v. Ornelas-Licano — , 2020 COA 62 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
April 9, 2020
2020COA62
No. 16CA0244, People v. Ornelas-Licano — Crimes — Criminal
Attempt — Murder in the Second Degree — First Degree Assault
— Extreme Indifference; Colorado Constitution — Equal
Protection; Evidence — Testimony by Experts
This is an appeal from a criminal conviction for second degree
murder. On appeal, the defendant contends that his conviction
violates equal protection guarantees because attempted second
degree murder is indistinguishable from the lesser offense of
attempted first degree assault – extreme indifference. He also
argues that the trial court abused its discretion by admitting expert
testimony of a police officer analyzing the shape of a bullet hole in a
windshield to determine where the shot came from.
A division of the court of appeals unanimously rejects
defendant’s equal protection challenge, concluding that the conduct
proscribed by the second degree murder statute and first degree
assault – extreme indifference statute is distinguishable for equal
protection purposes. The division, with one judge dissenting, also
concludes that the trial court abused its discretion by admitting the
officer’s expert testimony because his experience did not qualify him
to opine on the relationship between the angle of impact and shape
of the bullet hole, and there is nothing in the record beyond the
officer’s own assertions to show that someone can determine from
the shape of a bullet hole in a windshield where the bullet came
from. Because the majority of the division concludes this error was
not harmless, it reverses.
COLORADO COURT OF APPEALS 2020COA62
Court of Appeals No. 16CA0244
Larimer County District Court No. 14CR1760
Honorable Stephen J. Schapanksi, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jose Ornelas-Licano,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE WELLING
Martinez*, J., concurs
Berger, J., concurs in part and dissents in part
Announced April 9, 2020
Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, James S. Hardy, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 Defendant, Jose Ornelas-Licano, appeals his conviction for
attempted second degree murder. He argues that his conviction
violates equal protection guarantees because attempted second
degree murder is indistinguishable from the lesser offense of
attempted first degree assault – extreme indifference. He also
argues that the trial court abused its discretion by admitting expert
testimony of a police officer analyzing the shape of a bullet hole in a
windshield to determine where the shot came from.
¶2 We first conclude that the conduct proscribed by the second
degree murder statute and first degree assault – extreme
indifference statute is distinguishable for equal protection purposes.
We next conclude that the trial court abused its discretion by
admitting the officer’s expert testimony because his experience did
not qualify him to opine on the relationship between the angle of
impact and shape of the bullet hole, and there is nothing in the
record beyond the officer’s own assertions to show that someone
can determine from the shape of a bullet hole in a windshield where
the bullet came from. Because this error was not harmless, we
reverse.
1
I. Relevant Facts and Procedural History
¶3 For reasons not pertinent to this appeal, a warrant was issued
for Ornelas-Licano’s arrest. An officer driving an unmarked vehicle
located Ornelas-Licano in his pickup truck parked in a driveway.
The officer called for backup because he had been told that
Ornelas-Licano might be armed. More officers arrived in their
vehicles, turned on their emergency lights, and pulled up near
Ornelas-Licano’s truck.
¶4 The officers got out and, with their guns drawn, commanded
Ornelas-Licano to put his hands up and shut off the truck.
Ornelas-Licano initially complied with the officers’ commands, but
ultimately put the truck in gear and fled the scene. A chase
ensued.
¶5 During the chase, Ornelas-Licano approached a marked police
vehicle at an intersection. As the vehicles drew closer, a shot went
off inside Ornelas-Licano’s truck, resulting in a bullet hole in his
truck’s windshield. No one was hit, and the chase continued.
¶6 Ornelas-Licano eventually ran into another car, abandoned his
truck and his gun, and fled on foot. Police ultimately apprehended
him without further incident.
2
¶7 After his arrest, Ornelas-Licano claimed that he had fired the
gun accidentally while operating the stick shift for the truck’s
manual transmission. The prosecutor did not credit this account
and charged him with attempted first degree murder of the officer in
the vehicle at the intersection and the lesser included offenses of
attempted second degree murder and attempted first degree
assault – extreme indifference. He was also charged with eluding
police, leaving the scene of an accident, and other crimes.
¶8 At trial, Ornelas-Licano argued that he was not guilty of
attempted murder or attempted assault because he had fired the
gun accidentally. In other words, because the gunshot was the
result of an accidental discharge, he acted without the requisite
intent to commit either attempted murder or attempted assault.
Ornelas-Licano’s lawyer told the jury that he was not contesting the
other charges.
¶9 The prosecutor argued that Ornelas-Licano had intentionally
pointed the gun at the officer in the police vehicle and fired. A
police officer, qualified as an expert, testified that, based on the
shape of the bullet hole in the truck’s windshield, the shot had been
3
fired from shoulder height, rather than from below the dash, near
the stick shift, as Ornelas-Licano had claimed.
¶ 10 To rebut this testimony, Ornelas-Licano called his own expert
witness, who testified that there were too many variables in play to
conclude, based on either the shape of the bullet hole in the
windshield or the experiment the prosecution expert conducted,
that the shot had come from shoulder height, rather than below the
dash.
¶ 11 A jury convicted Ornelas-Licano of attempted second degree
murder, eluding police, reckless driving, leaving the scene of an
accident, possession of a defaced firearm, and prohibited use of a
weapon, and the trial court sentenced him accordingly. Ornelas-
Licano appeals only the conviction for attempted second degree
murder.
II. Ornelas-Licano’s Equal Protection Claim Is Without Merit
¶ 12 Ornelas-Licano first contends that his conviction for attempted
second degree murder violates equal protection guarantees because
4
it requires a harsher punishment than, but is indistinguishable
from, first degree assault – extreme indifference.1 We disagree.
A. Standard of Review and Applicable Law
¶ 13 We review de novo the constitutionality of a statute. Dean v.
People, 2016 CO 14, ¶ 8. A statute is presumed to be
constitutional, and the challenging party bears a heavy burden to
demonstrate its unconstitutionality. Id.
¶ 14 “When two criminal statutes prescribe different penalties for
identical conduct, a defendant is denied equal protection under the
laws if he is convicted under the harsher statute.” People v. Griego,
2018 CO 5, ¶ 35. “Similarly, when separate statutes prescribe
different penalties for what ostensibly might be different acts but
offer no intelligent standard for distinguishing between and among
these acts, those statutes deny equal protection under the law.” Id.
