People v. Valencia, 08CA0456.

• Decision Date: 02 June 2011
• Docket Number: No. 08CA0456.,08CA0456.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee,v.Nicholas VALENCIA, Defendant–Appellant.
• Court: Colorado Court of Appeals

257 P.3d 1203

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

v.Nicholas VALENCIA, Defendant–Appellant.

No. 08CA0456.

Colorado Court of Appeals, Div. V.

March 31, 2011.Rehearing Denied June 2, 2011.

John W. Suthers, Attorney General, Alice Q. Hosley, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.Douglas K. Wilson, Colorado State Public Defender, Cory D. Riddle, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.Opinion by Judge CRISWELL.^*

Defendant, Nicholas Valencia, appeals the judgment of conviction entered on jury verdicts finding him guilty of sexual assault, first and second degree assault (merged), first degree burglary, and false imprisonment. Defendant also appeals his designation as a sexually violent predator. We reverse the judgment and remand for a new trial.

I. Background

Defendant was the ex-boyfriend of the victim, E.S. While E.S. was out drinking with friends, defendant entered her house without permission and hid in her bedroom closet.

E.S. testified that, when she returned home in the early morning hours, defendant burst from the closet and attacked her. He punched her and slashed at her with a knife, making a large cut to her brow and cutting her upper lip. He also cut her chin and neck and stuck the knife down her throat. During the struggle, she grabbed at the knife and cut her hands. Defendant then grabbed her by the hair and pulled her into the shower where she lost consciousness. When she awoke mid-morning, defendant forced her to have sex with him. He then cleaned portions of the house and fled when E.S. promised not to call police and gave him a check for $150.

Police responded to the scene and E.S. identified defendant as her attacker. She was then transported to the hospital where medical staff treated her wounds and collected samples for a rape kit.

Later that evening, officers arrested defendant without a warrant as he waited outside E.S.'s sister's house. While he was in custody, and again acting without a warrant, officers swabbed a small speck of blood in his ear that they had noticed, and at a later date, they also obtained buccal swabs from him. These items, together with the victim's rape kit, were forwarded to the Colorado Bureau of Investigations (C.B.I.), where they were purportedly subjected to DNA and serological testing.

II. The Expert's Testimony

At the trial, the prosecution presented evidence that the blood swab taken from defendant's ear, as well as his buccal swabs, together with the rape kit containing specimens from the victim, were suitably packaged, marked for identification, and delivered to the C.B.I.

The prosecution then called an expert witness who testified that the blood on defendant's ear was that of the victim and that defendant's sperm was found in the victim's vagina. This testimony was based upon the expert's examination of certain items, which she had received from an “analyst” at the C.B.I. However, she did not describe either the items themselves or the packaging in which they were contained. Rather, without describing her source of knowledge, she said that one item “was a swab taken from the suspect's left ear,” and that the rape kit that she examined “was listed as having come from the victim.”

The items examined by this expert were not introduced as evidence, and defendant objected to the witness's testimony on the grounds, among others, that there had not been a sufficient foundation laid to receive that testimony. And, before us, he argues that the trial court abused its discretion by allowing the witness to testify, absent a proper identification of the items she examined. We agree.

It is the general rule that no witness may testify upon a subject “unless evidence is introduced sufficient to support a finding that he [or she] has personal knowledge of the matter.” CRE 602; see also Pomeranz v. McDonald's Corp., 843 P.2d 1378, 1383 (Colo.1993) (without providing some evidentiary basis for his knowledge, lay witness may not provide an estimate of future maintenance costs).

This general rule is, of course, “subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.” CRE 602.

CRE 703 provides that “[t]he facts or data ... upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.” And, if those facts or data are of the type reasonably relied upon by experts in the field, they need not be admissible as evidence. Under this rule, then, there are three methods whereby an expert may acquire knowledge of facts upon which to base an opinion. Such knowledge may be acquired through the expert's first-hand observation, through facts presented at trial (either by means of a hypothetical question or through other evidence received at the hearing), or through facts that are outside the record that, although not personally observed by the expert, are of a type reasonably relied on by experts in the same field. Gold Rush Investments, Inc. v. G.E. Johnson Constr. Co., 807 P.2d 1169, 1173 (Colo.App.1990).

