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                                                        ADVANCE SHEET HEADNOTE
                                                                  December 3, 2018

                                       2018 CO 93

No. 15SC504, Ruibal v. People—Evidence—Expert Testimony—Abuse of Discretion.

       Ruibal petitioned for review of the court of appeals’ judgment affirming his

conviction for second degree murder.       Over defense objection and without taking

evidence or making any findings as to reliability, the trial court admitted expert

testimony to the effect that the victim’s injuries in this case demonstrated “overkill,” a

formal term describing multiple injuries focused on one area of the victim’s body, which

includes blows about the head and face that are numerous and extensive, indicating that

the assailant likely had either a real or perceived emotional attachment to the victim.

Relying on case law from several other jurisdictions, a treatise dealing with related kinds

of injuries, and the witness’s own experience with autopsies involving similar injuries,

the court of appeals concluded that the expert opinion was sufficiently reliable and that

the trial court had implicitly found as much by granting the prosecution’s proffer.

       The supreme court holds that because the trial court made no specific finding that

the theory of “overkill” espoused by the witness was reliable, nor was the reliability of

that theory either supported by evidence in the record or already accepted in this

jurisdiction, its admission amounted to an abuse of discretion. Because there was,
however, overwhelming evidence of the defendant’s guilt quite apart from the expert

testimony, the error was necessarily harmless. Accordingly, the judgment of the court of

appeals is affirmed.
                     The Supreme Court of the State of Colorado
                     2 East 14th Avenue • Denver, Colorado 80203

                                        2018 CO 93

                          Supreme Court Case No. 15SC504
                        Certiorari to the Colorado Court of Appeals
                         Court of Appeals Case No. 13CA276

                                        Petitioner:

                                     George J. Ruibal,

                                             v.

                                       Respondent:

                            The People of the State of Colorado.

                                   Judgment Affirmed
                                        en banc
                                    December 3, 2018


Attorneys for Petitioner:
Johnson & Klein, PLLC
Eric Klein
       Boulder, Colorado

Attorneys for Respondent:
Cynthia H. Coffman, Attorney General
Jacob R. Lofgren, Assistant Attorney General
       Denver, Colorado




CHIEF JUSTICE COATS delivered the Opinion of the Court.
JUSTICE GABRIEL does not participate.
¶1     Ruibal petitioned for review of the court of appeals’ judgment affirming his

conviction for second degree murder.       Over defense objection and without taking

evidence or making any findings as to reliability, the trial court admitted expert

testimony to the effect that the victim’s injuries in this case demonstrated “overkill,” a

formal term describing multiple injuries focused on one area of the victim’s body, which

includes blows about the head and face that are numerous and extensive, indicating that

the assailant likely had either a real or perceived emotional attachment to the victim.

Relying on case law from several other jurisdictions, a treatise dealing with related kinds

of injuries, and the witness’s own experience with autopsies involving similar injuries,

the court of appeals concluded that the expert opinion was sufficiently reliable and that

the trial court had implicitly found as much by granting the prosecution’s proffer.

¶2     Because the trial court made no specific finding that the theory of “overkill”

espoused by the witness was reliable, nor was the reliability of that theory either

supported by evidence in the record or already accepted in this jurisdiction, its admission

amounted to an abuse of discretion.       Because there was, however, overwhelming

evidence of the defendant’s guilt quite apart from the expert testimony, the error was

necessarily harmless. The judgment of the court of appeals is therefore affirmed.

                                            I.

¶3     George Ruibal was charged with and convicted of second degree murder for the

beating and strangulation death of the woman with whom he was living at the time. He

was sentenced to forty years in the custody of the department of corrections.



                                            2
¶4    It was undisputed at trial that the victim’s body was discovered lying on a couch

in the couple’s apartment, on a Monday, by the defendant and a co-worker, from whom

the defendant had gotten a ride home and whom he had invited in to see the couple’s

new apartment. The co-worker immediately called 911, and upon arrival, the responding

officer could see that the victim had bruises and scratches on her face. An autopsy

determined that the victim died from closed head injuries—specifically a subdural

hemorrhage, a subarachnoid hemorrhage, and a brain contusion—due to blunt force

associated with manual strangulation, both of which were estimated to have occurred

many hours before she died. The coroner also testified that the victim was covered in

contusions and abrasions: eight or nine contusions on her head and face; multiple

abrasions on her face and neck; and as many as fifty contusions and another twenty

abrasions on her torso, arms, and legs.