1 The United States Supreme Court has rejected this argument
under the United States Constitution. United States v. Batchelder,
442 U.S. 114, 125 (1979). But the Colorado Supreme Court has
held that this claim is cognizable under the equal protection
guarantees of the Colorado Constitution. People v. Marcy, 628 P.2d
69 (Colo. 1981). Although Colorado’s constitution does not include
an equal protection clause, the Colorado Supreme Court has
“construe[d] the due process clause of the Colorado Constitution to
imply a similar guarantee.” Dean v. People, 2016 CO 14, ¶ 11.
5
Distinctions between the two offenses “must turn on ‘reasonably
intelligible standards of criminal culpability,’ and any definition of a
crime must be ‘sufficiently coherent and discrete that a person of
average intelligence can reasonably distinguish it from conduct
proscribed by other offenses.’” Id. at ¶ 36 (quoting People v. Marcy,
628 P.2d 69, 80-81 (Colo. 1981)).
¶ 15 A person commits second degree murder if “the person
knowingly causes the death of a person.” § 18-3-103(1), C.R.S.
2019. To satisfy the “knowingly” requirement, the person must be
aware that his or her conduct is “practically certain” to cause the
death of another person. § 18-1-501(6), C.R.S. 2019.
¶ 16 A person commits first degree assault - extreme indifference if
that person
(1) “[u]nder circumstances manifesting extreme indifference
to the value of human life,”
(2) “knowingly engages in conduct which creates a grave risk
of death to another person,” and
(3) “thereby causes serious bodily injury to any person.”
§ 18-3-202(1)(c), C.R.S. 2019.
6
¶ 17 An attempt occurs when a person “acting with the kind of
culpability otherwise required for commission of [the] offense . . .
engages in conduct constituting a substantial step toward the
commission of the offense.” § 18-2-101(1), C.R.S. 2019.
B. Attempted Second Degree Murder Is Distinguishable from
Attempted First Degree Assault - Extreme Indifference
¶ 18 Looking to the plain language of the statutes, we conclude that
they do not proscribe the same conduct.
¶ 19 Attempted second degree murder requires a substantial step
toward causing death, while attempted first degree assault –
extreme indifference requires only a substantial step toward
causing serious bodily injury. § 18-2-101(1); § 18-3-103; § 18-3-
202(1)(c).
¶ 20 People v. Castro, 657 P.2d 932, 940-41 (Colo. 1983), overruled
on other grounds by West v. People, 2015 CO 5, ¶¶ 29, 64, 70,
highlights the importance of this distinction. In that case, the
supreme court considered whether the alleged overlap between the
crimes of attempted first degree extreme indifference murder and
first degree assault violated equal protection guarantees. Id. The
court concluded the conduct proscribed by the statutes was
7
distinguishable, in part because attempted murder requires “a
substantial step towards the causation of another’s death,” and first
degree assault does not. Id. at 941.
¶ 21 The same distinction applies here when we compare attempted
second degree murder and attempted first degree assault – extreme
in-difference: only one requires a substantial step toward the
causation of another’s death. Therefore, the statutes do not
proscribe the same conduct, and the equal protection claim fails.
¶ 22 Even though this analysis is sufficient to reject Ornelas-
Licano’s equal protection argument, we briefly address his
contention that Marcy, 628 P.2d at 78, requires a different result.
¶ 23 Attempted second degree murder requires conduct practically
certain to result in death, while attempted first degree assault –
extreme indifference requires conduct that creates a grave risk of
death. §§ 18-3-103, -202(1)(c). Ornelas-Licano argues that, under
Marcy, 628 P.2d at 78, these standards proscribe the same
conduct. But Marcy is distinguishable. Moreover, Marcy was
superseded by statute, Ch. 212, sec. 4, § 18-3-102, 1981 Colo.
Sess. Laws 973, as recognized in People v. Jefferson, 748 P.2d 1223,
1223-24 (Colo. 1988).
8
¶ 24 In Marcy, 628 P.2d at 79-80, the court held that first degree
murder – extreme indifference was indistinguishable from the lesser
offense of second degree murder for equal protection purposes, in
part because the conduct proscribed by the greater offense (conduct
practically certain to cause death) necessarily included the conduct
proscribed by the lesser offense (conduct creating a grave risk of
death).2
¶ 25 In this case, we are faced with the converse. And we conclude
that, while conduct practically certain to cause death necessarily
includes conduct creating a grave risk of death, conduct creating a
grave risk of death does not necessarily include conduct practically
certain to cause death.
¶ 26 People v. Rubio, 222 P.3d 355 (Colo. App. 2009), illustrates
this distinction well, and we follow its reasoning here. In that case,
the defendant “used an AK-47 assault rifle to shoot repeatedly at an
empty car parked outside a Denver residence” following a dispute
with a woman inside the residence. Id. at 358. His “wild shots blew
2 Montoya v. People, 2017 CO 40, relied on this reasoning in People
v. Marcy, 628 P.2d 69, 78 (Colo. 1981), to make a similar
observation and is, therefore, distinguishable for the same reasons.
9
holes not only in the car but also in two nearby residences,”
injuring two girls. Id. He was convicted of multiple counts of
attempted extreme indifference murder. Id.
¶ 27 On appeal, the division “reject[ed] defendant’s contention that
the prosecution [had to] prove he knew his actions were ‘practically
certain’ to cause death,” concluding that the prosecutor needed only
to prove that the defendant “engaged in depraved conduct that in
fact created a grave risk of death.” Id. at 359. So, while the Rubio
defendant’s actions created a grave risk of harm, they were not
practically certain to result in death. Conduct practically certain to
result in death requires a greater likelihood of the negative
outcome, and the identified negative outcome is more severe,
justifying the greater punishment for that conduct.
¶ 28 For these reasons, we conclude that the conduct proscribed by
the second degree murder statute is reasonably distinguishable
from that proscribed by the first degree assault – extreme
indifference statute. It, therefore, follows that Ornelas-Licano’s
attempted second degree murder conviction does not violate equal
protection guarantees.
10
III. The Officer’s Testimony Interpreting the Shape of the Bullet
Hole in the Windshield and Evidence of the Windshield
Experiment Were Improperly Admitted
¶ 29 Ornelas-Licano next contends that the trial court abused its
discretion by admitting (1) testimony from Inspector Daniel Gilliam,
the prosecution’s expert, that, based on his experience and the
windshield experiment he had conducted, the elliptical shape of the
bullet hole was more consistent with a shot fired from shoulder
height than with a shot fired at the stick shift level; and (2) evidence
of the results of the windshield experiment. We agree.
