Ruibal v. People , 432 P.3d 590 ( 2018 )

Opinions of the Colorado Supreme Court are available to the
public and can be accessed through the Judicial Branch’s homepage at
http://www.courts.state.co.us. Opinions are also posted on the
Colorado Bar Association’s homepage at http://www.cobar.org.
ADVANCE SHEET HEADNOTE
December 3, 2018
2018 CO 93
No. 15SC504, Ruibal v. People—Evidence—Expert Testimony—Abuse of Discretion.
Ruibal petitioned for review of the court of appeals’ judgment affirming his
conviction for second degree murder. Over defense objection and without taking
evidence or making any findings as to reliability, the trial court admitted expert
testimony to the effect that the victim’s injuries in this case demonstrated “overkill,” a
formal term describing multiple injuries focused on one area of the victim’s body, which
includes blows about the head and face that are numerous and extensive, indicating that
the assailant likely had either a real or perceived emotional attachment to the victim.
Relying on case law from several other jurisdictions, a treatise dealing with related kinds
of injuries, and the witness’s own experience with autopsies involving similar injuries,
the court of appeals concluded that the expert opinion was sufficiently reliable and that
the trial court had implicitly found as much by granting the prosecution’s proffer.
The supreme court holds that because the trial court made no specific finding that
the theory of “overkill” espoused by the witness was reliable, nor was the reliability of
that theory either supported by evidence in the record or already accepted in this
jurisdiction, its admission amounted to an abuse of discretion. Because there was,
however, overwhelming evidence of the defendant’s guilt quite apart from the expert
testimony, the error was necessarily harmless. Accordingly, the judgment of the court of
appeals is affirmed.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2018 CO 93
Supreme Court Case No. 15SC504
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 13CA276
Petitioner:
George J. Ruibal,
v.
Respondent:
The People of the State of Colorado.
Judgment Affirmed
en banc
December 3, 2018
Attorneys for Petitioner:
Johnson & Klein, PLLC
Eric Klein
Boulder, Colorado
Attorneys for Respondent:
Cynthia H. Coffman, Attorney General
Jacob R. Lofgren, Assistant Attorney General
Denver, Colorado
CHIEF JUSTICE COATS delivered the Opinion of the Court.
JUSTICE GABRIEL does not participate.
¶1 Ruibal petitioned for review of the court of appeals’ judgment affirming his
conviction for second degree murder. Over defense objection and without taking
evidence or making any findings as to reliability, the trial court admitted expert
testimony to the effect that the victim’s injuries in this case demonstrated “overkill,” a
formal term describing multiple injuries focused on one area of the victim’s body, which
includes blows about the head and face that are numerous and extensive, indicating that
the assailant likely had either a real or perceived emotional attachment to the victim.
Relying on case law from several other jurisdictions, a treatise dealing with related kinds
of injuries, and the witness’s own experience with autopsies involving similar injuries,
the court of appeals concluded that the expert opinion was sufficiently reliable and that
the trial court had implicitly found as much by granting the prosecution’s proffer.
¶2 Because the trial court made no specific finding that the theory of “overkill”
espoused by the witness was reliable, nor was the reliability of that theory either
supported by evidence in the record or already accepted in this jurisdiction, its admission
amounted to an abuse of discretion. Because there was, however, overwhelming
evidence of the defendant’s guilt quite apart from the expert testimony, the error was
necessarily harmless. The judgment of the court of appeals is therefore affirmed.
I.
¶3 George Ruibal was charged with and convicted of second degree murder for the
beating and strangulation death of the woman with whom he was living at the time. He
was sentenced to forty years in the custody of the department of corrections.
2
¶4 It was undisputed at trial that the victim’s body was discovered lying on a couch
in the couple’s apartment, on a Monday, by the defendant and a co-worker, from whom
the defendant had gotten a ride home and whom he had invited in to see the couple’s
new apartment. The co-worker immediately called 911, and upon arrival, the responding
officer could see that the victim had bruises and scratches on her face. An autopsy
determined that the victim died from closed head injuries—specifically a subdural
hemorrhage, a subarachnoid hemorrhage, and a brain contusion—due to blunt force
associated with manual strangulation, both of which were estimated to have occurred
many hours before she died. The coroner also testified that the victim was covered in
contusions and abrasions: eight or nine contusions on her head and face; multiple
abrasions on her face and neck; and as many as fifty contusions and another twenty
abrasions on her torso, arms, and legs.
