People v. Bryant , 428 P.3d 669 ( 2018 )

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
April 19, 2018
2018COA53
No. 15CA0121, People v. Bryant — Evidence — Opinions and
Expert Testimony — Testimony by Experts
A division of the court of appeals considers whether a police
officer’s testimony defining a street slang term for an illegal drug
constitutes lay or expert testimony under the test set forth in
Venalonzo v. People, 2017 CO 9. The division concludes that the
testimony in this case was expert testimony.
When, as in this case, there is testimony defining a term that
is not likely to be known by someone with ordinary experiences and
knowledge, the testimony is expert testimony. Under the
circumstances here, the division concludes that the police officer’s
testimony defining the term “sherm” as “PCP” constituted expert
testimony and was, thus, inadmissible.
Although the trial court erred by improperly admitting the
police officer’s testimony as lay testimony, the division further
concludes that the error was harmless.
The division also considers and rejects defendant’s arguments
that his statements to police were involuntary, that his Miranda
waiver was invalid, and that the trial court improperly instructed
the jury.
Accordingly, the division affirms the judgment of conviction.
COLORADO COURT OF APPEALS 2018COA53
Court of Appeals No. 15CA0121
Arapahoe County District Court No. 14CR874
Honorable Elizabeth A. Weishaupl, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Durron Larry Bryant,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by CHIEF JUDGE LOEB
Davidson* and Márquez*, JJ., concur
Announced April 19, 2018
Cynthia H. Coffman, Attorney General, Christine Brady, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Jeffrey Svehla, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1 Defendant, Durron Larry Bryant, appeals the judgment of
conviction entered on jury verdicts finding him guilty of unlawful
possession of a controlled substance and two counts of third degree
assault. We affirm.
I. Background and Procedural History
¶2 According to the prosecution’s evidence, in the late afternoon
on April 4, 2014, a woman called the police because she had seen
Bryant jumping up and down, cursing, and screaming near an
intersection in Aurora. Officers arrived just after Bryant struck a
male teenager in the back of the head and hit a female teenager on
the side of her face. After arresting Bryant, officers interviewed
eyewitnesses and conducted a field showup. The witnesses
identified Bryant as the man who had been acting erratically and as
the man involved in the altercation, and Officers Ortiz and Fink
transported Bryant to the Aurora jail.
¶3 Shortly after arriving at the jail, and approximately one hour
after Bryant was arrested, Officers Ortiz and Fink interviewed
Bryant in the booking room. Officer Ortiz read Bryant his rights
under Miranda v. Arizona, 384 U.S. 436, 444 (1966). He then asked
Bryant if he understood his rights, and Bryant said that he did.
1
Officer Ortiz asked Bryant if he would be willing to speak with
police, and Bryant said that he was willing to do so.
¶4 During the interview, Officer Ortiz asked Bryant if he was
under the influence of drugs or alcohol, and Bryant answered that
he was. When Officer Ortiz asked Bryant what substance he was
under the influence of, Bryant said that the substance was in his
sock and pointed to his ankle, telling the officers that they could
retrieve the substance. After the officers retrieved a small vial from
Bryant’s sock, Officer Ortiz asked Bryant what the substance was.
Bryant responded that the substance was “sherm.”
¶5 Officer Ortiz was not familiar with the term “sherm,” but
Officer Fink recognized it as a term meaning “PCP” or
phencyclidine. Officer Fink asked Bryant several times during the
interview if the substance was “PCP,” and Bryant eventually
responded that the substance was “PCP.” At trial, Officers Ortiz
and Fink testified to this exchange, and Officer Fink also testified
that, based on his training and experience, he knew that “sherm” is
a street slang word for “PCP.”
¶6 Bryant was charged with unlawful possession of a controlled
substance and two counts of third degree assault.
2
¶7 Before trial, Bryant submitted several motions to suppress,
and the court held a two-day suppression hearing. As relevant
here, Bryant contended that his statements to police were
involuntary and that his Miranda waiver was invalid. Officers Ortiz
and Fink both testified at the suppression hearing, as did the two
teenagers who were assaulted and a witness to the assault. The
trial court denied all of Bryant’s motions to suppress, ruling that
Bryant’s statements were made voluntarily and that he had validly
waived his Miranda rights.
¶8 A jury convicted Bryant as charged, and he now appeals.
II. Suppression
¶9 Bryant contends that the trial court erred by ruling that his
statements to the police were voluntary and that he had validly
waived his Miranda rights. We are not persuaded.
A. Facts
¶ 10 The following facts were established at the suppression
hearing through testimony from Officers Ortiz and Fink.
¶ 11 On the day of Bryant’s arrest, Officers Ortiz and Fink were
originally dispatched to Bryant’s location to conduct a welfare check
on a man who was acting erratically in the middle of the street and
3
who was possibly under the influence of drugs. While Officers Ortiz
and Fink were on the way to Bryant’s location, however, they
received a further dispatch that the same individual who had been
acting erratically had possibly threatened and assaulted people at
the scene.
¶ 12 Upon arriving at the scene, Officers Ortiz and Fink saw a man
who matched the description given in the dispatch and who was
later identified as Bryant. They proceeded to approach Bryant, and
Officer Ortiz ordered Bryant to stop and speak with him. In
response, Bryant looked at Officers Ortiz and Fink and then began
to walk away. Officers Ortiz and Fink continued to approach
Bryant, and Officer Ortiz ordered Bryant to stop, turn around, and
interlock his fingers. Officer Ortiz gave Bryant several orders to do
this, but Bryant did not comply. Instead, Bryant put his hands up
and then down in response to Officer Ortiz’s commands, and then
he got down on the ground before standing back up. Finally, a
third officer on the scene ordered Bryant to sit back down on the
ground.
¶ 13 Officers Ortiz and Fink both testified that this was unusual
behavior and that Bryant did not seem to understand Officer Ortiz’s
4
commands. After arresting Bryant, they proceeded to interview
witnesses and conduct a field showup.
