stepmom uses heroin." School officials searched K.H.’s backpack and discovered drug paraphernalia and a small amount of methamphetamine. They contacted K.H.’s father, J.H., and asked him to pick K.H. up from school. Thereafter, K.H. was admitted to the local hospital for evaluation and recovery.

¶3 School officials also contacted a school resource officer, Deputy Chad Searcy, regarding the information K.H. had offered about his stepsister. Based on this information, Deputy Searcy identified Murphy through law enforcement records and investigative techniques.

¶4 After notifying both J.H. and K.H. that K.H. was not under arrest and could cease the deputy's questioning at any time, another school resource officer, Deputy Mark Johnson, interviewed K.H. from his hospital bed in the presence of J.H. Deputy Johnson testified at trial that, when he asked where K.H. obtained the methamphetamine, K.H. was not immediately forthcoming. In response, Deputy Johnson asked, "Did you get it from [Murphy]?" K.H. "did not deny right away. Instead, his body language changed. He looked — had been looking at me as I was speaking to him. He looked down and away." Deputy Johnson testified that he assumed, based on his training and experience, that K.H. did not want to answer him and that the body language suggested an affirmative answer. Deputy Johnson then asked K.H. if Murphy sold it to him or gave it to him. K.H. stated, "She sells it to me." J.H. terminated the interview before Deputy Johnson could inquire about the transaction.

¶5 Based on Deputy Searcy's identification of Murphy, law enforcement officers searched Murphy's home and found drug paraphernalia.

¶6 In an interview conducted approximately nine months later, in October, K.H. changed his story, telling Deputy Searcy that he had procured the methamphetamine from a dealer friend he encountered in the bathroom at the concert, and that he had injected it before attending school the next morning. At trial, the court admitted recorded jail phone calls Murphy made to her mother, who said, "[K.H.] swears sometimes that you did [give him the methamphetamine], then other times he says no. I almost had [K.H.] convinced to just right [sic] the letter saying he was lying because he was scared."

¶7 Murphy's theory of defense was that law enforcement officials had conducted an inadequate investigation by improperly focusing their investigation on her. She further contended that Deputy Searcy's questioning in October was the first time a law enforcement officer had asked K.H. where he had acquired the drugs, claiming that K.H. consistently said he had obtained the methamphetamine from someone he ran into at the concert. K.H. testified at trial that he had not purchased the drug from Murphy and had never said otherwise. Deputy Johnson testified that, based on his training and experience,¹ he believed that K.H.’s body language indicated he was being deceptive when he looked down and away in response to a question.

¶8 The jury found Murphy guilty of distributing methamphetamine and contributing to the delinquency of a minor. She was sentenced to eight years in the custody of the Department of Corrections.

II. Standard of Review

¶9 We review a trial court's evidentiary decisions for an abuse of discretion. People v. Dunlap , 975 P.2d 723, 741 (Colo.1999). A trial court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair, or when it misinterprets or misapplies the law. Id. ; People v. Ortiz , 2016 COA 58, ¶ 14, 381 P.3d 410, 413.

¶10 If we determine the trial court abused its discretion, we reverse only "if the error affects the substantial rights of the parties." Hagos v. People , 2012 CO 63, ¶ 12, 288 P.3d 116, 119. In other words, "we reverse if the error ‘substantially influenced the verdict or affected the fairness of the trial proceedings.’ " Id. (quoting Tevlin v. People , 715 P.2d 338, 342 (Colo. 1986) ).

III. Lay Witness Testimony

¶11 Murphy contends that the trial court erred in permitting Deputy Johnson to interpret the meaning of K.H.’s body language because his testimony was inadmissible under CRE 701. We agree.

A. Applicable Law

[T]he critical factor in distinguishing between lay and expert testimony is the basis for the witness's opinion. That is, the proper inquiry is not whether a witness draws on her personal experiences to inform her testimony; all witnesses rely on their personal experience when testifying. Rather, it is the nature of the experiences that could form the opinion's basis that determines whether the testimony is lay or expert opinion.... To determine whether the testimony in question is testimony that an ordinary person could give, "courts consider whether ordinary citizens can be expected to know certain information or to have had certain experiences." Expert testimony, by contrast, is that which goes beyond the realm of common experience and requires experience, skills, or knowledge that the ordinary person would not have.

Venalonzo v. People , 2017 CO 9, ¶ 22, 388 P.3d 868, 875 (citations omitted) (quoting People v. Rincon , 140 P.3d 976, 982 (Colo. App. 2005) ); see CRE 701.

¶12 The Venalonzo court held that "in determining whether testimony is lay testimony under [CRE] 701 or expert testimony under CRE 702, the trial court must look to the basis for the opinion." Id. at ¶ 2, 388 P.3d 868, 870-71. The Venalonzo court concluded that, while an interviewer's testimony describing child interview techniques and general child behaviors constituted proper lay witness testimony, testimony explaining that children often use hand gestures "to demonstrate where on their bodies they were touched," coupled with a statement that the victim had engaged in this behavior, was improper. Id. at ¶ 29, 388 P.3d at 876. The supreme court deemed the latter statements improper because the interviewer "attached significance to the victims’ behavior that an ordinary person would not recognize." Id.

¶13 In People v. Ramos , a companion case, the supreme court determined that a detective's testimony — based on his training and experience — differentiating blood cast-off from blood transfer was expert testimony in the guise of lay testimony. 2017 CO 6, ¶ 9, 388 P.3d 888, 891. The court reasoned that the detective's testimony involved technical areas not within an ordinary person's experience or knowledge and concluded that the People improperly relied on it without seeking to qualify the detective as an expert. Id. ; see CRE 702.

¶14 A lay witness may express an opinion of another person's behavior "if the witness had sufficient opportunity to observe the person and to draw a rational conclusion about the person's state of mind; an opinion that is speculative or not based on personal knowledge is not admissible." People v. Jones , 907 P.2d 667, 669 (Colo. App. 1995).

¶15 However, when a witness testifies based on his or her "training and experience," courts generally conclude that the witness provided expert testimony. See, e.g. , People v. Kubuugu , 2019 CO 9, ¶ 16, 433 P.3d 1214, 1217-18 ; Ramos , ¶ 9, 388 P.3d at 891 ; People v. Veren , 140 P.3d 131, 137 (Colo. App. 2005) ; cf. Venalonzo , ¶ 27, 388 P.3d at 875-76 (concluding that an interviewer's statements — based on her training and experience — "describing her professional background, including the number of interviews she has conducted and the number of times she has testified in court, is not expert testimony because any ordinary person is capable of describing her own credentials"). But cf. People v. Garner , 2015 COA 175, ¶ 31, 439 P.3d 4, 12 (determining that a detective's statements that, based on his training and experience, he preferred in-person lineups to photographic lineups was "proper [under CRE 701 ], because the detective, as a lay witness, had substantial experience conducting photo lineups") (cert. granted Oct. 17, 2016).

¶16 Colorado appellate courts have not specifically addressed whether law enforcement officer testimony about conclusions drawn from a witness's body language is admissible lay witness testimony. Therefore, we turn to case law in other jurisdictions for guidance.

¶17 Courts in other jurisdictions have generally found lay testimony interpreting the meaning of a witness's body language impermissible. United States v. Williams , 133 F.3d 1048, 1053 (7th Cir. 1998) ; State v. Reimer , 189 Ariz. 239, 941 P.2d 912, 913-14 (Ariz. Ct. App. 1997) ; ...