People v. Rector, No. 06CA0747.

• Citation: 226 P.3d 1170
• Decision Date: 09 July 2009
• Docket Number: No. 06CA0747.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Tember Terri RECTOR, Defendant-Appellant.
• Court: Court of Appeals of Colorado

226 P.3d 1170

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Tember Terri RECTOR, Defendant-Appellant.

No. 06CA0747.

Colorado Court of Appeals, Div. I.

July 9, 2009.

John W. Suthers, Attorney General, Corelle M. Spettigue, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Paul Grant, Parker, Colorado, for Defendant-Appellant.

Opinion by Judge TAUBMAN.

Defendant, Tember Terri Rector, appeals the judgment of conviction entered upon a jury verdict finding her guilty on one count of felony child abuse. Because we conclude Dr. Andrew Sirotnak, an expert witness for the People, was improperly permitted to testify that the injuries to the child victim, T.D., were caused by child abuse, we reverse and remand.

I. Background

Rector and her husband cared for children as foster parents, including T.D., a three-year-old child, in 2004. On February 2, 2004, T.D. was in Rector's care when he was severely injured. Rector was convicted of felony child abuse for causing his injuries, specifically for violating section 18-6-401(1)(a) and (7)(a)(III), C.R.S.2008, which provide:

(1)(a) A person commits child abuse if such person causes an injury to a child's life or health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the child's life or health, or engages in a continued pattern of conduct that results in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an accumulation of injuries that ultimately results in the death of a child or serious bodily injury to a child.

. . .

(7)(a)(III) When a person acts knowingly or recklessly and the child abuse results in serious bodily injury to the child, it is a class 3 felony.

Rector testified that she did not witness T.D.'s injury, explaining that she was in the shower and T.D. was in the master bedroom watching television when she heard a crash and jumped out of the shower to find T.D. sitting on the floor with his arm twisted. She testified that everything had been knocked off of the nightstand.

After paramedics arrived at Rector's Douglas County home, T.D. was airlifted to Children's Hospital in Denver for emergency surgery to relieve pressure on his brain from internal bleeding. A responding paramedic testified that Rector told him she was downstairs and heard a thud upstairs when the injury occurred.

Prior to trial, the trial court denied Rector's motion requesting an evidentiary hearing in accordance with People v. Shreck, 22 P.3d 68 (Colo.2001), to determine the admissibility of certain expert testimony. She sought to preclude the prosecution's medical experts from speculating that T.D.'s injuries resulted from child abuse.

Various experts testified at trial, including Dr. Sirotnak, a pediatrician who examined T.D. at the emergency room; Dr. Arlene Drack, a pediatric ophthalmologist who also examined T.D. at the emergency room; and Dr. Ken Winston, a neurosurgeon who conducted T.D.'s emergency operation. They testified to the severity of T.D.'s injuries and opined that the injuries were nonaccidental and unlikely to have been caused by a fall off a bed.

Dr. Sirotnak, who was qualified as an expert in child abuse, testified that T.D. suffered "a right-sided acute subdural hematoma, or brain bleeding," "a shift in the tissue of the brain," and "retinal hemorrhages, or hemorrhages within the backs of his eyes." Dr. Sirotnak testified that in his opinion, "within a reasonable [degree of] certainty," T.D.'s injuries were "the result of [child] abuse." He reached this conclusion after stating that he was unaware of any adequate explanation for the severity of T.D.'s traumatic injuries.

Dr. Sirotnak also testified that the presence of a severe traumatic injury and no history of trauma to explain that injury indicates that, from a medical perspective, there was child physical abuse or it is highly suspected there was child physical abuse.

The jury convicted Rector of felony child abuse and the court sentenced her to fifteen years in the Department of Corrections, plus five years of mandatory parole.

II. Expert Testimony

Rector contends that the trial court abused its discretion in admitting expert testimony that T.D.'s injuries resulted from child abuse because it did not hold a Shreck hearing or otherwise determine the reliability and prejudicial effect of Dr. Sirotnak's testimony under CRE 702 and 403. She further contends the trial court erred in not instructing the jury regarding the different definitions of medical and legal child abuse. We agree.

We review the admission of expert testimony under CRE 702 for abuse of discretion, and we will not overturn the ruling unless it is manifestly erroneous. People v. Martinez, 74 P.3d 316, 322 (Colo.2003).