¶5    The prosecution presented extensive evidence tending to show that the defendant

had beaten the victim in their apartment and left her unattended to die. In addition to

the medical evidence of the injuries themselves, the prosecution demonstrated

inconsistencies in the defendant’s accounts of his and the victim’s movements on the

weekend preceding discovery of the body and presented evidence, including

documentary and other physical evidence, making it unlikely that events could have

transpired as he asserted. Among other things, the defendant’s account of the victim’s

having been attacked by a stranger while on a shopping trip to a nearby grocery store on

Saturday night and yet continuing to function doing household chores over the weekend

was challenged by expert testimony as very unlikely, given the severity of her injuries.

                                           3
Similarly, other physical evidence like the absence of blood on the victim’s hands and the

defendant’s DNA under her fingernails and on her collar, as well as scratches and scabs

on the defendant’s nose and knuckles, remained unexplained by the defendant’s account.

In addition, his account of rarely speaking with the victim from work as an explanation

for not calling to check on her was contradicted by phone records and the testimony of

co-workers, who also recounted the turbulence of the defendant’s relationship with the

victim, including prior incidents of domestic violence.

¶6    Finally, the prosecution presented the testimony of the defendant’s cellmate to the

effect that the defendant confessed to strangling the victim and admitted that he brought

someone home with him to witness his supposed discovery of the body. The cellmate

also testified that the defendant said he was angry because he had to sell his truck to pay

bills while the “ungrateful” victim sat at home drinking. While it appeared that the

cellmate could possibly have accessed a newspaper article reporting the crime, officer

testimony also indicated that the article in question did not mention two important

details in the cellmate’s story—that the defendant referred to the victim as “Baby,” which

was corroborated by the co-worker upon discovery of the body, and the fact that the

victim’s family had pushed police to continue to investigate the crime.1




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

                                            4
¶7     Although the defendant did not testify, he presented a theory of defense involving

an alternate suspect through his prior statements, other witnesses, the cross-examination

and arguments of his counsel, and his theory-of-the-case instruction. According to the

defendant’s theory, another man, J.D., had beaten the victim somewhere outside their

apartment. The prosecution introduced the defendant’s version of events, through his

interviews with the police, to the effect that the victim left the apartment around 8:30 p.m.

Saturday with a twenty dollar bill the defendant had given her to buy milk at Albertsons.

When the victim returned to the apartment several hours later, she had bruises and

scratches on her face. Although she initially wanted to be taken to the hospital, the

defendant attempted, through phone calls, but was unable to find her a ride. On Sunday,

the victim made the bed, ate breakfast, walked around, and said she no longer wanted to

go to the hospital. When the defendant left for work on Monday morning, the victim was

on the couch. He had no contact with the victim until he returned home with his

co-worker. He explained that the victim never called him during the day, and he did not

call her because it would upset her.

¶8     It was undisputed that a man identified as J.D. lived in the area and had been

contacted by the police shortly after midnight on that Sunday morning, near Albertsons.

A woman who testified that she had a prior relationship with J.D. was also permitted to

testify that J.D. had a history of being violent towards her and in one instance had even

strangled her. Although it appeared to be contradicted by surveillance footage and the

discovery of the twenty dollar bill still in the victim’s pocket, an Albertsons’ manager also

testified that she saw the victim buy milk that night sometime between 9:30 and 10 p.m.

                                             5
¶9     In light of the defendant’s theory that the victim had been attacked by a stranger,

the prosecution presented the expert testimony of a second forensic pathologist

expressing, among other things, conclusions about the relationship between a killer and

victim that he opined could be reliably inferred from what he referred to as “overkill.”

Over the objection of the defense and without taking evidence about the reliability of the

theory, the trial court permitted the witness to offer an expert opinion to the effect that

the victim’s injuries in this case demonstrated “overkill,” a formal term describing

multiple injuries focused on one area of the victim’s body, which includes blows about

the head and face that are numerous and extensive, indicating that the assailant likely

had either a real or perceived emotional attachment to the victim.

¶10     Following his conviction, the defendant included among his assignments of error

in the intermediate appellate court the admission of this expert opinion. Relying on case

law from several other jurisdictions, a treatise dealing with related kinds of injuries, and

the witness’s own experience with autopsies involving similar injuries, the court of

appeals concluded that the expert opinion was sufficiently reliable and that the trial court

had implicitly found as much by granting the prosecution’s proffer. Upon rejecting the

defendant’s other assignments as well, the court of appeals, with one member of the panel

dissenting, affirmed his conviction.