¶ 14 While Officers Ortiz and Fink were transporting Bryant to the
Aurora jail, Bryant repeatedly asked why he had been arrested, and
Officer Ortiz repeatedly explained to Bryant that he had assaulted
someone. Officer Ortiz described Bryant as acting in disbelief each
time he explained to him that he had assaulted someone. Officer
Ortiz also testified that Bryant asked why he had been arrested
approximately fifteen to twenty times, while Officer Fink estimated
that Bryant asked this question approximately five times.
¶ 15 Officer Ortiz further testified that he believed Bryant was
under the influence of drugs or alcohol because of his behavior;
Officer Fink testified that Bryant seemed to be coming off of a high.
Officers Ortiz and Fink both testified that Bryant’s demeanor
changed, however, by the time they arrived at the jail, and they
both described him as being calm and cooperative at the jail.
¶ 16 Officers Ortiz and Fink brought Bryant to a booking room
where Officer Ortiz read Bryant his Miranda rights from a pre-
prepared card issued by the Aurora Police Department, and Bryant
orally waived those rights. During the course of the interview,
5
Bryant admitted that he was under the influence of drugs, revealed
to Officers Ortiz and Fink that he had a small vial of drugs in his
sock, and identified the vial as containing “sherm,” which he later
admitted during the interview meant “PCP.” According to the
officers’ testimony, neither of them threatened or coerced Bryant in
any way, nor did they use physical force on Bryant.
B. Voluntariness
¶ 17 Bryant contends that his statements to the police at the jail
were involuntary and should have been suppressed, arguing that
the police exploited his intoxicated state during their interrogation
to elicit incriminating responses. We disagree.
1. Standard of Review and Applicable Law
¶ 18 When a trial court rules on a motion to suppress, it engages in
both factfinding and law application. People v. Platt, 81 P.3d 1060,
1065 (Colo. 2004). We will uphold a trial court’s findings of fact on
the voluntariness of a statement when the findings are supported
by adequate evidence in the record, but we review de novo a trial
court’s ultimate determination of whether a statement was
voluntary. Effland v. People, 240 P.3d 868, 878 (Colo. 2010).
6
¶ 19 When reviewing a trial court’s suppression ruling, appellate
courts must only consider evidence presented at the suppression
hearing. Moody v. People, 159 P.3d 611, 614 (Colo. 2007). We
consider the “interrelationship between the evidentiary facts of
record, the findings of the trial court, and the applicable legal
standards.” People v. D.F., 933 P.2d 9, 13 (Colo. 1997). We also
examine a trial court’s legal conclusions de novo under the totality
of the circumstances. People v. Triplett, 2016 COA 87, ¶ 28.
¶ 20 When a defendant seeks to suppress a confession or
inculpatory statement, the prosecution must establish by a
preponderance of the evidence that the confession or statement was
voluntary. People v. Gennings, 808 P.2d 839, 843 (Colo. 1991).
Under the Due Process Clauses of the United States and Colorado
Constitutions, a defendant’s statements must be made voluntarily
in order to be admissible into evidence. U.S. Const. amends. V,
XIV; Colo. Const. art. II, § 25; Mincey v. Arizona, 437 U.S. 385, 397
(1978); People v. Raffaelli, 647 P.2d 230, 234 (Colo. 1982).
¶ 21 A statement is voluntary made if it is “not ‘extracted by any
sort of threats or violence, nor obtained by any direct or implied
promises, however slight.’” People v. Mounts, 784 P.2d 792, 796
7
(Colo. 1990) (quoting People v. Pineda, 182 Colo. 385, 387, 513 P.2d
452, 453 (1973)). The statement must be the product of an
essentially free and unconstrained choice by the maker. Id.
¶ 22 “Critical to any finding of involuntariness is the existence of
coercive governmental conduct, either physical or mental, that
plays a significant role in inducing a confession or an inculpatory
statement.” People v. Valdez, 969 P.2d 208, 211 (Colo. 1998).
“While a defendant’s mental condition, by itself and apart from its
relationship to official coercion, does not resolve the issue of
constitutional voluntariness, the deliberate exploitation of a
person’s weakness by psychological intimidation can under some
circumstances constitute a form of governmental coercion that
renders a statement involuntary.” Gennings, 808 P.2d at 844
(citation omitted).
¶ 23 “[I]ntoxication alone does not automatically render statements
involuntary . . . .” People v. Martin, 30 P.3d 758, 760 (Colo. App.
2000). Rather, coercive government conduct is the “necessary
predicate to the finding that a confession is not ‘voluntary.’”
Colorado v. Connelly, 479 U.S. 157, 167 (1986).
8
¶ 24 The voluntariness of a statement must be determined by a
consideration of the totality of the circumstances under which the
statement was made. Mounts, 784 P.2d at 796. Our supreme court
has articulated several factors to consider when evaluating the
voluntariness of a statement in light of the totality of the
circumstances, including
whether the defendant was in custody or was
free to leave and was aware of his situation;
whether Miranda warnings were given prior to
any interrogation and whether the defendant
understood and waived his Miranda rights;
whether the challenged statement was made
during the course of an interrogation or
instead was volunteered; whether any overt or
implied threat or promise was directed to the
defendant; the method and style employed by
the interrogator in questioning the defendant
and the length and place of the interrogation;
and the defendant’s mental and physical
condition immediately prior to and during the
interrogation, as well as his educational
background, employment status, and prior
experience with law enforcement and the
criminal justice system.
Valdez, 969 P.2d at 211 (quoting Gennings, 808 P.2d at 844).
2. Analysis
¶ 25 We reject Bryant’s contention that his statements were
involuntary.
9
¶ 26 After hearing testimony at the suppression hearing, the trial
court made an extensive and thorough oral ruling as to whether,
under the totality of the circumstances, Bryant’s statements to the
police had been the product of any coercive government conduct.
