22CA2250 Peo v Giovanni 06-12-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA2250 Arapahoe County District Court No. 22CR272 Honorable Eric B. White, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Sean Christopher Giovanni,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE WELLING Martinez* and Bernard*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 12, 2025
Philip J. Weiser, Attorney General, Sonia Raichur Russo, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, 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. 2024. ¶1 Defendant, Sean Christopher Giovanni, appeals his conviction
of unlawful possession of a controlled substance and a special
offender sentence enhancer. We affirm.
I. Background
¶2 Around 2:30 a.m. one January morning in 2022, Officer
Nicholas Whittenberg responded to a call at a gas station. When he
arrived on the scene, Officer Whittenberg talked to an employee,
who told him that two people had taken a container of antifreeze
without paying and that they were in a vehicle parked by the gas
pumps.
¶3 So Officer Whittenberg approached the vehicle — which had
broken down and wouldn’t start — and discovered four people
inside. One of the occupants in the back seat admitted to Officer
Whittenberg that he had taken the antifreeze and said he had told
the cashier he would return the next day to pay for it.
¶4 While Officer Whittenberg was speaking to the occupants of
the vehicle, he noticed that they were making furtive gestures and
reaching into different areas of the car. Giovanni was in the driver’s
seat. Officer Whittenberg asked Giovanni to keep his door open
because the occupants’ movements and gestures were making him
1 nervous. Particularly, Officer Whittenberg noticed that Giovanni lit
a cigarette and was moving a Windex bottle around the center
console area of the vehicle, the two people in the back seat were
reaching into a pile of clothes, and there was a lockbox on the
floorboard in the front of the vehicle that appeared to be designed to
hold a gun. Officer Whittenberg decided to remove all of the
occupants from the vehicle and frisk them for weapons. After
frisking Giovanni, Officer Whittenberg put him in the back of his
patrol car to stay warm. Officer Whittenberg searched the car for
weapons and initially found what he suspected to be
methamphetamine residue on the back seat and rear floorboard, a
glass pipe, and an empty gun holster underneath the Windex bottle
in between the front seat and the center console. Officer
Whittenberg broke open the lockbox and inside found a handgun, a
pipe for smoking methamphetamine, and a small baggie filled with
what appeared to be methamphetamine.
¶5 Giovanni was arrested and charged with unlawful possession
of a controlled substance, possession of a weapon by a previous
offender (POWPO), violation of a protection order, and a special
offender count. Ultimately, the POWPO and violation of a protection
2 order charges were dropped, and the jury convicted Giovanni of
unlawful possession of a controlled substance and the special
offender sentence enhancer.1
II. Issues Presented on Appeal
¶6 Giovanni argues that the court erred by (1) demonstrating
actual bias against him when it made credibility determinations
adverse to him at a pretrial hearing; (2) failing to suppress evidence
that he claims was obtained through an illegal search; (3) failing to
order meaningful sanctions against the prosecution for disclosing
evidence after the discovery cutoff; and (4) allowing two witnesses to
offer expert testimony without having been endorsed or qualified as
experts. We address and reject each contention in turn below.
A. Judicial Bias
¶7 Giovanni first argues that the judge who presided over his
case was biased against him because at a pretrial evidentiary
hearing the judge made a credibility determination favoring Officer
Whittenberg’s testimony over his based solely on Giovanni’s status
1 The special offender charge was based on the presence of the
firearm in the vehicle. According to section 18-18-407(1)(d)(II), C.R.S. 2024, if the defendant or a confederate possesses a handgun, the defendant can be charged as a special offender.
3 as the defendant and Officer Whittenberg’s status as a police officer.
Giovanni argues that the judge’s basis in making the credibility
determination demonstrated actual bias against him and requires
reversal of his conviction and a new trial before an unbiased judge.
We disagree.
1. Additional Facts
¶8 At a pretrial hearing on Giovanni’s suppression motion, Officer
Whittenberg and Giovanni gave conflicting testimony regarding
whether Officer Whittenberg first talked to Giovanni before or after
the officer had talked to the store clerk. Officer Whittenberg
testified that he didn’t speak to Giovanni until after he had spoken
to the store clerk. Giovanni, in contrast, testified that he was
standing outside his car as Officer Whittenberg was walking to the
store to talk to the clerk initially when Officer Whittenberg ordered
Giovanni to get back into his car.2
¶9 The court made the following credibility determination in the
course of denying Giovanni’s motion to suppress:
2 According to Giovanni, the timing of this contact is relevant to his
suppression motion, as he argues that Officer Whittenberg seized him by directing him to return to the car before the officer had any information regarding the antifreeze theft from the store clerk.
4 The Court has heard the testimony of Officer Whittenberg. The Court also heard the testimony of the defendant. . . . As it relates then to the seizure issue under the Fourth Amendment, that specific issue the Court finds credible the testimony of Officer Whittenberg. The Court doesn’t find credible the testimony of the defendant. It’s self-serving. The defendant has every reason to be dishonest with the Court as to the interaction he had with law enforcement and law enforcement has no reason to lie to this Court, so I do find that the officer’s testimony related to his initial interaction with the defendant was truthful and I will rely upon it finding the defendant’s testimony not to be.