¶11    We granted the defendant’s petition for certiorari review solely on the question

whether the expert opinion concerning “overkill” was erroneously admitted without a

specific finding that the principles upon which it was based were reliable.



                                             6
                                                II.

¶12      In People v. Shreck, 22 P.3d 68 (Colo. 2001), we extended our prior holdings beyond

what we had at times referred to as “experienced-based specialized knowledge,” Brooks

v. People, 975 P.2d 1105, 1114 (Colo. 1999), to make clear that CRE 702, rather than the

Frye2 “general acceptance” standard, governs the admissibility of all expert testimony in

this jurisdiction, including testimony based not only on technical or other specialized

knowledge, but even on novel scientific devices and processes involving manipulation of

physical evidence. Shreck, 22 P.3d at 74, 78. In doing so, however, we also explained in

detail the nature of the CRE 702 inquiry and articulated the obligations of trial courts

prior to admitting expert evidence pursuant to this rule. Id. at 77–78. We there held that

the trial court’s inquiry should be broad in nature and take into consideration the totality

of the circumstances of each specific case, focusing on both the reliability and relevance

of the evidence. Id. at 77. In light of the wide range of factors that may be considered in

any individual case and the liberal nature of the standard, we imposed upon trial courts

admitting evidence pursuant to CRE 702 an obligation to first determine and make

specific findings on the record, not only as to the reliability of the scientific principles

upon which the expert testimony is based and the qualifications of the witness giving

that testimony, but also the usefulness of such testimony to the jury, including specific

findings with regard to the court’s obligation pursuant to CRE 403 to ensure that the




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

                                                 7
probative value of the evidence would not be substantially outweighed by any of the

countervailing considerations enumerated in the rule. Id. at 70, 77–78.

¶13    As we have also made clear, whether making those determinations will require an

evidentiary hearing outside the presence of the jury will ultimately depend on whether

the record can support the court’s findings without doing so. People v. Rector, 248 P.3d

1196, 1201 (Colo. 2011). Depending upon the extent to which the reliability of the

scientific principles at issue has already been determined or is not disputed at all, for

example, further evidence of their reliability may not be required. See id. at 1201; cf.

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999) (admonishing trial courts to “avoid

unnecessary ‘reliability’ proceedings”). Similarly, while we have indicated that it would

be preferable in light of discovery and endorsement requirements to make these

determinations prior to trial, it may be necessary, especially with regard to such matters

as the incremental probativeness of proffered expert testimony, to withhold ruling until

later. Rector, 248 P.3d at 1200 n.5. With regard to the requirement for specific findings

concerning a determination of the reliability and relevance of evidence to be admitted

pursuant to CRE 702, with record support, we have, however, been unwavering. See, e.g.,

id. at 1200 (noting that although a trial court has discretion to determine whether a

challenge to expert testimony warrants a Shreck analysis, where a proper challenge has

been raised, a trial court “is required to issue specific findings” as to relevance and

reliability under CRE 702); Estate of Ford v. Eicher, 250 P.3d 262, 266 (Colo. 2011) (stating

a trial court “is required to issue specific findings regarding its analyses” as to relevance

and reliability); City of Aurora ex rel. Util. Enter. v. Colo. State Eng’r, 105 P.3d 595, 612 (Colo.

                                                 8
2005) (“The court must issue specific findings as it performs its CRE 702 and 403

analyses.”).

¶14    While it may be inferable from an adequate record of the trial court’s awareness of

the applicable standard and its admission of the expert’s testimony that it considered the

expert evidence both reliable and relevant, the requirement for specific findings is not

satisfied by this inference alone. In light of the broad range of expertise governed by the

rule and the necessarily non-specific nature of the factors governing the reliability,

relevance, and incremental probativeness of expert opinion in any given case, the

requirement for specific findings is imposed as a means of ensuring meaningful review

of this broadly discretionary decision.    In the absence of these specific findings, or a

record not only supporting admission but virtually requiring it or precluding any

reasonable dispute as to the basis of the court’s admission, the trial court must be

considered to have abused its discretion in admitting expert testimony.

