The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
February 21, 2019
2019COA21
No. 15CA0576, People v. Cooper — Evidence — Relevancy and
Its Limits — Irrelevant Evidence Inadmissible — Testimony by
Experts
In this criminal appeal, the division holds that the existence of
an intimate relationship does not, by itself and without evidence of
escalating abuse or violence, justify the admission of blind expert
testimony on the cycle of violence or other attributes of an abusive
relationship. The majority concludes the admission of such
evidence in this case, where there was no evidence presented that
the defendant and victim had a history of domestic abuse or
violence, was not harmless and reverses the defendant’s conviction
and remands for a new trial.
The partial dissent agrees that allowing the testimony of the
domestic violence blind expert was an abuse of discretion because it
was irrelevant in this case. Nonetheless, based on this record, the
partial dissent would conclude that the expert’s testimony was
harmless and affirm the jury’s verdict.
COLORADO COURT OF APPEALS 2019COA21
Court of Appeals No. 15CA0576
El Paso County District Court No. 13CR2453
Honorable Michael P. McHenry, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kerry Lee Cooper,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE BERGER
Richman, J., concurs
Román, J., concurs in part and dissents in part
Announced February 21, 2019
Philip J. Weiser, Attorney General, Charlotte M. Powers, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
I. Introduction and Summary
¶1 The principal issue in this appeal of a criminal prosecution for
menacing, assault, harassment, and cruelty to an animal, is the
propriety of the admission of “blind” expert testimony regarding the
dynamics of abusive intimate relationships.
¶2 A “blind” or “cold” expert knows little or nothing about the
facts of a particular case, often has not met the victim, and has not
performed any forensic or psychological examination of the victim
(or the defendant). See Fed. R. Evid. 702 advisory committee’s note
to 2000 amendments; see also Christopher Tarver Robertson, Blind
Expertise, 85 N.Y.U. L. Rev. 174 (2010). 1
¶3 Colorado courts repeatedly have recognized the value of blind
expert testimony in appropriate cases. Venalonzo v. People,
2017
CO 9, ¶¶ 32-34; People v. Wittrein,
221 P.3d 1076, 1081 (Colo.
2009); People v. Relaford,
2016 COA 99, ¶¶ 26-30; see also People v.
Fortson,
2018 COA 46M (Berger, J., specially concurring). When
1 Sometimes, blind experts are referred to as “general,” as opposed
to “case-specific,” experts. Victoria L. Lutz, A Guide to Domestic
Violence Expert Testimony in Colorado,
45 Colo. Law. 63 (Nov. 2016)
as reprinted in The Journal of American Judges Association, 53
Court Review 22, available at https://perma.cc/QSH6-UJL5.
1
the actions of a victim are counterintuitive to what an ordinary
juror might expect, this type of expert testimony may be crucial in
explaining to the jury what social science has learned about the
behavior patterns of people who are involved in violent
relationships. Venalonzo, ¶¶ 32-34. Without this testimony, jurors
may well reach incorrect decisions because they do not have the
background to understand such counterintuitive actions. Relaford,
¶ 30. Nothing in this opinion questions the admissibility of such
testimony in the proper case. 2
¶4 But, there are substantial risks attendant to the admission of
blind expert testimony that cannot be ignored. When blind expert
testimony is used to persuade the jury to make findings of historical
fact that are not supported by evidence presented to the jury, the
trial process is corrupted, and the defendant may, as a result, be
deprived of a fair trial. 3
2 The General Assembly has recognized the cyclical nature of
domestic violence relationships. § 18-6-801.5, C.R.S. 2018.
3 Because the effect of the improper admission of the blind expert
testimony on the defendant’s right to a fair trial is the same, we
need not, and therefore do not, determine whether the prosecutor
had a good faith basis for presenting the blind expert testimony or,
instead, acted in violation of the special duties imposed on a
2
¶5 We conclude that virtually all of the blind expert testimony
presented in this case was wholly irrelevant to the issues properly
before the jury. We further conclude that the admission of this
evidence was highly prejudicial. Accordingly, we reverse the
convictions and remand for a new trial.
II. Facts and Procedural History
¶6 Kerry Lee Cooper and L.K. were in an intimate relationship
and living together at the time of the alleged assault. In the early
hours of a morning in the summer of 2013, L.K. woke up in a panic
attack. She felt like she could not breathe. It was very hot in the
room, so L.K. asked Cooper to plug in the nearby fan. Cooper
turned on the fan and placed it on the floor. L.K. was unhappy with
the positioning of the fan and the two began to argue.
¶7 According to L.K.’s testimony, Cooper then shoved the running
fan into L.K.’s face, cutting her face with the blades. 4 L.K. grabbed
prosecutor to seek justice, not just convictions. See Colo. RPC 3.8
cmt. 1; Domingo-Gomez v. People, 125 P.3d 1043 (Colo. 2005) (“[A]
prosecutor, while free to strike hard blows, is not at liberty to strike
foul ones.” (quoting Wilson v. People,
743 P.2d 415, 418 (Colo.
1987))).
4 L.K.’s statements and testimony on this point were inconsistent.
In statements to police officers immediately after the incident, she
3
a flashlight from the nightstand and hit Cooper on the head with it.
Cooper dropped the fan and began hitting L.K. in the face and ribs
with his closed fist. L.K. crawled to the window and screamed for
help. Cooper told L.K. to shut up and grabbed her by the jaw,
inserting his fingers into her mouth. She bit one or more of his
fingers. Cooper then grabbed a tire iron located just outside the
bedroom and told L.K. to stop screaming or he would hit her with it.
