People v. McFee

COLORADO COURT OF APPEALS                                        

Court of Appeals No. 13CA0032
City and County of Denver District Court No. 11CR2819
Honorable Sheila A. Rappaport, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jonathan Ray McFee,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                 Division II
                         Opinion by JUDGE HARRIS
                         Webb and Ashby, JJ., concur

                          Announced June 30, 2016


Cynthia H. Coffman, Attorney General, Jay C. Fisher, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Anne Stockham, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Jonathan Ray McFee was convicted of first degree murder in

 the stabbing death of his girlfriend, L.E. At trial, the district court

 admitted her prior statements to family members recounting

 McFee’s threats to kill her. The court also admitted a note written

 by L.E. shortly before her death in which she said that McFee had

 threatened her and predicted that he would eventually follow

 through on those threats.

¶2    McFee contends that admission of these statements

 constituted an evidentiary error that deprived him of a fair trial and

 that admission of the note violated his rights under the Sixth

 Amendment’s Confrontation Clause. We agree that the note was a

 testimonial statement and that its admission violated McFee’s

 constitutional rights. But, in part because we determine that the

 remaining statements were properly admitted, we conclude that the

 constitutional error was harmless beyond a reasonable doubt.

¶3    We reject McFee’s remaining contentions of error and therefore

 affirm the judgment.

                            I.   Background

¶4    L.E. was the in-house manager of a residential facility for

 patients with HIV and AIDS. Late one night, a resident discovered


                                    1
 L.E. lying in a pool of blood in the hallway. By the time police

 arrived, she had died from multiple stab wounds. Police discovered

 the bloody murder weapon — a fifteen- inch knife from the facility’s

 kitchen — jammed underneath L.E.’s bedroom door.

¶5    A few months later, the police arrested McFee for the murder.

 He and L.E. had been in a long-term relationship and had been

 living together at the facility until shortly before L.E.’s murder. By

 all accounts, the relationship was volatile. Numerous witnesses

 testified at trial that they had heard McFee threaten to kill L.E.

 Members of her family testified that L.E. had recounted repeated

 threats by McFee and had told them that she was afraid of him.

 Shortly before the murder, L.E. wrote a statement implicating

 McFee and gave it to her cousin for safekeeping.

¶6    When he was arrested, McFee was driving L.E.’s car and,

 although the couple had apparently broken up a couple of days

 before the murder, he had a key to the facility on his key ring.

 According to the prosecution’s evidence, there were no signs of

 burglary or forced entry into the facility on the night of L.E.’s

 murder.




                                    2
¶7     McFee was interviewed briefly by the police after his arrest.

  During a break in the interview, while he was alone in the room, the

  audio recording equipment picked up some of his mumbled words

  that sounded like, “I did it. That bitch.”

¶8     Police later tested the murder weapon. McFee’s DNA was

  discovered on the handle of the knife.

¶9     The jury convicted McFee of first degree murder, and he was

  sentenced to life in prison without the possibility of parole.

                              II.   Hearsay

¶ 10   Hearsay statements are out-of-court statements offered in

  evidence at trial to prove the truth of the matter asserted. CRE

  801(c). If the declarant of the statement is not available to be cross-

  examined, the out-of-court statement is generally deemed

  unreliable and, therefore, inadmissible, unless it falls within an

  exception to the prohibition on hearsay. CRE 802.

¶ 11   Some, but not all, hearsay statements implicate a defendant’s

  Sixth Amendment rights under the Confrontation Clause. Davis v.

  Washington, 

 (2006). In Crawford v. Washington,

  

 (2004), the Supreme Court held that the

  Confrontation Clause bars admission of testimonial statements of a


                                     3
  witness who did not appear at trial unless he was unavailable to

  testify, and the defendant had had a prior opportunity for cross-

  examination. “It is the testimonial character of the statement that

  separates it from other hearsay that, while subject to traditional

  limitations upon hearsay evidence, is not subject to the

  Confrontation Clause.” Davis, 

; see also Crawford,

  

 (“[N]ot all hearsay implicates the Sixth Amendment’s

  core concerns. An off-hand, overheard remark might be unreliable

  evidence and thus a good candidate for exclusion under hearsay

  rules, but it bears little resemblance to the civil-law abuses the

  Confrontation Clause targeted.”).

                       A. The Hearsay Statements

¶ 12   Over McFee’s objection, L.E.’s mother testified that, on the

  evening of the murder, she spoke with L.E. on the phone. She

  testified that L.E. said McFee had threatened to kill her, and that

  “there’s going to be trouble. . . [b]ecause [McFee’s] acting like he

  used to act before.” L.E.’s mother said that L.E.’s voice was

  trembling and that she sounded afraid during the call.

¶ 13   L.E.’s daughter testified that, two days before L.E.’s murder,

  she had a telephone conversation with L.E. during which L.E.


                                      4
  confided that she was afraid of McFee and felt unsafe. L.E.’s

  daughter advised L.E. to lock all of the doors and windows.

¶ 14   L.E.’s cousin testified that she was present during a phone call

  from McFee to L.E. that occurred about a month before L.E.’s

  murder. According to the cousin, L.E. was crying during the call

  and, afterwards, she told the cousin that she was afraid of McFee

  because he had threatened to kill her. The cousin suggested that

  L.E. write a statement and agreed to hold it for her. L.E. prepared

  the following handwritten statement:

            Driver’s #98-324-056, Jonathan Ray McFee,
            5/8/77, 5’6” wt 230, eyes brown. To whom it
            may concern, I am given [sic] this information
            to my cusin [sic] because this man has given
            me threts [sic] on me and where I live. He says
            he is going to kill me, its [sic] just a matter of
            time. [Signature of L.E.]

  Immediately after learning of L.E.’s murder, the cousin turned the

  written statement over to the police, and it was introduced at trial

  over McFee’s objection.

¶ 15   McFee contends that the district court abused its discretion in

  admitting L.E.’s hearsay statements to her mother, daughter, and

  cousin because the statements concerning McFee’s threats did not

  fall within any exception to the rule against hearsay. With respect


                                    5
  to the note, McFee argues that the statement is testimonial and its

  admission therefore violated his rights under the Confrontation

  Clause. We reject the first contention but agree with McFee as to

  the second.