A. Additional Factual Background
¶ 30 Approximately ten months before trial, Inspector Gilliam,
along with the detective assigned to the case, inspected the bullet
hole in the front windshield of Ornelas-Licano’s truck. Based on
the elliptical shape of the hole, Inspector Gilliam hypothesized that
the shot had been fired from a “normal” shooting position (i.e.,
shoulder height) and not from near the stick shift (which would be
consistent with an accidental discharge).
¶ 31 To test his hypothesis, Inspector Gilliam developed an
experiment. He obtained two new windshields that were the same
type as the one in Ornelas-Licano’s truck. He fired Ornelas-
11
Licano’s gun through one of the windshields at approximately the
same angle as a shot fired from the level of the truck’s stick shift.
He then fired the gun through the other windshield at
approximately the same angle as a shoulder-height shot. From
these two data points, he opined that the “basic shape” of the bullet
hole from the shoulder-height test shot was the “same” as the shape
of the bullet hole in Ornelas-Licano’s windshield.
¶ 32 The People endorsed Inspector Gilliam as an expert witness.
The evening before he was scheduled to testify, Ornelas-Licano
objected to his qualifications and requested a hearing pursuant to
People v. Shreck, 22 P.3d 68 (Colo. 2001). The following morning,
before the jury was called to the courtroom to begin the day, the
trial court conducted a Shreck hearing.
¶ 33 At the Shreck hearing, Inspector Gilliam testified about his
training and experience, as well as the windshield test he had
performed. There was no dispute that Inspector Gilliam was an
abundantly qualified firearms expert. He testified that he
 has worked with firearms for thirty-six years;
 was a member of the SWAT team for six years, which
included “heavy firearms training”;
12
 is a firearm and toolmark examiner; and
 shoots guns on an almost daily basis.
¶ 34 Inspector Gilliam also testified that the experiment he
performed — the windshield test — was based on “the science of
terminal ballistics.” Terminal ballistics, according to Inspector
Gilliam, is the study of “how th[e] bullet reacts [with] whatever
target it strikes.” Inspector Gilliam’s training and experience in
terminal ballistics focused on three specific areas. First, because
he “investigate[s] crime scenes and do[es] autopsies,” he routinely
sees “what a bullet does upon impact” with various barriers,
including human tissue, glass, walls, and cinderblock. Second, as
a sniper, he “studied . . . very closely” what bullets “reacted best”
through various barriers, including glass. Third, also based on his
experience as a sniper, he studied how the trajectory of a bullet
fired through glass would change based on the type of glass and
angle of impact.
¶ 35 None of this training or experience, however, focused on the
relationship between the angle of a bullet’s impact and the shape of
the resulting hole. Indeed, on cross-examination during the Shreck
hearing, Inspector Gilliam testified as follows:
13
Q. . . . But you were not being trained on the
appearance of bullet holes in glass based on
different firing locations, correct?
A. No. It was just an observation that every
time we shot glass, we would look at the holes
and so we knew which angles we had shot at
and we could see the shape of the hole,
whether it be glass, tempered glass, or
laminated.
Q. Okay. And so your observations of the
bullet holes in laminated glass, that’s not really
based on specialized training as much as it is
anecdotal experience, true?
A. True. And that was in the effect of what we
were accomplishing.
(Emphasis added.)
¶ 36 Near the close of the Shreck hearing, Inspector Gilliam said
that the opinion he would offer at trial, based on his observations
and the windshield experiment, would be that the gun “was
probably held at a shoulder height and shot straight . . . towards
the windshield.”
¶ 37 The nature of Ornelas-Licano’s objection to Inspector Gilliam’s
testimony was not that he wasn’t a firearms expert. Indeed,
everyone agreed he was. Instead, Ornelas-Licano’s objection was
that Inspector Gilliam’s methodology wasn’t reliable and that he
wasn’t qualified in the relevant field of terminal ballistics —
14
specifically, in determining the angle of impact of a bullet from the
shape of a bullet hole.
¶ 38 The trial court disagreed, ruling that Inspector Gillam would
be permitted to testify as an expert. With respect to reliability, the
court determined, “The defense has argued that the scientific
principles involved here are unreliable. I don’t agree. I mean,
ballistics, as described by the witness, the three aspects of it, is not
unreliable scientific evidence.”
¶ 39 And with respect to the witness’s qualifications, the court
found:
The Court finds he is qualified. There’s a lot of
ways that an expert may be qualified. It does
not necessarily require that you have a physics
degree. It does not -- it is knowledge, skill,
experience, training, or education. This
witness has a lot of experience. He has some
training that is, if not precisely on this issue,
certainly related to this issue, 40 hours of
training that included some firing through
glass and so forth.
(Emphasis added.)
¶ 40 Inspector Gilliam then testified as an expert in front of the
jury. He testified about the windshield test, and photographs of the
test bullet holes and the actual bullet hole were shown to the jury.
15
Inspector Gilliam ultimately opined that the shot that pierced the
truck’s windshield came “[f]rom closer to the natural shooting
position,” and not from near the stick shift.
B. Preservation and Legal Principles
¶ 41 The Attorney General concedes, and we agree, that Ornelas-
Licano preserved his objection to Inspector Gilliam offering his
expert opinion or testifying regarding the windshield experiment.
¶ 42 “The trial court has broad discretion to determine the
admissibility of expert testimony.” Golob v. People, 180 P.3d 1006,
1011 (Colo. 2008). “We will not overturn its decision unless it is
‘manifestly erroneous.’” Id. (quoting People v. Ramirez, 155 P.3d
371, 380 (Colo. 2007)).
¶ 43 CRE 702 and CRE 403 govern the admissibility of all expert
testimony in this jurisdiction. Kutzly v. People, 2019 CO 55, ¶ 10;
Ruibal v. People, 2018 CO 93, ¶ 12. Under CRE 702, “[i]f 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.” The expert testimony must be reliable and relevant,
16
and its probative value must not be substantially outweighed by
any of the countervailing considerations listed in CRE 403. Kutzly,
¶ 10. “Determining if expert testimony is reasonably reliable
requires considering the totality of the circumstances surrounding
the proposed expert testimony and is not contingent on any specific
list of factors.” Id. at ¶ 12 (“[C]ertain factors — such as whether the
technique has been tested, whether it has been subjected to peer
review and publication, whether it has been generally accepted, its
known or potential rate of error, and the existence and maintenance
of standards controlling its operation — will be crucial in some
cases but inapposite in others.”). And “a trial court’s reliability
determination should consider whether the witness is qualified as
an expert regarding the proposed testimony.” Id.