When she did not, he hit her twice with the tire iron.
¶8 Cooper testified that he did not punch L.K., grab her jaw, or
pick up the tire iron and hit L.K. with it. According to him, L.K.
asked him to reposition the fan, and, when she became unhappy
with the way he had positioned it, he threw the fan on the end of
the bed, at which point L.K. hit him with the flashlight and bit his
hand when he attempted to take the flashlight away from her to
said that Cooper did not press the blades into her face. At trial, she
testified that Cooper did so, causing substantial injuries. There
were other inconsistencies in her testimony about the alleged
assault, including Cooper’s alleged use of a tire iron as a weapon.
4
protect himself. 5 Cooper did not deny, however, that he pushed L.K
in her forehead.
¶9 Cooper’s daughter, who lived close by, heard the screaming
and called the police. Officers obtained statements from Cooper
and L.K. and observed injuries on both of them.
¶ 10 At trial, over Cooper’s repeated objections, the prosecution
presented extensive testimony from an expert witness about (1)
characteristics of domestic violence relationships; and (2) the
“power and control wheel,” a tool developed purportedly to explain
the ways an abusive partner can use power and control to
manipulate a relationship.
¶ 11 The jury acquitted Cooper of the menacing and cruelty to
animal charges but convicted him of third degree assault and
harassment.
III. Claimed Errors
¶ 12 On appeal, Cooper asserts that (1) the trial court erred in
admitting the blind expert witness testimony both on reliability and
5 Cooper generally denied the charges, but also pleaded the
affirmative defense of self-defense. The trial court instructed the
jury on self-defense with respect to the third degree assault charge.
5
relevance grounds; (2) the prosecutor engaged in prosecutorial
misconduct during closing argument; and (3) the court committed
plain error when it did not give a special unanimity instruction on
the assault charge.
¶ 13 We agree that the expert testimony was inadmissible because
it was irrelevant and highly prejudicial; therefore, we reverse the
convictions and remand for a new trial. To provide guidance on
remand, we reject Cooper’s claim that he was entitled to a modified
unanimity instruction. We decline to address the alleged claims of
prosecutorial misconduct because we do not know whether those
statements will recur at the retrial.
IV. The Vast Bulk of the Blind Expert Testimony Was Irrelevant 6
¶ 14 Only relevant evidence is admissible. CRE 402. Irrelevant
evidence is not admissible. Id. The question here is whether expert
6 Because we conclude that the expert testimony was irrelevant, it
is unnecessary for us to address Cooper’s claim that the trial court
did not determine the reliability of the expert’s opinions before
allowing them to be presented to the jury. Our disposition also
obviates the necessity of addressing the Attorney General’s
objection to preservation of that issue.
If expert testimony is proffered at the retrial, the trial court
must comply with the gatekeeper obligations imposed on trial
courts by CRE 702 and the supreme court’s opinion in Ruibal v.
People, 2018 CO 98.
6
opinions regarding domestic violence had any relevance or “fit” to
the facts that were presented to the jury at trial.
¶ 15 To illustrate our analysis, the chart that appears in the
Appendix catalogues each opinion expressed by the expert witness
and the historical evidence, if any, presented to the jury that had
any relationship to the expressed opinion.
A. Standard of Review
¶ 16 We review a trial court’s evidentiary ruling for an abuse of
discretion. People v. Welsh, 80 P.3d 296, 304 (Colo. 2003). A trial
court abuses its discretion if its ruling is manifestly arbitrary,
unreasonable, or unfair,
id., or if it misconstrues or misapplies the
law, People v. Glover,
2015 COA 16, ¶ 10.
B. Admissibility of Expert Testimony
¶ 17 CRE 702 governs the admission of expert testimony.
Exercising its gatekeeper function, the trial court must “focus on
the reliability and relevance of the proffered evidence” and
determine “(1) the reliability of the scientific principles, (2) the
qualifications of the witness, . . . (3) the usefulness of the testimony
to the jury,” and (4) whether the evidence meets the test of CRE
7
403. People v. Shreck, 22 P.3d 68, 70 (Colo. 2001). Recently, the
supreme court again explained the trial court’s gatekeeper function:
[T]he 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. 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
probative value of the evidence would not be
substantially outweighed by any of the
countervailing considerations enumerated in
the rule.
Ruibal v. People, 2018 CO 93, ¶ 12 (citations omitted).
¶ 18 Expert testimony should be admitted only when the expert’s
opinions will be helpful to the fact finder. People v. Valdez,
183
P.3d 720, 723 (Colo. App. 2008). “Helpfulness to the jury hinges on
whether the proffered testimony is relevant to the particular case:
whether it ‘fits.’” People v. Martinez,
74 P.3d 316, 323 (Colo. 2003).
8
Fit demands more than simple relevance; it
requires that there be a logical relation
between the proffered testimony and the
factual issues involved in the litigation. That
is, even if good grounds exist for the expert’s
opinion, it must be validly and scientifically
related to the issues in the case. That
particular expert testimony fits or is valid for
one facet or purpose of a proceeding does not
necessarily compel the conclusion that it fits
all facets. Therefore, the admissibility of
evidence must be evaluated in light of its
offered purpose.
Id. (citations omitted).
