COLORADO COURT OF APPEALS

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

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jonathan Ray McFee,

Defendant-Appellant.

JUDGMENT AFFIRMED

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

Announced June 30, 2016

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

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

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

admitted her prior statements to family members recounting

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

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

threatened her and predicted that he would eventually follow

through on those threats.

¶2 McFee contends that admission of these statements

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

that admission of the note violated his rights under the Sixth

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

testimonial statement and that its admission violated McFee’s

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

remaining statements were properly admitted, we conclude that the

constitutional error was harmless beyond a reasonable doubt.

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

affirm the judgment.

I. Background

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

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

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

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

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

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

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

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

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

all accounts, the relationship was volatile. Numerous witnesses

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

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

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

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

McFee and gave it to her cousin for safekeeping.

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

although the couple had apparently broken up a couple of days

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

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

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

murder.

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

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

audio recording equipment picked up some of his mumbled words

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

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

discovered on the handle of the knife.

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

sentenced to life in prison without the possibility of parole.

II. Hearsay

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

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

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

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

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

exception to the prohibition on hearsay. CRE 802.

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

Sixth Amendment rights under the Confrontation Clause. Davis v.

Washington,

(2006). In Crawford v. Washington,

(2004), the Supreme Court held that the

Confrontation Clause bars admission of testimonial statements of a

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

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

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

separates it from other hearsay that, while subject to traditional

limitations upon hearsay evidence, is not subject to the

Confrontation Clause.” Davis,

; see also Crawford,

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

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

evidence and thus a good candidate for exclusion under hearsay

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

Confrontation Clause targeted.”).

A. The Hearsay Statements

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

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

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

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

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

trembling and that she sounded afraid during the call.

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

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

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

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

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

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

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

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

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

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

the following handwritten statement:

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

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

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

over McFee’s objection.

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

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

cousin because the statements concerning McFee’s threats did not

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

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

admission therefore violated his rights under the Confrontation

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

the second.

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

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

admissible under CRE 807 — the residual exception to the hearsay

prohibition — and noted that they were “arguably admissible”

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

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

properly admitted under Rule 807.

1. Standard of Review

¶ 17 Trial courts have considerable discretion in determining the

admissibility of evidence, including application of the residual

hearsay exception. Vasquez v. People,

, 1106 n.7

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

absent an abuse of discretion.

A court abuses its discretion

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

People v. Brown,

-2, ¶ 18, or is based on an

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

Casias,

.

2. Discussion

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

exceptions to the prohibition on hearsay established in CRE 803

and 804 is admissible if the statement has “equivalent

circumstantial guarantees of trustworthiness” and a court

determines that

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

CRE 807.

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

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

parties, the probable motivation of the declarant in making the

statement, and the circumstances under which the statement was

made. Brown, ¶ 20.

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

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

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

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

victim reported that the defendant had choked her and threatened

to kill her.

. The supreme court determined that the

statements were supported by circumstantial guarantees of

trustworthiness because they were “spontaneous statements to [a]

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

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

at 745-

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

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

probative because they described actual incidents of violence by the

defendant against the victim.

.

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

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

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

; see also People v. Jensen,

(Colo.

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

applying the residual hearsay exception that find statements to

8 family members and close friends about marital matters

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

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

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

perceive or recount the threats. See Jensen,

.

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

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

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

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

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

corroborates their content.1

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

offered to establish the material fact that the relationship between

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

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

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

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

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

mistreatment, or malice by the defendant toward the victim is

admissible to show the defendant’s motive and culpable mental

state.” Id. at 140.

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

probative than the testimony of other witnesses who heard McFee

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

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

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

McFee had communicated those threats directly to her and that she

took them seriously. See Fuller,

(finding that the

victim’s statements were highly relevant because they described

actual incidents in which the defendant acted violently).

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

statements because “they were reliable and they increased the

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

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

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

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

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

Because the court properly admitted the statements under Rule

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

under Rule 803(3).

C. Admission of the Written Note

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

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

Confrontation Clause analysis. We agree with McFee that the

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

error was harmless beyond a reasonable doubt.

1. Standard of Review and Preservation

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

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

Phillips,

. A preserved constitutional error

requires reversal unless the People prove beyond a reasonable

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

.

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

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

11 testimonial and that its admission would constitute a violation of

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

Confrontation Clause claim for plain error.