¶ 10 A few days after the hearing, Giovanni submitted a pro se
letter to the court complaining that the judge’s comments during
the hearing had exhibited bias and said that the judge should
recuse himself.
¶ 11 At the outset of the next pretrial hearing, Giovanni’s counsel
asked to address Giovanni’s letter and explained his client’s
apprehension, as follows:
[Defense Counsel]: Your Honor, Mr. Giovanni had concerns following the motion’s hearing in April based off your findings that his testimony was not credible merely because he was the defendant. His fear is that bias might be shown in front of the jury and was not based off his appearance or demeanor at the trial [sic] but rather simply because he is the
5 defendant and accused even though he should — he is still presumed innocent and so, Your Honor, Mr. Giovanni did want that addressed with the Court. Obviously, as we approach trial we would ask that the Court not, you know, make any such statements like that to the jury or express those statements to the jury in any way, but that is a concern Mr. Giovanni had and just wanted on the record that he felt that was demonstrated bias not based off the facts presented in the motion’s hearing.
THE COURT: Any response from the People?
[Prosecutor]: No, Your Honor.
THE COURT: . . . The Court did find the defendant not to be credible in his testimony. I’ll persist in that finding. I didn’t find him believable. The record should reflect he’s got eight prior felony convictions. I can consider felony convictions for purposes of credibility, and even setting that aside, I just didn’t find him believable. Having said that, Mr. Giovanni is correct that the Court need not put its finger on the scale of the jury’s determination at the trial and I don’t intend to do that. The jury will never know that I don’t think that the defendant’s telling the truth. The jury will decide whether or not it believes that the defendant is guilty or not guilty of the offenses charged, and to be clear, the defendant need prove nothing. It is the People’s burden fully, that is, beyond a reasonable doubt to prove these allegations against the defendant. So the People, if they meet their burden, the jury will make its findings . . . and I will not make any comments to the jury about the conduct of
6 the motion’s hearing or my belief the defendant’s not credible. The jury will never hear that from me.
[Defense Counsel]: The defense has nothing further.
¶ 12 Neither the court nor the parties referenced this exchange or
the court’s credibility determination during the trial.
2. Preservation, Standard of Review, and Relevant Law
¶ 13 We review whether the judge was required to recuse himself as
a question of law, which we review de novo. Sanders v. People,
2024 CO 33, ¶ 25. The appearance of impropriety or actual bias
can serve as the grounds for recusal, but when a party doesn’t
move for recusal we will only reverse if the judge was actually
biased. People v. Garcia, 2024 CO 41M, ¶ 21. When an actually
biased judge presides over a trial it is structural error. Hagos v.
People, 2012 CO 63, ¶ 10.
¶ 14 Actual bias will probably prevent a judge from treating a party
fairly. People v. Jennings, 2021 COA 112, ¶ 28. To prove a judge
was actually biased against them, a defendant must show the
record clearly establishes that the judge had a “substantial bent of
7 mind” against them. People v. Drake, 748 P.2d 1237, 1249 (Colo.
1988).
3. Analysis
¶ 15 We begin with preservation. Giovanni argues that he
preserved the issue of recusal for judicial bias when he sent his pro
se letter following the suppression hearing. That letter, however,
didn’t preserve the issue Giovanni advances on appeal. A trial
court isn’t required to consider pro se filings from represented
defendants. People v. Draper, 2021 COA 120, ¶ 53, overruled on
other grounds by Garcia v. People, 2023 CO 30, ¶ 22. Therefore, the
pro se letter didn’t serve as a motion for the judge to recuse himself.
And when counsel had the opportunity to address the court
regarding Giovanni’s letter, Giovanni’s counsel only requested that
the judge not tell the jury he had found Giovanni not credible.
Counsel never asked the judge to recuse himself. Because there
was never a motion for recusal, we will reverse only if there was
actual bias. See Garcia, 2024 CO 41M, ¶ 21. Now we turn to the
merits of that contention.
¶ 16 Giovanni argues that the trial judge was biased against him
because the judge explained his credibility findings exclusively in
8 terms of the witnesses’ statuses: Giovanni wasn’t credible because
his testimony was “self-serving” because he was the defendant, and
Officer Whittenberg’s testimony was credible because he was a
police officer and “law enforcement has no reason to lie to this
Court.” Giovanni also argues that the judge’s statement
contravenes the axiom that all defendants are presumed innocent.3
¶ 17 First, we disagree that the judge credited Officer Whittenberg’s
testimony over Giovanni’s based solely on their respective roles at
trial. The judge had reviewed the officer’s bodycam footage before
making his credibility determination. Thus, the court’s
3 Giovanni testified that Officer Whittenberg told him to get back
into his car when he arrived at the gas station, and he contended that there was no recording of this interaction because Officer Whittenberg hadn’t turned on his body camera in violation of section 24-31-902(1)(a)(II)(A), C.R.S. 2024, which says that peace officers should turn on their body-worn cameras “shortly before the vehicle approaches the scene.” At the suppression hearing, Giovanni argued that the court should have invoked — or at least considered invoking — the permissive adverse inference allowed by section 24-31-902(1)(a)(III) against Officer Whittenberg in its credibility determination. But whether Officer Whittenberg belatedly turned on his body camera at all — and thus could have been subject to an adverse inference — turned on whose testimony the court credited in the first instance. And as noted, the court found Officer Whittenberg to be credible and Giovanni not. Based on this, it’s logical that the court didn’t apply any adverse inference against Officer Whittenberg, as it didn’t find the premise of the claim that he turned on his body camera late to be credible.
