Peo v. Costello

21CA1665 Peo v Costello 11-27-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1665
Arapahoe County District Court No. 20CR1875
Honorable Elizabeth Weishaupl, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cameron Scott Costello,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE YUN
Harris and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 27, 2024

Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General
Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, 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 Cameron Scott Costello appeals the judgment of conviction

entered on a jury verdict finding him guilty of first degree murder.

He contends that the district court made multiple evidentiary errors

requiring reversal of his conviction. We disagree and affirm the

judgment.

I. Background

¶2 One night in June 2020, Costello was visiting his ex-wife while

the victim was visiting his ex-girlfriend at an apartment complex.

The two women happened to live across the hallway from each

other.

¶3 The victim was attempting to retrieve his missing cell phone,

which he believed was in his ex-girlfriend’s apartment. The

ex-girlfriend declined to speak with him, and the victim left the

building. From her balcony, the ex-girlfriend saw him across the

street speaking with Costello.

¶4 Sometime later, Costello knocked on the ex-girlfriend’s door

while the victim hid nearby. When the ex-girlfriend opened the

door, Costello blocked it from closing with his foot and demanded

that she “[g]ive [the victim] his phone back or I’ll kill him.” She

1
shoved Costello’s foot out of the doorway, slammed the door shut,

and, from her balcony, watched the two men leave the complex.

¶5 Costello and the victim walked to a nearby 7-Eleven to buy

cigarettes and drinks. Shortly after the pair returned from

7-Eleven, the ex-girlfriend’s brother arrived at the apartment

complex with a few other family members. The victim — no longer

accompanied by Costello — approached the brother and asked him

to “tell your sister to come talk to me and give me my phone.” The

ex-girlfriend overheard this and yelled down for the victim to “go

away” because she “[did not] want to talk to him.” The brother and

his family then entered the ex-girlfriend’s apartment.

¶6 Almost immediately thereafter, the ex-girlfriend and her

brother heard a loud bang. When the brother looked over the

balcony, he saw the victim lying on the ground near the

ex-girlfriend’s car. The victim died from a gunshot wound to the

back of the head.

¶7 Several surveillance cameras around the apartment complex

and at the 7-Eleven recorded Costello — wearing a red hoodie —

and the victim walking around together. And though the video is

less than clear, one camera captured the victim walking away from

2
where he was talking to his ex-girlfriend’s brother as the brother

went inside the apartment building. In the footage, the victim

walks out of frame behind the building and is followed by a person

seemingly clad in red. Roughly twenty-one seconds later, a gunshot

can be heard.

¶8 About a month after the shooting, Costello was arrested for

the victim’s murder. Arresting officers recovered a gun from

Costello’s waistband along with ammunition of the same caliber

and brand as the bullet casing left at the scene of the murder. The

gun was loaded with sixteen bullets in a magazine that could hold

seventeen rounds, and Costello told a detective that he had the gun

with him at the apartment complex on the night of the murder.

Two experts in firearm toolmark identification concluded that the

cartridge casing from the murder scene was fired from Costello’s

gun.

¶9 A jury convicted Costello of first degree murder, and the

district court sentenced him to life in prison without the possibility

of parole.

3
II. Analysis

¶ 10 Costello contends that the district court reversibly erred by

(1) failing to exclude expert testimony on firearm toolmark

identification as unreliable; (2) allowing a second firearm toolmark

identification expert to give needlessly cumulative and improper

bolstering testimony; (3) permitting a detective to interpret a portion

of surveillance footage and identify Costello in it; and (4) admitting

unfairly prejudicial evidence by allowing the victim’s mother to

testify and by accepting an “in-life” photograph of the victim. He

also asserts that the cumulative effect of the errors deprived him of

the right to a fair trial. We address and reject each contention in

turn.

A. Standard of Review

¶ 11 The district court has broad discretion in determining the

admissibility of evidence based on its relevance, probative value,

and prejudicial impact. People v. Elmarr, 2015 CO 53, ¶ 20. This

includes the discretion to rule on the admissibility of expert

testimony, Kutzly v. People, 2019 CO 55, ¶ 8, and to admit allegedly

cumulative or bolstering testimony, People v. Thompson, 2017 COA

56, ¶ 184; People v. Renfro, 117 P.3d 43, 46 (Colo. App. 2004). We

4
review these evidentiary rulings for an abuse of discretion.