¶5 The prosecution presented extensive evidence tending to show that the defendant
had beaten the victim in their apartment and left her unattended to die. In addition to
the medical evidence of the injuries themselves, the prosecution demonstrated
inconsistencies in the defendant’s accounts of his and the victim’s movements on the
weekend preceding discovery of the body and presented evidence, including
documentary and other physical evidence, making it unlikely that events could have
transpired as he asserted. Among other things, the defendant’s account of the victim’s
having been attacked by a stranger while on a shopping trip to a nearby grocery store on
Saturday night and yet continuing to function doing household chores over the weekend
was challenged by expert testimony as very unlikely, given the severity of her injuries.
3
Similarly, other physical evidence like the absence of blood on the victim’s hands and the
defendant’s DNA under her fingernails and on her collar, as well as scratches and scabs
on the defendant’s nose and knuckles, remained unexplained by the defendant’s account.
In addition, his account of rarely speaking with the victim from work as an explanation
for not calling to check on her was contradicted by phone records and the testimony of
co-workers, who also recounted the turbulence of the defendant’s relationship with the
victim, including prior incidents of domestic violence.
¶6 Finally, the prosecution presented the testimony of the defendant’s cellmate to the
effect that the defendant confessed to strangling the victim and admitted that he brought
someone home with him to witness his supposed discovery of the body. The cellmate
also testified that the defendant said he was angry because he had to sell his truck to pay
bills while the “ungrateful” victim sat at home drinking. While it appeared that the
cellmate could possibly have accessed a newspaper article reporting the crime, officer
testimony also indicated that the article in question did not mention two important
details in the cellmate’s story—that the defendant referred to the victim as “Baby,” which
was corroborated by the co-worker upon discovery of the body, and the fact that the
victim’s family had pushed police to continue to investigate the crime.1
1 The defendant was not arrested until more than three years after the crime was
committed.
4
¶7 Although the defendant did not testify, he presented a theory of defense involving
an alternate suspect through his prior statements, other witnesses, the cross-examination
and arguments of his counsel, and his theory-of-the-case instruction. According to the
defendant’s theory, another man, J.D., had beaten the victim somewhere outside their
apartment. The prosecution introduced the defendant’s version of events, through his
interviews with the police, to the effect that the victim left the apartment around 8:30 p.m.
Saturday with a twenty dollar bill the defendant had given her to buy milk at Albertsons.
When the victim returned to the apartment several hours later, she had bruises and
scratches on her face. Although she initially wanted to be taken to the hospital, the
defendant attempted, through phone calls, but was unable to find her a ride. On Sunday,
the victim made the bed, ate breakfast, walked around, and said she no longer wanted to
go to the hospital. When the defendant left for work on Monday morning, the victim was
on the couch. He had no contact with the victim until he returned home with his
co-worker. He explained that the victim never called him during the day, and he did not
call her because it would upset her.
¶8 It was undisputed that a man identified as J.D. lived in the area and had been
contacted by the police shortly after midnight on that Sunday morning, near Albertsons.
A woman who testified that she had a prior relationship with J.D. was also permitted to
testify that J.D. had a history of being violent towards her and in one instance had even
strangled her. Although it appeared to be contradicted by surveillance footage and the
discovery of the twenty dollar bill still in the victim’s pocket, an Albertsons’ manager also
testified that she saw the victim buy milk that night sometime between 9:30 and 10 p.m.
5
¶9 In light of the defendant’s theory that the victim had been attacked by a stranger,
the prosecution presented the expert testimony of a second forensic pathologist
expressing, among other things, conclusions about the relationship between a killer and
victim that he opined could be reliably inferred from what he referred to as “overkill.”
Over the objection of the defense and without taking evidence about the reliability of the
theory, the trial court permitted the witness to offer an expert opinion to the effect that
the victim’s injuries in this case demonstrated “overkill,” a formal term describing
multiple injuries focused on one area of the victim’s body, which includes blows about
the head and face that are numerous and extensive, indicating that the assailant likely
had either a real or perceived emotional attachment to the victim.
