People v. Wallin

• Citation: 167 P.3d 183
• Decision Date: 12 July 2007
• Docket Number: No. 04CA1011.,04CA1011.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald O. WALLIN, Defendant-Appellant.
• Court: Court of Appeals of Colorado

167 P.3d 183

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald O. WALLIN, Defendant-Appellant.

No. 04CA1011.

Colorado Court of Appeals, Div. VI.

July 12, 2007.

John W. Suthers, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

The Joffe Law Firm, Antony M. Noble, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge LOEB.

Defendant, Donald O. Wallin, appeals the judgment of conviction entered upon a jury verdict finding him guilty of second degree assault. He also appeals the sentence imposed. We affirm the judgment, vacate the sentence, and remand for resentencing.

When defendant was released on parole in July 2003, I.M., his ex-wife picked him up from prison and drove him to her apartment. Defendant was upset because I.M. had given birth to another man's child while he was in prison. As I.M. reported events to the police, defendant took sixty dollars from her purse; beat her in the face and body with his fists, fracturing a bone next to her eye; and then left the apartment, driving off in her car.

The same day, defendant met with his parole officer and mentioned that he might have to take legal action against a girlfriend who was saying bad things about him. A few minutes after defendant left the parole officer, the police contacted the parole officer about the incident at the apartment. Within the next couple of days, the parole officer directed defendant to go to the police department and speak with a particular police officer. However, defendant did not go to the police department, but rather left a taped telephone message for the police officer. Defendant was later arrested at his home.

Defendant was charged by information with second degree assault, pursuant to § 18-3-203(1)(g), C.R.S.2006; first degree aggravated motor vehicle theft, pursuant to § 18-4-409(2), C.R.S.2006; theft, pursuant to § 18-4-401, C.R.S.2006; and, ultimately, a crime of violence, pursuant to § 18-1.3-406(2)(a)(I)(B), C.R.S.2006. A parole revocation complaint was filed effective the same day, and later, defendant's parole was revoked.

Soon after the charges were filed in this case, I.M. recanted all her allegations and filed a declaration with the court, stating that defendant did not hit her or steal her money or her car, that she was on morphine for a head injury when police officers spoke to her at the hospital, and that they "coerced" her to blame defendant for her injuries. The prosecution endorsed an expert witness to testify at trial about domestic violence.

Defendant moved to suppress his taped message to the police as involuntary and to exclude the testimony of the prosecution's designated expert witness on domestic violence as irrelevant and unfairly prejudicial. The trial court denied both motions.

I.M. did not appear for defendant's trial, and a warrant issued for her arrest. She was arrested and jailed overnight, and then she testified that defendant had assaulted her, but did not steal money from her purse or steal her car. The prosecution's expert witness testified generally concerning why victims of domestic violence recant at trial.

The People dismissed the theft charge, and the jury found defendant guilty of second degree assault and not guilty of motor vehicle theft.

At defendant's request, his trial counsel moved to withdraw before sentencing. The trial court declined defendant's request to appoint alternate defense counsel, and defendant appeared pro se at the sentencing hearing. The court sentenced him to fourteen years in the Department of Corrections.

This appeal followed.

I. Anders Issues

Initially, we address the appendix to defendant's opening brief, which raises seven additional issues, citing Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), but offers no meaningful analysis of any of them.

Contrary to appellate counsel's assumption, Anders does not authorize the advancement of a concededly meritless claim in a brief that contains another claim which is purported to have merit:

The combination of an argued assignment of error coupled with a request for review pursuant to Anders presents an inconsistent and effectively hybrid appeal that is improper. . . . An Anders brief is based on the "conclusion that the appeal is wholly frivolous," and that there are no issues suitable to assign as error. Accordingly, assignments of error may not be argued and then supplemented with a request for "partial" Anders review. Such a procedure is improper and fails to provide a basis for this Court to conduct an independent examination pursuant to Anders. A case may be presented either under the purview of Anders as containing no apparent issue for appeal or as a case involving one or more issues suitable for appellate review; logically and procedurally, it cannot be brought forward on appeal as both.