¶ 44 Though CRE 702 and Fed. R. Evid. 702 differ in some
respects, case law interpreting both rules emphasizes that the
principles and methodology underlying expert testimony must be
reliable. E.g., Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-58
17
(1999);3 Ruibal, ¶¶ 12-16. Accordingly, analysis under Fed. R. Evid.
702 informs our analysis here.
In the typical case, the proponent invites the
expert to describe a general technique or
theory and then apply to the technique or
theory to the specific facts of the case. In
essence, the balance of the expert’s testimony
is a syllogism: The major premise is the
validity of the expert’s general theory or
technique, the minor premise is the case
specific data, and the application of major to
minor yields a conclusion relevant to the
merits of the case. . . .
....
. . . [When an] expert is making an inferential
claim, a foundation merely showing the
expert’s experience is inadequate. The judge
should insist on a foundation demonstrating
that the expert’s technique . . . “works”; that
is, it enables the expert to accurately make the
determination as to which he or she proposes
to testify. The foundation must include a
showing of the results when the technique was
used on prior occasions. Do the outcomes
demonstrate a connection between facts A and
B? Neither the expert’s personal voucher nor
general acceptance in the field nor even long-
term, repeated use of the theory suffices.
3Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), served as one
of the bases for the amendments to Fed. R. Evid. 702 that
differentiate it from CRE 702. See Fed. R. Evid. 702 advisory
committee’s note to 2000 amendments.
18
1 McCormick on Evidence § 13 (Kenneth S. Broun ed., 7th ed. 2013)
(footnote omitted).
C. Analysis
¶ 45 The underlying premise of both Inspector Gilliam’s opinion
testimony and the windshield test is that there is a nonrandom
correlation between the shape of a bullet hole in a windshield and
the angle of impact of the bullet. If there is no such correlation,
meaning that it is a random occurrence that a particular shape of
bullet hole is caused by a particular angle of impact, neither
Inspector Gilliam’s testimony nor the windshield test has any
probative value. Ornelas-Licano challenged both (1) the
qualifications of Inspector Gilliam to render his opinion and (2) the
reliability of the methodology he used to reach his opinion. We
conclude that the trial court abused its discretion by permitting
Inspector Gilliam to testify as an expert on the relationship between
the shape of a bullet hole and where the shot came from, as well as
the results of his windshield test.
¶ 46 Aside from Inspector Gilliam’s own hypothesis, the record is
devoid of any showing that the shape of a bullet hole in a
windshield is demonstrative or indicative of the angle at which the
19
bullet struck the glass. Inspector Gilliam purported to be able to
apply a technique to determine, based on the shape of a bullet hole,
where the bullet came from, but there was no showing that the
technique “works.” See McCormick on Evidence § 13.
¶ 47 The prosecutor presented no evidence, either through
Inspector Gilliam or otherwise, that anyone other than Inspector
Gilliam himself had previously analyzed the relationship between
the shape of a bullet hole in laminated glass and the angle of
impact. No evidence was presented that the existence of such a
relationship had been subject to peer review or was scientifically
sound or generally accepted. Estate of Ford v. Eicher, 250 P.3d 262,
267 (Colo. 2011); Ramirez, 155 P.3d at 378-79. Inspector Gilliam
never testified that he or anyone else had conducted this type of
analysis before, much less described the results from when this
technique had been applied in the past.4
4 When asked during the Shreck hearing whether he had “ever done
a test like this before,” Inspector Gilliam responded, “If I have, I
don’t recall.” At trial, he was asked “would it be fair to say that this
is the first time that you have conducted a test in order to
determine the angle of impact of a windshield -- angle of impact of a
bullet going through a windshield?” To that question, he
responded, “It is.”
20
¶ 48 While Inspector Gilliam testified that he had extensive
experience in shooting through various windshields, indeed had
done so more than one hundred times, all of that experience was in
the context of determining the effect the windshield had on the
bullet and its trajectory after it passed through the glass, not to
analyze the relationship between the angle of impact and the shape
of the bullet hole.5
5 At trial, Inspector Gilliam testified as follows:
Q. . . . You talked about the training that you
did with the SWAT group regarding shooting
through glass. Do you recall that?
A. I do.
Q. And the primary focus of that training was
teaching an individual how to shoot through
glass and what happens to a bullet when it
hits glass; is that fair to say?
A. Correct.
....
Q. . . . But no part of that training was devoted
to studying bullet holes to determine an angle
of impact?
A. No.
21
¶ 49 In response to the question, “In your training and experience,
what does an elliptical hole indicate?” Inspector Gilliam testified
that “in firearms or bloodstain, it indicates that it’s been deposited
at an angle.” Similarly, in a report that wasn’t offered or presented
to the jury, but was received and considered by the court during the
Shreck hearing, Inspector Gilliam stated that “[f]rom previous
experience and testing of shots through a windshield, an elliptical
hole indicate[s] that the bullet has struck the windshield at an
angle other than perpendicular.”
¶ 50 These statements are insufficient to establish reliability under
CRE 702. Inspector Gilliam did not describe the methodology
underlying the “testing of shots through a windshield,” the purpose
of that testing, the analysis conducted, or the results of that testing
beyond his conclusion that shots fired at an angle produce elliptical
bullet holes. And the statements do nothing to establish that he or
anyone else can reliably apply his theory to interpret the shape of
the bullet hole in this case.
22
¶ 51 The absence of that foundational testimony is fatal to the
admission of this testimony.6 Nothing supported Inspector
Gilliam’s opinion or the implicit reliability of the experiment other
than his own “bare assertions.” Ramirez, 155 P.3d at 379; see also
Fed. R. Evid. 702 advisory committee’s note to 2000 amendments
(“The trial court’s gatekeeping function requires more than simply
‘taking the expert’s word for it.’”).
¶ 52 Colorado case law further supports this conclusion. In Brooks
v. People, 975 P.2d 1105 (Colo. 1999), the court considered
whether, under CRE 702 and CRE 403, to admit testimony from a
police dog handler that the dog had identified the defendant as the
person who had left the tracks from the scene of the crime. Before
this testimony could be admitted, the court required a showing that
the dog was “of a breed characterized by acute power of scent,” the
dog had been “trained to follow a track by scent,” the dog had been
6 We do not address whether this type of expert testimony or the
windshield test may be admissible under CRE 702 and CRE 403
with greater record support. If it is potentially admissible, we do
not address what specific showing must be made to support its
admission. The trial court has wide discretion to make such
determinations regarding the admission of expert testimony. Golob
v. People, 180 P.3d 1006, 1011 (Colo. 2008).