Here, the “facts and data” relied upon by the expert were those that were personally perceived by her. She personally performed tests upon a blood sample, a buccal swab, and certain items in a rape kit, and she personally perceived the results of those tests.

At the same time, however, it is clear that this witness had no personal knowledge of the origin of any of the objects tested by her. Yet, the results of the tests performed would be relevant only if the items tested were in some manner connected to defendant, the victim, or the crime. CRE 401 (relevancy); Washington v. People, 158 Colo. 115, 123, 405 P.2d 735, 738 (1965); People in Interest of R.G., 630 P.2d 89, 92 (Colo.App.1981).

Here, because the expert lacked the requisite personal knowledge as to the origin of the items examined, it was necessary that the identity of those items be established by other means. Had the items themselves been introduced, it would have been a simple matter for the expert to identify them as those upon which she had conducted her testing.

However, we reject defendant's assertion that, because the items themselves were not placed in evidence, the expert could not testify about them. There is no necessity for the introduction of an object in order to establish the identity of that object; such identity may be established by other evidence. See, e.g., People in Interest of J.G., 97 P.3d 300, 303 (Colo.App.2004).

We do agree, however, that before expert testimony as to the results of the testing of an object may be received, some proof must be presented of a connection between the object tested and the defendant, the victim, or the crime. Otherwise, the testimony would have no relevancy. The object must be identified.

CRE 901(a) requires that an object must be identified as a condition precedent to its admissibility. And it is also necessary to identify an item that has been examined as one bearing the relevant connection. Normally, to establish that connection, it is necessary to present evidence showing a complete chain of custody of the item. People v. Sutherland, 683 P.2d 1192, 1197 (Colo.1984) (“The chain of custody of any blood sample must be established, and failure to do so may be excused only where circumstances provide reasonable assurances of identity and unchanged condition of the sample.”).

Whether there is a complete chain of custody is a matter to be resolved by the trial court prior to admitting the evidence. People v. Atencio, 193 Colo. 184, 187, 565 P.2d 921, 924 (1977). “Even where there is some confusion about the chain of custody, so long as the evidence was accounted for at all times, the evidence is admissible.” Id. at 187, 565 P.2d at 923. Speculation of tampering is insufficient to establish a break in the chain of custody, People v. LeMasters, 666 P.2d 573, 577 (Colo.App.1983), aff'd, 678 P.2d 538 (Colo.1984), and, absent any evidence of tampering or lack of authentication, the proponent of the evidence is not required to call each witness who may have handled the item. Sutherland, 683 P.2d at 1197.

If the trial court determines a complete chain of custody exists, any imperfections in the chain go to the weight to be given to the evidence, rather than to its admissibility. People v. Grace, 55 P.3d 165, 172 (Colo.App.2001).

Of course, it may well not be necessary in every case to establish a chain of custody to identify the object tested by the expert. If, for example, the expert describes an object as having the identifying marks placed on the item or its packaging by an investigator, and there is no evidence of any interim tampering, such identification may well be sufficient to justify its admission. See Sutherland, 683 P.2d at 1197. Nonetheless, while CRE 901(a) and the prior decisions respecting the identification of objects specifically apply only if the object is offered as evidence, we conclude that these same considerations must be applied if a proper identification of an object is required for other purposes, even if the object itself is not offered.

Here, then, because the items tested by the expert were not introduced, and because the expert did not describe how the items she tested were marked, there was no proper evidence establishing that the tested items came from either defendant or the victim, save for the expert's unexplained conclusory statements. Under these circumstances, we are forced to conclude that the trial court abused its discretion by allowing the expert's testimony respecting the results of her tests.

Nor was the admission of this evidence mere harmless error. Aside from this expert's testimony, the only evidence connecting defendant with these violent assaults was the victim's testimony. However, as we describe below, she testified that she was unclear about certain incidents about which she testified, and we cannot conclude that the...