In doing so, the court considered Officer Ortiz’s and Officer Fink’s
testimony and outlined a number of factors relevant to its analysis.
The trial court found that
[Bryant] was in custody at the time that he
made the statements at the station, that he
was aware of his situation. He’d asked why he
was being taken to the station and he was
being booked. Miranda warnings were given
prior to the interrogation. Both officers
indicated that based on their observations of
the defendant he understood what they were
saying and responded appropriately to the
questions, and in fact, I find that he did
understand and waive his rights. He at no
time indicated that he wanted to confer with
counsel. The statements were made during
interrogation . . . . The length . . . of the
interrogation was short. No threats, either
overt or implied, were made or directed
towards the defendant. The defendant seemed
to be coherent and calm and responding
appropriately to the questions of the
police . . . . [U]nder the totality of the
circumstances, I find nothing that would
render [Bryant’s] statements a product of
undue influence, coercion, threat or in any
way involuntary, so I deny the motion to
10
suppress the statements as involuntary as
well.
¶ 27 We conclude that the following evidence, elicited at the
suppression hearing, supports the trial court’s findings regarding
the voluntariness of Bryant’s statements to police at the police
station:
 Bryant was given Miranda warnings prior to the
interrogation, and he understood and waived his rights.
 The interrogation lasted at most fifteen minutes.
 The interrogation occurred approximately one hour after
Officers Ortiz and Fink arrested Bryant, and Bryant’s
demeanor had changed during that time. Once at the
jail, Bryant was calm, coherent, and cooperative. He was
less repetitive than when he was in the car, and he
answered questions appropriately.
 There was no evidence of promises, threats, or physical
or emotional coercion.
¶ 28 Accordingly, we agree with the trial court that there was
“nothing that would render [Bryant’s] statements a product of
undue influence, coercion, threat or in any way involuntary.”
11
¶ 29 Bryant’s reliance on People v. Humphrey, 132 P.3d 352 (Colo.
2006), is misplaced. In Humphrey, the trial court ruled that some
of the defendant’s statements were involuntary due to psychological
coercion. The defendant in Humphrey was a teenager suspected of
stabbing another teenager and who was found “bleeding,
incoherent, and in need of medical attention.” Id. at 354. She was
transported to the hospital, where her blood alcohol level was
measured as 0.104 at 3:24 a.m., and 0.090 at 4:27 a.m. Id.
Nonetheless, her physician noted that she was “clinically sober” at
the time of her release, and she was questioned by police at
approximately 6 a.m. Id.
¶ 30 The trial court in Humphrey “considered [the defendant’s]
physical, emotional, and psychological state at the time of the
interrogation but recognized that, alone, these circumstances did
not render her statements involuntary.” Id. at 361. Rather, the
trial court’s finding of psychological coercion “rested upon the
circumstances of a discrete portion of the interview,” when she was
informed that the victim had died of his stab wounds and she
proceeded to have an emotional breakdown. Id.
12
¶ 31 The supreme court in Humphrey affirmed the trial court’s
suppression of the defendant’s statements made after being
informed of the victim’s death, but reversed as to the suppression of
her statements made before that disclosure. Id. The supreme court
concluded that it was only at the point that the defendant
experienced an emotional breakdown, when she “cried and broke
into uncontrollable sobbing” and “[h]er answers to the questions
thereafter were emotional reactions that were only partially
coherent,” that the continued police questioning became coercive.
Id.
¶ 32 By contrast, Bryant suffered no such emotional breakdown,
but was instead described by Officers Ortiz and Fink as being calm,
coherent, and cooperative. Moreover, the interview lasted no more
than fifteen minutes, and there was no evidence in the record from
the suppression hearing that Bryant’s demeanor changed at any
point during the interview itself, and no evidence of any
psychological coercion like that found in Humphrey.
¶ 33 In sum, we conclude that the trial court did not err by finding
that Bryant’s statements to the police were made voluntarily.
13
C. Waiver of Miranda Rights
¶ 34 Bryant also contends that his statements to the police should
have been suppressed because the police failed to obtain a valid
Miranda waiver. He argues that he was so intoxicated and confused
at the time he was advised of his Miranda rights that he did not
make a knowing and intelligent waiver of those rights. We are not
persuaded.
1. Standard of Review and Applicable Law
¶ 35 In reviewing a trial court’s ruling on a motion to suppress a
custodial statement and the validity of a Miranda waiver, we defer
to the trial court’s findings of fact if they are supported by
competent evidence in the record, but review the application of the
law to those facts de novo. Platt, 81 P.3d at 1065. We are limited
in our review to the evidence presented at the suppression hearing,
and examine the trial court’s legal conclusions under the totality of
the circumstances. Moody, 159 P.3d at 614; Triplett, ¶ 28.
¶ 36 Police must give a suspect a Miranda advisement at the outset
of custodial interrogation. 384 U.S. at 444. This advisement serves
to inform a suspect of his or her constitutional rights. Id. Upon
receiving a proper advisement, a suspect may waive those rights,
14
but, to be valid, the waiver must be voluntary, knowing, and
intelligent. Id.
¶ 37 “A Miranda waiver is considered voluntary unless ‘coercive
governmental conduct — whether physical or psychological —
played a significant role in inducing the defendant to make the
confession or statement.’” Platt, 81 P.3d at 1065 (quoting People v.
May, 859 P.2d 879, 883 (Colo. 1993)). A person makes a knowing
and intelligent waiver of his or her Miranda rights when he or she
has full awareness of the nature of the rights being abandoned and
the consequences of their abandonment. May, 859 P.2d at 883.
¶ 38 “‘Intoxication will render a suspect’s waiver involuntary when
government conduct causes the intoxication’ or, if self-induced,
when ‘the suspect was so intoxicated that he or she could not have
made a knowing and intelligent waiver.’” People v. Clayton, 207
P.3d 831, 836 (Colo. 2009) (quoting Platt, 81 P.3d at 1066).