¶10 Following his conviction, the defendant included among his assignments of error
in the intermediate appellate court the admission of this expert opinion. Relying on case
law from several other jurisdictions, a treatise dealing with related kinds of injuries, and
the witness’s own experience with autopsies involving similar injuries, the court of
appeals concluded that the expert opinion was sufficiently reliable and that the trial court
had implicitly found as much by granting the prosecution’s proffer. Upon rejecting the
defendant’s other assignments as well, the court of appeals, with one member of the panel
dissenting, affirmed his conviction.
¶11 We granted the defendant’s petition for certiorari review solely on the question
whether the expert opinion concerning “overkill” was erroneously admitted without a
specific finding that the principles upon which it was based were reliable.
6
II.
¶12 In People v. Shreck, 22 P.3d 68 (Colo. 2001), we extended our prior holdings beyond
what we had at times referred to as “experienced-based specialized knowledge,” Brooks
v. People, 975 P.2d 1105, 1114 (Colo. 1999), to make clear that CRE 702, rather than the
Frye2 “general acceptance” standard, governs the admissibility of all expert testimony in
this jurisdiction, including testimony based not only on technical or other specialized
knowledge, but even on novel scientific devices and processes involving manipulation of
physical evidence. Shreck, 22 P.3d at 74, 78. In doing so, however, we also explained in
detail the nature of the CRE 702 inquiry and articulated the obligations of trial courts
prior to admitting expert evidence pursuant to this rule. Id. at 77–78. We there held that
the trial court’s inquiry should be broad in nature and take into consideration the totality
of the circumstances of each specific case, focusing on both the reliability and relevance
of the evidence. Id. at 77. In light of the wide range of factors that may be considered in
any individual case and the liberal nature of the standard, we imposed upon trial courts
admitting evidence pursuant to CRE 702 an obligation to first determine and make
specific findings on the record, not only as to the reliability of the scientific principles
upon which the expert testimony is based and the qualifications of the witness giving
that testimony, but also the usefulness of such testimony to the jury, including specific
findings with regard to the court’s obligation pursuant to CRE 403 to ensure that the
2 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
7
probative value of the evidence would not be substantially outweighed by any of the
countervailing considerations enumerated in the rule. Id. at 70, 77–78.
¶13 As we have also made clear, whether making those determinations will require an
evidentiary hearing outside the presence of the jury will ultimately depend on whether
the record can support the court’s findings without doing so. People v. Rector, 248 P.3d
1196, 1201 (Colo. 2011). Depending upon the extent to which the reliability of the
scientific principles at issue has already been determined or is not disputed at all, for
example, further evidence of their reliability may not be required. See id. at 1201; cf.
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (admonishing trial courts to “avoid
unnecessary ‘reliability’ proceedings”). Similarly, while we have indicated that it would
be preferable in light of discovery and endorsement requirements to make these
determinations prior to trial, it may be necessary, especially with regard to such matters
as the incremental probativeness of proffered expert testimony, to withhold ruling until
later. Rector, 248 P.3d at 1200 n.5. With regard to the requirement for specific findings
concerning a determination of the reliability and relevance of evidence to be admitted
pursuant to CRE 702, with record support, we have, however, been unwavering. See, e.g.,
id. at 1200 (noting that although a trial court has discretion to determine whether a
challenge to expert testimony warrants a Shreck analysis, where a proper challenge has
been raised, a trial court “is required to issue specific findings” as to relevance and
reliability under CRE 702); Estate of Ford v. Eicher, 250 P.3d 262, 266 (Colo. 2011) (stating
a trial court “is required to issue specific findings regarding its analyses” as to relevance
and reliability); City of Aurora ex rel. Util. Enter. v. Colo. State Eng’r, 105 P.3d 595, 612 (Colo.
8
2005) (“The court must issue specific findings as it performs its CRE 702 and 403
analyses.”).
¶14 While it may be inferable from an adequate record of the trial court’s awareness of
the applicable standard and its admission of the expert’s testimony that it considered the
expert evidence both reliable and relevant, the requirement for specific findings is not
satisfied by this inference alone. In light of the broad range of expertise governed by the
rule and the necessarily non-specific nature of the factors governing the reliability,
relevance, and incremental probativeness of expert opinion in any given case, the
requirement for specific findings is imposed as a means of ensuring meaningful review
of this broadly discretionary decision. In the absence of these specific findings, or a
record not only supporting admission but virtually requiring it or precluding any
reasonable dispute as to the basis of the court’s admission, the trial court must be
considered to have abused its discretion in admitting expert testimony.