9 determination was based on more than just the testimony of the
two parties. Moreover, when the judge responded to Giovanni’s
concerns that he might be biased, the judge clarified that he didn’t
find Giovanni credible partly because of Giovanni’s eight previous
felonies.
¶ 18 Second, we disagree that the judge’s credibility determination
contravened Giovanni’s right to be presumed innocent. During any
evidentiary hearing, the court has to make credibility findings
regarding the witnesses, particularly when there is conflicting
testimony. See, e.g., People v. Pearson, 725 P.2d 782, 786 (Colo.
1986) (Quinn, C.J., dissenting) (“The empirical component of a
suppression ruling, like any other form of fact finding, is the basic
responsibility of the trial court, involving as it does a weighing of
evidence and an assessment of credibility.”). And making adverse
credibility findings in the course of ruling on an evidentiary motion
isn’t indicative of judicial bias. Cf. Bocian v. Owners Ins. Co., 2020
COA 98, ¶ 23 (“[I]t is well established that adverse legal rulings,
standing alone, do not constitute grounds for claiming prejudice or
bias.” (first citing In re Marriage of Hatton, 160 P.3d 326, 330 (Colo.
10 App. 2007); and then citing People in Interest of S.G., 91 P.3d 443,
447 (Colo. App. 2004))).
¶ 19 Moreover, during the court’s colloquy with Giovanni’s counsel,
the judge assured Giovanni’s counsel that the jury would never
know that the court had found Giovanni to lack credibility. This
affirmation runs contrary to Giovanni’s contention that the judge
was biased. Giovanni doesn’t offer any other evidence of the judge’s
supposed bias against him. See Jennings, ¶ 28 (To establish actual
bias, “[t]he record must establish such bias clearly; mere
speculative statements and conclusions are not enough.” (citing
Drake, 748 P.2d at 1249)).
¶ 20 Additionally, the judge explicitly reaffirmed Giovanni’s right to
be presumed innocent when he explained that Giovanni didn’t need
to prove anything and that the prosecution needed to prove all of
the elements of the charged crimes. This statement disavowing the
type of bias alleged by Giovanni is consistent with the judge’s
conduct during trial and contradicts the basis for Giovanni’s claim
of actual bias. Id.
¶ 21 To put it simply, we discern no judicial bias against Giovanni,
or for the prosecution, and therefore no basis for reversal.
11 B. Suppression of Evidence
¶ 22 Next, Giovanni argues that the trial court erred by allowing the
evidence discovered in the vehicle to be admitted at trial. He
contends that all of the evidence Officer Whittenberg found in the
car should have been suppressed because it was found after Officer
Whittenberg unconstitutionally seized Giovanni by asking him to
keep his door open, and all of the seized evidence was the fruit of an
unconstitutional seizure of his person. We disagree.
¶ 23 According to testimony offered at the suppression hearing,
when Officer Whittenberg made contact with the occupants of the
vehicle, he initially began talking to the person in the front
passenger seat. While he was talking to the front seat passenger,
the passenger behind the driver admitted to taking the antifreeze
but also claimed that another occupant had paid for it or that he
had told the cashier that he would return the next day to pay for it.
Officer Whittenberg then walked around the front of the vehicle to
talk to the passenger directly behind the driver. As he made his
way past Giovanni (who was sitting in the driver’s seat), Officer
Whittenberg asked Giovanni, “Do you mind just leaving the door
12 open?” Giovanni replied, “All right, that’s fine, I’m just freezing.”
Officer Whittenberg responded, “All right, you guys are just making
me a little nervous, reaching around the car and everything.”
¶ 24 At this point, Officer Whittenberg decided to have the
occupants of the car exit the vehicle to be patted down for weapons
and to search the vehicle for weapons. Officer Whittenberg testified
that, as he started removing the passengers from the vehicle, he
saw several knives, a baseball bat tucked under the rear
passenger’s seat, and a lockbox.
¶ 25 Once the passengers had exited the vehicle, Officer
Whittenberg began searching the passenger compartment of the
vehicle. During his search of the vehicle, Officer Whittenberg found
an empty handgun holster in between the seat and the center
console where Giovanni had been moving the Windex bottle around.
Officer Whittenberg also found a glass pipe and suspected
methamphetamine residue in the pile of clothes that the passengers
in the back seat had been reaching into. Based on his discovery of
the pipe, the methamphetamine residue, and the empty holster,
Officer Whittenberg decided to continue searching the car for drugs
and weapons. Eventually he found and opened a small lockbox
13 that he said appeared to be designed to hold a gun. Inside the
lockbox, Officer Whittenberg found a handgun, another glass pipe,
and a small bag of what he suspected to be methamphetamine.
¶ 26 Before trial, Giovanni filed a motion to suppress the evidence
seized in the search of the vehicle, asserting, among other things,
that the evidence was the fruit of Officer Whittenberg’s unlawful
seizure of him.