23
“found by experience to be reliable in pursuing human tracks,” the
dog had been “placed on the trail where the [defendant] was known
to have been,” and the “tracking efforts took place within a
reasonable time, given the abilities of the animal.” Id. at 1114.
¶ 53 In short, the court required an extensive foundation to support
the prosecutor’s claim that the dog was capable of identifying a
perpetrator by scent and that the dog had reliably done so in this
case. Here, we have no showing, beyond Inspector Gilliam’s own
self-vouching, that someone can analyze the shape of a bullet hole
to determine where the shot came from or that he reliably applied
that technique in this case.
¶ 54 Similarly, the Colorado Supreme Court has excluded, under
CRE 702 and CRE 403, expert testimony of a detective describing
the profile of a drug courier and concluding that the defendant was
a drug courier. Salcedo v. People, 999 P.2d 833 (Colo. 2000). The
court concluded that this testimony was inadmissible because of
the “lack of evidence indicating that [the detective] utilized an
objective, widely recognized profile” and the “lack of evidence . . .
indicating that conformity to [the detective’s] drug courier profile is
a reliable indicator of guilt.” Id. at 839. In this case, there is no
24
showing that the expert’s method is “widely recognized” or
“objective” or that it can reliably determine the angle of impact.
¶ 55 And more recently, in Ruibal, 2018 CO 93, the Colorado
Supreme Court excluded expert testimony based on the theory of
“overkill” that the assailant in that case had an emotional
connection with the victim. The court stated that “the record was
virtually devoid of support[] concerning the reliability of the
scientific principles underlying the theory and interpretation of
‘overkill.’” Id. at ¶ 15.
The witness relied on a single treatise as
support for the theory of “overkill,” which even
he did not accept as generally authoritative,
and which, in any event, defined “overkill” far
too narrowly . . . to support the essential
inference, drawn by the expert in this case, of
an emotional relationship between the victim
and killer. Similarly, although the witness
testified that he had performed many
autopsies himself and knew “who confessed to
doing what,” he failed to offer even anecdotal,
much less empirical, evidence supporting his
conclusion that beatings like the one in this
case were likely committed by someone with
an emotional connection to the victim. Finally,
neither the appellate courts of this jurisdiction
nor those of any other jurisdiction have yet
accepted as reliable the theory or
interpretation of “overkill” advanced by the
witness.
25
Id. (footnote omitted).
¶ 56 In sum, the Colorado Supreme Court has consistently required
more than the expert’s own assertions to support the required
finding that the expert’s underlying theory is reliable. That showing
was not made in this case.7 Cf. United States v. Frazier, 387 F.3d
1244, 1265 (11th Cir. 2004) (concluding that because the putative
expert “was relying solely or primarily on his experience, it
remained the burden of the proponent of this testimony to explain
how that experience led to the conclusion he reached, why that
experience was a sufficient basis for the opinion, and just how that
experience was reliably applied to the facts of the case”).
7 Though not relied on by either party, we note that People v.
Caldwell, 43 P.3d 663, 667 (Colo. App. 2001), does not support a
different result. In that case, the division observed that “[n]o
special expertise is required to look at the hole made by the bullet
and realize that it followed a straight-line path.” Id. In Caldwell, a
former police officer used string to track the paths of bullets
through a car and testified about their trajectories on that basis.
Id. There, the evidence established multiple points along the
bullets’ paths, which the witness used to establish their trajectories.
Here, the evidence established only one point in the bullet’s path —
the hole in the windshield. The testimony in Caldwell was based on
the bullets’ paths, not the shape of the bullet holes. Accordingly,
Caldwell does not inform our analysis.
26
¶ 57 The Sixth Circuit has developed a useful framework for
evaluating the reliability of an expert’s opinion, explaining that
there are a number of “[r]ed flags that caution against certifying an
expert.” Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521,
527 (6th Cir. 2012). These red flags include (1) “reliance on
anecdotal evidence”; (2) “improper extrapolation”; (3) “failure to
consider other possible causes”; (4) “lack of testing”;
(5) “subjectivity”; and (6) that “a purported expert’s opinion was
prepared solely for litigation.” Id. (first citing Best v. Lowe’s Home
Ctrs., Inc., 563 F.3d 171, 177 (6th Cir. 2009); then citing Johnson v.
Manitowoc Boom Trucks, Inc., 484 F.3d 426, 434 (6th Cir. 2007)).
¶ 58 Each of these red flags, to one degree or another, is present
here. For example, Inspector Gilliam’s hypothesis regarding the
relationship between the angle of impact and the shape of the bullet
hole is based on anecdotal observations incidental to his training
and experience as a sniper. Further, his conclusion is subjective
(i.e., the “similarity” of the shapes of various bullet holes) and is
extrapolated from two data points, which were recorded during a
test developed specifically for this litigation. The prevalence of these
red flags further supports our conclusion that it was an abuse of
27
discretion for the trial court to permit Inspector Gilliam to testify as
an expert in the relationship between the shape of a bullet hole and
the angle of the bullet’s impact.
¶ 59 Finally, even if the prosecutor had introduced only the results
of the windshield experiment through lay testimony, without any
lay or expert opinions, those results would still be inadmissible. Cf.
People v. Wilkerson, 114 P.3d 874, 876-77 (Colo. 2005) (“Even
though a general area of scientific knowledge is determined to be
reliable, if the results of a scientific test or comparison are not self-
evident, the test itself lacks relevance unless there is also reliable
expert interpretation of its results.”). Under CRE 403, if the
probative value of any evidence is substantially outweighed by the
dangers of unfair prejudice and misleading the jury, the evidence
must be excluded. This evidence, on this record, is unfairly
prejudicial and misleading because it supports the prosecutor’s
theory of the case, even though there is nothing in the record to
show that anything but randomness accounted for any similarity
between the actual bullet hole and the hole created by the shoulder-
height test shot.
28
IV. The Error Was Not Harmless
¶ 60 Unless it implicates the defendant’s constitutional rights, an
error in the admission of expert testimony requires reversal only
when it “substantially influence[d] the verdict” or “affect[ed] the
fairness of the trial proceedings.” Ruibal, ¶ 17.
¶ 61 Ornelas-Licano urges that the error implicated his
constitutional rights and, therefore, we must apply the
constitutional harmless error standard. We do not reach the
question of whether the constitutional harmless error standard
applies because we conclude that the error is reversible under the
more stringent nonconstitutional harmless error standard.