¶ 30 Ordinarily, a general hearsay objection is insufficient to

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

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

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

statement that implicated McFee’s confrontation rights under the

Sixth Amendment.

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

with an adequate opportunity to make findings of fact and

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

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

, 223 n.7 (Colo.

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

consider arguments injecting an issue not adequately presented to

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

contemporaneous objection rule is to conserve judicial resources by

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

opportunity to correct any error. People v. Pahl,

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

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

People,

. Where, despite imprecision in the

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

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

is sufficiently preserved. See People v. Rhea,

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

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

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

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

preserved).

¶ 32 Thus, because the trial court specifically addressed the

Confrontation Clause claim and determined that none of the

hearsay statements, including the note, were testimonial, the

Confrontation Clause claim is properly preserved, and we will

review any error under the constitutional harmless error standard.

2. Discussion

¶ 33 The Sixth Amendment’s Confrontation Clause guarantees that

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

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

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

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

is implicated only when “testimonial” hearsay statements are at

issue. Crawford,

(citation omitted).

¶ 34 We determine whether a hearsay statement is testimonial by

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

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

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

Clark,

, ___,

, 2180 (2015) (quoting

Michigan v. Bryant,

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

People,

(Colo. 2007) (whether a statement is

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

¶ 35 The Clause applies to volunteered statements as well as

statements obtained through questioning, see Davis,

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

(2011); Melendez-Diaz v. Massachusetts,

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

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

a later criminal prosecution. Davis,

; see Hinojos-

Mendoza v. People,

(Colo. 2007) (lab report was

testimonial because its sole purpose was to analyze a substance in

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

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

primarily for the purpose of gathering evidence to use in the

eventual prosecution of a murder suspect).

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

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

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

statement was made for the requisite purpose. Id.

¶ 37 The relevant circumstances include whether there was an

ongoing emergency at the time the statements were made, the

formality and spontaneity of the statements, the environment in

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

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

in evaluating the purpose of the statements, we consider the

purpose that a reasonable declarant in those circumstances would

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

People v. Medrano-Bustamante,

, ¶ 41 (cert. granted

Sept. 8, 2014).

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

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

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

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

¶ 39 Statements are nontestimonial when made for the purpose of

enabling police to address an ongoing emergency. Davis,

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

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

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

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

happen based on McFee’s prior conduct. See

(distinguishing nontestimonial statements to a 911 operator about

current threats from testimonial statements to police officers about

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

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

an “immediate danger.” See Arteaga-Lansaw,

(Statements were testimonial because “any danger or need for

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

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

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

current danger).

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

prevent an imminent attack by McFee (indeed, McFee was

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

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

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

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

(nontestimonial statements were “informal and spontaneous”);

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

statements). In addition to accusations of past criminal conduct

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

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

physical description, that would have helped police locate and

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

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

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

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

in the event of her murder.

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

someone principally charged with uncovering and prosecuting

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

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

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

made to third parties not charged with investigating or prosecuting

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

to “adopt a categorical rule excluding them from the Sixth

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

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

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

cousin immediately gave the note to investigators. She reasonably

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

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

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

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

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

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

Cf. People v. Richter,

, 1281-82 (Ill. App. Ct.

2012)(discussing “conduit theory” whereby a statement

communicated to a third party is the equivalent of a statement

communicated to police for purposes of Confrontation Clause

analysis).

18 ¶ 42 Other courts have characterized similar notes as testimonial

statements. In State v. Sanchez,

(Mont. 2008), the

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

prosecution introduced a note written by the victim shortly before

her death:

To whom it concerns:

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

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

[Signature of victim.]

.

¶ 43 In concluding that the note qualified as a testimonial

statement, the Montana Supreme Court observed that its purpose

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

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

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

harmed or killed.”

. And, like the note here, the note’s

substance and “comprehensive salutation” demonstrated that the

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

though the note was not directly addressed to the police.

.

¶ 44 The victim in State v. Jensen,

(Wis. 2007),

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

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

addressed to the city police department and two named detectives,

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

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

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

my early demise.”

. The victim’s husband was later

charged with first degree murder in the poisoning death of the

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

. The supreme court characterized the note as

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

position would have anticipated that the note — which accused her

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

would be used against him at a later trial.

.

