People v. Perryman, 90CA1760

• Decision Date: 25 February 1993
• Docket Number: No. 90CA1760,90CA1760
• Citation: 859 P.2d 263
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ricky C. PERRYMAN, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 263

859 P.2d 263

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Ricky C. PERRYMAN, Defendant-Appellant.

No. 90CA1760.

Colorado Court of Appeals,

Div. I.

Feb. 25, 1993.

Rehearing Denied April 1, 1993.

Certiorari Denied Sept. 27, 1993.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul Koehler, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colo. State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge PIERCE.

Defendant, Ricky C. Perryman, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of second degree murder. We affirm.

On June 3, 1989, the partially nude body of a woman was discovered hidden under a blanket of insulation in an abandoned building. An autopsy revealed that she had been killed at approximately 1:00 a.m. on June 2, and that she had been beaten and sexual intercourse had occurred before she was strangled to death. Sheriff's investigators also discovered numerous shoe prints in and around the building where the victim was discovered.

Defendant, who was the last person seen with the victim the night she was killed, checked out of his hotel at 4:00 a.m. on June 2 and drove to Oklahoma.

Police officers interviewed defendant in Oklahoma on June 7, 1989. During the interview, he claimed that he had left the victim in the parking lot of his hotel at midnight on June 1. The officers asked for and were given defendant's shoes, which he admitted he was wearing on the night he was with the victim.

The soles of defendant's shoes were photographed, and the photographs were compared to a shoe print found on a piece of sheetrock in the building where the victim's body was discovered. Experts from the Colorado Bureau of Investigation later determined that the print on the sheetrock had been made by defendant's left shoe.

Subsequently, defendant was arrested and charged with first degree murder, felony murder, first degree sexual assault, and two counts of crime of violence. Following a trial to the jury, defendant was convicted of the lesser included offense of second degree murder and acquitted on the other charges.

I.

On appeal, defendant first contends that the trial court erred in admitting evidence of the shoe print identification and comparison. He argues that such evidence is based upon a "novel" scientific technique and that its admissibility is governed by the standard set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Defendant further argues that the prosecution did not establish that the print comparison testing procedures employed by the prosecution's experts were reliable and generally accepted in the scientific community as required under Frye and, therefore, the trial court erred in admitting the testimony. We disagree.

Whether a sufficient foundation has been laid for the admission of evidence is a matter within the sound discretion of the trial court, and its ruling will not be disturbed absent a clear abuse of that discretion. See People v. Bell, 809 P.2d 1026 (Colo.App.1990).

Under Frye, evidence based upon "novel" scientific techniques may be admitted upon a showing that (1) a theory supporting the proffered conclusion exists and is generally accepted in the scientific community, (2) techniques which are generally accepted in the scientific community exist and are capable of producing reliable results, and (3) the accepted scientific techniques were performed in this particular case. See Frye v. United States, supra; People v. Lindsey, --- P.2d ---- (Colo.App. No. 90CA0556, January 7, 1992).

As our supreme court noted in People v. Hampton, 746 P.2d 947, 951-52 (Colo.1987), the Frye test is appropriate in determining the admissibility of novel scientific devices and processes involving the manipulation of physical evidence including lie detectors, experimental systems of blood typing, voiceprints, identification of human bite marks, and microscopic analysis of gunshot residue.

Accordingly, the Frye test has been applied in Colorado to the admissibility of polygraph results, People v. Anderson, 637 P.2d 354 (Colo.1981), DNA "fingerprinting," People v. Lindsey, supra, and "absorption inhibition" testing to determine the blood type of an assailant from semen samples left by him. People v. Banks, 804 P.2d 203 (Colo.App.1990). See also H. Furman, The Introduction of Scientific Evidence in Criminal Cases, 22 Colo.Law. 273 (1993). In each of these cases, the proffered evidence was obtained through some form of physical testing. See People v. Banks, supra, 804 P.2d at 204.

However, if the proffered evidence does not depend upon any scientific device or process, the Frye test has been rejected in favor of the less-restrictive test of CRE 702. See, e.g., Campbell v. People, 814 P.2d 1 (Colo.1991) (applying CRE 702 to expert testimony regarding the reliability of eyewitness identification); People v. Hampton, 746 P.2d 947 (Colo.1987) (applying CRE to expert testimony concerning the symptoms of rape trauma syndrome).

CRE 702 provides that:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The trial court retains discretionary authority under CRE 403 to exclude relevant expert testimony if its probative value is "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Campbell v. People, supra, 814 P.2d at 8. Under the less restrictive test of CRE 702, a trial court's ruling to admit or exclude such expert testimony will not be overruled on appeal unless the ruling is manifestly erroneous. Campbell v. People, supra.

Here, the prosecution offered the testimony of an expert to compare the characteristics of defendant's shoes to the prints found near the victim's body. Because this process involves no "manipulation" of physical evidence and because the understanding of the expert's techniques was readily accessible to the jury and not dependent upon familiarity with highly technical or obscure scientific theories, we conclude that CRE 702 is the appropriate test to determine the admissibility of the shoe identification and comparison in this case. See State v. Hasan, 205 Conn. 485, 534 A.2d 877 (1987) (rejecting the Frye test in determining the admissibility of forensic podiatry testimony establishing that sneakers were worn by defendant). Therefore, contrary to defendant's assertion, it was unnecessary for the prosecution to show that the theories and techniques applies were generally accepted in the scientific community under Frye.

Nevertheless, we conclude that the prosecution made a sufficient showing under either the Frye test or CRE 702 to admit the shoe print identification and comparison evidence.

Following a hearing at which the prosecution's expert testified, the trial court specifically found that "many courts have commonly accepted shoe comparisons as scientifically acceptable" and that nationwide standards exist capable of generating "scientifically reliable" results. It also found that the shoe comparison testimony offered by the prosecution "appears both reliable and probative" and that the jury would not give undue weight to the prosecution's expert because he was an expert. Finally, the trial court ruled that the prosecution's witness "could be qualified as an expert in the area of shoe comparisons," based upon his years of experience and education in the field. Because these findings are supported by ample evidence in the record, we find no abuse of discretion in the trial court's ruling. See People v. Bell, supra.

Defendant contends that this showing was insufficient because Frye requires additional expert testimony, independent from that of their shoe print identification expert, as to the general acceptance of the field in the scientific community. We disagree.

We acknowledge that other jurisdictions which have applied the Frye test have required more than the testimony of a single expert regarding the acceptance of a field in the scientific community. See, e.g., People v. Kelly, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (1976) ("[W]e think it questionable whether the testimony of a single witness alone is ever sufficient to represent, or attest to, the views of an entire scientific community regarding the reliability of a new technique."). However, we conclude that the better reasoned view is that a trial court may rely on the testimony of a single witness in admitting scientific evidence under the Frye test if the witness is qualified through knowledge, skill, training, education, or experience to render an opinion as to the general acceptance of the techniques and the opposing party has an opportunity fully to cross-examine the expert on the basis of his opinions. See People v. Banks, supra. This standard provides an adequate assurance of reliability in the scientific testimony and avoids the unnecessary costs and delays occasioned by the presentation of cumulative or duplicative testimony.

Here, the prosecution's expert had over sixteen years of experience in the field of shoe print identification and comparison, had attended seminars on the subject with the leading authorities in the field, was familiar with the literature in the field, and had testified as an expert in numerous prior cases. Under these circumstances, we find no abuse of discretion in the trial court's admitting the shoe print identification and comparison evidence under Frye or CRE 702. See People v. Banks, supra.

II.

Defendant next contends that the prosecution's evidence was...