People v. Watson, 99CA0779.

• Citation: 53 P.3d 707
• Decision Date: 20 December 2001
• Docket Number: No. 99CA0779.,99CA0779.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John WATSON, Defendant-Appellant.
• Court: Court of Appeals of Colorado

53 P.3d 707

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John WATSON, Defendant-Appellant.

No. 99CA0779.

Colorado Court of Appeals, Div. V.

December 20, 2001.

Rehearing Denied February 7, 2002.

Certiorari Denied September 9, 2002.

Ken Salazar, Attorney General, John J. Krause, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Mark G. Walta, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, John Watson, appeals the judgment of conviction entered upon a jury verdict finding him guilty of first degree sexual assault. We affirm.

The victim and defendant spoke briefly while at a bar. At the end of the evening and apparently without invitation, defendant joined the victim and her roommates in a car. When the group arrived at the victim's home, the victim ignored defendant and proceeded into the house. She put on her nightclothes, went to her bedroom, and fell asleep.

According to the prosecution's evidence, the victim awoke and discovered that defendant was attempting to have anal intercourse with her. Before the victim fully realized what was occurring, defendant began to have vaginal intercourse with her. Defendant appeared surprised to see that she was awake. The victim pushed defendant away, went into the bathroom, and discovered that her nightclothes had been removed. She spent the remainder of the evening in a different room and reported the sexual assault to the police later the next day.

At trial, the victim testified that she was taking prescribed antidepressants on the night of the assault and that she had consumed three beers and part of a mixed drink. The victim testified she was not intoxicated from the alcohol but had been sleeping and was in a "semicomatose" state before the sexual assault.

I.

Defendant first argues that the trial court erred in denying his motion to suppress evidence allegedly obtained through violation of the Wiretapping and Eavesdropping Act, § 16-15-101 et seq., C.R.S.2001. We are not persuaded.

After the victim reported the assault to the police, she met with a detective and agreed to call defendant to ask him a series of scripted questions about what had occurred. Although the detective monitored the call and was able to hear portions of the conversation, the tape recording equipment malfunctioned and failed to record defendant's statements.

The trial court denied defendant's motion to suppress the contents of the telephone call. However, at trial, the prosecution did not introduce any evidence concerning the call. The jury first learned of the call, although not the substance of defendant's statements, when defense counsel elicited the information during cross-examination of the victim. Defense counsel again raised the issue of the call during direct examination of defendant. The prosecution then cross-examined defendant concerning the statements he had made during the call.

The Wiretapping and Eavesdropping Act requires law enforcement officers to obtain orders of authorization before intercepting certain wire and oral communications, and the Act limits the particular offenses for which such orders may be issued. See § 16-15-102, C.R.S.2001.

In People v. Morton, 189 Colo. 198, 539 P.2d 1255 (1975), the supreme court held that the Act does not require suppression of intercepted communications if one party to the communication consented to the interception. The court explained that the Act is not a proscriptive statute and that suppression of "unlawfully" intercepted communications under § 16-15-102(10), C.R.S.2001, is therefore only appropriate if the interception violated the criminal statutes prohibiting wiretapping and eavesdropping, §§ 18-9-303, 18-9-304, C.R.S.2001. The court concluded that, because those criminal statutes do not make unlawful the interception of a communication where one party to the communication consents to the interception, the Act does not require suppression of such intercepted communications.

Defendant acknowledges that Morton, if applicable, forecloses his suppression claim. However, he argues that Morton was legislatively overruled by a 1991 amendment that removed the citation to the criminal wiretapping and eavesdropping statutes that was previously included in § 16-15-102(1). We disagree.

Before the 1991 amendment, the introductory clause to § 16-15-102(1) provided: "An ex parte order for wiretapping or eavesdropping, or both, as those offenses are described in sections 18-9-302 to 18-9-304, C.R.S. may be issued...." As amended, it now provides: "An ex parte order authorizing or approving the interception of any wire, oral, or electronic communication may be issued...." Colo. Sess. Laws 1991, ch. 81, § 16-15-102(1) at 433.