¶ 19 There are two substantial risks associated with the admission
of blind expert testimony. The first is that, as the supreme court
recognized in Venalonzo (and as the trial court explicitly recognized
in this case), most, if not all, expert testimony has the tendency to
bolster the credibility of one or more witnesses. Venalonzo, ¶¶ 32,
36. When an expert explains why a witness might have acted in a
counterintuitive manner, that explanation may bolster the
credibility of that witness.
Id.
¶ 20 But, “while such ‘testimony may incidentally give rise to an
inference that a victim is or is not telling the truth about the
specific incident,’ ‘this fact alone is insufficient to deny admission of
the evidence, because expert testimony generally tends to bolster or
9
attack the credibility of another witness.’” Relaford, ¶ 30 (quoting
People v. Koon, 724 P.2d 1367, 1370 (Colo. App. 1986)). That is,
the bolstering effect is acceptable when the expert testimony is
necessary to educate the jury regarding matters about which the
ordinary juror has no knowledge. When that is not the case,
however, the bolstering effects of expert testimony are
unacceptable.
¶ 21 The second danger of blind expert testimony is that the jury
may find or infer that historical facts existed based solely on the
expert’s testimony, rather than on the historical evidence presented
to the jury. 7 On at least two occasions the supreme court has
recognized a similar danger in other contexts.
¶ 22 In the jury instruction context in Castillo v. People,
2018 CO
62, the supreme court addressed the first aggressor exception to
self-defense and, more specifically, whether an erroneously given
first aggressor instruction was harmless when there was no
7 An expert witness may rely on facts not in evidence when those
facts are “of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject.”
CRE 703. But here, the expert was a blind expert and, by
definition, knew nothing about the facts relating to the relationship
between Cooper and L.K.
10
evidence supporting the instruction. A division of this court had
reasoned that even if there was no evidence to support it, the error
was harmless because if there was no evidence to support the
instruction, the jury would simply disregard it. Id. at ¶ 47.
¶ 23 Rejecting that analysis, the supreme court stated that “we
have repeatedly expressed concern that jurors might try to fit facts
into an erroneously given instruction.” Id. at ¶ 59. As the supreme
court concluded in an earlier case, “[d]uring deliberations, it is
possible that the jury may have wondered why it was given the
instruction, decided that it must have been for some purpose, and
forced the evidence to fit the instruction, thereby denying
[defendant] his claim to self-defense.” Kaufman v. People, 202 P.3d
542, 562 (Colo. 2009). The Castillo court relied on its earlier
decision in Barnhisel v. People,
141 Colo. 243, 246,
347 P.2d 915,
917 (1959), where the court observed that an instruction which
correctly states the law but is not supported by evidence
erroneously “implies or assumes the existence of evidence not in the
record.”
¶ 24 The supreme court also explained that the danger of giving a
jury instruction that is not supported by the evidence is
11
“exacerbated by the prosecution’s misleading comments during its
closing argument.” Castillo, ¶ 60 (citation omitted). 8
C. The Expert’s Testimony Did Not “Fit” With the Factual
Evidence Presented
¶ 25 As stated above, expert testimony is only admissible when the
proffered testimony “fits” the factual issues involved in the case.
Martinez, 74 P.3d at 323. There was no such “fit” here.
¶ 26 No evidence presented to the jury proved or even suggested
that prior to the charged incident Cooper had assaulted, or
physically or nonphysically abused, L.K. 9 There was no evidence
that Cooper exercised improper control over L.K. physically,
emotionally, or economically. Nevertheless, the expert was
permitted to give extensive testimony about how domestic abusers
8 In a different context, the supreme court has held that evidence
that suggests a screening process was used in the filing of the
criminal case is improper because the jury is likely to infer that the
case is stronger if it survived these unknown screening procedures.
Domingo-Gomez,
125 P.3d at 1052-53.
9 Given that evidence of similar transactions of domestic violence
may be admissible in criminal prosecutions under section 18-6-
801.5, we presume that if the prosecutor in this case had
knowledge of any evidence of prior acts of domestic violence
between Cooper and L.K., she would have sought to admit such
evidence.
12
exercise such control and how that control contributes to or is
associated with the “power and control wheel.”
¶ 27 Neither was there any evidence of an escalating “cycle of
violence,” an attribute of many domestic violence cases and the
essence of the “power and control wheel” emphasized by the expert.
The only way the jury could have found that there was a pattern of
abuse was from the expert’s testimony — who, as a blind expert,
purportedly knew nothing about the facts of this case.
¶ 28 The expert also testified that victims of domestic abuse often
stay in abusive relationships and are then subjected to additional
abuse. If that opinion related to any material fact presented to the
jury in this case, the expert testimony might have been appropriate
because it is counterintuitive that an abused person would stay in
such a relationship. But, no evidence supporting that factual
scenario was presented to the jury. To the contrary, undisputed
evidence established that L.K. immediately moved out of Cooper’s
house after the charged incident and never returned. 10
10 The Attorney General also argues that the jury might have been
confused as to why it was necessary to subpoena L.K. to testify,
thus justifying at least some of the expert’s opinions. But any issue
13
¶ 29 We acknowledge that Cooper and L.K. were in an intimate
relationship. But, contrary to the argument made by the
prosecutor, and apparently accepted by the trial court, the
existence of that relationship alone does not justify the admission of
the “power and control wheel” and other expert testimony regarding
the characteristics of an abusive intimate relationship.