       B. Admission of L.E.’s Statements to Her Family Members

¶ 16   The district court determined that all of L.E.’s statements were

  admissible under CRE 807 — the residual exception to the hearsay

  prohibition — and noted that they were “arguably admissible”

  under CRE 803(3) — the state of mind exception. We agree with the

  district court that L.E.’s statements to her family members were

  properly admitted under Rule 807.

                        1.   Standard of Review

¶ 17   Trial courts have considerable discretion in determining the

  admissibility of evidence, including application of the residual

  hearsay exception. Vasquez v. People, 

, 1106 n.7

  (Colo. 2007). We will not disturb the trial court’s evidentiary ruling

  absent an abuse of discretion. 

 A court abuses its discretion

  when its decision is manifestly arbitrary, unreasonable, or unfair,

  People v. Brown, 

-2, ¶ 18, or is based on an




                                     6
  erroneous understanding or application of the law. People v.

  Casias, 

.

                            2.   Discussion

¶ 18   Under Rule 807, a hearsay statement not covered by any

  exceptions to the prohibition on hearsay established in CRE 803

  and 804 is admissible if the statement has “equivalent

  circumstantial guarantees of trustworthiness” and a court

  determines that

             (A) the statement is offered as evidence of a
             material fact; (B) the statement is more
             probative on the point for which it is offered
             than any other evidence which the proponent
             can procure through reasonable efforts; and
             (C) the general purposes of these rules and the
             interests of justice will best be served by
             admission of the statement into evidence.

  CRE 807.

¶ 19   In evaluating the trustworthiness of a statement, we examine

  the nature and character of the statement, the relationship of the

  parties, the probable motivation of the declarant in making the

  statement, and the circumstances under which the statement was

  made. Brown, ¶ 20.




                                    7
¶ 20   We are guided in our assessment by People v. Fuller, 

 (Colo. 1990), a case with substantially similar facts. In Fuller,

  a close friend of the murder victim testified to a conversation with

  the victim that occurred two weeks before her death in which the

  victim reported that the defendant had choked her and threatened

  to kill her. 

. The supreme court determined that the

  statements were supported by circumstantial guarantees of

  trustworthiness because they were “spontaneous statements to [a]

  close friend[] that she had known for many years,” they were “not

  self-serving,” and the declarant “had no motive to lie.” 

 at 745-

  46. Further, the statements established the material fact that the

  defendant had a motive to kill the victim, and they were particularly

  probative because they described actual incidents of violence by the

  defendant against the victim. 

.

¶ 21   L.E.’s statements are trustworthy for the same reasons: they

  were made spontaneously to close family members, were not self-

  serving, and L.E. had no motive to lie about McFee’s threats. See

  

; see also People v. Jensen, 

 (Colo.

  App. 2001); cf. Brown, ¶ 31 (collecting cases in other jurisdictions

  applying the residual hearsay exception that find statements to


                                    8
  family members and close friends about marital matters

  trustworthy, even in the case of a heated divorce).

¶ 22   In addition, L.E. had personal knowledge of the threats she

  described, and there was no reason to question her ability to

  perceive or recount the threats. See Jensen, 

.

  And all of the witnesses also testified that when L.E. was recounting

  the threats, she appeared genuinely afraid and upset: her mother

  testified that L.E.’s voice trembled; her daughter thought she

  sounded “nervous and unsafe”; and her cousin testified that she

  was crying. Thus, L.E.’s demeanor at the time of the statements

  corroborates their content.1

¶ 23   Further, the statements relaying McFee’s prior threats were

  offered to establish the material fact that the relationship between

  1 The trial court relied on other corroborating evidence, such as the
  presence of McFee’s DNA on the knife handle, to find that the
  statements were sufficiently reliable. However, the supreme court
  has made clear that the existence of unrelated corroborating
  evidence “is not an appropriate ‘circumstantial guarantee’
  supporting the reliability” of statements admissible under the
  residual hearsay exception. Vasquez v. People, 

 (Colo. 2007). Rather, “[t]he reliability of a statement should
  be determined by the circumstances that existed at the time the
  statement was made.” 

 Thus, the court erred in relying on
  corroborating evidence independent of L.E.’s reporting of the
  threats. But because the statements were reliable for other
  reasons, this error is harmless. See 

                                    9
  L.E. and McFee was volatile and that McFee had a motive for the

  murder. “In a homicide trial, evidence of prior threats,

  mistreatment, or malice by the defendant toward the victim is

  admissible to show the defendant’s motive and culpable mental

  state.” Id. at 140.

¶ 24   As McFee appears to concede, L.E.’s statements were more

  probative than the testimony of other witnesses who heard McFee

  express an intent to harm L.E. Her statements made clear that

  McFee was not just “blowing off steam” with friends when he said

  he wanted to kill L.E.; instead, L.E.’s statements established that

  McFee had communicated those threats directly to her and that she

  took them seriously. See Fuller, 

 (finding that the

  victim’s statements were highly relevant because they described

  actual incidents in which the defendant acted violently).

¶ 25   Finally, the interests of justice were served by admission of the

  statements because “they were reliable and they increased the

  likelihood that the jury would ascertain the truth.” Id.; Jensen, 

 (“[T]he interests of justice are also promoted by having

  the complete facts surrounding an incident available to the jury.”).




                                    10
¶ 26      In sum, L.E.’s statements to her family members in which she

  communicated McFee’s threats satisfy Rule 807’s requirements.

  Because the court properly admitted the statements under Rule

  807, we need not address whether they were also properly admitted

  under Rule 803(3).

                       C. Admission of the Written Note

¶ 27      The district court considered, but rejected, McFee’s argument

  that L.E.’s note was a “testimonial” statement for purposes of the

  Confrontation Clause analysis. We agree with McFee that the

  district court erred in its determination, but we conclude that the

  error was harmless beyond a reasonable doubt.

                  1.   Standard of Review and Preservation

¶ 28      We review de novo whether the admission of evidence violated

  a defendant’s rights under the Confrontation Clause. People v.

  Phillips, 

. A preserved constitutional error

  requires reversal unless the People prove beyond a reasonable

  doubt that the error was harmless. Hagos v. People, 

.