Whether a suspect’s mental faculties were diminished due to self-
induced intoxication, however, is not decisive of whether a Miranda
waiver was knowing and intelligent. Platt, 81 P.3d at 1066. Rather,
intoxication only invalidates an otherwise valid Miranda waiver if
the court finds by a preponderance of the evidence that the
15
defendant was so intoxicated as to be incapable of understanding
the nature of his or her rights and the ramifications of waiving
them. Id.
¶ 39 When determining whether self-induced intoxication renders a
waiver unknowing or unintelligent, we consider several factors:
whether the defendant seemed oriented to his
or her surroundings and situation; whether
the defendant’s answers were responsive and
appeared to be the product of a rational
thought process; whether the defendant was
able to appreciate the seriousness of his or her
predicament, including the possibility of being
incarcerated; whether the defendant had the
foresight to attempt to deceive the police in
hopes of avoiding prosecution; whether the
defendant expressed remorse for his or her
actions; and whether the defendant expressly
stated that he or she understood their rights.
Id.1
2. Analysis
¶ 40 We reject Bryant’s contention that his Miranda waiver was not
knowing and intelligent. Although he argues that he was so
1 We recognize that many of these factors are also relevant in a
review of whether a defendant’s statements were voluntary. Here,
the trial court properly conducted two separate reviews, one for
voluntariness and one for a valid Miranda waiver, and applied the
correct test in each.
16
intoxicated and confused that he could not have been fully aware of
the nature of the rights he was waiving and the consequences of his
decision to waive them, the record supports the trial court’s finding
that he was not intoxicated at the time he waived his Miranda
rights.
¶ 41 In particular, the trial court found that Bryant was
“responding appropriately to booking questions,” and that he was
“calm, coherent, and responding to questions appropriately and was
not behaving in any way that would indicate that he was under the
influence of anything, although both of [the officers] thought he
might have been under the influence previously.” Moreover, the
trial court found that “[h]e did not indicate any confusion nor did
his behavior indicate that there was any confusion or that he was
suffering from any sort of impairment, which would render his
waiver of his Miranda rights invalid.”
¶ 42 Officers Ortiz’s and Fink’s testimony from the suppression
hearing supports the trial court’s findings, and no evidence was
presented at the hearing to contradict their testimony. In particular
their testimony revealed the following:
17
 Approximately one hour had passed between the time
Bryant was arrested and when he arrived at the jail for
questioning.
 Bryant was oriented to his surroundings and situation
once he arrived at the jail.
 Bryant was cooperative, and his answers were responsive
and appeared to be the product of a rational thought
process.
 Bryant demonstrated that he appreciated the severity of
his predicament, including the possibility of being
incarcerated, when he asked whether possession of “PCP”
was a felony.
 Bryant expressly stated that he understood his rights.
See Platt, 81 P.3d at 1066 (outlining factors to be considered when
considering how intoxication might affect a knowing and intelligent
Miranda waiver).
¶ 43 While the record shows that Bryant was incapable of following
instructions when he was arrested and that he was generally
confused as to the nature of his predicament while being
transported to the jail, Officers Ortiz and Fink both testified that
18
Bryant’s condition and demeanor had changed by the time he
arrived at the jail, approximately one hour from the time they
arrested him.
¶ 44 In that regard, while Officer Ortiz testified that he thought
Bryant was under the influence of drugs when they arrested him,
he also testified that
[Bryant’s] demeanor seemed to change from
our initial contact to when we were at the jail.
Also from as confused as he sounded in the
car, at the jail he seemed to kind of soak it all
in and was just more quiet and calm and less
repetitive of his questions and answers.
¶ 45 Officer Fink testified that even before they arrived at the jail,
Bryant appeared to already be on the “down side of his [being]
under the influence” and was “on basically the sobriety part of
using something.”
¶ 46 Bryant argues, nonetheless, that his case is akin to People v.
Fordyce, 200 Colo. 153, 612 P.2d 1131 (1980), where the supreme
court affirmed the trial court’s finding that the defendant’s mental
state was sufficiently impaired due to morphine for her Miranda
19
waiver to have been involuntary.2 The facts of Fordyce, however,
are easily distinguished from the facts of the present case.
¶ 47 In Fordyce, the defendant was suffering from second and first
degree burns, was hospitalized and on morphine, and was
questioned while in the intensive care unit by detectives wearing
surgical garb. Id. at 155, 612 P.2d at 1132. The defendant’s
treating doctor and nurse testified at the suppression hearing that
the defendant’s behavior appeared rational and that she seemed to
be oriented as to person, time, and place. Id. at 155, 612 P.2d at
1133. Also at the suppression hearing, one of the detectives
testified that the defendant was responsive and seemed to
understand his questions. Id.
¶ 48 The defendant in Fordyce, however, presented expert
testimony at the suppression hearing from a toxicologist who
testified that the defendant’s medical records “showed an average
2 Fordyce refers to the voluntariness of the suspect’s Miranda
waiver, but, as discussed in People v. May, 859 P.2d 879, 882-83
(Colo. 1993), the voluntariness standard has since been more
clearly defined as comprising two separate dimensions: “first is the
presence or absence of coercion, which primarily concerns the effect
of police conduct, and the second is the knowing and intelligent
action on the part of the person being interrogated.” Id. at 883.
20
reaction to an average dose of morphine”; that morphine “creates a
euphoria which takes away a patient’s perception of pain”; and that
“a patient may exhibit no outward signs of intoxication,” but
morphine nonetheless “takes away a patient’s perception of danger,
thereby lessening self-protective instincts.” Id. The expert in
Fordyce also testified at the hearing that morphine interferes with
short-term memory, and that the average person on morphine
would easily confuse a detective wearing surgical garb with medical
personnel. Id. at 156, 612 P.2d at 1133.