¶ 30 The Attorney General has not cited, and we have not found, a
single case that stands for the proposition that the mere existence
in this regard was of the prosecutor’s own creation. The jury heard
no testimony that L.K. had refused to testify at trial. Thus, whether
L.K. was under subpoena was wholly irrelevant to any legitimate
issue. Despite this irrelevance, the prosecutor herself asked L.K.
during direct examination if she was under subpoena. Subpoenaed
or not, she was present and testified at trial, and no evidence was
presented to the jury that she would not have been there if she had
not been subpoenaed.
Moreover, almost all conscientious lawyers subpoena their
witnesses, even when friendly, because if they do not and the
witness does not show up, a continuance is unlikely. See, e.g.,
People v. Dillon, 633 P.2d 504, 507 (Colo. App. 1981) (holding that
the trial court did not abuse its discretion in denying a continuance
where the defendant did not show that an attempt was made to
subpoena the witnesses before trial).
Similarly, the Attorney General’s argument that L.K. did not
want to be in court to testify proves too much and does not justify
the vast reach of the expert’s testimony. Few people want to be in
court to testify and, for many, testifying is a harrowing experience.
Nothing in the evidence presented to the jury indicates that L.K.
had, at any time, refused to cooperate with the police or the
prosecutor.
14
of an intimate relationship justifies the admission of this type of
expert testimony. The Attorney General’s reliance on People v.
Lafferty, 9 P.3d 1132 (Colo. App. 1999), is misplaced. There, the
court upheld “cycle of violence syndrome” testimony to explain the
victim’s recantation.
Id. at 1134-35. But, as noted by the trial
court, L.K. never recanted.
¶ 31 Examination of the chart contained in the Appendix further
demonstrates that there was no record evidence that related to the
vast majority of the opinions expressed by the blind expert. Even if
some of the tangential opinions expressed by the expert were
arguably supported by the record (and we think it is a stretch to so
conclude), that very minor “fit” cannot excuse the admission of
extensive irrelevant evidence of this type. See CRE 403. This is
particularly the case when, as here, there were no third-party
witnesses to the alleged crimes, and Cooper’s criminal liability
rested entirely on the jury’s perception of the credibility of the
testifying fact witnesses.
¶ 32 For these reasons, we conclude that the trial court abused its
discretion in admitting the blind expert testimony.
15
D. The Improper Admission of the Expert Testimony Requires
Reversal
¶ 33 Our conclusion that the court erred in permitting the expert to
express opinions wholly irrelevant to the factual questions before
the jury does not end our inquiry. We must also determine whether
the admission of this testimony requires reversal. Hagos v. People,
2012 CO 63, ¶ 8.
¶ 34 Ordinarily, the erroneous admission of testimony is evaluated
under the harmless error standard. Pernell v. People,
2018 CO 13,
¶ 22. An appellate court reverses a criminal conviction only when
the wrongfully admitted evidence “substantially influenced the
verdict or affected the fairness of the trial proceedings.” Hagos,
¶ 12 (quoting Tevlin v. People,
715 P.2d 338, 342 (Colo. 1986)). In
evaluating whether the error requires reversal, the strength of
properly admitted evidence supporting the verdict is one important
consideration. 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.” Ruibal, ¶ 17; accord
Pernell, ¶ 22.
16
¶ 35 Cooper claims, however, that he was deprived of a fair trial by
the admission of the blind expert testimony, and therefore, that we
should review his claims under the constitutional harmless error
standard. When a defendant specifically identifies a constitutional
right that is implicated by improperly admitted testimony and a
contemporaneous objection is made, an appellate court reviews for
constitutional harmless error. Hagos, ¶ 11. “These errors require
reversal unless the reviewing court is ‘able to declare a belief that
[the error] was harmless beyond a reasonable doubt.’” Id. (quoting
Chapman v. California,
386 U.S. 18, 24 (1967)). For this kind of
error, the prosecution bears the burden of proving the error was
harmless beyond a reasonable doubt.
Id.
¶ 36 We need not determine whether the ordinary harmless error
standard of reversal or the constitutional harmless error standard
applies here because, for four reasons, we conclude that under the
more stringent harmless error standard, reversal is required. See
Hagos, ¶ 12 (“Reversal is more difficult to obtain under [the
harmless error] standard than under the constitutional harmless
error standard because [harmless error] requires that the error
17
impair the reliability of the judgment of conviction to a greater
degree than the constitutional harmless error standard requires.”).
¶ 37 First, the two critical issues for the jury to decide in this case
were who initiated the altercation and whether L.K. suffered bodily
injuries as a result of Cooper’s criminal conduct. As to the first
question, the jury had little to go on other than the testimony of
L.K. and Cooper.
¶ 38 Cooper presented two defenses at trial — general denial and
self-defense. He denied punching L.K., hitting her in the ribs, or
hitting her with a tire iron. Instead, he testified that when she hit
him on the head with the flashlight and bit his finger, he pushed
her away from him on the forehead. He did not deny using force
against L.K., but he did deny using the force L.K. alleged.
¶ 39 It was permissible for Cooper to present two alternative, if
perhaps inconsistent, defenses. People v. Wakefield, 2018 COA 37,
¶¶ 42-43. He was entitled to argue that the assault did not occur in
the way L.K. described, and that under his version of events his act
of pushing L.K. was done in self-defense. Simply because Cooper
denied L.K.’s version of events does not necessarily disprove his
defense of self-defense. See
id.
18
¶ 40 Second, although there was no historical evidence presented
to the jury that Cooper and L.K. had a history of domestic violence,
the extensive expert testimony 11 regarding domestic violence may
well have caused the jury to infer that there was a prior history of
domestic violence and that Cooper’s alleged assault of L.K. resulted
from, or was explained by, that supposed abusive relationship.