¶ 29      The People contend that McFee objected to admission of the

  note on hearsay grounds, but not on the ground that the note was


                                     11
  testimonial and that its admission would constitute a violation of

  his confrontation rights. Thus, they urge us to review the

  Confrontation Clause claim for plain error.

¶ 30   Ordinarily, a general hearsay objection is insufficient to

  preserve a Confrontation Clause claim. See People v. Vigil, 

 (Colo. 2006). But here, McFee’s objection prompted the

  district court to consider whether L.E.’s note was a testimonial

  statement that implicated McFee’s confrontation rights under the

  Sixth Amendment.

¶ 31   A claim is preserved for appeal if the trial court was “presented

  with an adequate opportunity to make findings of fact and

  conclusions of law” on the issue. People v. Melendez, 

 (Colo. 2004); cf. People v. Syrie, 

, 223 n.7 (Colo.

  2004) (“In the absence of such findings and conclusions, we will not

  consider arguments injecting an issue not adequately presented to

  the trial court.”) (emphasis added). The purpose of the

  contemporaneous objection rule is to conserve judicial resources by

  alerting the trial court to a particular issue so that it has an

  opportunity to correct any error. People v. Pahl, 

  (Colo. App. 2006). An objection is sufficiently specific when it


                                     12
  draws the court’s attention to the asserted error. Martinez v.

  People, 

. Where, despite imprecision in the

  objection, the trial court actually rules on the claim raised on

  appeal, and makes findings of fact and conclusions of law, the claim

  is sufficiently preserved. See People v. Rhea, 

  (issue preserved where trial court was sufficiently on notice of the

  issue); see also Battle N., LLC v. Sensible Hous. Co., 

 (despite ambiguity in the request to the trial court, where the

  trial court ruled on the issue brought on appeal, the issue was

  preserved).

¶ 32   Thus, because the trial court specifically addressed the

  Confrontation Clause claim and determined that none of the

  hearsay statements, including the note, were testimonial, the

  Confrontation Clause claim is properly preserved, and we will

  review any error under the constitutional harmless error standard.

                              2.   Discussion

¶ 33   The Sixth Amendment’s Confrontation Clause guarantees that

  “[i]n all criminal prosecutions, the accused shall enjoy the right . . .

  to be confronted with the witnesses against him.” U.S. Const.

  amend. VI. Because the provision applies to “witnesses” against the


                                     13
  accused — those who “bear testimony” — the Confrontation Clause

  is implicated only when “testimonial” hearsay statements are at

  issue. Crawford, 

 (citation omitted).

¶ 34   We determine whether a hearsay statement is testimonial by

  considering whether, in light of all of the circumstances, viewed

  objectively, the statement was made “with a primary purpose of

  creating an out-of-court substitute for trial testimony.” Ohio v.

  Clark, 

, ___, 

, 2180 (2015) (quoting

  Michigan v. Bryant, 

, 358 (2011)); Arteaga-Lansaw v.

  People, 

 (Colo. 2007) (whether a statement is

  testimonial is “ultimately a function of [its] purpose”).

¶ 35   The Clause applies to volunteered statements as well as

  statements obtained through questioning, see Davis, 

 n.1, and to documents. See Bullcoming v. New Mexico, 

 (2011); Melendez-Diaz v. Massachusetts, 

 (2009). In each case, we must determine whether the

  declarant’s purpose was to establish facts that might be relevant to

  a later criminal prosecution. Davis, 

; see Hinojos-

  Mendoza v. People, 

 (Colo. 2007) (lab report was

  testimonial because its sole purpose was to analyze a substance in


                                     14
  anticipation of criminal prosecution); People v. Merritt, 

, ¶ 44 (autopsy report was testimonial because it was created

  primarily for the purpose of gathering evidence to use in the

  eventual prosecution of a murder suspect).

¶ 36   Statements may be testimonial even if they are not made to

  law enforcement officers. Clark, 576 U.S. at ___, 135 S. Ct. at 2181.

  What matters is whether, in light of the relevant circumstances, the

  statement was made for the requisite purpose. Id.

¶ 37   The relevant circumstances include whether there was an

  ongoing emergency at the time the statements were made, the

  formality and spontaneity of the statements, the environment in

  which the statements were given, and the identity of the person to

  whom the statements were made. Id.; see also Phillips, ¶ 70. And

  in evaluating the purpose of the statements, we consider the

  purpose that a reasonable declarant in those circumstances would

  have had, rather than the declarant’s subjective or actual purpose.

  People v. Medrano-Bustamante, 

, ¶ 41 (cert. granted

  Sept. 8, 2014).

¶ 38   The attendant circumstances demonstrate that L.E. intended

  the note to aid in the prosecution of McFee and to serve as a


                                   15
  substitute for her trial testimony in the event of her death. See

  Clark, 576 U.S. at ___, 135 S. Ct. at 2180.

¶ 39   Statements are nontestimonial when made for the purpose of

  enabling police to address an ongoing emergency. Davis, 

. But L.E. did not write the note during an emergency, and

  she did not seek immediate police intervention. The note did not

  relay “what is happening,” in an effort to get help, but instead

  recorded “what happened,” and what she thought would eventually

  happen based on McFee’s prior conduct. See 

  (distinguishing nontestimonial statements to a 911 operator about

  current threats from testimonial statements to police officers about

  past events). Although the note recounted L.E.’s fear for her life

  and her belief that McFee would eventually kill her, it did not relay

  an “immediate danger.” See Arteaga-Lansaw, 

  (Statements were testimonial because “any danger or need for

  immediate assistance ha[d] passed.”); Raile v. People, 

 (Colo. 2006) (no ongoing emergency, and thus statements were

  testimonial, where declarant did not ask for help and was not in

  current danger).




                                    16
¶ 40   L.E.’s purpose in writing the note was not to seek help to

  prevent an imminent attack by McFee (indeed, McFee was

  apparently incarcerated at the time) but to ensure that, if he

  attacked her in the future, police could find him and punish him.