¶15    Although the record in this case indicated merely that the witness was a forensic

pathologist and the trial court made only a general finding that his testimony helped put

the nature and type of the victim’s injuries into context for the jury, we need not address

the adequacy of those findings as to the qualifications of the expert or relevance of his

testimony because the trial court made no findings, and the record was virtually devoid

of support, concerning the reliability of the scientific principles underlying the theory and

interpretation of “overkill.” The witness relied on a single treatise as support for the

theory of “overkill,” which even he did not accept as generally authoritative, and which,

in any event, defined “overkill” far too narrowly to be applicable to the injuries inflicted

                                             9
in this case or to support the essential inference, drawn by the expert in this case, of an

emotional relationship between the victim and killer.3 Similarly, although the witness

testified that he had performed many autopsies himself and knew “who confessed to

doing what,” he failed to offer even anecdotal, much less empirical, evidence supporting

his conclusion that beatings like the one in this case were likely committed by someone

with an emotional connection to the victim. Finally, neither the appellate courts of this

jurisdiction nor those of any other jurisdiction have yet accepted as reliable the theory or

interpretation of “overkill” advanced by the witness.

¶16    Of the handful of reported cases in which the concept of “overkill” is analyzed,

apparently none has found the theory reliable for purposes of the expert testimony

analysis required by Rule 702. See, e.g., State v. Lenin, 967 A.2d 915, 925–26 (N.J. Super.

Ct. App. Div. 2009) (rejecting expert testimony that overkill showed “interpersonal

aggression” because, among other things, no New Jersey case had ruled on the reliability

of crime scene or behavioral analysis); cf. State v. Hebert, No. 2010 KA 0305, 2011 WL

2119755, at *10 (La. Ct. App. Feb. 11, 2011) (unpublished opinion holding defense failed

to establish the reliability of its theory that extreme wounding, or overkill, can be used to

determine whether an assailant was suffering from psychosis, according to the standard




3 The treatise defined “overkill” as “[m]ultiple uniformly deep, parallel stab wounds
clustered in one area of the body, commonly the chest or back, . . . usually the result of
rapid thrusts . . . . Such murders commonly suggest a crime of passion with sexual
overtones, jealousy, or profound hate.”

                                             10
for admitting expert testimony under Daubert4); State v. Wright, No. 0801010328, 2009 WL

3111047, at *8 (Del. Super. Ct. Sept. 14, 2009) (unpublished opinion rejecting as

insufficiently reliable for admission under Delaware Rule of Evidence 702 testimony that

overkill indicates “personalized anger and sustained aggression or rage”). Of the one

published and two unpublished cases relied on by the court of appeals below, none

purported to find the theory of overkill sufficiently reliable for admission as expert

testimony. See Richardson v. State, 83 S.W.3d 332, 339, 350 (Tex. Ct. App. 2002) (rejecting

assertion that jury’s verdict of murder rather than sudden passion was against the great

weight and preponderance of the evidence where among other testimony the medical

examiner testified that crimes of passion are generally overkills with dozens and dozens

of stab wounds); State v. Suttle, No. A-2417-08T3, 2011 WL 2314474, at *5 (N.J. Super. Ct.

App. Div. June 10, 2011) (unpublished opinion rejecting claim of collateral estoppel bar

to second verdict that defendant acted purposely or knowingly, where first jury may have

found crime of passion based on prosecutor’s argument that crime was personal and

overkill); People v. Varela, No. B197473, 2008 WL 2764578, at *5 (Cal. Ct. App. July 17, 2008)

(unpublished opinion rejecting claim of prosecutorial misconduct for evoking expert

testimony that stabbing was not overkill, on grounds that prosecutor did not evoke

opinion that stabbings were not committed in heat of passion).




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

                                               11
                                           III.

¶17    Although the trial court therefore abused its discretion in admitting expert

testimony of “overkill,” reversal of the defendant’s conviction is nevertheless not

warranted in this case. Error in the trial process does not warrant the reversal of a

conviction if it can be shown to be harmless. People v. Summit, 132 P.3d 320, 327 (Colo.

2006). Even a properly objected-to trial error will be disregarded as harmless whenever

the error did not substantially influence the verdict or affect the fairness of the trial

proceedings. James v. People, 2018 CO 72, ¶ 19, 426 P.3d 336, 341. The strength of properly

admitted evidence supporting the verdict is one important consideration when

evaluating such error. Crider v. People, 186 P.3d 39, 43 (Colo. 2008). If that evidence

overwhelmingly demonstrates the defendant’s guilt, the error must be disregarded as

harmless. Pernell v. People, 2018 CO 13, ¶ 25, 411 P.3d 669, 673; Summit, 132 P.3d at 327.