State v. Grady, 136 N.C.App. 394, 398, 524 S.E.2d 75, 78 (2000)(quoting State v. Kinch, 314 N.C. 99, 102, 331 S.E.2d 665, 666 (1985))(emphasis and citation omitted). Accordingly, we decline to address defendant's additional issues.

Moreover, these issues are presented to us in a perfunctory or conclusory manner, and we thus decline to review them. See People v. Venzor, 121 P.3d 260, 264 (Colo.App.2005); see also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991)("A skeletal `argument,' really nothing more than an assertion, does not preserve a claim.").

II. Expert Testimony

Defendant contends the trial court abused its discretion by admitting the expert testimony on the reasons why domestic violence victims recant. We disagree.

Trial courts are vested with broad discretion to determine the admissibility of expert testimony, and the exercise of that discretion will not be overturned unless manifestly erroneous. People v. Martinez, 74 P.3d 316, 322 (Colo.2003). An abuse of discretion does not occur unless the trial court's ruling is manifestly arbitrary, unreasonable, or unfair. People v. Johnson, 74 P.3d 349, 352 (Colo.App.2002).

CRE 702 governs a trial court's determination as to whether expert testimony should be admitted. People v. Johnson, supra, 74 P.3d at 352. The test for the admissibility of expert opinion evidence is: (1) the scientific or specialized principles underlying the testimony must be reasonably reliable; (2) the expert must be qualified to opine on such matters; (3) the expert testimony must be helpful to the jury; and (4) the evidence must satisfy CRE 403, in that the probative value of the evidence must not be substantially outweighed by unfair prejudice. People v. Martinez, supra, 74 P.3d at 322; People v. Shreck, 22 P.3d 68, 77-79 (Colo.2001). "Helpfulness to the jury hinges on whether the proffered testimony is relevant to the particular case: whether it `fits.' Fit demands more than simple relevance; it requires that there be a logical relation between the proffered testimony and the factual issues involved in the litigation." People v. Martinez, supra, 74 P.3d at 323.

In cases involving domestic violence, expert testimony concerning the reasons for victims' recantations is admissible. People v. Johnson, supra, 74 P.3d at 353; People v. Lafferty, 9 P.3d 1132, 1135 (Colo.App.1999). The reliability of the principles underlying opinion evidence about battered women is well recognized. People v. Johnson, supra.

At a pretrial hearing, the trial court denied defendant's motion to exclude the testimony of the prosecution's expert, following People v. Johnson and applying the four-part Shreck analysis. The trial court found that the accepted principles underlying this type of testimony were reasonably reliable, that the testimony would be useful to the jury, and that the probative value of a general psychological profile of a domestic violence victim would not be substantially outweighed by the danger of unfair prejudice.

At trial, I.M. testified that she had given defendant sixty dollars when she picked him up. She described their quarrel, stating that defendant assaulted her, punching her body and hitting her in the eye. She stated that he immediately apologized, hugged her, and tried to help, but left when she told him to do so. She testified that, after the assault, her car was not at the apartment, and she did not know where it went, but defendant called the next day to tell her where the car was parked. She testified that she considered the car their joint property. I.M. also testified at trial that she had originally told the police that defendant took sixty dollars from her, but she stated that she felt foolish admitting that she had given money to defendant when he was upset with her. She also admitted having later told the police that she hit her head on a coffee table while she and defendant were playing around, stating that she told that story because she was afraid of defendant.

After being qualified, the expert witness testified that recantation happens in several possible ways. Sometimes a victim denies the story altogether and says that it never happened. Other times, a victim minimizes the story and says, "[S]omething happened but it wasn't quite as bad as I first said. Really. I made a mountain out of a mole hill." The expert witness testified that this is the most common form of recantation. Finally, a victim may refuse to tell the story again, to talk to police, or to come to court to testify.

On appeal, defendant contends that, because I.M. did not recant her story at trial, and because as far as the jury was concerned, her story was consistent, the expert witness's testimony was not relevant and could have served only to prejudice defendant. We disagree.

I.M. acknowledged at trial that she had given different accounts of whether defendant took her money. And she acknowledged that defendant hit her, but added details minimizing his assault on her. Further, I.M. admitted that she had changed her story about whether defendant...