Through the blind expert’s opinions, the prosecutor invited (indeed,
urged) the jury to speculate that there was a history of abuse or
violence even though the jury heard no such evidence from any
witness.
¶ 41 The dangers identified in Castillo (which are associated with a
jury instruction that finds no support in the evidence) are equally
present when a blind expert expresses opinions that find no
support in the historical facts presented to the jury. The jury may
have wondered why the prosecutor would spend so much time and
effort presenting these domestic abuse opinions, and why the court
would allow such opinions to be presented if L.K. and Cooper did
not have a history of domestic violence. The jury, therefore, could
11 The expert’s testimony consumes almost fifty pages of the
transcript in a trial that lasted less than two days.
19
have “decided that it must have been for some purpose, and forced
the evidence to fit [the expert opinions] thereby denying [Cooper] his
claim to self-defense.” Kaufman, 202 P.3d at 562. And, as in
Castillo, the prosecutor here extensively relied on the blind expert
testimony in her closing arguments.
¶ 42 Third, to the extent that the blind expert testimony invited the
jury to find nonexistent historical facts, the evidence was improper
CRE 404(b) evidence. Even more troubling, the trial court did not
require that evidence to withstand the rigors of the test of
admissibility under People v. Spoto,
795 P.2d 1314 (Colo. 1990).
Because the prosecutor never offered any specific other acts in
evidence, the trial court never made the threshold determination
that Cooper actually committed any of the acts which the expert
testimony invited the jury to infer.
Id. at 1318. Because prior acts
of domestic violence suggest a person’s bad character, the
prosecutor was able to present improper character evidence about
Cooper without any of the protections required by section 18-6-
801.5, C.R.S. 2018, or Spoto.
¶ 43 Fourth, the expert testimony undermined Cooper’s credibility.
If Cooper and L.K. were in a violent domestic relationship, it is more
20
likely that Cooper committed the violent acts alleged by L.K. But,
as stated above, there was no evidence of a pre-existing violent
relationship. Therefore, the expert testimony improperly impeached
the credibility of Cooper’s denial of most of the alleged acts of
violence based on evidence that did not exist.
¶ 44 The operative question here is not whether the jury was
entitled to believe or disbelieve Cooper’s version of events regardless
of the admission of the expert testimony. Rather, we must
determine whether the improper testimony impermissibly affected
the jury’s verdict and the fairness of the trial proceedings. Hagos, ¶
12. For the reasons stated above, we conclude that the error in
admitting the irrelevant expert testimony “substantially influenced
the verdict [and] affected the fairness of the trial proceedings” and,
therefore, was not harmless. Id. (quoting Tevlin,
715 P.2d at 342).
We thus reverse Cooper’s convictions and remand for a new trial.
V. Issues That May Arise on Retrial
A. Jury Instructions
¶ 45 Cooper also contends that the trial court erred in not
instructing the jury on the requirement of unanimity. We reject
this argument.
21
1. Standard of Review and Applicable Law
¶ 46 We review jury instructions de novo to determine whether they
accurately informed the jury of the governing law. Riley v. People,
266 P.3d 1089, 1092 (Colo. 2011).
¶ 47 When a defendant is charged with crimes occurring in a single
transaction, the prosecutor need not elect among the acts, and the
trial court need not give a modified unanimity instruction. Melina
v. People,
161 P.3d 635, 639-40 (Colo. 2007).
2. The Trial Court Was Not Required to Instruct on Unanimity
¶ 48 The prosecutor charged Cooper with third degree assault
based on L.K.’s testimony that Cooper punched her in the face and
ribs on the night of the altercation. We agree with the Attorney
General that the allegations against Cooper concerned a short
timeframe, a single incident, and one victim. The evidence “does
not present a reasonable likelihood that jurors may disagree on
which acts the defendant committed” regarding the third degree
assault charge. Thomas v. People, 803 P.2d 144, 153 (Colo. 1990).
Therefore, Cooper was not entitled to a unanimity instruction.
22
B. Prosecutorial Misconduct
¶ 49 Cooper next contends that the prosecutor engaged in repeated
instances of prosecutorial misconduct during closing argument.
Because we do not know whether similar statements will be made
at the retrial, we decline to evaluate these statements.
¶ 50 We note, however, that a prosecutor has significant latitude to
comment on the strength and weakness of the evidence and to
employ reasonable rhetorical devices in doing so. Domingo-Gomez,
125 P.3d at 1048-49. Nevertheless, a prosecutor may not express
personal opinions regarding the credibility of any witness or opine
on the guilt of the defendant.
Id. at 1049. Nor may the prosecutor
denigrate the defendant or his counsel.
Id.
VI. Conclusion
¶ 51 The judgment of conviction is reversed, and the case is
remanded for a new trial.
JUDGE RICHMAN concurs.
JUDGE ROMÁN concurs in part and dissents in part.
23
JUDGE ROMÁN, concurring in part and dissenting in part.
¶ 52 I agree with the majority that allowing the testimony of the
domestic violence blind expert on the concept of “power and
control” was an abuse of discretion because it was irrelevant in this
case. No history of domestic abuse existed in the relationship
between defendant and the victim. As the majority notes, however,
this does not end our inquiry. And this is where I respectfully
depart from the majority’s analysis. Specifically, I dissent because,
on this record, the expert’s testimony was harmless.