¶18    Here the erroneously admitted evidence was limited to expert opinion to the effect

that the nature of the victim’s injuries made it likely her assailant was someone with an

emotional connection to her rather than a stranger. In addition to the inference of anger

or passion to be intuitively drawn, in the absence of another likely explanation, from such

a beating, the prosecution presented an abundance of physical, documentary, and

testimonial evidence making it highly unlikely not only that the victim would have been

physically capable of functioning over the ensuing days, as claimed by the defendant, but

also that his account was contradicted and therefore untrue for a host of other reasons.

It was the testimony of two forensic pathologists that it would have been medically

unlikely the victim could have walked the distance from the grocery store with her

                                            12
injuries, much less that she could have made the bed, eaten breakfast, or walked around

the apartment the following day. Admissible expert forensic testimony also noted the

likelihood that unless she were immediately rendered unconscious by the beating, her

hands would have shown blood from reflexively grasping at her wounds. Beyond the

medical implications derived from the physical nature of her injuries, otherwise

unexplained physical evidence—such as scratches on the defendant’s face and his DNA

discovered under the victim’s fingernails and near her throat—strongly suggested his

involvement in a physical altercation with the victim.

¶19    In addition to the physical evidence, however, the defendant’s ever-changing

account was contradicted in a number of key respects by both testimonial and

documentary evidence. Telephone records contradicted the defendant’s account of

attempting to call for medical help on Saturday night, as well as his initial explanation

for not calling the victim on Monday during the day. Co-workers recounted telephone

calls indicating the defendant’s turbulent relationship with the victim, as well as the

defendant’s suspicious request for a co-worker to see his new apartment, leading to

discovery of the victim’s body, and the defendant’s subsequent request of that co-worker

to tell a particular version of the discovery. Finally, the defendant’s cellmate contradicted

his entire account by testifying that he actually confessed to the killing, providing details

that were not publicly available.

¶20    Assuming evidence of the defendant’s alternate suspect theory was properly

admitted at all, it offered little to question this powerful case against the defendant.

Although the trial court did not have the benefit of our clarification in People v. Elmarr,

                                             13
2015 CO 53, ¶ 34, 351 P.3d 431, 440, we have long made clear that because of the danger

of confusing the jury, even a showing of motive and opportunity on the part of a third,

uncharged person is insufficient to assert an alternate suspect theory. People v. Mulligan,

568 P.2d 449, 456–57 (Colo. 1977); see also People v. Salazar, 2012 CO 20, ¶ 21, 272 P.3d 1067,

1073; People v. Flowers, 644 P.2d 916, 920 (Colo. 1982). In this case, even evidence of motive

and opportunity was extremely weak, if not entirely lacking.

¶21    The only evidence of opportunity—that the victim was in the same area near the

same time as the alternate suspect—came from the defendant himself and an Albertsons

employee who believed she saw someone matching the victim’s description buying milk

on the night in question. Apart from medical evidence indicating the strong likelihood

that after sustaining such severe injuries the victim could not have walked the distance

from Albertsons, video footage from the store was unable to substantiate the employee’s

observation, and the presence of a twenty dollar bill in the victim’s pocket appeared to

dispel any suggestion that she ever purchased milk with the money reportedly given her

by the defendant for that purpose. With regard to motive, robbery and sexual assault

were clearly ruled out, and although there was testimony to the effect that the alternate

suspect had been abusive in the past to a domestic partner, there was no evidence of

pattern, a unique modus operandi, or any prior connection to the victim providing a

motive for attacking her. Not only was there no direct evidence, either physical or

testimonial, but in fact no meaningful circumstantial evidence of contact between the two.

¶22    In the face of such overwhelming evidence of the defendant’s guilt, we cannot find

even a reasonable possibility that the outcome of the trial would have been different but

                                              14
for the expert’s opinion concerning a likely real or perceived emotional relationship with

the victim. See Krutsinger v. People, 219 P.3d 1054, 1058 (Colo. 2009) (making clear that the

“reasonable possibility” standard for constitutional error is a more onerous

harmless-error    standard     than    the    “substantially   influence”    standard    for

non-constitutional error).

                                             IV.

¶23    Because the trial court made no specific finding that the theory of “overkill”

espoused by the witness was reliable, nor was the reliability of that theory either

supported by evidence in the record or already accepted in this jurisdiction, its admission

amounted to an abuse of discretion.          Because there was, however, overwhelming

evidence of the defendant’s guilt quite apart from the expert testimony, the error was

necessarily harmless. The judgment of the court of appeals is therefore affirmed.

JUSTICE GABRIEL does not participate.




                                              15