¶ 62 Attempted second degree murder is a serious crime, and
Ornelas-Licano faced a lengthy prison sentence if convicted. To
obtain a conviction, the prosecutor had to prove beyond a
reasonable doubt that Ornelas-Licano knowingly engaged in
conduct that was a substantial step toward causing the death of the
officer in the vehicle at the intersection. To make this case, the
prosecutor introduced two main types of evidence. First, the
prosecutor elicited expert testimony and introduced exhibits related
to the windshield experiment to show that Ornelas-Licano fired the
29
gun from a “natural shooting position.” Second, the prosecutor
elicited testimony from a jailhouse witness who claimed that, before
the incident, Ornelas-Licano had told him that he intended to have
a “shootout” with police rather than be taken into custody.
¶ 63 Disregarding the testimony of Inspector Gilliam regarding the
shape of the bullet hole and evidence of the windshield test, the
strongest support for the prosecutor’s theory that Ornelas-Licano
pointed the gun at the officer’s vehicle and fired was the testimony
of the jailhouse witness. But direct and cross-examination of the
jailhouse witness undermined his credibility in several ways. At the
time of trial, the jailhouse witness was in custody and subject to
deportation proceedings. He testified that he had been paid as a
police informant eleven times before this case, he was facing a
charge for false reporting to police, and his deportation hearing
would be held the day after his testimony in this case.
¶ 64 Moreover, “[t]here are special concerns attendant to law
enforcement expert testimony.” United States v. Rodriguez, 125 F.
Supp. 3d 1216, 1238 (D.N.M. 2015) (citing United States v. Medina–
Copete, 757 F.3d 1092 (10th Cir. 2014)). For example, “there is
something qualitatively different about law enforcement expertise
30
from other forms of expertise” because “[l]aw enforcement
officers . . . are experts in whodunit, and there is a danger that a
jury will perceive their area of expertise as solving crimes and
determining guilt or innocence.” Id. at 1252; see also Frazier, 387
F.3d at 1263 (“[E]xpert testimony may be assigned talismanic
significance in the eyes of lay jurors, and, therefore, the district
courts must take care to weigh the value of such evidence against
its potential to mislead or confuse.”).
¶ 65 In short, given that there was nothing showing that Inspector
Gilliam’s testimony or the windshield experiment was reliable, the
importance of the testimony to a central disputed issue, and the
weakness of the other evidence supporting the prosecutor’s theory
of the case, the admission of Inspector Gilliam’s expert testimony
and the windshield evidence substantially affected the verdict and
undermined the fairness of the trial. Accordingly, reversal is
required.
¶ 66 Because we reverse on these grounds, we do not address
Ornelas-Licano’s other arguments related to Inspector Gilliam’s
testimony and windshield experiment evidence.
31
V. Conclusion
¶ 67 Ornelas-Licano’s conviction for attempted second degree
murder is reversed, and the case is remanded for a new trial on that
charge. Because the issue has not been briefed, we do not address
the question of whether either party may seek a lesser included
offense instruction as to the charge of attempted first degree assault
– extreme indifference. We do not disturb Ornelas-Licano's other
convictions.
JUSTICE MARTINEZ concurs.
JUDGER BERGER concurs in part and dissents in part.
32
JUDGE BERGER, concurring in part and dissenting in part.
¶ 68 I agree with the majority’s rejection of Jose Ornelas-Licano’s
equal protection claim. Although a close question, I cannot agree
with the majority’s analysis and reversal based on the admission of
expert testimony. Therefore, I respectfully dissent.
I. Admission of Expert Testimony Interpreting the Shape of the
Bullet Hole in the Windshield and Evidence of the Windshield
Experiment Was Not an Abuse of Discretion
¶ 69 Ornelas-Licano contends that the trial court abused its
discretion by admitting testimony from the prosecution expert that,
based on his experience and the windshield experiment, the
elliptical shape of the bullet hole in the truck’s windshield was more
consistent with a shot fired from shoulder height than with a shot
fired from the level of the stick shift.
¶ 70 Ornelas-Licano lodges multiple separate, but related,
challenges. First, he claims that the expert was not qualified.
Second, he claims that the opinions were not reliable under CRE
702. Third, he claims that the evidence was “misleading” and not
helpful to the jury because there were an infinite number of
possible shooting positions. Finally, he claims that the trial court’s
findings were insufficient under CRE 702. I reject each of these
33
contentions in turn and conclude that the trial court did not abuse
its discretion by admitting this expert testimony.
A. The Expert’s Qualifications and the Reliability of His Opinions
¶ 71 “The trial court has broad discretion to determine the
admissibility of expert testimony.” Golob v. People, 180 P.3d 1006,
1011 (Colo. 2008). “We will not overturn its decision unless it is
‘manifestly erroneous.’” Id. (quoting People v. Ramirez, 155 P.3d
371, 380 (Colo. 2007)). “This deference reflects the superior
opportunity of the trial judge to gauge the competence of the expert
and the extent to which his opinion would be helpful to the jury.”
Id. (quoting Ramirez, 155 P.3d at 380).
¶ 72 “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. To determine whether expert
testimony is admissible under CRE 702, the court must make
determinations as to (1) the “reliability of the scientific principles”;
(2) the “qualifications of the witness”; and (3) the “usefulness of the
testimony to the jury.” People v. Shreck, 22 P.3d 68, 70 (Colo.
34
2001). “The ‘crucial question’ trial courts must answer when
determining the admissibility of proffered expert testimony is: ‘On
this subject can a jury from this person receive appreciable help?’”
People v. Williams, 790 P.2d 796, 798 (Colo. 1990) (quoting 3 Jack
B. Weinstein and Margaret A. Berger, Weinstein’s Evidence
§ 702[01], at 702-7 to 702-8 (1988)).
¶ 73 Ornelas-Licano first contends that the expert was not qualified
to testify, based on the shape of the bullet hole, what angle the shot
came from. He further contends that any such testimony was
unreliable. Because these contentions are related, I address them
together.
¶ 74 Ornelas-Licano correctly points out that the expert had no
training or education in analyzing bullet holes to determine a
bullet’s flight path or reconstructing shooting scenes generally. In
addition, he correctly states that the expert presented no scientific
literature or other evidence supporting the reliability of his bullet
hole analysis.
¶ 75 CRE 702, however, allows an expert to testify based on his or
her experience. The inquiry under CRE 702 “should be broad in
nature and consider the totality of the circumstances of each
35
specific case.” Shreck, 22 P.3d at 70. There is no exclusive list of
factors that a court must consider. Id.
¶ 76 As foundation for his opinions, the expert testified that he had
extensive experience in shooting through vehicle windshields in
connection with his training as a police sniper. I recognize that the
primary purpose of those shootings was to determine the effect of
an intervening windshield on a bullet’s trajectory after it passed
through the glass. But the expert also testified that he had
repeatedly observed a relationship between the angle of impact of a
bullet on the windshield and the shape of the hole made by the
bullet.