¶ 27 At the pretrial hearing, the trial court made findings based on
the testimony of Officer Whittenberg and Giovanni, as well as
Officer Whittenberg’s bodycam footage. First the court found that
Officer Whittenberg’s initial search of the occupants of the vehicle
and the vehicle itself was a justified protective sweep:
The officer observed the defendant to be reaching in and out of his jacket, to have moved a bottle of Windex to the — or towards or on the center console of the vehicle. The officer observed, if I understood his testimony as well as the body-worn camera footage, the rear passengers of the vehicle to be fidgety, to be reaching around inside the vehicle. All of the occupants of the vehicle, particularly the defendant, was [sic] wearing winter coats. The officer testified that the passengers were wearing not only bulky clothing but multiple layers, I think of pants, he even testified. I observed on the body-worn camera video the front passenger to have a winter coat on and
14 multiple layers as well. At that time the officer was concerned for his safety as well as those of his fellow officers regarding what may be in the vehicle, not only stolen antifreeze but at this point anything that could hurt him — those are my words, not his — so he elected to have the occupants of the vehicle, including the defendant, removed at which point he undertook a more extensive, I’ll call it a protective sweep of the vehicle, to make sure that there was nothing there that could hurt him or his fellow officers. He said at least twice on the body camera footage on Exhibit B that he was concerned with the way the occupants of the vehicle were acting. . . . So as he then swept through the vehicle, that was for purposes of his safety. That’s a limited intrusion under the Fourth Amendment.
¶ 28 Last, the court determined that Officer Whittenberg had
probable cause to search the car for drugs after finding the fresh
methamphetamine residue:
At some point during that search Officer Whittenberg found what he determined to be methamphetamine powder. . . . There was residue in a plastic bag or baggies. He testified there was freshly strewn powder on the floor. . . . [C]ertainly no later than the point that the officer found what appeared to be methamphetamine, he had probable cause to continue his search under the automobile exception to the warrant requirement.
15 2. Standard of Review and Relevant Law
¶ 29 When we review a court’s suppression ruling, we defer to the
trial court’s findings of fact as long as they are supported by
competent evidence in the record, and we review the trial court’s
application of the law to those facts de novo. People v. Delacruz,
2016 CO 76, ¶ 12.
¶ 30 The Fourth Amendment of the United States Constitution and
the Colorado Constitution forbid unreasonable searches and
seizures. Id. at ¶ 13. Ordinarily, warrantless searches or seizures
are unreasonable, unless an exception to the warrant requirement
applies. Id. One such exception allows a police officer who has an
articulable and objectively reasonable belief that an occupant of a
vehicle may be armed and dangerous to conduct a protective search
of all of the occupants as well as the passenger compartment of the
vehicle for weapons. Id. at ¶ 14. Another exception — the
automobile exception — enables an officer to search a vehicle if he
has “probable cause to believe that the automobile contains
evidence of a crime.” People v. Allen, 2019 CO 88, ¶ 16 (quoting
People v. Zuniga, 2016 CO 52, ¶ 14).
16 3. Analysis
a. The Protective Search
¶ 31 The trial court determined that Officer Whittenberg’s initial
search of the vehicle and its occupants was a permissible protective
search. Giovanni claims that when Officer Whittenberg asked him
to leave his door open it was an unconstitutional seizure. But an
officer may search all of the occupants of a vehicle for weapons —
as well as the vehicle’s passenger compartment — as long as the
officer has an articulable and objectively reasonable belief that one
of the occupants may be armed and dangerous. See Delacruz, ¶ 14.
Officer Whittenberg explained that he was asking Giovanni to keep
his door open because he was worried about his and the other
officers’ safety. See id. at ¶ 15 (“During a protective search, police
may physically restrain the vehicle’s occupants, including through
the use of handcuffs.”).
¶ 32 Giovanni counters that the reasons the officer gave for
suspecting either Giovanni or his passengers might have been
armed and dangerous, particularly that Giovanni and his
passengers were making “furtive gestures,” aren’t sufficient grounds
to justify a protective search. We disagree for three reasons.
17 ¶ 33 First, Delacruz supports the constitutionality of the search. In
Delacruz, an officer was justified in searching a vehicle for weapons
after a knife fell out of the occupant’s pocket. Id. at ¶ 22. Similarly,
Officer Whittenberg testified that he saw several knives, a baseball
bat, and a lockbox as he removed the occupants from the vehicle.
All of these observations supported Officer Whittenberg’s reasonable
belief that one or more of the vehicle’s occupants might have been
armed.
¶ 34 Second, the circumstances of the interaction support the
constitutionality of the search. When Officer Whittenberg contacted
the vehicle’s occupants, it was after two in the morning, and several
of the occupants — including Giovanni — appeared to be nervous,
avoided eye contact, and avoided questions from the officers. And
because the passenger in the back seat admitted to stealing the
antifreeze, it was reasonable for the other occupants to assume he
would be arrested. Several of these circumstances are relevant to
whether a police officer has articulable, objectively reasonable belief
that a person might be armed and dangerous. See People v. Smith,
13 P.3d 300, 306 (Colo. 2000) (holding that relevant circumstances
18 include “the lateness of the hour . . . the reaction to the presence of
police, and whether a companion is being arrested”).