In exercising its broad discretion, the trial court must adequately inquire and determine that (1) the expert testimony is based upon reasonably reliable scientific principles; (2) the expert is qualified to opine on such matters; and (3) the expert testimony is helpful to the jury. Id.; Shreck, 22 P.3d at 77, 79. The trial court must also determine if the probative value of the expert testimony is substantially outweighed by the danger of unfair prejudice to the defendant under CRE 403. Martinez, 74 P.3d at 322; Shreck, 22 P.3d at 78.

Prior to trial, Rector filed a motion to restrict the People's experts from speculating as to the alleged cause of T.D.'s injuries. Specifically, she argued that the People's expert witnesses would speculate, among other things, that T.D.'s injuries were caused by "shaken baby syndrome." She also stated that "[s]uch diagnoses are necessarily inferential," "[n]o witness observed the infliction of the injury," and "[i]n general, some proponents of these syndromes suggest that whenever certain `constellations' of injuries occur, that [sic] such are diagnostic of child abuse."

Rector's motion concedes that in Martinez, 74 P.3d 316, the supreme court held an expert could properly testify that subdural hematoma combined with bilateral retinal bleeding occurs only in cases where the injured person had suffered massive blunt force trauma, such as a fall from a multistory building.

During argument on the motion, Rector asserted that the experts would indicate that T.D. had suffered a nonaccidental head trauma caused by an intentional act of abuse. The prosecution agreed, but contended such an inference was proper.

At the hearing, Rector explained that she was not requesting an evidentiary hearing to determine the reliability of shaken baby syndrome evidence.

The trial court determined that Rector's motion was a combination discovery request and partial request for a Shreck hearing. It ruled that because shaken baby syndrome is a diagnosis that medical experts can reach, based on Martinez no hearing was necessary to determine the reliability of such evidence. Thus, the trial court ruled only on the reliability of testimony about shaken baby syndrome.

However, the trial court did not make specific findings to determine the reliability of Dr. Sirotnak's anticipated testimony that T.D.'s injuries were caused by an intentional act of abuse, nor did it determine that the probative value of the testimony was not substantially outweighed by the danger of unfair prejudice.

A. Adequate Inquiry

Rector asserts that the trial court did not inquire or make specific findings to determine whether the expert testimony was (a) reliable under CRE 702 (Shreck prong 1) or (b) unfairly prejudicial under CRE 403. Rector does not dispute that the expert testimony was helpful to the jury (Shreck prong 3). We agree that the trial court abused its discretion in admitting the expert testimony without making an adequate inquiry and specific findings.

Reliability is determined by the trial court based on the totality of circumstances, considering the reasonable reliability of the scientific principles underlying the testimony. People v. Ramirez, 155 P.3d 371, 378 (Colo. 2007). The totality of the circumstances consideration may include factors that the Supreme Court and other courts have considered pertinent to the same inquiry. Shreck, 22 P.3d at 70; see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590, 593-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (reliability requires an expert opinion be based on reliable principles and methods as opposed to subjective belief or unsupported speculation); Ramirez, 155 P.3d at 378-79 (a party must show that the method used by the expert to reach a conclusion is scientifically sound and that the opinion is based on facts which satisfy reliability requirements of CRE 702). An expert may also use a process of elimination as a reliable scientific method to reach a conclusion. See Farmland Mut. Ins. Cos. v. Chief Indus., Inc., 170 P.3d 832, 836 (Colo.App.2007).

CRE 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. CRE 403 strongly favors the admission of relevant evidence. People v. Salas, 902 P.2d 398, 401 (Colo.App.1994).

Further, an expert may opine on an ultimate issue of fact. CRE 704; Quintana v. City of Westminster, 8 P.3d 527, 530 (Colo. App.2000) (opinion testimony is not objectionable merely because it embraces an ultimate issue of fact). However, an expert may not usurp the function of the court by expressing an opinion on the applicable law or legal standards. Quintana, 8 P.3d at 530.

Thus, a trial court may prohibit expert testimony regarding an ultimate legal determination that the fact finder is capable of determining. Sniezek v. Colo. Dep't of Revenue, 113 P.3d 1280, 1284 (Colo.App.2005); cf. Hines v. Denver & Rio Grande Western R.R., 829 P.2d 419, 422-23 (Colo.App.1991) (expert could testify that conduct of railroad employees was...