  To that end, the note was more than a mere casual remark or

  statement. Cf. Clark, 576 U.S. at ___, 135 S. Ct. at 2181

  (nontestimonial statements were “informal and spontaneous”);

  Phillips, ¶¶ 116, 122 (informal questioning produced nontestimonial

  statements). In addition to accusations of past criminal conduct

  and the prediction that McFee would make good on his threats, the

  note provided information from McFee’s driver’s license, including a

  physical description, that would have helped police locate and

  identify him if L.E. were unable to assist them. And the note bore

  L.E.’s signature, much like an affidavit, though less formal. These

  features of the note demonstrate that L.E.’s primary purpose in

  writing it was to aid in the investigation and prosecution of McFee

  in the event of her murder.

¶ 41   Though L.E. gave the note to her cousin, and not directly to

  someone principally charged with uncovering and prosecuting

  criminal behavior, we conclude that the note falls into that narrow


                                   17
category of testimonial statements not made to police. See Clark,

576 U.S. at ___, 135 S. Ct. at 2181-82 (observing that statements

made to third parties not charged with investigating or prosecuting

crimes are “significantly less likely to be testimonial,” but declining

to “adopt a categorical rule excluding them from the Sixth

Amendment’s reach”). The note may have been addressed “to whom

it may concern,” but law enforcement officers were surely its

intended recipients. Indeed, after learning of L.E.’s murder, her

cousin immediately gave the note to investigators. She reasonably

understood the note as intended for law enforcement in the event of

L.E.’s death, and this understanding is reflected by her testimony

that she hoped the note would give L.E. “comfort.” In this way,

L.E.’s cousin was a mere conduit to the police — L.E. may not have

sent her statement directly to police, but she clearly intended that it

be conveyed to them by her cousin if her dire prediction came true.

Cf. People v. Richter, 

, 1281-82 (Ill. App. Ct.

2012)(discussing “conduit theory” whereby a statement

communicated to a third party is the equivalent of a statement

communicated to police for purposes of Confrontation Clause

analysis).


                                   18
¶ 42   Other courts have characterized similar notes as testimonial

  statements. In State v. Sanchez, 

 (Mont. 2008), the

  defendant was charged in the shooting death of his girlfriend. The

  prosecution introduced a note written by the victim shortly before

  her death:

                To whom it concerns:

                On July 8, 04 around 10:30 p [sic] Raul
                Sanchez Cardines told me if I ever was cought
                [sic] with another man while I was dating him,
                that he would kill me. . . .

                So if I unexspetly [sic] become sick and on the
                edge of death, and perhaps I die no [sic] you
                will have some answers.

                [Signature of victim.]

  

.

¶ 43   In concluding that the note qualified as a testimonial

  statement, the Montana Supreme Court observed that its purpose

  was to explain the victim’s untimely death, not to prevent or

  mitigate future harm. The note could establish or prove facts to

  “answer questions regarding how, why, and by whom she had been

  harmed or killed.” 

. And, like the note here, the note’s

  substance and “comprehensive salutation” demonstrated that the



                                         19
  victim’s intended audience was law enforcement officials, even

  though the note was not directly addressed to the police. 

.

¶ 44   The victim in State v. Jensen, 

 (Wis. 2007),

  wrote a note and gave it to her neighbor with instructions to turn it

  over to the police if anything happened to her. In the note,

  addressed to the city police department and two named detectives,

  the victim wrote, “if anything happens to me, [the husband] would

  be my first suspect. . . . I pray I’m wrong [and] nothing happens . . .

  but I am suspicious of [the husband’s] . . . behaviors [and] fear for

  my early demise.” 

. The victim’s husband was later

  charged with first degree murder in the poisoning death of the

  victim, and the prosecution sought to introduce the note at his trial.

  

. The supreme court characterized the note as

  testimonial on the ground that a reasonable person in the victim’s

  position would have anticipated that the note — which accused her

  husband of murder and even referred to him as a “suspect” —

  would be used against him at a later trial. 

.

¶ 45   Finally, in Miller v. Stovall, 

 (6th Cir. 2010), cert.

  granted, judgment vacated, and case remanded, 

, 132




                                    

 (2011)2, the declarant committed suicide after helping

  the defendant kill her husband. He left behind a suitcase

  containing evidence of the conspiracy and a suicide note that also

  implicated the defendant. The Sixth Circuit concluded that because

  the declarant had deliberately assembled evidence of the crime and,

  in the suicide note, instructed that the evidence be delivered to the

  police, it was foreseeable that the suicide note would also be used

  in the prosecution of the defendant. Id. at 925. Accordingly, the

  note was a testimonial statement and its admission at trial violated

  the defendant’s Sixth Amendment rights. Id. at 926.

¶ 46   Like the notes at issue in Sanchez, Jensen, and Miller, L.E.’s

  note was clearly intended to be used as a substitute for her

  testimony in the event McFee followed through on his threats to kill

  her. The record does not suggest any explanation for the note,

  other than a desire and intent by L.E. to provide proof of facts that

  would assist the police in a later prosecution. See United States v.

  Brooks, 

 (9th Cir. 2014) (“[O]ur conclusion that


  2This judgment was vacated, pursuant to Greene v. Fisher, 

, 

 (2011), due to an error in the Sixth Circuit’s
  application of federal habeas corpus principles. No subsequent
  history casts doubt on the court’s Confrontation Clause analysis.

                                    21
  the primary purpose [of the statement] was investigative is

  reinforced by the lack of an alternative. That is, if the purpose of

  [the statement] was not to build a case for prosecution, then what

  was the purpose?”); Jensen, 

 (noting that the

  district court “[couldn’t] imagine any other purpose in sending a

  letter to the police that is to be opened only in the event of [the

  victim’s] death other than to make an accusatory statement given

  the contents of this particular letter”).

¶ 47   Thus, because the primary purpose of the note was to create

  an out-of-court substitute for trial testimony and aid in police

  investigation, we conclude that the note was testimonial. And

  because the victim was unavailable at trial3 and McFee had no prior


  3 Under the doctrine of forfeiture by wrongdoing, a defendant may
  forfeit his Sixth Amendment right to confront witnesses against him
  if the witness’s unavailability is the result of the defendant’s
  wrongdoing. The doctrine requires proof that the defendant “acted
  with the intent to deprive the criminal justice system of evidence,”
  Vasquez, 

, and is therefore inapplicable “in cases
  where the evidence suggested that the defendant had caused a
  person to be absent, but had not done so to prevent the person
  from testifying — as in the typical murder case involving
  accusatorial statements by the victim.” Giles v. California, 

 (2008). Here, there was no allegation, or indication in the
  record, that McFee murdered the victim to prevent her from
  testifying or offering evidence in any case. Accordingly, McFee did
  not forfeit his confrontation rights.