¶ 35 Finally, the occupants’ furtive gestures are relevant, contrary
to Giovanni’s argument. “A furtive gesture in response to police
contact during an investigatory stop may give rise to an objectively
reasonable belief that the suspect is armed and dangerous,
justifying a protective search.” People v. Brant, 252 P.3d 459, 464
(Colo. 2011). Thus, the trial court’s finding that the officer
conducted a protective sweep is correct.
b. Probable Cause
¶ 36 Next, the trial court determined that once the officers had
found what they suspected to be methamphetamine, they had
probable cause to search the vehicle — and the lockbox — for
drugs. Officers may search a vehicle if they have probable cause
that the vehicle contains evidence of a crime. Allen, ¶ 16.
Therefore, once Officer Whittenberg found what he suspected to be
methamphetamine residue in the back seat, he had probable cause
to suspect that the car held evidence of a drug crime as well.
¶ 37 Since at every stage of Officer Whittenberg’s search of
Giovanni and the vehicle he was acting under a valid exception to
19 the general requirement of obtaining a warrant prior to a search, we
discern no error in the trial court’s suppression ruling.
C. Sanctions for Discovery Violations
¶ 38 Next, Giovanni argues that the trial court erred by not
imposing more severe sanctions in response to the prosecution’s
discovery violations. He argues the court’s failure to impose
meaningful sanctions necessitates remand to the trial court with
instructions to impose sanctions. We disagree.
¶ 39 On July 22, just a few days before the trial was scheduled to
begin, the trial court rescheduled the trial to begin on August 23
(about one week before the expiration of the six-month speedy trial
deadline) because the prosecution disclosed a police report and
endorsed a witness late. The same day that the court reset the
trial, the prosecution made additional untimely disclosures to the
defense, this time regarding the testing of the methamphetamine
found in the vehicle. Those disclosures were made just thirty-two
days before trial was scheduled to begin. This late discovery
included evidence of color testing of the methamphetamine and a
report regarding a different method of testing.
20 ¶ 40 At a pretrial hearing on August 3, Giovanni informed the court
about the prosecution’s late disclosure of new information relating
to the testing of the methamphetamine. The prosecutor explained
that the People didn’t intend to introduce the color testing results at
trial, and that the rest of the July 22 late disclosure to the defense
was due to a staff member’s mistake in the district attorney’s office.
Giovanni initially requested that the court exclude the drug testing
and its results in their entirety but later requested that the court
dismiss the special offender charge as a sanction instead.
¶ 41 The court found that the late disclosure constituted a
discovery violation but also found that Giovanni hadn’t established
any prejudice from the untimely disclosures, which were three days
late. Accordingly, the court offered to reset the trial for August 30
— a week later — but Giovanni’s counsel declined, saying that the
extra week wouldn’t be enough time to fully research the tardy
disclosures. The court informed Giovanni that if he didn’t want to
reset the trial, the court wouldn’t order any other sanctions.
2. Standard of Review and Relevant Law
¶ 42 We review a trial court’s decision on whether to sanction a
party for a discovery violation for an abuse of discretion. People v.
21 Tippet, 2023 CO 61, ¶ 34. A trial court’s decision not to sanction a
party is an abuse of discretion when it’s “manifestly arbitrary,
unreasonable, or unfair” or is based on a misapplication of the law.
People v. Montoya, 2024 CO 20, ¶ 47
¶ 43 Crim. P. 16 obligates the prosecuting attorney to make reports
or statements by experts available to the defense as soon as
practicable, but not later than thirty-five days before trial. Crim. P.
16(I)(a)(1)(III), (I)(b)(3). When evaluating potential Rule 16 violations,
the trial court must balance ordering the least severe sanction that
will secure full compliance with the court’s discovery orders.
Tippet, ¶ 37.
¶ 44 A court must consider several factors when deciding discovery
sanctions: “(1) the reason for and degree of culpability associated
with the violation; (2) the extent of resulting prejudice to the other
party; (3) any events after the violation that mitigate such prejudice;
(4) reasonable and less drastic alternatives to exclusion; and (5) any
other relevant facts.” Id. (quoting People v. Cobb, 962 P.2d 944, 949
(Colo. 1998)).
22 3. Analysis
¶ 45 All of the relevant considerations from Tippet for addressing a
Rule 16 violation support that the court acted within its discretion
when it decided not to impose sanctions.
¶ 46 The first factor the court must consider is whether the tardy
disclosure was intentional. The record suggests that the delay in
providing the discovery to Giovanni was an inadvertent mistake by
office staff. The prosecutor clarified that the lack of disclosure
wasn’t the lab’s fault, but that a legal assistant within the
prosecutor’s office had made an error. And the court acknowledged
that explanation in its ruling. “It sounds like this was an error
made within the district attorney’s office, not through the
laboratory, but within its office in assuring [sic] that this
information was ultimately provided to the defense.” Because the
late disclosure wasn’t intentional, this factor supports the court’s
decision.