¶ 49 The supreme court thus explained summarily that “[t]he
toxicologist’s opinion based on reasonable medical probability was
that an average person under treatment with morphine would have
difficulty understanding a Miranda advisement and perceiving the
important effect of information given to the police.” Id. Concluding
that “the testimony of the treating doctor, nurse and detective that
the defendant’s behavior appeared rational [did] not conflict with
the toxicologist’s testimony describing morphine intoxication,” the
supreme court affirmed the trial court’s finding that the defendant’s
Miranda waiver was not voluntary. Id. at 157, 612 P.2d at 1134.
21
¶ 50 Here, Bryant argues that his Miranda waiver was invalid
because it was not made knowingly and intelligently. He does not
argue that his waiver was involuntary. Nonetheless, his reliance on
Fordyce is misplaced.
¶ 51 Unlike in Fordyce, there was no evidence adduced at the
suppression hearing, expert or otherwise, to support Bryant’s
contention that, despite testimony from Officers Ortiz and Fink to
the contrary, he was sufficiently intoxicated to be incapable of
giving a knowing and intelligent waiver of his Miranda rights.
Indeed, the only evidence presented at the suppression hearing
regarding Bryant’s intoxication was in relation to his behavior at the
time of his arrest and during the drive to the jail. As discussed
above, however, Officers Ortiz and Fink both testified that Bryant’s
demeanor changed between that time and when he was given his
Miranda advisement.
¶ 52 Accordingly, we defer to the trial court’s findings as supported
by the record and conclude that the court did not err by finding
that Bryant validly waived his Miranda rights.
22
III. Expert Police Testimony
¶ 53 Bryant contends that the trial court reversibly erred by
allowing Officer Fink to testify as a lay witness regarding the
meaning of the term “sherm.” He argues that Officer Fink’s
testimony constituted expert opinion testimony under CRE 702,
and that it was, therefore, improperly admitted under the guise of
lay opinion testimony under CRE 701. Bryant further argues that
this alleged error is reversible because Officer Fink’s testimony that
“sherm” was street slang for “PCP” was key testimony to prove that
he knowingly possessed a controlled substance.
¶ 54 We agree with Bryant that Officer Fink’s testimony constituted
expert opinion testimony. However, we conclude that the trial
court’s error in admitting his testimony was harmless.
A. Standard of Review and Applicable Law
¶ 55 We review a trial court’s evidentiary rulings for an abuse of
discretion. Venalonzo v. People, 2017 CO 9, ¶ 15. The trial court
abuses its discretion when its ruling is manifestly arbitrary,
unreasonable, or unfair, or when it applies the incorrect legal
standard. People v. Russell, 2014 COA 21M, ¶ 22, aff’d, 2017 CO
3.
23
¶ 56 In this instance, whether the trial court abused its discretion
turns on whether Officer Fink’s testimony was improper under CRE
701, which governs the admission of opinion testimony by a lay
witness. Under CRE 701, a lay witness’ testimony is limited to
“opinions or inferences” that are “(a) rationally based on the
perception of the witness, (b) helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue, and (c)
not based on scientific, technical, or other specialized knowledge
within the scope of [CRE] 702.”
¶ 57 CRE 702 governs the admission of expert opinion testimony
and states that “[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.”
¶ 58 In determining whether testimony constitutes lay opinion
testimony under CRE 701 or expert opinion testimony under CRE
702, a court must look to the basis for the witness’ opinion.
Venalonzo, ¶ 22. In particular, a court must look to “the nature of
the experiences that could form the opinion’s basis” rather than
24
simply asking whether a witness draws on his or her personal
experiences to inform the testimony. Id.; see People v. Veren, 140
P.3d 131, 137 (Colo. App. 2005).
¶ 59 In making that determination, a court should consider
“whether ordinary citizens can be expected to have known the
information or have had the experiences that form the basis of the
opinion.” People v. Ramos, 2012 COA 191, ¶ 13, aff’d, 2017 CO 6.
“If the witness provides testimony that could be expected to be
based on an ordinary person’s experiences or knowledge, then the
witness is offering lay testimony.” Venalonzo, ¶ 23. Expert
testimony, by contrast, goes beyond the realm of common
experience. “If . . . the witness provides testimony that could not be
offered without specialized experiences, knowledge, or training, then
the witness is offering expert testimony.” Id.
¶ 60 Police officers may testify as lay witnesses “based on their
perceptions and experiences,” People v. Stewart, 55 P.3d 107, 123
(Colo. 2002), but “[w]here an officer’s testimony is based not only on
his or her perceptions, observations, and experiences, but also on
the officer’s specialized training or education, the officer must be
25
properly qualified as an expert before offering testimony that
amounts to expert testimony.” Veren, 140 P.3d at 137.
¶ 61 Where, as here, the issue is preserved and nonconstitutional,
we will review any error for harmless error. Venalonzo, ¶ 48. We
will only reverse under a harmless error review if the error “affects
the substantial rights of the parties.” Hagos v. People, 2012 CO 63,
¶ 12. An error affects a party’s substantial rights when it
“substantially influenced the verdict or affected the fairness of the
trial proceedings.” Id. (quoting Tevlin v. People, 715 P.2d 338, 342
(Colo. 1986)).
B. Analysis
1. Lay or Expert Testimony
¶ 62 First, for the reasons below, we conclude that Officer Fink’s
testimony as to the meaning of the term “sherm” was expert opinion
testimony, improperly admitted as lay testimony under CRE 701.
¶ 63 Bryant objected to Officer Fink’s testimony on the meaning of
the slang term “sherm” at trial, and the court overruled his
objection. This testimony relied on Officer Fink’s specialized
training and experience as a police officer who had worked for
fourteen years as an officer at both the Aurora Police Department
26
and the Los Angeles Police Department. Accordingly, he should
have been disclosed and qualified as an expert witness, and it was
error to admit his testimony under the guise of lay opinion.
¶ 64 A hallmark of expert testimony by law enforcement officers is
that an officer testifies as to his extensive experience in the field.
So are the prosecutor advising the court that the witness is
testifying based on his training and experience, and the officer
testifying not based on personal knowledge or investigation of the
case. See Ramos, ¶ 18.