                                     22
  opportunity for cross-examination, the admission of the note

  violated McFee’s confrontation rights.4

¶ 48   However, we further conclude that this error was harmless

  beyond a reasonable doubt. “The inquiry in a harmless error

  analysis is ‘whether the guilty verdict actually rendered in this trial

  was surely unattributable to the error,’ and ‘not whether, in a trial

  that occurred without the error, a guilty verdict would surely have

  been rendered.’” Phillips, ¶ 93 (quoting People v. Fry, 

 (Colo. 2004)). In determining whether a violation of the

  Confrontation Clause is harmless beyond a reasonable doubt, we

  consider “(1) the importance of the statements to the prosecution’s

  case, (2) the cumulative nature of the statements, and (3) the

  overall strength of the prosecution’s case.” People v. Frye, 

 (quoting People v. Allen, 

 (Colo. App.

  2007)); accord Arteaga-Lansaw, 

.

¶ 49   While the note was highly probative evidence that McFee had

  previously threatened to kill L.E., and that she believed he was

  4 Because we conclude that the court erred in admitting the note,
  we need not decide McFee’s contentions that the trial court should
  have given a limiting instruction circumscribing the permissible
  inferences the jury could draw from the note, and that the note
  contained multiple levels of hearsay.

                                    23
  serious, the court properly admitted statements from L.E.’s cousin,

  mother, and daughter, who all testified that L.E. had told them that

  McFee had threatened to kill her, and that she was afraid of him.

  In addition, four other witnesses had either overheard McFee

  threatening to kill L.E. or testified that McFee himself told them

  that he wanted to kill her. Thus, the statements in the note — that

  McFee had threatened L.E. and that she feared he would kill her —

  were properly introduced through other witnesses. See Arteaga-

  Lansaw, 

 (Confrontation Clause error was harmless

  beyond a reasonable doubt because the improperly admitted

  statement was cumulative of the testimony of three other

  witnesses).

¶ 50   And McFee’s threats were not the only evidence of his motive

  nor the only evidence that he had committed the crime. Several

  witnesses testified that McFee was jealous and controlling and that

  his relationship with L.E. was marked by acrimony and bouts of

  rage. As well, McFee’s DNA was on the murder weapon; he

  possessed a key to the residence; there was no evidence of forced

  entry on the night of the murder; and he failed to contact L.E.’s

  daughter, with whom he had a parental-type relationship, after the


                                    24
  murder. As for the recorded police interview, whether McFee said

  “they think I did it” or “I did it” was contested. But the jury listened

  to the audiotape and might well have heard the latter (and the

  jurors surely heard McFee call L.E. “a bitch,” as that was

  undisputed).

¶ 51   Given all this, we are confident that the verdict was not

  attributable to the erroneous admission of L.E.’s note. We therefore

  conclude that the error was harmless beyond a reasonable doubt.

  See Raile, 

 (Confrontation Clause error was

  harmless beyond a reasonable doubt where improperly admitted

  statements were similar to other statements presented at trial and

  statements were not critical to prosecution’s case).

                 III.   Limitation on Cross-Examination

¶ 52   McFee contends that the trial court also violated his

  confrontation rights by improperly limiting the scope of his cross-

  examination of a prosecution witness.

¶ 53   Carlos Grider, a resident at the facility, discovered L.E.’s body

  and called 911. He testified that he had seen McFee at the facility

  that afternoon and evening. Grider also said that a couple of

  months before the murder, McFee had told him that “he loved [the


                                     25
  victim], but he hated her,” and that he wanted to stab her, and he

  had called her a bitch.

¶ 54   On cross-examination, Grider acknowledged that his

  testimony on direct examination was, at times, inconsistent with, or

  included details not provided in, his prior statements to the police.

  He also conceded that, just before trial, he told investigators for the

  first time that he had seen McFee near the residence right before he

  discovered L.E.’s body. He attributed the inconsistencies and the

  late disclosures to his mental health problems. Grider said that he

  suffered from mental illness, and the discovery of L.E.’s body led to

  “post-traumatic stress [and] a whole lot of different things.” He

  described the experience as “very traumatizing,” and as a result, his

  “memory ha[d] not been the very absolute best” in that “some parts

  [were] very clear, [but] some parts [were] very vague.”

¶ 55   McFee contends on appeal that the district court erred in

  prohibiting him from asking Grider additional questions about his

  mental health — specifically, whether he had been found

  incompetent to stand trial three years before L.E.’s murder and

  whether, at the time of trial, he was on any medication.




                                    26
                         A. Standard of Review

¶ 56   A defendant has a constitutional right to confront and cross-

  examine witnesses, Krutsinger v. People, 

 (Colo.

  2009), but the right is not absolute or unlimited. People v. Larsen,

  

. The scope and limits of cross-examination

  are matters within the sound discretion of the trial court, and

  absent an abuse of that discretion, we will not disturb the court’s

  rulings on appeal. People v. Conyac, 

.

                             B. Discussion

¶ 57   The district court determined that an incompetency finding

  three years before the murder was too remote to be relevant. We

  agree.

¶ 58   A witness’s prior mental health condition is relevant for

  impeachment purposes only if the witness suffered from the

  condition close in time to the events at issue. See United States v.

  Diecidue, 

 (5th Cir. 1979) (prior incompetency

  determination and subsequent treatment for mental illness were

  not probative, and therefore properly excluded on cross-

  examination, where competency determination occurred twelve

  years before incident at issue); see also United States v. Kohring,


                                    27
  

 (9th Cir. 2011) (mental health of witness not

  relevant for impeachment when proponent of evidence does not

  establish or allege that the witness suffered from mental instability

  at the time of the alleged crime); United States v. Butt, 

 (1st Cir. 1992) (“Rather, federal courts appear to have found

  mental instability relevant to credibility only where, during the time-

  frame of the events testified to, the witness exhibited a pronounced

  disposition to lie or hallucinate, or suffered from a severe illness,

  such as schizophrenia, that dramatically impaired her ability to

  perceive and tell the truth.”) (emphasis added); Velasquez v. United

  States, 

 (D.C. 2002) (precluding evidence of the

  witness’s mental condition three years after the offense where there

  was no evidence that the condition persisted at the time of the trial);

  State v. Stewart, 

, 602 n.3 (Utah Ct. App. 1996)

  (noting that “[m]any other courts also have concluded that evidence

  of a witness’s mental health history which is not contemporaneous

  with the witness’s observations or testimony in the case is irrelevant

  and inadmissible” and collecting cases).