¶ 47 Second, the court was required to determine whether the late
disclosure prejudiced the defense. See Tippet, ¶ 37. The trial court
determined that there was no prejudice since the prosecution
wasn’t planning to use some of the discovery, and Giovanni hadn’t
23 shown prejudice for the rest. And Giovanni has not articulated any
prejudice, either below or on appeal. Because the court explicitly
considered whether the late discovery prejudiced Giovanni and
decided with record support that there was no prejudice, this factor
also supports the court’s decision.
¶ 48 Third, the court was required to consider reasonable and less
drastic alternatives to excluding the late-disclosed evidence. The
court did just that when it offered Giovanni an extra week to make
up for having received the discovery just thirty-two days before trial.
This was a reasonable sanction for discovery being three days late,
and it was less severe than Giovanni’s suggested remedy —
dismissal of his pending special offender charge. See id. This
factor also supports the court’s decision.
¶ 49 Fourth, the court was required to balance crafting the least
restrictive sanction that would still ensure compliance with its
discovery orders. The court offered Giovanni an extra week to
research the new discovery. We have already determined that the
week delay was appropriate given the disclosure was three days
late, and it was less severe than Giovanni’s requested sanction.
And the court’s decision to delay the trial by a week would have
24 discouraged the prosecution from making any more tardy
disclosures because there would be no more time within the speedy
trial window to delay the trial again.
¶ 50 All of these considerations support the court’s decision not to
order sanctions. Because the trial court’s decision not to impose
sanctions wasn’t manifestly arbitrary, unreasonable, or unfair, we
discern no grounds for reversal.
D. Expert Testimony
¶ 51 Next, Giovanni argues that the testimony of two police officers
included improper expert opinion by a lay witness. He argues that
the court’s error in allowing this expert testimony by lay witnesses
affected the verdict and a new trial is necessary. We disagree.
¶ 52 Officer Whittenberg testified that he found a
methamphetamine pipe while he was searching the back seat of the
vehicle, and that after he pried open the lockbox, he found another
methamphetamine pipe and a crystalline substance that he
recognized as methamphetamine based on his training and
experience. Officer Whittenberg testified that he had seen
methamphetamine pipes on more than 500 occasions and what he
25 suspected to be methamphetamine over 100 times. All of this
testimony from Officer Whittenberg was admitted without objection.
¶ 53 Officer Tim Eha testified that part of his duties as an Aurora
police officer was to test and process firearms such as the one
found in the lockbox. He also testified about the process he uses to
collect fingerprints from a weapon generally and the gun in this
case, as follows:
[Prosecutor]: With respect to this weapon, did you try to get fingerprints off of it?
[Officer Eha]: Yes.
Q: Tell us how that process works.
A: We use a superglue machine which consists of a humidifier and a small little hotplate, like a burner plate, and then we put like a dime- sized drop of glue in a little tin and that tin sits on the burner plate. So once everything’s inside that needs to be superglued, whatever it may be, the door will get closed and sealed. The machine will get turned on —
[Defense Counsel]: Objection, improper expert testimony.
¶ 54 The court overruled the objection, reasoning that Officer Eha
wasn’t offering an opinion, but merely describing a process. Officer
Eha continued:
26 [Officer Eha]: Basically once all items are in the superglue chamber and the superglue’s on the burner plate you’ll seal up the machine, close the door, seal it up and turn the machine on. It’s very simple, you just hit a start button and that turns on the humidifier. Once it reaches, I believe it’s 71 percent relative humidity, that’s when the burning plate turns on and starts burning off the superglue. It basically — working together it makes a very light layer of superglue over all the items that are inside the chamber which will seal any kind of fingerprint in there.
[Prosecutor]: If you see anything, do you then take that and send it on to a lab where it is properly analyzed?
A: Yes.
Q: And did you see anything with respect to this gun?
A: No.
Q: Does that surprise you?
Q: Why not?
[Defense Counsel]: Objection, improper expert opinion.
THE COURT: Overruled.
A: It doesn’t surprise me only for the fact I’ve probably done over 500 guns as an estimate trying to fingerprint them and we only get
27 useable fingerprints maybe one percent of the time.
¶ 55 Officer Eha also testified that he fired the gun twice at a police
range and it worked. Giovanni’s counsel didn’t object to that
testimony.
¶ 56 On cross-examination, Giovanni’s counsel repeatedly elicited
testimony from Officer Eha that he didn’t have any special training
or certification regarding fingerprint recovery. Finally, Giovanni’s
counsel ended the cross-examination of Officer Eha by asking,
“You’ve never been certified to collect fingerprints?” Officer Eha
answered, “No.”
¶ 57 Two other witnesses who were qualified as experts testified
regarding these topics. Patricia Hopkins, the chemist who tested
the crystalline substance found in the vehicle, testified that it tested
positive for methamphetamine. Hopkins also testified that DNA
from the pipe found in the lockbox belonged to Giovanni. Theresa
Rhinehart, an expert in latent fingerprint examination, testified that
finding fingerprints is rarer in Colorado than other states:
[Prosecutor]: Do you find a fingerprint every single time?
[Rhinehart]: Absolutely not.
28 Q: And is that surprising to you?
A: No, not in our climate.
Q: Why not? What does that mean?
A: We’re in a dry climate so fingerprints are 98 percent perspiration and two percent whatever else you’ve touched, so perspiration dries up here. I don’t know how many people here use lotion like I do frequently, so you’d have to continue to — unless someone’s eating a greasy cheeseburger or Lay’s potato chips, out here you don’t find many fingerprints, but if you’re in Florida with heavy humidity you might find more fingerprints.