In Morton, the court relied on the criminal wiretapping and eavesdropping statutes as the basis for determining whether an interception of a communication was unlawful under the Act, without making reference to the citation to those criminal statutes then contained in § 16-15-102(1). The 1991 amendment to the Act that removed the citation to the criminal wiretapping and eavesdropping statutes from the introductory clause of § 16-15-102(1) was not an alteration to a section of the Act upon which the Morton court based its holding. Accordingly, the Morton decision is still binding authority. We thus uphold the trial court's denial of defendant's motion seeking suppression of communications intercepted with the consent of the victim.

II.

Defendant next contends the trial court erred by qualifying a psychologist as an expert witness regarding the psychological effects of drugs and alcohol and permitting him to give testimony concerning the victim's physiological condition on the night of the assault. We perceive no abuse of discretion in the trial court's rulings.

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. CRE 702.

The focus of a Rule 702 inquiry is whether the scientific evidence proffered is both reliable and relevant. People v. Shreck, 22 P.3d 68 (Colo.2001). In determining whether the evidence is reliable, a trial court should consider (1) whether the scientific principles as to which the witness is testifying are reasonably reliable, and (2) whether the witness is qualified to opine on such matters. In determining whether the evidence is relevant, a trial court should consider whether the testimony would be useful to the jury. People v. Shreck, supra.

Whether opinion testimony is within a particular witness's expertise generally is a matter addressed to the sound discretion of the court. People v. Gomez, 632 P.2d 586, 593 (Colo.1981).

Trial courts possess broad discretion to allow testimony by expert witnesses in criminal cases. To establish that a court has abused its discretion, it must appear that the court's decision was manifestly arbitrary, unreasonable, or unfair. People v. Williams, 790 P.2d 796 (Colo.1990).

A.

Concerning the expert's qualifications, the psychologist held a master's and a doctorate degree in educational psychology, with specialty areas in substance abuse treatment and diagnosis and treatment of alcoholism. He had gained extensive knowledge concerning the effects of alcohol and other drugs and interactions of such substances in the brain through his position as the director of a treatment center for alcohol and drug abuse. The prosecution offered him as an expert in substance abuse including alcohol and other drugs and their interaction.

Defense counsel objected to the expert's qualifications and his voir dire focused on the expert's lack of a medical degree and the lack of expertise concerning the manner in which drugs chemically interact within the body. Defense counsel continued his objection "with respect to any testimony regarding the chemical manner in which drugs react in the human body."

Over that objection, the trial court granted the prosecution's request to qualify the witness as an expert "in the field of alcohol and substance abuse counseling" who could "testify about the psychological effects of the interactions of drugs." The court ruled that the psychologist could not testify concerning "the chemical reaction or interactions of drugs and alcohol" but that he could describe "his clinical observations regarding the interactions of drugs." After further foundation, the court qualified the expert to testify to his clinical observation of people who use interacting drugs.

In his testimony, the psychologist stated that, based on his review of a transcript of the victim's testimony given at an earlier proceeding, it was his opinion that the victim was in a "semicomatose" state during the sexual assault that would not have been caused by the amount of alcohol she said she had consumed or by the prescription medication she was taking. The psychologist further testified that a semicomatose state was more consistent with ingestion of a sedative or a barbiturate.

Contrary to defendant's contention, we cannot say that only a medical doctor could proffer such an opinion. This expert had sufficient education, background, knowledge, training, and experience to testify concerning the interactions of drugs and their effects on the brain.

Further, based on our review of the record, we cannot say that the trial court abused its discretion in qualifying the psychologist as an expert witness in the topics set forth above. Nor can we conclude that the court abused its discretion in determining that the witness had limited his testimony to topics within his area of expertise without giving opinions on subjects requiring expertise in medical science or toxicology.

B.

Defendant argues the...