v.

CHIEF JUSTICE COATS delivered the Opinion of the Court.

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 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, Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 13CA276 Judgment Affirmed
en banc
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. ¶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.

The defendant was not arrested until more than three years after the crime was committed.

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 Frye "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 for admitting expert testimony under Daubert ); 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).

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

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."

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). --------

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 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.