¶ 58 Giovanni objected to Officer Eha’s testimony about the process
for recovering fingerprints and that he found fingerprints about one
percent of the time on the grounds that it was expert testimony.
Accordingly, those claims are preserved. Giovanni didn’t object to
any of Officer Whittenberg’s testimony, or Officer Eha’s testimony
about firing the handgun at the police range; therefore those claims
aren’t preserved.
¶ 59 We review a trial court’s evidentiary decisions for an abuse of
discretion. Montoya, ¶ 41. A trial court “abuses its discretion when
its decision is manifestly arbitrary, unreasonable, or unfair,” or if it
misapplies the law. Id. at ¶ 47. We review Giovanni’s preserved
29 claims of evidentiary error for harmless error. Hagos, ¶ 12. Under
the harmless error standard of reversal, reversal is required only if
the error “substantially influenced the verdict or affected the
fairness of the trial proceedings.” Id. at ¶ 12 (quoting Tevlin v.
People, 715 P.2d 338, 342 (Colo. 1986)).
¶ 60 We review the unpreserved claims for plain error. Id. at ¶ 14.
Under the plain error standard of reversal, the error must be
obvious and substantial. Id. An error is plain if it is so obviously
erroneous that the trial court shouldn’t have needed the benefit of
an objection to avoid it. People v. Sparks, 2018 COA 1, ¶ 36. Plain
error affects the substantial rights of the accused. Hodges v.
People, 158 P.3d 922, 927 (Colo. 2007). Plain errors “so
undermine[] the fundamental fairness of the trial as to cast serious
doubt on the reliability of the judgment of conviction.” Id.
¶ 61 While testifying, lay witnesses may only give opinions 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 Rule 702.” CRE 701.
Only a witness qualified as an expert may testify in the form of an
30 opinion or otherwise regarding “scientific, technical, or other
specialized knowledge” that may help the trier of fact understand
evidence in order “to determine a fact in issue.” CRE 702.
a. Officer Whittenberg’s Testimony
¶ 62 We begin with Officer Whittenberg’s testimony. Giovanni
challenges two of his statements: (1) the crystalline substance he
found in the car was methamphetamine, and (2) the pipe he found
was a methamphetamine pipe that had been used to smoke
methamphetamine.
¶ 63 First, Officer Whittenberg’s testimony about the crystalline
substance wasn’t expert testimony because Officer Whittenberg
never testified that the crystalline substance was
methamphetamine, only that he believed that it was
methamphetamine at the time he was investigating the vehicle:
Prosecutor: Did the crystal-like substance, did you recognize that as what you believed to be methamphetamine based on your training and experience?
Officer Whittenberg: I did.
If Officer Whittenberg had been testifying that he presently believed
the crystalline substance was methamphetamine, his answer would
31 have been phrased in the present tense — “I do.” So Officer
Whittenberg was only testifying to his belief that the substance was
methamphetamine at that particular time in his investigation
(explaining the investigative steps he took). Because Officer
Whittenberg wasn’t offering his opinion that the substance was in
fact methamphetamine, his statement isn’t obviously expert
testimony. See CRE 702.
¶ 64 Officer Whittenberg’s second statement wasn’t expert
testimony either:
Prosecutor: And is that how the safe looked when you first opened it?
Officer Whittenberg: Yes, it does.
....
Prosecutor: Can you describe for us what those items are?
Officer Whittenberg: So that’s a gun . . . a Leatherman case . . . that contained a baggie with crystalline substance and then above that is a pipe that’s commonly used to smoke methamphetamine.
Prosecutor: Can you tell whether or not that pipe has been used?
Officer Whittenberg: I can.
32 Prosecutor: Did you also find a meth pipe in the back seat?
¶ 65 Giovanni argues that Officer Whittenberg’s testimony is
improper expert testimony because he testified that the pipe was
commonly used to smoke methamphetamine, and that the pipe had
been used.
¶ 66 But during this testimony Officer Whittenberg didn’t say the
pipe was used — only that he would be able to tell if it was. In any
event, it isn’t clear why a jury would need an expert to describe the
difference between a pipe that appeared to have been used and one
that had not been used.
¶ 67 So then, we are left with Officer Whittenberg’s testimony that
the pipe was a variety typically used for smoking
methamphetamine. Remember that since Giovanni didn’t object to
this testimony, it’s only error if it was obvious and substantial.
Hagos, ¶ 18. While this is a closer call than the other testimony,
it’s still not obvious that this testimony is an expert opinion based
on specialized training and experience — for three reasons. See
CRE 702.
33 ¶ 68 First, it’s not clear that specialized training is required to
notice the differences between a typical pipe for smoking tobacco
and a pipe used to smoke methamphetamine. And because it isn’t
obvious that expert testimony is required, Officer Whittenberg’s
characterization of the pipe wasn’t expert testimony, and it can’t be
plain error.
¶ 69 Second, the jury could have inferred the pipe was used for
smoking methamphetamine without the benefit of Officer
Whittenberg’s testimony, since both pipes were found next to white
crystalline substances and the substance found in the lockbox
tested positive for methamphetamine according to the forensic
chemist’s testimony.
