People v. Ramos

Judge WEBB

dissenting.

¶ 55 The detective’s characterization of some blood spots shown in photographs of clothing worn by the victim as “cast off’ or “spatter,” and another stain as “transfer,” constituted proper lay opinion testimony because it was based on his direct observations of the photographs, which were in evidence, coupled with reasonable inferences drawn from the photographs, which could be drawn without specialized training. Thus, I respectfully dissent from Part II. C of the opinion. Because I agree with the rejection of other arguments for reversal, as explained in Parts III and IV of the opinion, I would affirm the judgment of conviction.

I. Facts

¶ 56 The detective’s direct examination covers less than nine pages of transcript. He testified to having participated in “thousands” of cases that “involved some degree of blood.” Although he responded to some questions based his “training and experience,” he was not asked on direct about, nor did he offer any description of, either that training or its effect on his opinions. On cross-examination, he acknowledged that he had not done any “blood spatter analysis.”

¶ 57 The detective’s direct testimony was based on photographs of the victim’s clothing. The record includes three photographs that depict very small spots at different places on the victim’s jacket and two photographs that depict a much larger splotch on the victim’s hat. The detective compared one photograph of the jacket to one photograph of the hat.

¶ 58 The detective acknowledged a difference “between blood that comes from a transfer rather than blood that is cast off,” explaining:

It could be anything. For example, if I had a cut on my hand and I touched the table, then there would be blood still here on the table. That would be a transfer, If my hand was bleeding and I talked with my hands and then the blood starts to go to places, you’ll find droplets laying around.

After viewing the photographs, the detective testified that the blood on the hat looked like a transfer, meaning, “something that has blood on it and is touching ... the hat, and leaving what appears to be blood from one item and leaving that blood on the hat.” The detective described the blood on the jacket as “a spatter or east off droplet type of blood.” He continued:

*32• It. could be from anything. Like I said, a hand waiving and spraying the blood. It could be something bloody with a sudden stop. The blood will, of course, continue and land somewhere.

II. Scope of Review

¶ 69 Review of an evidentiary ruling for an abuse of discretion, People v. Stewart, 55 P.3d 107, 122 (Colo.2002), is constrained by the following principles:

In assessing whether a trial court’s decision is manifestly unreasonable, arbitrary, or unfair, we ask not whether we would have reached a different result but, rather, whether the trial court’s decision fell within a range of reasonable options. Accordingly, we do not look to see whether we agree with the trial court. Instead, we review the trial court’s decision to ensure that it was based on credible evidence and that it did not exceed[ ] the bounds of the rationally available choices.

Churchill v. Univ. of Colorado at Boulder, 2012 , CO .54, ¶ 74, 285 P.3d 986 (internal citations omitted).

III. Law

¶ 60 Under CRE 701, lay opinion is not based oh “specialized knowledge,” and, instead, “could be reached by any ordinary person.” People v. Veren, 140 P.3d 131, 137 (Colo.App.2005). Courts consider whether “the opinion results from ‘a process of reasoning familiar in everyday life,’ or ‘a process of reasoning which can be mastered only by specialists in the field.’ ” People v. Rincon, 140 P.3d 976, 983 (Colo.App.2005). Although such .distinctions have “generated equal measures of confusion and controversy,” police officers commonly offer lay opinions under CRE 701 “based on their perceptions and experiences.” Stewart, 55 P.3d at 123. An officer must be qualified as an expert only “when an officer’s opinions require the application of, or reliance on, specialized skills or training.” Id.

¶ 61 However, merely possessing specialized training does not require the witness to testify as an expert if the witness could have offered the same testimony without specialized training. See People v. Mollaun, 194 P.3d 411, 419-20 (Colo.App.2008); People v. Souva, 141 P.3d 845, 850 (Colo.App.2005); cf. People v. Miller, 981 P.2d 654, 659-60 (Colo. App.1998) (witness with experience in bloodstain splatter inteipretation may be admitted as an expert because his experience “enabled him to point out things that a lay person would not normally observe and draw conclusions that a lay person would not normally reach ”) (emphasis added).