¶ 53 Although defendant pled the affirmative defense of
self-defense, which is his right, he denied any involvement in all of
the victim’s injuries. Coupled with the contemporaneously taken
color photos of the victim’s injuries, the victim’s testimony, and the
testimony of law enforcement officers, the jury was well within its
right to simply not believe defendant’s account of what happened
regardless of the improper domestic abuse testimony. Thus, I
would conclude the error was harmless and affirm the jury’s
verdict.
24
¶ 54 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). An appellate court will disregard the
error unless it “substantially influenced the verdict or affected the
fairness of the trial proceedings.” Hagos v. People,
2012 CO 63,
¶ 12 (quoting Tevlin v. People,
715 P.2d 338, 342 (Colo. 1986)). In
evaluating such error, the strength of properly admitted evidence
supporting the verdict is one important consideration. 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.” Ruibal v. People,
2018 CO 93, ¶ 17;
accord Pernell v. People,
2018 CO 13. 1
¶ 55 The jury was properly instructed on defendant’s affirmative
defense of self-defense, and no one argues to the contrary. Notably,
1 Here, the erroneously admitted evidence was limited to blind
expert testimony. The blind expert did not know details of the case,
had never met the parties, and testified generally about the
counterintuitive behavior of domestic abuse victims. She offered no
testimony that the charged crimes actually occurred, no opinion
that any witness was telling the truth about the assault, and no
statements that improperly vouched for the strength of the People’s
case. As will be seen, given the nature of the relationship between
this particular defendant and victim, her domestic abuse testimony
regarding “power and control” was irrelevant, but not prejudicial.
25
both the victim and defendant testified at trial. The victim testified
first, and her description of what happened put the issue of whether
defendant’s response was reasonable squarely in front of the jury.
¶ 56 The People presented the first-person testimony of the victim,
graphic color photographs of her injuries, and corroborative
testimony from responding officers. Specifically, in addition to the
color photographs, the victim’s injuries were testified to in great
detail, including:
• dried blood around the inside of her lips;
• one of her lips looking swollen;
• marks on her ribs;
• a “goosed out” bump on her head;
• another portion of her head looking “dented in”;
• visible bruises on her nose, around her eyes, and on her
ribs; and
• cuts on her face.
¶ 57 At this point, defendant could have acknowledged that he had
struck the victim but argued that his actions were reasonable and
in response to actions taken by the victim. This is the very essence
26
of the statutory defense of self-defense. Had he done so, I would
agree with the majority that the expert’s testimony on domestic
abuse highly prejudiced defendant’s affirmative defense claim of
self-defense because, in that scenario, the only way the jury could
have decided whether defendant acted in self-defense would have
been to analyze the contested evidence and consider the credibility
of both defendant and the victim. In that scenario, the irrelevant
testimony of the expert witness could well have prejudiced
defendant’s case.
¶ 58 But that’s not what happened. Instead, defendant took his
claim of self-defense off the table when he emphatically denied
touching the victim, other than a push on the forehead. The
following colloquy on cross-examination of defendant makes this
clear:
Q. So you pushed her on her forehead?
A. Yeah, I pushed her off like that (indicating).
Q. You didn’t punch her in the mouth?
A. No, I didn’t punch her in the mouth.
Q. You didn’t punch her in the ribs?
A. No, I didn’t punch her in the ribs.
27
Q. Or elbow her in the ribs?
A. No, ma’am, I didn’t.
Q. You didn’t grab her by the jaw?
A. No.
....
Q. So aside from pushing her in the forehead,
you never touched her?
A. No, ma’am.
¶ 59 In my view, this testimony removed the possibility of a
contested issue before the jury of whether self-defense was
appropriate in this case. This is because “[a] defendant asserting
self-defense as an affirmative defense admits that his use of force
satisfies the elements of the charged offense. But the defendant
also asserts that the otherwise unlawful use of physical force was
justified because it was reasonably necessary to defend himself or
another from the victim’s use or imminent use of force.” People v.
Tardif, 2017 COA 136, ¶ 37 (emphasis added).
¶ 60 This point was not lost on the jury, which was given the
following self-defense instruction.
It is an affirmative defense to the charge of
assault in the third degree that the defendant
used physical force upon another person, one,
28
in order to defend himself or another from
what he reasonably believed to be the use or
imminent use of unlawful physical force by the
victim; and, two, he used a degree of force
which he reasonably believed to be necessary
for that purpose.
The language of the jury instruction tracked the language of section
18-1-704(1) stating that a person acts in self-defense by “using
physical force upon another person to defend himself or a third
person from what he reasonably believes to be the use or imminent
use of unlawful physical force by that other person.” § 18-1-704(1),
C.R.S. 2018. But, here, when the jury applied the evidence to the
jury instruction, it must have realized that defendant’s self-defense
claim made no sense because (1) defendant testified he used no
physical force on the victim and (2) he testified to using no degree of
force rather than a reasonable degree of force in self-defense. In
other words, through his own testimony, defendant blew up his
self-defense theory. Rather than admit the crime charged yet seek
to justify or excuse his conduct, defendant’s testimony took it off
the table as an affirmative defense.
¶ 61 At this point, the jury was entitled to conclude that defendant
did not use a reasonable degree of force under self-defense law.
29
After all, rather than provide testimony as to why the force was
reasonable, defendant denied, in toto, assaulting the victim, which
was illogical under self-defense law, and which the People’s
admitted evidence at trial overwhelmingly refuted.