¶ 65 Here, the prosecutor prefaced his inquiry of Officer Fink with
questions expressly related to his training and experience, and he
emphasized that his testimony was based on that training and
experience:
Q Okay. Now, Officer Fink, you’ve indicated
you have been an officer for approximately nine
years; is that correct?
A 15 total – or 14 total.
Q Nine years with the Aurora Police
Department?
A Yes.
Q And you had prior law enforcement
experience before coming to Aurora?
A Yes, sir.
Q Where was that at?
A Los Angeles Police Department.
27
Q Now, Officer Fink, have you heard the term
“sherm” before?
A Yes, sir.
Q Okay. Have you heard the term “sherm”
related in the context to drugs?
A Yes.
Q Okay. Where have you heard this term
before?
A Through my training and experience.
“Sherm” is the street slang for PCP.
Q So through your experience, you’ve heard
“sherm” being used as, I guess, a lay term for
the drug PCP?
A Yes.
(Emphasis added.)
¶ 66 Moreover, Officer Fink’s testimony that “sherm” is street slang
for “PCP” was not based on his personal knowledge or investigation
of Bryant’s case, but was instead based on his training and
experience as a police officer. We find it instructive that Officer
Ortiz, who was a new officer in the field training program, did not
know that “sherm” meant “PCP,” but his training officer (Officer
Fink) did know the meaning of that term based on his own
specialized training and experiences.
¶ 67 Expert testimony, by definition, “goes beyond the realm of
common experience and requires experience, skills, or knowledge
that the ordinary person would not have.” Venalonzo, ¶ 22. In our
28
view, an ordinary person would not have the experience, skills, or
knowledge to be able to define “sherm” as meaning “PCP.”
¶ 68 Contrary to the People’s argument, it is not enough that the
ordinary person would be familiar with the concept of slang words,
or that the ordinary person would know that slang terms exist for
drugs. Rather, the key to Officer Fink’s testimony, which rendered
it expert in nature, was that he was able to identify a particular
slang term not used in the common vernacular as meaning a
particular drug.
¶ 69 We are aware of only one Colorado appellate opinion that has
discussed the meaning of street slang terms. In People v. Glover,
2015 COA 16, a detective testified as to the meaning of several
terms of street slang. In that case, however, the terms at issue were
used on Facebook and did not involve the names of any illegal
substances. Instead, the detective in Glover explained that “‘fam’
meant the street family, ‘wea at’ meant ‘we are at,’ ‘he bitched out’
meant that the person ran away, and ‘we still havin 5’ was a
reference to a meeting somewhere to talk.” ¶ 46. The division in
Glover reasoned that the meaning of these slang terms could be
determined “‘from a process of reasoning familiar in everyday life,’
29
rather than ‘a process of reasoning which can be mastered only by
specialists in the field.’” ¶ 53 (quoting People v. Rincon, 140 P.3d
976, 983 (Colo. App. 2005)).3
¶ 70 As more recently clarified by our supreme court in Venalonzo,
however, the test for whether testimony is expert or lay rests on the
“nature of the experiences that could form the opinion’s basis”
rather than the “process of reasoning.” ¶ 22. The terms discussed
in Glover closely resemble the words they stand for, are phonetically
indicative of the meaning, or are otherwise used frequently enough
in the common vernacular so that their meaning would be evident
to someone with ordinary experiences and knowledge. By contrast,
the word “sherm” is not a word that is likely to be known by
someone with ordinary experiences and knowledge.
¶ 71 To be sure, there are some drug-related slang terms that an
ordinary person would know because those terms have entered the
common vernacular through music, television, radio, film, etc.
Terms such as “pot” or “crack” would be recognized and identified
3When discussing “a process of reasoning which can be mastered
only by specialists in the field,” People v. Rincon relied in part on the
advisory committee note to Fed. R. Evid. 701. 140 P.3d 976, 982-
83 (Colo. App. 2005).
30
based on an ordinary person’s everyday experiences and knowledge.
See State v. Hyman, 168 A.3d 1194, 1204 (N.J. Super. Ct. App. Div.
2017) (“Some [drug culture slang or code] words may have entered
the popular lexicon as a result of music, film, and other aspects of
modern culture, obviating the need for opinion testimony.”).
¶ 72 “Sherm,” on the other hand, falls into the category of drug-
related slang that has yet to enter the common vernacular and
would only be known by someone with intimate knowledge of drug
culture or who has participated in the drug trade. Thus, Officer
Fink’s definition of “sherm” at trial fell squarely into the realm of
expert testimony.
¶ 73 We note that other jurisdictions have likewise determined that
the act of defining drug-related slang is expert rather than lay
testimony. See United States v. Smith, 640 F.3d 358, 365 (D.C. Cir.
2011) (ruling that an FBI agent’s testimony at trial defining drug-
related slang constituted expert testimony); Hyman, 168 A.3d at
1208 (ruling that a detective’s testimony at trial defining drug-
related slang and code words constituted expert testimony); see also
United States v. Garcia, 291 F.3d 127, 139 n.9 (2d Cir. 2002) (“If [a
drug dealer] offered his opinion on the allegedly coded conversation
31
and [the defendant’s] knowledge based on his ‘past experiences in
drug dealing,’ his opinion was not based on his perception of the
situation as a participant in it” and therefore constituted expert
testimony.); United States v. Peoples, 250 F.3d 630, 641 (8th Cir.
2001) (noting that law enforcement officers are often qualified as
experts to interpret intercepted conversations using slang, street
language, and the jargon of the illegal drug trade).
2. Harmless Error
¶ 74 However, while we conclude that the trial court erred in
allowing Officer Fink to testify as a lay witness as to the meaning of
“sherm,” we also conclude that the error was harmless. See People
v. Froehler, 2015 COA 102, ¶ 38.