¶ 62 For example, in People v. Tallwhiteman, 124 P.3d 827 (Colo.App.2005), two police officers, testifying as lay witnesses, were asked multiple questions about the defendant’s statements at the time of his arrest. Id. at 831-32. Then, based on their “experience as a police officer,” they were asked to opine whether such statements were common among criminal suspects. Id. Also, the officers gave opinions on the defendant’s state of mind at the time of arrest based on his behavior. Id. at 832. This principle — that the basis of testimony determines whether it is lay testimony rather than the specific language used — distinguishes Colorado law from the reasoning the majority cites in United States v. Ochoa-Zarate, 540 F.3d 613, 622 (7th Cir.2008) (stating that the use of “training” in the question to the witness “tended to make', the question sound as though it asked for a response based on information broader than merely what the trooper had observed with his own eyes”).

¶ 63 The Tallwhiteman division determined that admitting the lay opinion was not error, as:

[T]he officers stated them opinions of defendant’s conduct based on their observations of him and their everyday experiences and then drew a rational conclusion about defendant’s state of mind. There is no indication that their opinions were based on any specialized training or education.

Id. (citation omitted). Rather, “[i]t is only where an officer’s testimony is based not only on his or her perceptions,- -jbut also on specialized training or education, that the officer must be properly qualified as an expert witness.” Id. (emphasis added).

*33¶ 64 People v. Caldwell, 43 P.3d 663 (Colo.App.2001), reached a similar conclusion. In Caldwell, a former police officer trained as a crime scene technician testified as a lay witness that he photographed the crime scene in question, including multiple bullet holes. Id. at 667. Then, based on the bullet holes and some string, he traced what he believed to have been the trajectory of the bullets and shared this opinion with the jury. Id. In concluding that these statements were lay testimony, the division said that even while ballistic evidence is usually admitted as expert testimony:

[TJhe witness’ testimony included only his observations about the entry locations of the bullets and the path they traveled inside the vehicle. Such observations could just as easily have been made by the jury from the photographs. No special expertise is required to look at the hole made by the bullet and realize that it followed a straight-line path.

Id.

¶ 66 Thus, to require admission as expert testimony under CRE 702, a witness must use his specialized training to interpret facts. The witness who merely draws conclusions from everyday • reasoning processes is not testifying as an expert. Compare Stewart, 55 P.3d at 124 (holding that an officer offered expert testimony when he used skidmarks at the scene to reconstruct an accident and deduce a vehicle’s speed, position, and direction), with Rincon, 140 P.3d at 983 (holding that an officer testifying about witness uncertainty in picking suspects out of photo arrays was not expert testimony because “although the officer had experience with photo arrays that an ordinary citizen would not have had, the opinion the officer expressed was one which could be reached by any ordinary person ... [and] the result of a process of reasoning (namely, use of common sense and logic) familiar in everyday life”) (emphasis added).

¶ 66 Veren does not diminish this principle. Despite not having been offered and accepted as experts, the police officers in Veren testified that the amount of pseudoephedrine in the defendant’s possession was beyond the limit legally sold at any one location, sending up “a red flag of somebody that’s possibly manufacturing” methamphetamine. 140 P.3d at 138. The officers also found Heet and starting fluid along with the pseudoephed-rine, which in the officers’ opinion increased the likelihood that the defendant was manufacturing methamphetamine. Id.

¶ 67 The division “recognize[d] that certain basic information about drugs may properly fall within the scope of lay opinion testimony. Indeed,, [a statute] specifically lists pseu-doephedrine as a potential precursor to methamphetamine manufacture.” Id. at 139 (internal citations omitted). However, the witnesses’ opinions required interpreting:

[W]hether a particular quantity of an illegal substance is so large that it would likely be used for future sale. By definition, the only persons having such knowledge would be those who are either actually involved in the sale of illegal substances, or those who are involved in law enforcement’s efforts to curb such sales. Either way, this knowledge must be regarded as specialized.