¶15 Although the record in this case indicated merely that the witness was a forensic
pathologist and the trial court made only a general finding that his testimony helped put
the nature and type of the victim’s injuries into context for the jury, we need not address
the adequacy of those findings as to the qualifications of the expert or relevance of his
testimony because the trial court made no findings, and the record was virtually devoid
of support, concerning the reliability of the scientific principles underlying the theory and
interpretation of “overkill.” 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 be applicable to the injuries inflicted
9
in this case or to support the essential inference, drawn by the expert in this case, of an
emotional relationship between the victim and killer.3 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.
¶16 Of the handful of reported cases in which the concept of “overkill” is analyzed,
apparently none has found the theory reliable for purposes of the expert testimony
analysis required by Rule 702. See, e.g., State v. Lenin, 967 A.2d 915, 925–26 (N.J. Super.
Ct. App. Div. 2009) (rejecting expert testimony that overkill showed “interpersonal
aggression” because, among other things, no New Jersey case had ruled on the reliability
of crime scene or behavioral analysis); cf. State v. Hebert, No. 2010 KA 0305, 2011 WL
2119755, at *10 (La. Ct. App. Feb. 11, 2011) (unpublished opinion holding defense failed
to establish the reliability of its theory that extreme wounding, or overkill, can be used to
determine whether an assailant was suffering from psychosis, according to the standard
3 The treatise defined “overkill” as “[m]ultiple uniformly deep, parallel stab wounds
clustered in one area of the body, commonly the chest or back, . . . usually the result of
rapid thrusts . . . . Such murders commonly suggest a crime of passion with sexual
overtones, jealousy, or profound hate.”
10
for admitting expert testimony under Daubert4); State v. Wright, No. 0801010328, 2009 WL
3111047, at *8 (Del. Super. Ct. Sept. 14, 2009) (unpublished opinion rejecting as
insufficiently reliable for admission under Delaware Rule of Evidence 702 testimony that
overkill indicates “personalized anger and sustained aggression or rage”). Of the one
published and two unpublished cases relied on by the court of appeals below, none
purported to find the theory of overkill sufficiently reliable for admission as expert
testimony. See Richardson v. State, 83 S.W.3d 332, 339, 350 (Tex. Ct. App. 2002) (rejecting
assertion that jury’s verdict of murder rather than sudden passion was against the great
weight and preponderance of the evidence where among other testimony the medical
examiner testified that crimes of passion are generally overkills with dozens and dozens
of stab wounds); State v. Suttle, No. A-2417-08T3, 2011 WL 2314474, at *5 (N.J. Super. Ct.
App. Div. June 10, 2011) (unpublished opinion rejecting claim of collateral estoppel bar
to second verdict that defendant acted purposely or knowingly, where first jury may have
found crime of passion based on prosecutor’s argument that crime was personal and
overkill); People v. Varela, No. B197473, 2008 WL 2764578, at *5 (Cal. Ct. App. July 17, 2008)
(unpublished opinion rejecting claim of prosecutorial misconduct for evoking expert
testimony that stabbing was not overkill, on grounds that prosecutor did not evoke
opinion that stabbings were not committed in heat of passion).
4 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
11
III.
¶17 Although the trial court therefore abused its discretion in admitting expert
testimony of “overkill,” reversal of the defendant’s conviction is nevertheless not
warranted in this case. Error in the trial process does not warrant the reversal of a
conviction if it can be shown to be harmless. People v. Summit, 132 P.3d 320, 327 (Colo.
2006). Even a properly objected-to trial error will be disregarded as harmless whenever
the error did not substantially influence the verdict or affect the fairness of the trial
proceedings. James v. People, 2018 CO 72, ¶ 19, 426 P.3d 336, 341. The strength of properly
admitted evidence supporting the verdict is one important consideration when
evaluating such error. Crider v. People, 186 P.3d 39, 43 (Colo. 2008). If that evidence
overwhelmingly demonstrates the defendant’s guilt, the error must be disregarded as
harmless. Pernell v. People, 2018 CO 13, ¶ 25, 411 P.3d 669, 673; Summit, 132 P.3d at 327.