¶ 45 Finally, in Miller v. Stovall,

(6th Cir. 2010), cert.

granted, judgment vacated, and case remanded,

, 132

(2011)2, the declarant committed suicide after helping

the defendant kill her husband. He left behind a suitcase

containing evidence of the conspiracy and a suicide note that also

implicated the defendant. The Sixth Circuit concluded that because

the declarant had deliberately assembled evidence of the crime and,

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

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

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

note was a testimonial statement and its admission at trial violated

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

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

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

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

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

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

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

Brooks,

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

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

,

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

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

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

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

was the purpose?”); Jensen,

(noting that the

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

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

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

the contents of this particular letter”).

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

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

investigation, we conclude that the note was testimonial. And

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

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

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

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

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

violated McFee’s confrontation rights.4

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

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

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

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

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

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

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

Confrontation Clause is harmless beyond a reasonable doubt, we

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

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

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

(quoting People v. Allen,

(Colo. App.

2007)); accord Arteaga-Lansaw,

.

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

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

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

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

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

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

In addition, four other witnesses had either overheard McFee

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

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

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

were properly introduced through other witnesses. See Arteaga-

Lansaw,

(Confrontation Clause error was harmless

beyond a reasonable doubt because the improperly admitted

statement was cumulative of the testimony of three other

witnesses).

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

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

witnesses testified that McFee was jealous and controlling and that

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

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

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

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

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

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

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

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

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

undisputed).

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

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

conclude that the error was harmless beyond a reasonable doubt.

See Raile,

(Confrontation Clause error was

harmless beyond a reasonable doubt where improperly admitted

statements were similar to other statements presented at trial and

statements were not critical to prosecution’s case).

III. Limitation on Cross-Examination

¶ 52 McFee contends that the trial court also violated his

confrontation rights by improperly limiting the scope of his cross-

examination of a prosecution witness.

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

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

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

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

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

had called her a bitch.

¶ 54 On cross-examination, Grider acknowledged that his

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

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

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

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

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

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

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

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

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

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

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

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

prohibiting him from asking Grider additional questions about his

mental health — specifically, whether he had been found

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

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

26 A. Standard of Review

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

examine witnesses, Krutsinger v. People,

(Colo.

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

. The scope and limits of cross-examination

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

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

rulings on appeal. People v. Conyac,

.

B. Discussion

¶ 57 The district court determined that an incompetency finding

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

agree.

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

impeachment purposes only if the witness suffered from the

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

Diecidue,

(5th Cir. 1979) (prior incompetency

determination and subsequent treatment for mental illness were

not probative, and therefore properly excluded on cross-

examination, where competency determination occurred twelve

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

27

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

relevant for impeachment when proponent of evidence does not

establish or allege that the witness suffered from mental instability

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

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

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

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

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

such as schizophrenia, that dramatically impaired her ability to

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

States,

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

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

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

State v. Stewart,

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

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

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

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

and inadmissible” and collecting cases).

¶ 59 United States v. Robinson,

(10th Cir. 2009), the

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

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

whose testimony “Robinson could not have been convicted,”

) was involuntarily committed to a mental health facility six

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

himself as a conscientious member of the law enforcement team,

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

offense and the trial. The district court prohibited defense counsel

from cross-examining the informant about his mental health.

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

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

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

firearm sale.”

. He also had a long history of mental

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

from auditory and visual hallucinations and was experiencing

psychosis, conditions that would have affected his “ability to

perceive or to recall events or to testify accurately.”

(citation omitted).

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

mental health testimony sought by the defendant concerned events

that occurred “just days before trial began,”

and would have

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

and recount.”

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

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

reasonable probability that the result would have been different if

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

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

.

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

require a different resolution. The incompetency finding occurred

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

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

,

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

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

will testify, evidence of hospitalization for drinking three years after

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

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

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

compromised because of the earlier incompetency finding.

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

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

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

the earlier incompetency finding was cumulative (and less

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

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

questions concerned areas already covered). The problem in

Robinson was that the informant’s unchallenged testimony left the

jury with a mistaken impression about his ability to testify

accurately. Here, Grider acknowledged that his ability to recount

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

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

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

against McFee.

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

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

prescription medications. McFee did not present a good faith basis

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

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

Robinson,

(citation omitted). And Grider’s use of

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

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

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

acknowledged that his memory of that evening was not perfect due

to subsequent mental illness and trauma. Cf.

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

rebut his testimony that memory lapses were due solely to passage

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

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

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

cross-examination.

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

¶ 67 Approximately two weeks after the murder, McFee voluntarily

submitted to a recorded interview with the police. While the

detective was out of the room, the recording equipment captured

McFee saying something to himself.