¶ 59   United States v. Robinson, 

 (10th Cir. 2009), the

  case McFee relies on, is consistent with this authority. In Robinson,


                                     28
  the confidential informant (the “government’s star witness,” without

  whose testimony “Robinson could not have been convicted,” 

) was involuntarily committed to a mental health facility six

  days before trial. The informant appeared as a witness, presented

  himself as a conscientious member of the law enforcement team,

  and attributed his memory loss to the lapse of time between the

  offense and the trial. The district court prohibited defense counsel

  from cross-examining the informant about his mental health.

¶ 60   In fact, the informant was abusing illegal and prescription

  drugs at the time of his admission to the mental health facility and

  might have been “under the influence at the time of the alleged

  firearm sale.” 

. He also had a long history of mental

  health problems and, at the time he was hospitalized, was suffering

  from auditory and visual hallucinations and was experiencing

  psychosis, conditions that would have affected his “ability to

  perceive or to recall events or to testify accurately.” 

  (citation omitted).

¶ 61   The Tenth Circuit reversed. The court emphasized that the

  mental health testimony sought by the defendant concerned events

  that occurred “just days before trial began,” 

 and would have


                                     29
  called into question the informant’s ability to “observe, remember,

  and recount.” 

. And because “the guilty verdict in th[e]

  case depended upon the [informant’s] testimony,” there was a

  reasonable probability that the result would have been different if

  the defendant had had access to the informant’s mental health

  records and an opportunity to cross-examine him on that basis. 

.

¶ 62   Here, we are presented with substantially different facts that

  require a different resolution. The incompetency finding occurred

  three years before L.E.’s murder and four years before Grider

  testified as a witness. See United States v. Infelise, 

,

  at *1 (N.D. Ill. Jan. 8, 1992) (because evidence of mental incapacity

  of a witness must relate to the time period about which the witness

  will testify, evidence of hospitalization for drinking three years after

  relevant events and three years before trial was not relevant).

  McFee did not argue, much less produce evidence tending to show,

  that Grider’s ability to recall events or testify accurately was

  compromised because of the earlier incompetency finding.

¶ 63   Perhaps more to the point, Grider admitted during cross-

  examination that his memory was vague as to certain details, based


                                     30
  on mental health problems including post-traumatic stress. Thus,

  the earlier incompetency finding was cumulative (and less

  probative) of his testimony. See People v. Campos, 

 (no error for court to limit cross-examination where proposed

  questions concerned areas already covered). The problem in

  Robinson was that the informant’s unchallenged testimony left the

  jury with a mistaken impression about his ability to testify

  accurately. Here, Grider acknowledged that his ability to recount

  certain events at the time of the murder was affected by his mental

  health issues. And, unlike the informant’s testimony in Robinson,

  Grider’s testimony was hardly the linchpin of the prosecution’s case

  against McFee.

¶ 64   We likewise perceive no abuse of discretion by the district

  court in precluding a question about Grider’s then-current use of

  prescription medications. McFee did not present a good faith basis

  to ask the question. Nor did he argue to the district court that

  medication compromised Grider’s ability to “testify lucidly at trial,”

  Robinson, 

 (citation omitted). And Grider’s use of

  medications at the time of trial — if any — had no bearing on his

  ability to perceive or process events that occurred a year earlier.


                                    31
¶ 65         In any event, as we have noted, Grider had already

  acknowledged that his memory of that evening was not perfect due

  to subsequent mental illness and trauma. Cf. 

  (evidence of witness’s use of prescription medication relevant to

  rebut his testimony that memory lapses were due solely to passage

  of time). Thus, whether Grider was on prescription medication

  during trial was both irrelevant and cumulative. Campos, ¶ 36.

¶ 66         We therefore discern no error in the court’s limitation on

  cross-examination.

       IV.     Admission of Lay Opinion Testimony Regarding McFee’s
                                Recorded Statement

¶ 67         Approximately two weeks after the murder, McFee voluntarily

  submitted to a recorded interview with the police. While the

  detective was out of the room, the recording equipment captured

  McFee saying something to himself.

¶ 68         At trial, the detective testified that when he played the

  recorded interview, he thought he heard McFee say: “What do I

  need to give a statement about? Motherfucker. I did it. That

  bitch.” He had the audio recording enhanced to eliminate

  background noise, and, according to his testimony, the enhanced



                                          32
  version confirmed what he thought he had heard. The prosecution

  played both the unenhanced and enhanced versions of the

  recording for the jury.

¶ 69   At trial, McFee objected to the detective’s testimony on the

  ground that the jury could simply watch the video: “Judge, it’s my

  understanding that we’re reviewing the video and they are likely to

  introduce it. I think that’s the best evidence, not his testimony

  about what he viewed on that video.” On appeal, he contends that

  the court admitted the testimony in violation of CRE 701 because

  the detective was in no better position than the jury to hear and

  interpret McFee’s words.

                            A. Standard of Review

¶ 70   Ordinarily, we review the district court’s evidentiary rulings for

  an abuse of discretion. People v. Warrick, 

 (Colo.

  App. 2011). And, if we discern an error, we will reverse only if the

  error was not harmless. People v. Robles, 

 (Colo.

  App. 2011), aff’d, 

. But here, we agree with the People

  that McFee’s objection in the district court on “best evidence”

  grounds was not sufficient to preserve a claim of error under CRE

  701. See People v. Robinson, 

 (Colo. App.


                                     33
  1995) (objection to officer’s testimony under CRE 701 did not

  preserve claim that district court violated best evidence rule), aff’d,

  

 (Colo. 1996). We therefore review the district court’s

  decision to admit the testimony under a plain error standard of

  review. 