People v. Quillen, 2023 COA 22M, ¶ 14. The district court abuses

its discretion if its decision is manifestly arbitrary, unreasonable, or

unfair, or if the court misapplies the law. Id.

B. Reliability of Expert Testimony

¶ 12 We first turn to Costello’s contention that the prosecution’s

expert testimony concerning the firearm toolmark identification was

unreliable under CRE 702.

1. Additional Background

¶ 13 The prosecution endorsed Eric Thornton, a forensic scientist

at the Colorado Bureau of Investigation (CBI), as an expert in

firearm functionality and toolmark examination and analysis.

Costello objected and requested a Shreck hearing, arguing that

recent court decisions and reports had expressed concerns about

firearm and toolmark analysis.

¶ 14 At the hearing, Thornton testified that firearm toolmark

identification is used to determine whether, as relevant here, a

cartridge casing found at a crime scene was fired from a particular

weapon. Thornton testified that shooting a firearm causes some

“small variation” to the individual cartridge cases and, using a

5
comparison microscope, examiners look at markings that are

imprinted on the cartridge cases during the firing process. He

explained, “If the marks are sufficient in quality and quantity based

on my training and experience and applying the [Association of

Firearm and Tool Mark Examiners (AFTE)] theory, then it’s an

identification.”

¶ 15 Turning to the firearm evidence in this case, Thornton testified

that he compared a test cartridge fired from Costello’s gun to the

cartridge casing found at the crime scene and concluded that it was

fired by Costello’s weapon. He testified that his findings were

independently verified by another examiner at CBI.

¶ 16 The district court determined that Thornton’s technique was

reasonably reliable within the scientific community. It found that

Thornton’s analysis was subject to verification by a peer; that AFTE

publishes scholarly articles studying the firearm toolmark

identification standards; and that there was a study that found a

potential error rate of 1 in 66 or, conversely, a 98.5% accuracy rate

for the type of analysis conducted by Thornton. The court then

found that the evidence offered would be helpful in deciding

whether the cartridge casing found at the crime scene could be

6
linked to Costello’s gun. And the court noted that defense counsel’s

criticisms of Thornton’s method of identification could be presented

through cross-examination.

¶ 17 At trial, both Thornton and Dale Higashi, who verified

Thornton’s findings, opined that the cartridge casing found near the

victim was fired from the firearm in Costello’s possession at the

time of his arrest. Both experts testified their identification was

based on a “reasonable degree of scientific certainty.” They were

cross-examined extensively about the reliability of their opinions.

2. Applicable Law

¶ 18 CRE 702 provides that “[i]f scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise.” To determine

whether expert testimony is admissible under CRE 702, the court

must make determinations as to (1) the “reliability of the scientific

principles”; (2) the “qualifications of the witness”; (3) the “usefulness

of the testimony to the jury”; and (4) whether the evidence satisfies

CRE 403. People v. Shreck, 22 P.3d 68, 70 (Colo. 2001).

7
¶ 19 The court’s reliability inquiry is broad in nature and considers

the totality of the circumstances of a given case. People v. Ramirez,

155 P.3d 371, 378 (Colo. 2007). The standard for admissibility is

reliability, not certainty. Est. of Ford v. Eicher, 250 P.3d 262, 266

(Colo. 2011). Thus, the proponent need not prove that the expert is

indisputably correct. Ramirez, 155 P.3d at 378. Rather, reliability

analysis hinges on whether the scientific principles the expert

employed are grounded in the methods and procedures of science.

Est. of Ford, 250 P.3d at 267. If so, the testimony meets the

reliability requirement. Id.

¶ 20 In conducting the reliability inquiry, there is no mandatory list

of factors that a court must consider. See Kutzly, ¶ 12. But it may

consider (1) whether the technique has been tested; (2) whether the

technique has been subjected to peer review and publication; (3) the

known or potential rate of error; (4) whether the technique has been

generally accepted; (5) the relationship of the proffered technique to

more established modes of scientific analysis; (6) the existence of

specialized literature dealing with the technique; (7) the non-judicial

uses to which the technique is put; (8) the frequency and type of

error generated by the technique; and (9) whether such evidence

8
has been offered in previous cases to support or dispute the merits

of a particular scientific procedure. Est. of Ford, 250 P.3d at

267-68. Some of these factors may be inapplicable in a particular

case, and a court may consider any other appropriate factors or

information in its reliability analysis. Id. at 268.

