dissenting.
While I consider the majority's finding of error an unjustified interference with trial court discretion, its rationale is so case-specific that, but for its application of the constitutional harmless error standard, it would hardly be worth critiquing. However, by characterizing an abuse of discretion in limiting the scope of a defense expert's opinion as a violation of the defendant's constitutional right to present a defense, I believe the majority confounds evidentiary with constitutional error and imposes far too exacting a standard for evaluating the prejudice resulting from the former. Because this extension of the constitutional harmless error standard is likely to have consequences far beyond the criminal mischief conviction at issue here, I briefly register my dissent.
Error in the trial process (as distinguished from structural error) does not merit reversal if it is shown to be harmless. Arteaga-Lansaw v. People, 159 P.3d 107, 110 (Colo.2007). If trial error does not also amount to constitutional error, we have evaluated its harmfulness in varying terms but have made clear that, at the very least, it will be disregarded whenever there is no reasonable probability that it contributed to the defendant's conviction. People v. Garcia, 28 P.3d 340, 344 (Colo.2001); Salcedo v. People, 999 P.2d 833, 841 (Colo.2000). Particular trial error, however, may also amount to constitutional error, and in those cases where it does, the error requires reversal unless it can be demonstrated beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); People v. Miller, 113 P.3d 743, 748 (Colo.2005); People v. Fry, 92 P.3d 970, 980 (Colo.2004). Although every erroneous rejection of evidence offered by a criminal defendant might, in some extravagant sense, be characterized as depriving him of a right to present a defense, abuses of discretion in enforcing the rules of evidence have never, in and of themselves, been considered error of constitutional magnitude, and the authorities relied upon by the majority suggest no such thing.
Hampton and Pronovost, of course, do not deal with harmless trial error at all, addressing instead due process limitations on the exclusion of defense evidence solely for a failure to comply with pre-trial procedural/disclosure requirements. See People v. Pronovost, 773 P.2d 555, 557 (Colo.1989); People v. Hampton, 696 P.2d 765, 777-78 (Colo.1985); see also Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). In Bartley we applied the constitutional harmless error standard to evidence that should have been suppressed as the product of an unconstitutional search, rather than testimony excluded for evidentiary reasons. See Bartley v. People, 817 P.2d 1029, 1034 (Colo.1991). And in both Bernal and Blecha, we applied the constitutional harmless error standard to statements admitted in violation of the since-overruled confrontation clause guarantee of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), as *1015distinguished from a mere violation of the evidentiary rules limiting hearsay evidence. See Bernal v. People, 44 P.3d 184, 200 (Colo.2002); Blecha v. People, 962 P.2d 931, 942 (Colo.1998).
In this case, the majority not only fails to identify the violation of any constitutional guarantee but it fails to even identify a violation of the rules of evidence governing the admission of expert testimony. In what can only be described as an expansive use of the concept of "opening the door," the majority simply finds an abuse of discretion in limiting the seope of an expert opinion, not because the expert was qualified to opine more broadly than was allowed but simply because the defendant should have been permitted to correct any misimpression that might have been created by the prosecution expert's comment on the defense expert's four-sentence "report." To characterize this evidentiary ruling as a violation of the defendant's constitutional right to present a defense, requiring reversal unless the prosecution could demonstrate its harmlessness beyond a reasonable doubt, comes perilously close to simply adopting a harmless-beyond-a-reasonable-doubt standard of review for all trial error in criminal cases.
More properly characterized as noneonsti-tutional trial error (if error at all), the exclusion of Cox's explanation of his differences with the prosecution's expert, who testified merely that neither expert's opinion was con-elusive but the two were in some respects contradictory, was clearly harmless. To even parse the distinctions between harmless error standards in this case, however, I find both unfortunate and ironic. Because the defense expert was qualified, without objection, only as "an expert in sole impressions" (rather than in the "examination and comparison of known footwear to track impressions," as was the prosecution expert) and because the defendant failed, as required by CRE 103(a)(2) ("Offer of proof"), to assert that, or explain how, his expert would, if permitted, dispute the prosecution expert's explanation of their differences, I would review only for plain error in any event.
Because I believe the majority unjustifiably extends the constitutional harmless error standard to the evidentiary ruling in this case and in doing so erroneously reverses the defendant's conviction, I respectfully dissent.
I aim authorized to state that JUSTICE RICE joins in this dissent.