¶ 62 Of course, that still leaves defendant’s alternative defense to
these charges — straight denial. Here again, once examined in
isolation, and set next to the overwhelming and unrefuted evidence
presented by the People, I am left with the firm conviction that the
error in allowing the domestic violence expert’s opinion was
harmless.
¶ 63 As discussed, the overwhelming evidence of defendant’s guilt
in this case was established by properly admitted evidence. In the
face of this overwhelming evidence, I cannot find even a reasonable
possibility that the outcome of the trial would have been different
but for the expert’s opinion regarding the “power and control
wheel.” See Krustinger v. People, 219 P.3d 1054, 1063 (Colo. 2009)
(making clear that the “substantially influence” standard for
nonconstitutional error is a less onerous harmless error standard
than the “reasonable possibility” standard for constitutional error).
30
¶ 64 So, while I agree the admission of the expert testimony was an
abuse of discretion, I do not believe on this record that the expert’s
improper testimony “substantially influenced the verdict or affected
the fairness of the trial proceedings,” as required for
nonconstitutional harmless error. Summit, 132 P.3d at 327.
¶ 65 Because I conclude that the improperly admitted evidence was
harmless, I respectfully dissent from the majority’s decision to
reverse defendant’s convictions and remand for a new trial. In all
other respects, I agree with the majority.
31
Appendix
Opinion of Blind Expert Historical Evidence
Presented Relating to that
Opinion
Power and Control Wheel: How a None
person can abuse the other
person in a relationship without
ever physically touching them.
“So the first way that we talk None
about is emotional abuse, and
that’s name calling, put-downs,
you’re stupid, you’re fat, you’re
ugly, you can’t do anything righttype of abuse.”
“Another form of abuse on that None
wheel is financial or economic.
And it’s very common for victims
of domestic violence to be — not
just be financially dependent on
their partner, but for the partner
to use that as a way to control
them, as a way to make sure that
they don’t have any power of
their own.”
“The next one is isolation. So it’s None
quite common for offenders to try
and isolate their victims from
their sources of support. So try
and put wedge in between their
relationships with family, friends,
maybe their church support,
whoever it is that supports them
the most.”
“The next thing on this wheel is None
minimizing, denying and
blaming. When we say that, very
often domestic violence offenders
will say things like, I didn’t do
that. Well, if I did it, I didn’t do
— it wasn’t really a big deal, and
it was probably her fault anyway.
So not taking responsibility for
their own behavior is quite
common.”
“The next thing on this chart is None
using children. So domestic
violence offenders know that it’s
really effective to threaten
children or try and manipulate
children in order to control their
victim.”
“The other thing on here is an Testimony from victim that she
attitude of male privilege. . . . only had one 10-by-14 foot
And by that, we mean that, you walk-in closet to store all of
know, generally I think people her things.
agree that in a healthy
relationship, you have two people Cooper testified that victim
that have equal say. . . . But in made him kick all the other
these relationships very often the people living in his house out
offenders have this attitude that of the house, and made them
I’m the king of the castle. I’m the move to the garage.
one who make the decisions. I’m
the one in charge.”
“So coercion and threats. It’s not None
at all uncommon for offenders to
make really specific and direct
threats, very clear. If you call the
police, if you tell anybody, if you
don’t do this or don’t do that,
then there will be this
consequence. So we see that
regularly.”
“Intimidation really falls on a None, other than testimony
spectrum. It can be something relating to the charged
very small like giving a person a incident.
look. Now, we all — you know,
that’s sort of a common thing in
relationships. You give each
other looks, and we sort of learn
how to read our partners. But
what domestic violence victims
will say is the look in this case
means uh-oh. There’s —
something really horrible is going
to happen. I may or may not
know what I’ve done, but this is
not going to be good.
Intimidation, though, can also be
really extreme, like taking out a
gun and waving it around
without ever actually making a
specific threat to do anything
with it. So that’s in a real quick
nutshell the power and control
wheel.”
Why victims don’t share what has Colloquy between prosecutor
happened: “Well, first of all, and victim establishing that
that’s really common for victims the victim did not “really want”
of domestic violence, to kind of to testify and that the
keep this secret and keep it quiet. prosecution had to subpoena
There are lots of reasons for that. her.
One of the most common reasons
that I hear is that they’re afraid,
that they’ve lived with this person
for a while and they absolutely
believe that this person has the
willingness and the capability to
carry out any threats that have
been made against them. And so
they — you know, out of a desire
to keep themselves or maybe
other people safe, they just keep
this to themselves. Another issue
is just that they’re extremely
embarrassed, ashamed,
humiliated.”
“Another reason is that very often Colloquy between prosecutor
people who go into abusive and victim that, at the time of
relationships have grown up in the charged incident, the
relationships where they’ve seen victim and her father were not
this kind of behavior modeled, on speaking terms.
and they — it’s sort of normalized
for them.”
“Another reason that I hear from Testimony from victim that in
victims is that they love this the beginning of their
person. You know, offenders are relationship Cooper was
not abusive 100 percent of the “sweet. He was one of those
time. If they were, that would charmers. I don’t know.
make it a lot easier. But very There were many things I liked
often they can be quite kind and about him. I like how kind he
loving and charming and caring was to not only me but other
and, you know, be a really good people. He seemed to have a
partner. big heart.”