¶ 71   Plain error is error that is obvious and substantial, and that so

  undermines the fundamental fairness of the trial as to cast serious

  doubt on the reliability of the judgment of conviction. Hagos, ¶ 14.

                              B. Discussion

¶ 72   In the district court, the prosecution did not offer any basis for

  admission of the testimony, but, on appeal, the People claim that its

  introduction was proper under CRE 701. We disagree.

¶ 73   Under CRE 701, a lay witness may testify to opinions or

  inferences so long as they are (a) rationally based on the perception

  of the witness; (b) helpful to a clear understanding of the witness’s

  testimony or the determination of a fact in issue; and (c) not based

  on scientific, technical, or other specialized knowledge within the

  scope of Rule 702.

¶ 74   A lay witness may give a summary opinion of another person’s

  behavior, motivation, or intent if the witness had sufficient


                                     34
  opportunity to observe the person and to draw a rational conclusion

  about the person’s state of mind. People v. Jones, 

 (Colo. App. 1995). For example, a lay witness can opine that a

  person appeared to be “getting ready to hit” someone. Elliott v.

  People, 

, 

 (1971).

¶ 75   And a witness can testify regarding the identity of a person

  depicted in a photograph or on a videotape if there is some basis for

  concluding that the witness is more likely to correctly identify the

  defendant than is the jury. Robinson v. People, 

  (Colo. 1996).

¶ 76   Lay opinion testimony is permitted under Rule 701 because “it

  has the effect of describing something that the jurors could not

  otherwise experience for themselves by drawing upon the witness’s

  sensory and experiential observations that were made as a first-

  hand witness to a particular event.” United States v. Freeman, 

 (6th Cir. 2013) (citation omitted). But here, the jury

  was in precisely the same position as the detective to hear and

  interpret the words spoken by McFee on the recording. The

  detective was neither present when McFee uttered the words nor so

  familiar with McFee’s voice that he was more likely to correctly


                                    35
  identify the contested words. His opinion could not have been

  helpful to the jury because it was based on exactly the same

  information the jury had: the original recording and the enhanced

  recording. A witness, lay or expert, may not form conclusions for

  jurors that they are competent to reach on their own. See 

  (error to admit agent’s testimony about the meaning of common

  words spoken by defendant during recorded phone calls).

¶ 77   While a lay witness may, under certain circumstances, provide

  opinion testimony regarding an ultimate issue to be decided by the

  trier of fact, the witness cannot be called merely for the purpose of

  “tell[ing] the jury what result to reach.” People v. Collins, 

 (Colo. 1986). The detective’s testimony was nothing more

  than a suggestion that the jury interpret McFee’s words as “I did it,”

  rather than as “they think I did it.”

¶ 78   Still, even if we assume that the error was obvious, we discern

  little, if any, prejudice from the testimony, and certainly not the

  kind of prejudice that would cast doubt on the reliability of the

  verdict. Ordinarily, the risk of admitting improper lay opinion

  testimony of this type is that the jurors will assume that the

  witness is in a better position to interpret or understand the


                                     36
  evidence than they are (otherwise, why has the witness been called

  to testify?). See Freeman, 

 (noting that several

  courts of appeals have recognized that “there is a risk when an

  agent ‘provides interpretations of recorded conversations based on

  his knowledge of the entire investigation . . . that he [is] testifying

  based upon information not before the jury’” and thus the jury will

  defer to the witness’s interpretation) (alteration in original) (citation

  omitted). But here, the detective was presented as simply a

  thirteenth set of ears, albeit a set of ears belonging to a police

  officer. The jury listened to both recordings and was instructed to

  come to its own conclusion about what McFee had said.

¶ 79   Accordingly, while it was improper for the detective to state an

  opinion as to the words uttered by McFee, the jury had no reason to

  accept his opinion and could evaluate McFee’s words for itself. Cf.

  Collins, 

 (witness may opine on ultimate issue

  because jury is free to disregard the opinion).




                                     37
 V.    Blood Stain Pattern Analysis and Crime Scene Reconstruction
                                  Expert

¶ 80   McFee contends that the district court erred in admitting

  testimony by the prosecution’s blood pattern expert that was

  beyond the scope of his expertise. We disagree.

                       A. The Expert’s Testimony

¶ 81   At trial, the prosecution endorsed an expert in “blood stain

  pattern analysis and crime scene reconstruction.”5 The expert

  offered two opinions that McFee contends were beyond the scope of

  his expertise: first, that the circumstances of the crime scene

  indicated that the victim knew her attacker, and second, that the

  stabbing was particularly violent and suggested “overkill.”

¶ 82   With respect to the testimony concerning the identity of the

  attacker, the prosecutor asked “whether or not [L.E.] may or may



  5 The record does not clearly reflect the scope of the witness’s
  expertise for which he was qualified by the court. After an objection
  by defense counsel that the detective’s expert report covered only
  bloodstain pattern analysis, and not crime scene reconstruction,
  the court agreed that the expert should be bound by his report but
  determined that he would be “qualified as an expert in the crime
  scene analysis, in terms of blood work.” Later, the prosecutor
  offered the detective as an expert in both fields, and the court
  qualified him without any further limitation. Any ambiguity
  regarding his areas of expertise, however, does not affect our
  analysis.

                                    38
  not have known the person that did that to her[.]” Defense

  counsel’s objection was sustained.

¶ 83   However, on cross-examination, defense counsel twice pointed

  out that the expert knew, as he was conducting his investigation,

  that someone known to L.E. had been arrested for the crime. He

  then asked the expert if he was familiar with the concept of

  confirmation bias.

¶ 84   On redirect, the prosecutor asked, “Counsel was asking you

  about the fact that the assailant was known to the victim, and

  whether or not that affected your determination or not, I think was

  the question.” She continued, “[W]hat about this scene indicated to

  you, other than the information you had that he was potentially

  known to the victim, that, in fact, the assailant was known to the

  victim?” In response to defense counsel’s objection, the court ruled,

  “I think you can ask him . . . that the information that he received

  was that someone known to the victim had been arrested, and did

  that influence your opinion, yes or no?” The prosecutor argued that

  she should be able to ask whether the scene was consistent with

  his opinion that the attacker knew the victim, in light of defense

  counsel’s suggestion that the expert’s opinion was improperly


                                    39
  affected by confirmation bias. The court agreed and the expert

  testified as follows:

             Q: Detective, counsel was asking you about
             the effect the knowledge had on you that you
             were given information that the person that
             was arrested, or the suspect, was known to the
             victim.