¶ 21 Our supreme court has emphasized that the standard for

admitting expert testimony is liberal because any admitted

testimony will be further vetted through vigorous

cross-examination, presentation of contrary evidence, and careful

instruction on the burden of proof. Shreck, 22 P.3d at 78.

3. Discussion

¶ 22 Applying the reliability factors, we conclude that the district

court did not abuse its discretion by finding that Thornton’s

testimony was scientifically reliable.

• First, the toolmark identification methodology that both

Thornton and Higashi utilized has been tested. See United

States v. Harris, 502 F. Supp. 3d 28, 37 (D.D.C. 2020) (“A

number of courts have examined this factor in depth to

conclude that firearm toolmark identification can be tested

and reproduced.”).

9
• Second, firearm toolmark identification is not a novel

technique; it has been used as a scientific mode of analysis

since the early twentieth century. Stephen G. Bunch et al.,

Is a Match Really a Match? A Primer on the Procedures and

Validity of Firearm and Toolmark Identification, 11 Forensic

Sci. Comm., (July 2009), https://perma.cc/3ZY7-LCWC.

Thus, it is a generally accepted method of identifying

toolmarks left by a gun on bullets or cartridge casings. See

Harris, 502 F. Supp. 3d at 42 (“[T]he AFTE theory . . .

enjoys widespread scientific acceptance.”).

• Third, Thornton testified that firearm toolmark

identification has been the subject of peer reviewed

publications for over seventy years. See id. at 40 (“[T]he

toolmark identification methodology . . . has been subject to

peer review and publication . . . .”).

• Fourth, one study found an error rate for firearm toolmark

identification of 1 in 66 — a 98.5% accuracy rate.

Moreover, Thornton’s findings were independently verified

by another toolmark examiner to reduce the likelihood of

error. See also id. at 39 (“Because the evidence shows that

10
error rates for false identifications made by trained

examiners is low . . . this factor also weighs in favor of

admitting [the] expert testimony.”).

• Fifth, as the district court observed, “firearm and toolmark

[identification] has never been found to be inadmissible

under Shreck in the state Colorado.” Indeed, Thornton has

been admitted as an expert witness on firearm toolmark

identification in approximately thirty cases.

¶ 23 Costello nevertheless argues that the district court “erred in

finding that the underlying principles behind firearm[] toolmark

identification were reliable” because another division of this court

and other jurisdictions have questioned the admissibility of such

evidence and because recent research has called into question the

reliability of firearm toolmark identification.

¶ 24 Costello’s reliance on People v. Genrich, 2019 COA 132M, is

misplaced. The issue in Genrich was the reliability of an expert’s

unqualified opinion regarding identification of marks on a wire

allegedly made by a hand tool. Id. at ¶¶ 21-23, 31. In contrast,

this case involves an analysis of marks left by a firearm on cartridge

casings. The concurrence in Genrich explained that “[t]he analysis

11
of toolmarks left on a surface by a hand tool is inherently more

subjective than the analysis of toolmarks left by a gun on bullets or

cartridge casings” and therefore “[o]pinions from other jurisdictions

concluding that firearms identification testimony is admissible bear

little weight here because of the differences between toolmark

identification analysis for firearms and hand tools.” Id. at

¶¶ 125-126 (Berger, J., specially concurring).

¶ 25 Costello also relies on a handful of cases to argue that “other

jurisdictions have recognized the growing concerns about the

admissibility of long-accepted firearm identification testimony.” See

Williams v. United States, 210 A.3d 734 (D.C. 2019); United States v.

Willock, 696 F. Supp. 2d 536, 564 (D. Md. 2010); United States v.

Glynn, 578 F. Supp. 2d 567, 570 (S.D.N.Y. 2008); Sexton v. State,

93 S.W.3d 96 (Tex. Crim. App. 2002). But Williams, Willock, and

Glynn did not hold that firearm toolmark identification testimony is

categorically unreliable and therefore inadmissible; instead, in each

of these cases the court admitted the testimony while limiting the

levels of certainty the experts could express in their opinions. See

Williams, 210 A.3d at 743; Willock, 696 F. Supp. 2d at 573; Glynn,

578 F. Supp. 2d at 575.

12
¶ 26 Indeed, federal courts, almost without exception, have

admitted firearm toolmark identification evidence under Rule 702.