In fact, one of the ways they’re
often described is as having a
Jekyll and Hyde personality. So
they’re — you know, can be this
really great, wonderful person,
and then this horrible ugly side
that they show. But because
they have that loving side and
that’s there enough of the time,
the victim in the relationship can
think, well, you know what? I’m
going to just sort of put up with
the bad things because I get
enough good things out of this
relationship.”
“But in this case, you have None
offenders who are driven by their
need for this power and control.
Like, I didn’t write it actually on
the board and I should have, but
when you look at this more
closely, you can see that power
and control at the core of this
illustration. And that’s really the
issue that offenders are dealing
with. Whenever they feel like
they’re losing some of their
power, they’re losing control over
their partner, that’s when they
use these or other physical
methods to gain that control.
That’s what drives their
behavior.”
Q: “Why would a victim keep Colloquy between prosecutor
talking to him?” and victim establishing that
A: “So, first of all, again, that’s after the incident, the victim
really common. I know it seems and Cooper spoke on the
confusing, but it’s not. It phone a number of times and
happens regularly. Almost that he “would tell me that he
everything that a domestic was sorry for what had
violence victim does, the thing happened. The remorse wasn’t
that drives their behavior is about what he had done to me.
keeping themselves safe. So It was more about us not
because they have been in this having the house and him
relationship, they’ve experienced being in jail.”
all of these different forms of
power and control, it often feels And colloquy establishing that
safer to them to be in the victim and Cooper
communication with their physically saw each other for
offender so they can sort of gauge half an hour one day, and
where that person is and gauge that, at that time, the victim
what their mood is like today. still had “feelings of love for
Am I going to be safe today? him.”
What are my next steps going to
look like? So a lot of it happens
because they’re trying to keep
themselves safe.
And, again, remember, these
guys are also — they have their
good side. They have their kind,
loving, charming side. That’s
usually the side that you see
after an abusive incident. So a
person being sorry and contrite
and sending gifts and flowers and
promising never to do it again
and go to counseling, that’s what
the victim wants, right? They
want to stay in the relationship
as long as there’s no more abuse.
And if that’s what they think
they’re going to get, that’s a
strong motivator.”
“In fact, the statistics show us or Testimony from victim that
tell us that a victim leaves an immediately after the assault
average of seven to nine times she moved out of Cooper’s
before they leave for good.” home and never moved back.
Q: “How does hurting a victim’s Conflicting testimony from
animal play into the power and victim that during the incident
control?” her dog came into the bedroom
A: “So there are a couple of and the dog “came at,” barked
answers to that. One is, it’s or growled at, or “lunged” at
really — it can be a really Cooper.
intimidating — we talked about
intimidation — it can be a really And, testimony from the
intimidating gesture to take, you investigating officer that the
know, a little cat or dog or horse dog “attempted to bite” Cooper.
or whatever it is, something that
the offender knows the victim
really loves and cares for and
hurt it. Like, that sends a really
strong message. Look what I’m
willing to do. Look at the lengths
I’m willing to go to. That sends
me a strong message, like uh-oh,
this person is dangerous and I
should be afraid.”
Q: “How could it also come into Colloquy between prosecutor
play in the power and control and victim that victim was not
aspect that the offender is maybe on speaking terms with her
decades older than the victim?” father at the time of the
A: “Well, as I mentioned, it’s not incident.
uncommon for people who have
grown up in abusive situations to
sort of find that again. And, you
know, in psychological terms, if
you’re trying to work out issues
with a parent in your mind, it
wouldn’t be at all uncommon to
find somebody who is sort of
similar in that way and try and
work it out in your current
relationship. So that could be
one explanation.”
Q: “Why might a victim after Testimony from victim that on
being physically abused and the night of the incident she
offered medical treatment refuse did not receive medical
to go into treatment that day to treatment, but that she did
be taken away to treatment?” eventually go to a doctor.
A: “Well, there could be a number
of answers to that. So it could be
that they are scared. They’ve
been told that, you know, if you
talk about this, if you tell
anybody, there will be a
consequence to that. And so
they want to sort of show their
solidarity with the offender. No,
I’m going to stay here. I’m going
to stay by that person’s side. It
could be — you asked about
animal abuse. It could be that
the pet or a child or somebody
else has been threatened and
they think, I need to stay here to
make sure nothing horrible
happens while I’m gone. It could
just be that they are minimizing
their own, I’m okay. I can handle
this. I don’t need to go to the
hospital. I’ll just sort of power
through it.”
Q: “Why might an offender tell a Colloquy between prosecutor
victim to stop yelling for help?” and victim establishing that on
A: “Well, I guess I might need a the night of the incident victim
little more context, but anytime yelled for help out the bedroom
— again, if an offender’s behavior window, and Cooper kept
is motivated by power and telling the victim to stop
control. So that’s just another yelling.
way to control a person. Literally
telling them what they can say
and what they can’t while they’re
being abused, that’s an ultimate
expression of power.”
Q: “How is this different from a None, apart from the factual
normal fight between a couple?” basis of the charged incident.
A: “So the distinction there is
what’s driving it. Because
everybody fights, right? All of us
have fights in our relationships;
that’s normal. So the distinction
is it becomes domestic violence
when there’s this patterned use
of these tactics. And you don’t
have to have all of the tactics, but
a patterned use of tactics that are
designed to coerce, manipulate,
control another person.”
Q: “Is it something that you see Testimony from the victim that
in domestic violence cases where Cooper asked her not to “come
the offender later asks the victim to court” at some point after
not to participate in court?” the incident
A. “Oh, that’s extremely
common.”