             First of all, let me ask you: did that have any
             effect on your reconstruction or your opinion
             in this case?

             A: No, ma’am.

             Q: And based on your evaluation of the
             evidence and the scene, was that consistent
             with your opinion?

             A: Yes, ma’am.

¶ 85   With respect to the “overkill” testimony, the prosecution asked

  whether the expert had formed any opinion about the crime based

  on the nature of the wounds inflicted. The expert responded, “[I]t’s

  my opinion, not just based on the reconstruction, just the sheer

  violence and overkill and the depth of the wounds, that –.” When

  the prosecution asked for a definition of “overkill,” defense counsel

  objected on the ground that the response was beyond the expert’s

  area of expertise. The court ordered the prosecutor to rephrase,

  and the expert testified as follows:


                                    40
             Q: You indicated something to the effect of the
             depth of the wounds, and this was overkill.
             What does that mean?

             A: Well, almost like, just what it states: This is
             overkill. Not only does she have stab wounds,
             but she has stab wounds within stab wounds.
             This was just anger.

  Defense counsel’s objection to the answer was overruled.

                         B. Standard of Review

¶ 86   We review a trial court’s decision to admit expert testimony for

  an abuse of discretion, and will not overturn the court’s ruling

  unless it is manifestly erroneous. People v. Douglas, 

. This broad discretion “reflects the superior opportunity

  of the trial judge to gauge both the competence of the expert and

  the extent to which his opinion would be helpful to the jury.”

  People v. Williams, 

 (Colo. 1990) (citation

  omitted). Whether opinion testimony is within a particular

  witness’s expertise is also a matter addressed to the sound

  discretion of the trial court. People v. Watson, 

  (Colo. App. 2001).

¶ 87   Because defense counsel made a contemporaneous and

  specific objection, if we determine that the district court abused its



                                    41
  discretion, we review for harmless error. See Hagos, ¶ 12. Under a

  harmless error analysis, we reverse only if the error substantially

  influenced the verdict or affected the fairness of the trial

  proceedings. 

                              C. Discussion

¶ 88   A witness must be qualified as an expert before testifying

  about his or her expert opinions. People v. Stewart, 

 (Colo. 2002). Even after a witness has been qualified as an

  expert, however, the witness’s expert opinion testimony must still

  be limited to the scope of his or her expertise. See Melville v.

  Southward, 

 (Colo. 1990); People v. Gomez, 

 (Colo. 1981).

¶ 89   The trial court did not err in permitting the expert to testify

  that the crime scene was consistent with the theory that the victim

  knew her attacker. The district court sustained defense counsel’s

  objection to the prosecutor’s questioning, but when defense counsel

  raised the issue on cross-examination, it was proper for the district

  court to allow the prosecutor to attempt to “dispel any unfavorable

  innuendo” created by the expert’s testimony on cross-examination.

  Gomez, 

 (citation omitted). Once defense counsel


                                     42
  injected the issue of confirmation bias into the trial, the prosecutor

  was entitled to try to show that, contrary to defense counsel’s

  suggestion, the expert’s opinion was not based entirely on improper,

  unscientific biases. Cf. Golob v. People, 

  (Colo. 2008) (explaining that one party’s questioning of an expert

  witness may “open[] the door” to otherwise inadmissible evidence).

  Under these circumstances, the court did not err in permitting the

  expert to testify that the crime scene was consistent with the fact

  that someone known to the victim had been arrested for her

  murder.

¶ 90   As for the “overkill” testimony, we need not decide whether the

  court erred in admitting the expert’s testimony because any error

  was surely harmless. The expert’s observation that L.E. sustained

  “wounds within wounds” was essentially cumulative of the properly

  admitted testimony of the medical examiner who performed the

  autopsy. The medical examiner testified that some of L.E.’s wounds

  had “multiple wound tracks,” indicating that the knife went into the

  body, came out of the body, and then went back in at a slightly

  different angle. Thus, the jury was already aware, from a properly

  qualified expert, that the victim suffered “wounds within wounds.”


                                    43
  When evidence is merely cumulative, any error in its admission is

  harmless. People v. Russell, 

 (cert. granted

  Feb. 23, 2015); People v. Herdman, 

  (inappropriate expert testimony was harmless because, among

  other reasons, it was cumulative to that of other expert witnesses);

  see also Gonzales v. Windlan, 

, ¶ 33 (any error in

  admitting expert testimony was harmless because it was cumulative

  of other properly admitted expert testimony).

¶ 91   The medical examiner, however, could not conclude if the

  multiple wound paths were caused by the victim moving, the

  attacker making up and down motions with the knife, or some

  combination of the two. But based on the bloodstain evidence, the

  expert testified, without objection, that L.E. was stationary when

  she was stabbed, and that there were no signs of a struggle. Thus,

  considering the expert’s testimony in light of the medical examiner’s

  testimony, the jury would have reasonably inferred that the

  attacker repeatedly stabbed L.E. in the same place. That repeated

  stabbing is a sign of anger is a further logical inference that the jury




                                    44
  would have drawn, regardless of the expert’s testimony.6 See People

  v. Martinez, 

 (Improperly admitted evidence was

  harmless because it merely stated “the most logical inference from

  the evidence.”).

¶ 92   Accordingly, any error in admitting the expert’s brief reference

  to evidence of “overkill” was harmless.7

                           VI.   Conclusion

¶ 93   The judgment is affirmed.

       JUDGE WEBB and JUDGE ASHBY concur.




  6 Indeed, even before the expert’s testimony, a juror question noted
  that “this act was the personification of hate.”
  7 We disagree with the People that People v. Ruibal, 

  (cert. granted Feb. 29, 2016), is dispositive. In that case, a division
  of this court concluded that the district court properly determined
  that a pathologist’s testimony regarding “overkill” evidence was
  reliable under Rule 702. Id. at ¶¶ 31-32. But here, McFee’s
  argument is that, whether or not the evidence is scientifically valid,
  this particular expert was not qualified to testify about it.

                                    45