See United States v. Brown, 973 F.3d 667, 704 (7th Cir. 2020)

(noting that the AFTE “methodology used by the government’s

witnesses had been ‘almost uniformly accepted by federal courts’”);

United States v. Hicks, 389 F.3d 514, 526 (5th Cir. 2004) (“[T]he

matching of spent shell casings to the weapon that fired them has

been a recognized method of ballistics testing in this circuit for

decades.”); United States v. Monteiro, 407 F. Supp. 2d 351, 364 (D.

Mass. 2006) (“For decades, both before and after the Supreme

Court’s seminal decisions in Daubert and Kumho Tire, admission of

the type of firearm identification testimony challenged by the

defendants has been semi-automatic; indeed, no federal court has

yet deemed it inadmissible.”); United States v. Santiago, 199 F.

Supp. 2d 101, 111-12 (S.D.N.Y. 2002) (noting that the “Court has

not found a single case in [the Second] Circuit that would suggest

that the entire field of ballistics identification is unreliable” and

declaring that “the Supreme Court’s decisions in Daubert and

Kumho Tire[] did not call this entire field of expert analysis into

question”). Costello has not identified any cases, nor are we aware

13
of any, holding firearm toolmark identification of cartridge casings

to be categorically unreliable.

¶ 27 We are not convinced that a 2016 report by the President’s

Council of Advisors on Science and Technology (PCAST) mandates

the conclusion that firearm toolmark identification is categorically

unreliable. See Brown, 973 F.3d at 703-704 (rejecting the

argument that the PCAST report rendered firearm toolmark

identification unreliable under Rule 702); Harris, 502 F. Supp. 3d at

36-43 (same). Costello argues that this report “represents a

landmark publication that alleged a scientific consensus —

representing the conclusions of numerous experts — of scientific

uncertainty about the reliability of firearm[] toolmark identification

evidence.” But the report does not suggest that firearm toolmark

identification is fundamentally unreliable; instead, it contends that

existing “non-black box” studies purporting to quantify the

reliability of firearm toolmark identification are flawed and more

studies are needed. The report concludes by suggesting that

firearm toolmark analysis admitted in courts use the error rate of 1

in 66 from the only “black box” study it found appropriately

designed. Notably, this is exactly the error rate on which the

14
district court relied. But see Harris, 502 F. Supp. 3d at 39 (“[T]hree

black box studies that post-date the PCAST Report all have

extremely low rates of error.”).

¶ 28 Costello also challenges the reliability of the expert testimony

because it was based on subjective analysis, rather than on

objective criteria. True, “scientific expert testimony that relies on

bare assertions, subjective belief, or unsupported speculation” does

not satisfy the reliability requirement. Est. of Ford, 250 P.3d at

267. But a methodology is not unreliable if the expert relies on his

“training, experience, deductive reasoning, and observations to

reach [his] conclusions.” People v. Perkins, 2023 COA 38, ¶ 44; see

also United States v. Gil, 680 F. App’x 11, 13 (2d Cir. 2017)

(“[A]rguments about the subjectivity inherent in [firearm toolmark

identification] go ‘to the weight of the evidence, not to its

admissibility,’ and were ‘matters for cross-examination and

argument to the jury.’” (quoting United States v. Romano, 794 F.3d

317, 333 (2d Cir. 2015))); Harris, 502 F. Supp. 3d at 43 (concluding

that the subjectivity of the toolmark identification methodology is

not fatal to its admissibility under Rule 702).

15
¶ 29 That was the case here. Although Thornton testified that “we

report objective observations interpreted through our subjective

experience,” he also explained that making an identification

requires significant experience working with known samples to

understand the variations that can occur. He testified that his

technique is based on his intensive training, published peer

reviewed papers, and AFTE seminars. And he described how CBI’s

quality control measures, best practices, and accreditation aim to

ensure the accuracy of the tests. Where, as here, an expert

employs his “physical investigation, professional experience, and

technical knowledge” to reach a conclusion, the court does not

abuse its discretion by admitting the expert’s testimony. Perkins,

¶ 44.

