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People v. Caldwell9/13/2001
JUDGMENT AFFIRMED
Division II
Plank and Ney, JJ., concur
Defendant, Cris V. Caldwell, appeals the judgment of conviction entered upon a jury verdict finding him guilty of attempted first degree murder after deliberation, first degree assault, and two related crime of violence counts. We affirm.
Defendant shot at a sheriff's deputy while the deputy was attempting to stop defendant's vehicle. The deputy was not injured, although one of the bullets struck his bulletproof vest.
Two bullets were recovered from the deputy's vehicle. While defendant did not own a gun, he had access to one through a friend who was living at his house at the time of the shooting. According to the ballistics report, the bullets recovered from the deputy's car could have been fired only from that gun. In addition, the license plates of defendant's vehicle partially matched the description given by the deputy after the shooting, as did the general style of defendant's car.
A friend of defendant testified that defendant admitted he shot at the deputy because he did not want to be stopped and charged with driving under the influence of alcohol.
I.
On an issue of first impression, defendant contends that the trial court erred in admitting the testimony of a lay witness concerning ballistics and bullet trajectory. We disagree.
A non-expert witness may testify to opinions or inferences, in addition to perceptions, as long as they are rationally based on the witness' own perceptions and are helpful to the jury in understanding the testimony or determining a fact in issue. CRE 701. If, however, the opinion or inference expressed is beyond common experience or is based on knowledge of a scientific, technical, or specialized nature, the witness must qualify as an expert in the relevant field. CRE 702.
A trial court has broad latitude in determining whether a lay witness is qualified to express opinions. Thus, only if there is an abuse of this discretion will the trial court's decision be disturbed on review. Hock v. New York Life Ins. Co., 876 P.2d 1242 (Colo. 1994).
Here, a former police officer, employed as a crime scene technician at the time of the shooting, testified that after the shooting, he photographed and collected evidence from the deputy's patrol car. He also testified about the appearance and location of the two bullet holes on the outside of the car, the hole inside the car, and the dimpling of the metal inside the car. From his own observations and the use of a dowel and string, the technician testified that he tracked the paths of the two bullets, one that entered the vehicle just in front of the driver's side window near the spotlight and another that entered the vehicle through the metal frame behind the rear window, also on the driver's side. The photos of the vehicle depicting the bullet holes, fragments, and the dowel and string used by the technician were also introduced into evidence.
Defendant objected to the introduction of the photographs and to the witness' opinion testimony regarding the trajectory of the bullets. Defendant asserted that the witness was not qualified as an expert under CRE 702, and that such testimony was of a scientific nature, beyond the common experience of the jury. The trial court overruled the objections.
We note that, generally, expert testimony is required when introducing ballistics evidence, because such testimony is often introduced to explain how the shooting occurred, the position and proximity of the shooter in relation to the victim, and the existence or absence of self-defense. See, e.g., State v. Mincey, 636 P.
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