¶ 77 In response to the question, “In your training and experience,
what does an elliptical hole indicate?” the officer testified that “in
firearms or bloodstain, it indicates that it’s been deposited at an
angle.” Similarly, in a report that was not offered or presented to
the jury, but was received and considered by the court during the
Shreck hearing, the officer stated that “[f]rom previous experience
and testing of shots through a windshield, an elliptical hole
indicate[s] that the bullet has struck the windshield at an angle
other than perpendicular.”
36
¶ 78 On these facts, I believe that the trial court acted within its
discretion in concluding that the officer was qualified to testify
regarding his conclusions based on the shape of the bullet hole in
the windshield. A person who has shot through a hundred
windshields and has observed the relationship between the angle of
impact and the shape of the bullet holes meets the qualifications
requirements of CRE 702.
¶ 79 The closer and more difficult question is whether the
foundational testimony was sufficient to meet the reliability
requirement of CRE 702. I emphasize that the question before us is
not whether we appellate judges would have admitted the
testimony, had we acted as the trial judge. People v. Rhea, 2014
COA 60, ¶ 58. Instead, the question is whether the trial court
abused its discretion by admitting the expert testimony on this
evidentiary record. Id.
¶ 80 I conclude, after applying this deferential abuse of discretion
standard, that the trial court did not abuse its discretion in finding
that the expert testimony was sufficiently reliable under CRE 702.
Contrary to the majority’s analysis, cases where the Colorado
37
Supreme Court has held experience-based expert testimony
inadmissible do not dictate a different result.
¶ 81 In Ruibal v. People, the supreme court held that it was error
for the trial court to admit expert testimony from a forensic
pathologist because (1) the trial court did not make any findings
concerning the reliability of the principles underlying the expert’s
theory and (2) the record was devoid of support as to the theory’s
reliability. 2018 CO 93, ¶ 15. The expert in that case had
experience in conducting autopsies and had on many occasions
learned, at trial, about an assailant’s relationship to his or her
victim. Id. He testified that the victim’s injuries in Ruibal
demonstrated “overkill,” a term describing multiple injuries on one
area of the body, which indicates that the assailant had an
emotional attachment to the victim. Id. at ¶ 9.
¶ 82 Both justifications for excluding the expert opinion in Ruibal
are absent from this case. The trial court found that the expert’s
theory was sufficiently reliable. In an oral ruling, the court stated,
“The defense has argued that the scientific principles involved here
are unreliable. I don’t agree.” The record supported this finding.
The expert testified that he had shot through over one hundred
38
windshields, and that his experiences identified a relationship
between the angle of impact of a bullet on the windshield and the
shape of the hole left by the bullet.
¶ 83 The results of the expert’s experiment buttressed his
experienced-based observations such that the trial court could
properly find his bullet-hole theory reliable. For the experiment, the
expert obtained two new windshields that were the same type as the
one in Ornelas-Licano’s truck. He fired Ornelas-Licano’s gun
through one of the windshields at approximately the same angle as
a shot fired from the level of the truck’s stick shift. He then fired
the gun through the second windshield at approximately the same
angle as a shoulder-height shot. Photographs of the two test firings
demonstrated that the shot made from the gear shift caused a
circular bullet hole, while the test shot made from shoulder height
caused a more elliptical hole. This kind of data was absent from
the record in Ruibal, where the expert gave no “anecdotal, much
less empirical, evidence supporting his conclusion.” Id. at ¶ 15.
¶ 84 Salcedo v. People, 999 P.2d 833 (Colo. 2000), is similarly
distinguishable. In that case, the supreme court held that
testimony that a defendant matches a “drug courier profile” is not
39
an admissible expert opinion. Id. at 837. There, a police detective
was qualified as an expert in “narcotics interviews,” and, based on a
“loose profile” of behaviors and characteristics that the detective
had constructed based on prior experience with drug couriers, the
detective testified that he believed that Salcedo was a drug courier.
Id. at 835 –36.
¶ 85 The supreme court held that this testimony was inadmissible
on reliability grounds because “application of the drug courier
profile depends substantially on a subjective, if not intuitive,
judgment that a person’s behavior and characteristics warrant
further investigation,” and because “[the expert] based his opinion
of Salcedo’s guilt on a subjective assessment of the ‘totality of the
circumstances’ rather than on an articulable combination of
behaviors and characteristics in an objective drug courier profile.”
Id. at 838 –39 (emphasis added).
¶ 86 Although both the expert in Salcedo and the expert in this
case developed their theories based on prior experience, those
experiences were different in kind. The expert’s theory in this case
was not based on his subjective gut feelings, but rather on his
objective, definable, and simple observations: there is a relationship
40
between a bullet’s angle of impact and the shape of hole it leaves in
glass. Instead of analyzing many factors and variables under “the
totality of the circumstances,” id. at 839, the expert here identified a
more limited number of variables pertinent to his theory and then
explained a precise result — namely, that when a bullet strikes
glass at a nonperpendicular angle, there will be an elliptical hole.
This is in stark contrast to the inadmissible expert opinion in
Salcedo, which was tantamount to “I think defendant was a drug
courier because I’ve seen drug couriers before, and he looked like
one.” In sum, while the expert’s opinion in Salcedo was
indeterminate and subjective, id., the detective’s opinion here was
determinate and objective.
¶ 87 The officer testified as an expert about his theory of the case
based on his experience, which was validated by the (albeit limited)
results of his experiment with the windshields. While no scientific
evidence was presented regarding the physics of why or how the
angle of impact related to the shape of the bullet hole, as I read the
supreme court’s opinion in Shreck, such scientific evidence (which
may entail peer review and other confirmations of reliability) is not
always required. Shreck, 22 P.3d at 77-78.
41
¶ 88 Our function is limited to determining whether a sufficient
showing of reliability was made. It is the jury’s function to
determine, based on cross-examination, the presentation of
rebutting expert evidence, and all other relevant factors, whether to
credit that testimony. COLJI-Crim. E:06 (2019); Hampton v. People,
171 Colo. 153, 165, 465 P.2d 394, 400 (1970).
¶ 89 I note that the defense expert, who indisputably was qualified
as a ballistics expert, did not dispute the central assumption of the
prosecution expert — that the angle of impact bears a causal
relationship with the shape of the bullet hole. Instead, the defense
expert contended that the prosecution expert’s testimony was wrong
(or unreliable) because there were “too many unknowns and too
many variables in this particular case.” He testified that it was
impossible, based on the shape of the bullet hole and the
windshield experiment, to reach any specific conclusions about the
location of the gun when the shot was fired.