¶ 75 Bryant argues that Officer Fink’s testimony that “sherm”
means “PCP” was key testimony relied upon by the prosecution to
prove that Bryant knowingly possessed a controlled substance. A
review of the record, however, suggests otherwise.
¶ 76 The question before us is whether the erroneous admission of
Officer Fink’s testimony at trial that “‘[s]herm’ is the street slang for
PCP” was harmless. Contrary to Bryant’s arguments, we fail to see
how this testimony could have been a key factor in establishing
32
Bryant’s knowledge that the substance he possessed was “PCP.”
See, e.g., id. at ¶ 40 (noting that evidence about computer software
used to search the defendant’s home computers had no direct
bearing on whether the defendant “knowingly possessed” child
pornography on a flash drive).
¶ 77 At best, Officer Fink’s testimony was cumulative of other
evidence presented at trial that served to prove the “knowingly”
element of the possession charge, see id. at ¶¶ 41-42, including the
fact that Bryant admitted during interrogation that the substance
he volunteered to Officers Ortiz and Fink, and which he initially
identified as “sherm,” was “PCP,” and that a chemical analysis
conducted on that same substance proved that the substance was
indeed “PCP.”
¶ 78 Officer Fink’s testimony is therefore easily distinguished from
testimony whose admission was deemed not harmless in other
cases. In Veren, two officers gave lay opinion testimony “that
possession of large amounts of pseudoephedrine in combination
with the other chemicals and supplies found in defendant’s truck
indicated an intent to manufacture methamphetamine.” 140 P.3d
at 139. A division of this court determined that “the two officers
33
were essentially allowed to give expert testimony under the guise of
lay opinions,” and that such testimony was key testimony proving
that “the items found in defendant’s truck were precursors and
materials used in the manufacture of methamphetamine.” Id. at
140. Because the challenged evidence in that case was not
cumulative of other properly admitted evidence, the division
concluded that admission of the officers’ opinion testimony was not
harmless. Id.
¶ 79 We are likewise unpersuaded by Bryant’s conclusory
argument that the erroneous admission of Officer Fink’s testimony
prevented him from presenting his own expert witness to rebut
Officer Fink’s testimony. We fail to see, and Bryant has not
identified, what kind of expert testimony could have been offered to
rebut the simple definition by Officer Fink that “sherm” is “PCP,”
and we also do not perceive how any potential rebuttal could have
negated the evidence otherwise properly admitted that Bryant
knowingly possessed “PCP.” See Froehler, ¶ 43.
¶ 80 Additionally, we note that the majority of Officer Fink’s
testimony was proper under CRE 701 as lay opinion testimony,
34
including his observations and inferences about Bryant’s behavior
prior to his arrest and during the interrogation.
¶ 81 Considering all of the above, we conclude that Officer Fink’s
testimony that “sherm” means “PCP” did not have a substantial
influence on the verdict or impair the fairness of the trial.
Accordingly, the error was harmless and thus not reversible. See
Stewart, 55 P.3d at 124 (“A ruling admitting or excluding evidence
is not reversible unless the ruling affects a substantial right of the
party against whom the ruling is made.”); Froehler, ¶ 44.
IV. Jury Instructions
¶ 82 Bryant contends that the trial court erred by instructing the
jury that voluntary intoxication was an invalid defense to the
charged crimes, arguing that the instruction was superfluous and
unrelated to the issues in controversy. He also contends that the
trial court erred by rejecting his tendered mens rea jury instruction,
arguing that the instruction given instead did not provide the jury
with the full and accurate definition of what the prosecutor had to
prove relating to culpable mental state. Finally, Bryant contends
that these errors, both individually and cumulatively, mandate
reversal. We disagree.
35
A. Standard of Review and Applicable Law
¶ 83 A trial court has a duty to correctly instruct the jury on the
governing law, properly, plainly, and accurately, but it has broad
discretion over the form and style of the instructions so long as they
are correct statements of the law. People v. Pahl, 169 P.3d 169, 183
(Colo. App. 2006). “The trial court should instruct the jury on a
principle of law when there is some evidence to support the
instruction.” People v. Montoya, 928 P.2d 781, 783 (Colo. App.
1996). A trial court should not, however, instruct the jury on an
abstract principle of law unrelated to the issues in controversy. Id.
at 784.
¶ 84 “While the court is duty-bound to instruct the jury, ‘it is
equally the duty of counsel to assist the court by objection to
erroneous instructions, and by the tender of instructions covering
matters omitted by the court.’” Stewart, 55 P.3d at 120 (quoting
Fresquez v. People, 178 Colo. 220, 232, 497 P.2d 1246, 1252 (Colo.
1972)).
¶ 85 We review jury instructions de novo to determine whether they
accurately informed the jury of the governing law, but we review
questions of form and style for an abuse of discretion. Townsend v.
36
People, 252 P.3d 1108, 1111 (Colo. 2011). Whether additional jury
instructions may be given is also a matter committed to the sound
discretion of the trial court. People v. Burke, 937 P.2d 886, 890
(Colo. App. 1996). If the instructions, taken as a whole, properly
instructed the jury on the governing law, there is no error. People v.
Merklin, 80 P.3d 921, 926 (Colo. App. 2003).
¶ 86 Under Colorado law, we often find no error, or no reversible
error, where a trial court gave a superfluous instruction to the jury.
See, e.g., People v. Weeks, 2015 COA 77, ¶ 59 (not plain error to
include superfluous elements in instruction); People v. Ujaama,
2012 COA 36, ¶ 50 (not plain error to include superfluous
instructions); People v. Manzanares, 942 P.2d 1235, 1241-42 (Colo.