Id. (quoting State v. Rothlisberger, 2004 UT App 226, n. 5, 96 P.3d 1193, 1200 n. 6, aff'd, 2006 UT 49, 147 P.3d 1176), As the testimony necessarily relied on technical conclusions based on specific quantities and combinations of chemicals that were beyond “the common knowledge of ordinary citizens,” the witnesses were not offering lay testimony. Id.2

*34IV. Application

¶ 68 Here, ordinary citizens could conclude that one photograph showed droplets of blood, while the other showed a large transfer of blood between objects, based on their common experiences and reasoning. Although the prosecutor asked several questions in terns of the detective’s “training or experience,” the detective distinguished spatter from transfer by drawing rational conclusions based on everyday experiences: droplets can result from “a hand waiving and spraying the blood,” while transfer is more like having “a cut on my hand and [then] I touched the table.”

¶ 69 These statements are rooted in experiences common among ordinary citizens. The detective did not testify that blood behaves differently from other liquids when transferred or spattered. His repeated statements that “it could be anything” indicate the opposite. Thus, any juror who had used a paintbrush, correcting liquid, or a fountain pen would recognize the difference between a large, smudge-like contact transfer and a non-contact spatter of small droplets. And after viewing the photographs on which- the detective relied, any juror could determine which image showed a transfer and which showed a spatter, based on common experience and familiar reasoning. Thus, the detective’s definition of spatter and transfer added nothing to the analysis.

¶70 While the detective had experience viewing blood at crime scenes that the jurors lacked, the same is true of the officers’ experiences in Rincon and Tallwhiteman. But here, as in those cases, the detective did not interpose between those experiences and his opinion a reasoning process that could be mastered only through specialized training. Thus, merely being questioned based on “training and experience” does not convert experiences into expert testimony.

¶ 71 The detective’s opinion is even less dependent on his professional background than were the opinions in Tallwhiteman and Caldwell. Both cases involved opinions that were based on first-hand knowledge of the defendant or the crime scene. Testimony describing that knowledge would necessarily be filtered through the officers’ training and experience.

¶ 72 Here, in contrast, the detective’s opinion was based on the photographic evidence offered at trial, from which the jurors could draw their own conclusions. Thus, the majority has erroneously equated a witness’s specialized training with expert testimony under CRE 702, even though, as in Caldwell, any juror could have drawn a similar conclusion from the photographs based on the juror’s own experience.

¶ 73 Because of the way in which the detective explained his conclusions, the prosecutor did not create an aura of expertise. Nor did the detective, as in State v. McLean, 205 N.J. 438,16 A.3d 332, 346 (2011), cited by the majority, use the questions as an opportunity “to offer opinions on defendant’s guilt,” which that court held to be improper whether offered as lay or expert testimony.

¶ 74 Therefore, in my view, the trial court was correct to admit the detective’s testimony as lay opinion under CRE 701. But even if the answer falls somewhere between the majority’s view and mine, the question is still close. And when a ruling on an evidentiary question is close, “the ruling of the court should not be interfered with” on appeal. Mooney v. Carter, 114 Colo. 267, 271, 160 P.2d 390, 391 (1945).

¶ 75 Accordingly, I would affirm the judgment of conviction.

. State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995), cited by the majority, does not suggests a different rule. Goode holds that blood spatter analysis has a sufficiently scientific foundation to be the subject of expert testimony under a Dau-bert-type analysis. However, Goode does not stand for the proposition that all witnesses who testify about blood spatters necessarily are offering expert testimony, And State v. Halake, 102 S.W.3d 661 (Tenn.Crim.App,2001), also cited by the majority, is distinguishable on its facts.' In Halalce, the witness was the officer who had investigated the crime scene, including blood spatter. The prosecution had asked the officer to compare the blood evidence he found at the scene to blood droplets that were only visible using special scientific equipment. Thus, it is not a case where a witness's opinions are based solely on evidence accessible to the jury.