¶ 90 I am mindful that it is unfair to hold a defendant’s diligence in
calling a defense expert against the defendant, and I agree that the
testimony of the later-called defense expert should not bear on the
question of the admissibility under CRE 702 of the prosecution
42
expert’s opinions.8 Nevertheless, following a number of cases
decided by this court, the fact that a defense expert addressed and
disagreed with the prosecution expert’s opinions is properly
considered for two purposes. See People v. Shanks, 2019 COA 160,
¶ 41; Schuessler v. Wolter, 2012 COA 86, ¶ 73; People v. Masters, 33
P.3d 1191, 1202 (Colo. App. 2001), aff’d, 58 P.3d 979 (Colo. 2002).
¶ 91 First, particularly when, as here, the defense expert does not
contest the central premise or causal analysis of the prosecution
expert, the risk that the prosecution expert’s opinions were “junk
science,” and that the defendant was convicted on the basis of such
junk science, is substantially ameliorated. Second, when the
defense presents a rebutting expert, the jury has more tools to
evaluate whether, in the end, the prosecution expert’s opinions are
worthy of belief. (Of course, we have no way of knowing whether
the prosecution expert’s opinions had any bearing on the jury’s
verdict.)
8 The defense expert did not testify at the Shreck hearing conducted
regarding the admissibility of the prosecution expert’s testimony;
and therefore his testimony did not bear on the trial court’s
determination that the prosecution expert’s testimony was
admissible under CRE 702.
43
¶ 92 For these reasons, I conclude that the trial court did not abuse
its discretion by admitting this testimony.
B. The Expert’s Opinions, Based on Two Potential Shooting
Positions, Were Helpful to the Jury and Were Not Misleading
¶ 93 Ornelas-Licano next argues that the expert’s testimony was
misleading and not helpful to the jury because it only addressed
two possible shooting positions, and there were many other
possibilities. The central issue in this case is whether Ornelas-
Licano accidentally shot through the windshield or did so
deliberately in an attempt to kill the officer.
¶ 94 Testimony by a qualified expert giving reliable opinions
regarding the relationship between the angle of impact and the
shape of resulting bullet holes through a windshield could help the
jury decide whether to credit Ornelas-Licano’s account of the
incident or the prosecutor’s theory. Therefore, based on my
determination that the expert was qualified and that his opinions
were sufficiently reliable to be presented to the jury, I reject
Ornelas-Licano’s argument that the expert’s opinions could not
have been helpful to the jury.
44
¶ 95 Additionally, the expert’s testimony did not preclude the jury’s
consideration of other possible shooting positions. Indeed, defense
counsel emphasized these other possibilities in opening and closing.
Therefore, the testimony was not misleading.
C. The Trial Court’s Findings Under CRE 702 Were Sufficient
¶ 96 Finally, Ornelas-Licano argues that the trial court “failed to
make sufficient findings to support its rejection of [his] reliability
challenge.” “[U]nder CRE 702, a trial court must issue specific
findings as it applies the CRE 702 and 403 analyses.” Shreck, 22
P.3d at 83. Contrary to Ornelas-Licano’s argument, the trial court
paused the trial to hold a Shreck hearing and concluded that the
proposed expert testimony was reliable. Moreover, as both the
majority’s and my analysis of the admissibility of the expert
opinions demonstrates, the trial court’s findings were sufficient for
us to perform our appellate function. Tatum v. Basin Res., Inc., 141
P.3d 863, 869 (Colo. App. 2005).
¶ 97 For these reasons, I would hold that the trial court did not
abuse its discretion by admitting the prosecution expert’s opinions
analyzing the shape of the bullet hole in the windshield.
45
D. The Results of the Windshield Experiment Were Properly
Admitted
¶ 98 Ornelas-Licano separately challenges the expert’s
qualifications to conduct the windshield experiment and the
admission of the results of the experiment.9
¶ 99 As Ornelas-Licano correctly points out, the expert had no
training or education related to conducting this specific kind of
experiment. He had never done this before, and he cited no
scientific literature or other support for this methodology.
¶ 100 However, the expert had participated in sniper trainings
involving shooting through glass at various angles and analyzing
the bullets’ trajectories. Further, he explained in detail the
methodology behind the experiment, including why certain angles
were chosen and how those angles were recreated. I conclude that
9 It is not clear that that windshield experiment or its results are
expert testimony subject to CRE 702. Compare People v. Caldwell,
43 P.3d 663, 667-68 (Colo. App. 2001) (police officer determined
paths of bullets through a car using a string and properly testified
as a lay witness about the bullets’ trajectories), with People v.
Stewart, 55 P.3d 107, 123-25 (Colo. 2002) (police officer’s accident
reconstruction testimony was improperly admitted as lay
testimony). Neither party addresses this question. Because both
parties analyze these contentions using CRE 702 principles, I do
the same.
46
this foundation was sufficient for the admission of the results of the
experiment.
¶ 101 Ornelas-Licano also argues that the experiment did not
account for other variables in play during the shooting. But as I
discussed above, “challenges to . . . the expert’s application of
variables [go] to the weight of the evidence, not its admissibility.”
Shanks, ¶ 40. “Such concerns ‘are adequately addressed by
vigorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof.’” Id. at ¶ 12 (quoting
People v. Campbell, 2018 COA 5, ¶ 42).
¶ 102 Ornelas-Licano next contends that videos documenting the
windshield experiment were unduly prejudicial because in those
videos the gun was fired toward the viewer. I disagree. While the
video camera was in front of the windshield, the gun itself was not
visible because it was being fired at an angle to the windshield (as if
from the driver’s side). Each video simply shows a bullet hole
appearing in the windshield and does not “suggest a decision on an
improper basis.” People v. Clark, 2015 COA 44, ¶ 18 (quoting
People v. James, 117 P.3d 91, 93-94 (Colo. App. 2004)). Thus, this
47
testimony was not “unduly prejudicial” under CRE 403. People v.
Palacios, 2018 COA 6M, ¶ 20.
¶ 103 Further, for the reasons stated in the previous section, the
experiment results and resulting testimony could have been helpful
to the jury and were not misleading.
¶ 104 On these facts, the trial court did not abuse its discretion by
admitting the windshield experiment results and the expert
testimony relating to the experiment.
II. Conclusion
¶ 105 For these reasons, I would affirm the judgment of conviction.
48