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

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

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

bitch.” He had the audio recording enhanced to eliminate

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

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

played both the unenhanced and enhanced versions of the

recording for the jury.

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

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

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

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

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

the court admitted the testimony in violation of CRE 701 because

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

interpret McFee’s words.

A. Standard of Review

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

an abuse of discretion. People v. Warrick,

(Colo.

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

error was not harmless. People v. Robles,

(Colo.

App. 2011), aff’d,

. But here, we agree with the People

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

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

701. See People v. Robinson,

(Colo. App.

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

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

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

decision to admit the testimony under a plain error standard of

review.

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

undermines the fundamental fairness of the trial as to cast serious

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

B. Discussion

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

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

introduction was proper under CRE 701. We disagree.

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

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

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

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

on scientific, technical, or other specialized knowledge within the

scope of Rule 702.

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

behavior, motivation, or intent if the witness had sufficient

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

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

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

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

People,

,

(1971).

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

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

concluding that the witness is more likely to correctly identify the

defendant than is the jury. Robinson v. People,

(Colo. 1996).

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

has the effect of describing something that the jurors could not

otherwise experience for themselves by drawing upon the witness’s

sensory and experiential observations that were made as a first-

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

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

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

interpret the words spoken by McFee on the recording. The

detective was neither present when McFee uttered the words nor so

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

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

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

information the jury had: the original recording and the enhanced

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

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

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

words spoken by defendant during recorded phone calls).

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

opinion testimony regarding an ultimate issue to be decided by the

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

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

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

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

rather than as “they think I did it.”

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

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

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

verdict. Ordinarily, the risk of admitting improper lay opinion

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

witness is in a better position to interpret or understand the

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

to testify?). See Freeman,

(noting that several

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

agent ‘provides interpretations of recorded conversations based on

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

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

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

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

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

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

come to its own conclusion about what McFee had said.

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

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

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

Collins,

(witness may opine on ultimate issue

because jury is free to disregard the opinion).

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

¶ 80 McFee contends that the district court erred in admitting

testimony by the prosecution’s blood pattern expert that was

beyond the scope of his expertise. We disagree.

A. The Expert’s Testimony

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

pattern analysis and crime scene reconstruction.”5 The expert

offered two opinions that McFee contends were beyond the scope of

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

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

stabbing was particularly violent and suggested “overkill.”

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

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

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

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

counsel’s objection was sustained.

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

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

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

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

confirmation bias.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

testified as follows:

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

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

A: No, ma’am.

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

A: Yes, ma’am.

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

whether the expert had formed any opinion about the crime based

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

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

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

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

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

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

and the expert testified as follows:

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

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

Defense counsel’s objection to the answer was overruled.

B. Standard of Review

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

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

unless it is manifestly erroneous. People v. Douglas,

. This broad discretion “reflects the superior opportunity

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

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

People v. Williams,

(Colo. 1990) (citation

omitted). Whether opinion testimony is within a particular

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

discretion of the trial court. People v. Watson,

(Colo. App. 2001).

¶ 87 Because defense counsel made a contemporaneous and

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

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

harmless error analysis, we reverse only if the error substantially

influenced the verdict or affected the fairness of the trial

proceedings.

C. Discussion

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

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

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

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

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

Southward,

(Colo. 1990); People v. Gomez,

(Colo. 1981).

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

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

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

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

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

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

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

Gomez,

(citation omitted). Once defense counsel

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

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

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

unscientific biases. Cf. Golob v. People,

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

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

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

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

that someone known to the victim had been arrested for her

murder.

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

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

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

“wounds within wounds” was essentially cumulative of the properly

admitted testimony of the medical examiner who performed the

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

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

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

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

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

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

harmless. People v. Russell,

(cert. granted

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

(inappropriate expert testimony was harmless because, among

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

see also Gonzales v. Windlan,

, ¶ 33 (any error in

admitting expert testimony was harmless because it was cumulative

of other properly admitted expert testimony).

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

multiple wound paths were caused by the victim moving, the

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

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

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

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

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

testimony, the jury would have reasonably inferred that the

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

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

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

v. Martinez,

(Improperly admitted evidence was

harmless because it merely stated “the most logical inference from

the evidence.”).

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

to evidence of “overkill” was harmless.7

VI. Conclusion

¶ 93 The judgment is affirmed.

JUDGE WEBB and JUDGE ASHBY concur.

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

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

45