¶18 Here the erroneously admitted evidence was limited to expert opinion to the effect
that the nature of the victim’s injuries made it likely her assailant was someone with an
emotional connection to her rather than a stranger. In addition to the inference of anger
or passion to be intuitively drawn, in the absence of another likely explanation, from such
a beating, the prosecution presented an abundance of physical, documentary, and
testimonial evidence making it highly unlikely not only that the victim would have been
physically capable of functioning over the ensuing days, as claimed by the defendant, but
also that his account was contradicted and therefore untrue for a host of other reasons.
It was the testimony of two forensic pathologists that it would have been medically
unlikely the victim could have walked the distance from the grocery store with her
12
injuries, much less that she could have made the bed, eaten breakfast, or walked around
the apartment the following day. Admissible expert forensic testimony also noted the
likelihood that unless she were immediately rendered unconscious by the beating, her
hands would have shown blood from reflexively grasping at her wounds. Beyond the
medical implications derived from the physical nature of her injuries, otherwise
unexplained physical evidence—such as scratches on the defendant’s face and his DNA
discovered under the victim’s fingernails and near her throat—strongly suggested his
involvement in a physical altercation with the victim.
¶19 In addition to the physical evidence, however, the defendant’s ever-changing
account was contradicted in a number of key respects by both testimonial and
documentary evidence. Telephone records contradicted the defendant’s account of
attempting to call for medical help on Saturday night, as well as his initial explanation
for not calling the victim on Monday during the day. Co-workers recounted telephone
calls indicating the defendant’s turbulent relationship with the victim, as well as the
defendant’s suspicious request for a co-worker to see his new apartment, leading to
discovery of the victim’s body, and the defendant’s subsequent request of that co-worker
to tell a particular version of the discovery. Finally, the defendant’s cellmate contradicted
his entire account by testifying that he actually confessed to the killing, providing details
that were not publicly available.
¶20 Assuming evidence of the defendant’s alternate suspect theory was properly
admitted at all, it offered little to question this powerful case against the defendant.
Although the trial court did not have the benefit of our clarification in People v. Elmarr,
13
2015 CO 53, ¶ 34, 351 P.3d 431, 440, we have long made clear that because of the danger
of confusing the jury, even a showing of motive and opportunity on the part of a third,
uncharged person is insufficient to assert an alternate suspect theory. People v. Mulligan,
568 P.2d 449, 456–57 (Colo. 1977); see also People v. Salazar, 2012 CO 20, ¶ 21, 272 P.3d 1067,
1073; People v. Flowers, 644 P.2d 916, 920 (Colo. 1982). In this case, even evidence of motive
and opportunity was extremely weak, if not entirely lacking.
¶21 The only evidence of opportunity—that the victim was in the same area near the
same time as the alternate suspect—came from the defendant himself and an Albertsons
employee who believed she saw someone matching the victim’s description buying milk
on the night in question. Apart from medical evidence indicating the strong likelihood
that after sustaining such severe injuries the victim could not have walked the distance
from Albertsons, video footage from the store was unable to substantiate the employee’s
observation, and the presence of a twenty dollar bill in the victim’s pocket appeared to
dispel any suggestion that she ever purchased milk with the money reportedly given her
by the defendant for that purpose. With regard to motive, robbery and sexual assault
were clearly ruled out, and although there was testimony to the effect that the alternate
suspect had been abusive in the past to a domestic partner, there was no evidence of
pattern, a unique modus operandi, or any prior connection to the victim providing a
motive for attacking her. Not only was there no direct evidence, either physical or
testimonial, but in fact no meaningful circumstantial evidence of contact between the two.
¶22 In the face of such overwhelming evidence of the defendant’s guilt, we cannot find
even a reasonable possibility that the outcome of the trial would have been different but
14
for the expert’s opinion concerning a likely real or perceived emotional relationship with
the victim. See Krutsinger v. People, 219 P.3d 1054, 1058 (Colo. 2009) (making clear that the
“reasonable possibility” standard for constitutional error is a more onerous
harmless-error standard than the “substantially influence” standard for
non-constitutional error).
IV.
¶23 Because the trial court made no specific finding that the theory of “overkill”
espoused by the witness was reliable, nor was the reliability of that theory either
supported by evidence in the record or already accepted in this jurisdiction, its admission
amounted to an abuse of discretion. Because there was, however, overwhelming
evidence of the defendant’s guilt quite apart from the expert testimony, the error was
necessarily harmless. The judgment of the court of appeals is therefore affirmed.
JUSTICE GABRIEL does not participate.
15