App. 1996) (error was harmless where superfluous instruction
given); People v. Baca, 852 P.2d 1302, 1306 (Colo. App. 1992)
(inclusion of an unnecessary instruction was not reversible error);
Kaesik v. John E. Mitchell Co., 30 Colo. App. 227, 231, 492 P.2d
871, 873 (1971) (not error to give superfluous instruction), aff’d,
181 Colo. 19, 506 P.2d 362 (1973) (per curiam).
¶ 87 Instructional error occurs where an instruction misleads or
confuses the jury. Williams v. Chrysler Ins. Co., 928 P.2d 1375,
37
1377 (Colo. App. 1996). “But, language in a jury instruction cannot
be a ground for reversal unless it prejudices a party’s substantial
rights.” Id. at 1378.
B. Analysis
1. Intoxication Instruction
¶ 88 At trial, the prosecutor requested a four-paragraph jury
instruction explaining that voluntary intoxication was not a valid
defense to any of the charged crimes. Bryant objected to the
entirety of the requested instruction, but stated that if the trial
court was inclined to give an instruction on the invalidity of such a
defense, the instruction should be limited to the first two sentences
of the prosecution’s tendered instruction.
¶ 89 The trial court overruled Bryant’s objection, but limited the
instruction to the jury, using only the first two sentences of the
prosecution’s instruction, which stated, “Voluntary Intoxication is
not a defense to the charge of Possession of a Scheduled [sic] I/II
Controlled Substance. Voluntary Intoxication is not a defense to
the charge of Assault in the Third Degree.”
¶ 90 Although Bryant did not argue a defense based on voluntary
intoxication, he did base his defense on the theory that he did not
38
possess the requisite culpable mental state to commit the charged
crimes, in large part because of his intoxication. Indeed, Bryant
repeatedly argued at trial that he was intoxicated at the time of his
arrest, and thus was incapable of forming the requisite mental state
to be guilty of knowingly possessing a controlled substance and
assaulting two individuals.
¶ 91 Under these circumstances, we conclude that the instruction
that voluntary intoxication was not a valid defense to the charged
crimes did not constitute error. In all likelihood, the instruction
served to prevent any confusion for the jury in its determination of
whether Bryant possessed the culpable mental state required for a
guilty verdict. Accordingly, the instruction did not contain “abstract
legal principles unrelated to the issues in controversy.” Montoya,
928 P.2d at 784.
¶ 92 Thus, we conclude that the inclusion of this instruction, even
if superfluous, could not have confused the jury, especially because
it was very brief and contained a correct statement of the law. See,
e.g., Kaesik, 30 Colo. App. 231, 492 P.2d at 873.
¶ 93 Accordingly, under these circumstances, the inclusion of this
instruction did not amount to error, let alone reversible error.
39
2. Mens Rea Instruction
¶ 94 At trial, Bryant also argued that the jury should consider his
education and cognitive impairments, or lack of impairments, when
determining whether he possessed the requisite mental state to
commit the charged crimes. He therefore asked the trial court to
use the following mens rea instruction, taken from People v.
Heywood, 2014 COA 99, ¶ 18, which quotes Oram v. People, 255
P.3d 1032, 1038 (Colo. 2011):
The mental state of “knowingly” is a subjective,
rather than an objective, standard and does
not include a reasonable care standard.
Therefore, circumstances where a defendant
may reasonably be aware that his conduct is of
such a nature or that such circumstances
exist are insufficient to fulfill the knowingly
mental state.
¶ 95 The prosecutor objected to Bryant’s tendered mens rea
instruction, arguing that it was confusing and that the trial court
had already provided a proper instruction on culpable mental state.
Additionally, the prosecutor argued that the tendered instruction
was contrary to the law on voluntary intoxication, citing
Hendershott v. People, 653 P.2d 385 (Colo. 1982).
40
¶ 96 The pattern instruction on mens rea given at trial stated, as
relevant here, as follows:
A person acts “knowingly” with respect to
conduct or to a circumstance described by a
statute defining an offense when he is aware
that his conduct is of such nature or that such
a circumstance exists. A person acts
“knowingly” with respect to a result of his
conduct when he is aware that his conduct is
practically certain to cause the result.
(Emphasis added.)
¶ 97 On appeal, Bryant contends that the pattern instruction “did
not give the jury a full and accurate definition of what the
prosecutor must prove relating to [Bryant’s] culpable mental state,”
arguing that the instruction did not accurately inform the jury that
“knowingly” is a subjective standard. To the extent that Bryant
argues that the pattern instruction is legally inaccurate, however,
we disagree.
¶ 98 By its plain language, the pattern instruction clearly directs
the jury to apply a subjective test, stating that a person acts
“knowingly” only “when he is aware that his conduct is of such
nature of that such a circumstance exists” or “when he is aware
that his conduct is practically certain to cause the result.”
41
(Emphasis added.) The instruction thus plainly directed the jurors
to consider whether Bryant acted knowingly, and in no way
suggested that they should apply an objective or reasonable person
test.
¶ 99 Bryant points to language from Heywood and Oram in arguing
that his tendered instruction should have been used instead of the
applicable pattern instruction, but neither of those cases discusses
the mental state of “knowingly” in terms of how a trial court should
instruct a jury, and neither case required that its language be used
when instructing future juries. Rather, it is well established that
“[a] district court has substantial discretion in formulating the jury
instructions, so long as they are correct statements of the law and
fairly and adequately cover the issues presented.” People v. Romero,
197 P.3d 302, 309 (Colo. App. 2008).
¶ 100 Here, the instruction given by the court was legally correct and
adequately informed the jury to apply a subjective standard rather
than an objective standard. Accordingly, the trial court did not err
by providing the applicable mens rea pattern instruction, nor did it
err by denying Bryant’s tendered instruction. See People v. Inman,
950 P.2d 640, 645 (Colo. App. 1997) (“[A] trial court may properly
42
refuse an instruction which merely restates points already
encompassed in other instructions given to the jury . . . .”).
¶ 101 Because we conclude that there was no error in the manner in
which the trial court instructed the jury, we necessarily reject
Bryant’s contention that reversal is mandated based on cumulative
error.
V. Conclusion
¶ 102 The judgment is affirmed.
JUDGE DAVIDSON and JUDGE MÁRQUEZ concur.
43