¶ 70 Third, Giovanni wasn’t charged with possession of the pipe.
Thus, Officer Whittenberg’s statement can hardly be said to have
undermined the fairness of the trial or affected his substantial
rights. Therefore, since Officer Whittenberg’s testimony regarding
the pipe wasn’t obviously an error or substantial, it can’t be plain
error.
¶ 71 And in any event, any potential error would be harmless.
Officer Whittenberg’s testimony that the crystalline substance he
34 found in the lockbox was methamphetamine was cumulative of
Hopkin’s properly admitted expert testimony confirming the
substance was methamphetamine. And his testimony that the pipe
had been used was cumulative of the fact that Giovanni’s DNA had
been found on the pipe found in the lockbox. “Where the
improperly admitted lay testimony is cumulative of properly
admitted expert testimony, there is no plain error.” People v.
Douglas, 2015 COA 155, ¶ 41. Therefore, the admission of Officer
Whittenberg’s testimony isn’t grounds for reversal.
b. Officer Eha’s Testimony
¶ 72 Next, Giovanni contends that three statements that Officer
Eha made as part of his testimony constituted improper expert
testimony since they were based on his experience and training as a
police officer. Those statements by Officer Eha were: (1) his
description of the procedure he used to test fire the handgun to
demonstrate that it was functional; (2) that he had recovered
fingerprints from only about one percent of the approximately 500
guns that he had processed; and (3) his description of the
procedure for using hot glue to recover fingerprints.
35 ¶ 73 Because Giovanni didn’t object to the first statement, we
review it for plain error. Giovanni contends that Officer Eha’s
testimony describing how he fired the gun twice at the police range
was expert testimony. But Giovanni doesn’t describe — and it isn’t
obvious — what specialized knowledge a layperson would need to
distinguish between a functioning and nonfunctioning handgun.
See CRE 702. Therefore, we don’t perceive any expert testimony in
this portion of Officer Eha’s testimony. Accordingly, we can’t say
the court erred, much less plainly erred, by allowing this testimony.
¶ 74 Next, because Giovanni objected to Officer Eha’s other two
statements, we review the admission of those statements for an
abuse of discretion.
¶ 75 Officer Eha’s statement that, in his experience, he had only
recovered fingerprints from approximately one percent of the guns
he had processed wasn’t expert testimony because Officer Eha
wasn’t offering an opinion; instead he was merely recounting his
experience. Because Officer Eha’s statement wasn’t an opinion, we
can’t say that the trial court abused its discretion by admitting it.
(In contrast, Rhinehart’s explanation that Colorado’s dry climate
was the reason for this difficulty is an example of the type of
36 “scientific, technical, or other specialized knowledge” contemplated
by CRE 702. That sort of explanation was notably absent from
Officer Eha’s testimony.)
¶ 76 Next, we consider Officer Eha’s statement describing the
process by which the machine heated up glue to lift any fingerprints
from the handgun. Giovanni argues that because Officer Eha
testified to his training and qualifications, Officer Eha converted his
testimony from lay to expert. But Officer Eha never offered any
opinions as part of his testimony about the process for lifting
fingerprints from a gun. He simply described the process — as the
trial court acknowledged in its ruling. Therefore, since Officer Eha’s
testimony wasn’t improper expert opinion, we discern no error in
the trial court’s decision to admit this testimony.
E. Cumulative Error
¶ 77 Finally, Giovanni argues that the cumulative prejudice of the
alleged discovery violations and improper expert testimony requires
reversal. Giovanni argues that, because of the late discovery, his
trial counsel was unable to properly prepare to cross-examine
Hopkins, the forensic chemist. He argues that Hopkins shouldn’t
have been allowed to testify as a result. Giovanni also argues that
37 Hopkins’ testimony was improperly bolstered by Officer
Whittenberg’s testimony that the crystalline substance was
methamphetamine. We disagree for two reasons.
¶ 78 First, recall that prosecutors must disclose expert reports no
later than thirty-five days before trial. Here, the prosecutor
disclosed the report thirty-two days before trial — three days late.
So the prejudice to Giovanni is that his counsel had three fewer
days than she was entitled to in order to prepare for cross-
examination. The trial court offered to rectify that prejudice by
delaying the trial for a week. But Giovanni refused that remedy.
¶ 79 Second, we have already determined that Officer Whittenberg
didn’t testify at trial that the crystalline substance was, in fact,
methamphetamine. Instead, it’s clear from the record that Officer
Whittenberg was referring to his belief during the course of his
investigation. Because Officer Whittenberg didn’t testify that the
substance was actually methamphetamine, his testimony didn’t
directly support Hopkin’s testimony.
¶ 80 To reverse based on cumulative error, we must find multiple
errors that collectively prejudice the substantial rights of the
defendant. Howard-Walker v. People, 2019 CO 69, ¶ 25. Here,
38 however, the only prejudice to Giovanni was the discovery that was
three days late — a prejudice that the court offered to rectify in full.
Therefore, we reject Giovanni’s cumulative error argument.
III. Disposition
¶ 81 The judgment is affirmed.
JUSTICE MARTINEZ and JUDGE BERNARD concur.