¶ 30 Finally, Costello argues that Thornton’s methodology was not

scientific because he did not take photographs or notes of the

points of comparison. But “[c]oncerns about . . . whether a

qualified expert accurately applied a reliable methodology go to the

weight of the evidence, not its admissibility.” People v. Shanks,

2019 COA 160, ¶ 12. And as the district court observed, these

points “would be excellent cross examination.” See Shreck, 22 P.3d

16
at 78. Moreover, even if we were to assume that Thornton’s

methodology was not “scientific,” that would not presage the

exclusion of his testimony because Rule 702 is not limited to

admissibility of scientific evidence alone. It permits the

introduction of “technical” or “other specialized” expert testimony

that is helpful to the jury. See CRE 702.

¶ 31 Alternatively, Costello argues that even if the toolmark

testimony was generally admissible, the trial court erred by not

limiting the degree of confidence the experts could express

regarding whether the cartridge casing found at the scene was fired

from Costello’s gun. Costello sought to preclude the experts from

saying that their identification excluded “all other firearms in the

world,” using phrases like to a reasonable degree of scientific or

ballistic certainty, or saying that there was a “match.” He proposed

that the experts be limited to saying “something to the effect of, it is

more probable than not that these two shell casings came from the

same” gun.

¶ 32 A few courts have placed restrictions on the degree of

confidence experts can express when making toolmark

identifications. These courts have, for example, prohibited experts

17
from claiming they are 100% certain of a match, that the match

excludes all other firearms in existence, or that it was practically

impossible for any other gun to have fired the recovered materials.

See United States v. Johnson, 875 F.3d 1265, 1280 (9th Cir. 2017);

United States v. Ashburn, 88 F. Supp. 3d 239, 249 (E.D.N.Y. 2015);

United States v. Taylor, 663 F. Supp. 2d 1170, 1180 (D. N.M. 2009);

Monteiro, 407 F. Supp. 2d at 375. These qualifications are “meant

to ensure that juries are not misled about the reliability of ballistics

evidence.” Johnson, 875 F.3d at 1280. But most of these courts

have allowed experts to testify that their identifications were made

to a reasonable degree of ballistic certainty. See id. But see Glynn,

578 F. Supp. 2d at 575 (precluding the expert from testifying to a

match based on a reasonable degree of ballistic certainty; the expert

could only state his opinions in terms of “more likely than not”).

¶ 33 Here, the district court did not abuse its discretion by allowing

the experts to testify that their identifications were made to a

reasonable degree of scientific certainty.1 However, to the extent

1 Costello does not argue that “reasonable degree of scientific

certainty” and “reasonable degree of ballistic certainty” have
different meanings or that the experts’ use of the former is somehow
more prejudicial than the latter.

18
that their testimony could be construed as suggesting that their

identifications were 100% accurate or excluded all other firearms in

the world, the district court’s refusal to limit that portion of their

testimony was harmless. See People v. Summitt, 132 P.3d 320, 327

(Colo. 2006) (Harmless error analysis “requires an inquiry into

whether, viewing the evidence as a whole, the contested evidence

substantially influenced the verdict or affected the fairness of the

trial proceedings.”). The experts repeatedly said their opinions were

“to a reasonable degree of scientific certainty” and did not use the

term “match” to describe their identification of the cartridge

casings. While the experts might have occasionally used shorthand

that suggested a higher level of certainty in their opinions, these

instances were brief and did not overshadow other admissible

testimony. And in closing argument, the prosecutor did not

reference those statements, but instead acknowledged that some

studies have placed the error rate as high as 1.6%. See People v.

Mendenhall, 2015 COA 107M, ¶ 69 (concluding an investigator’s

inadmissible statements were harmless where they “were brief and

constituted a small part of his testimony” and were not referenced

19
in closing argument). Given these circumstances, we conclude that

the court’s failure to limit the experts’ testimony was harmless.

C. The Second Expert’s Testimony

¶ 34 We next consider Costello’s contention that the district court

erred by failing to exclude Higashi’s expert testimony because it was

needlessly cumulative and unfairly bolstered Thornton’s testimony.

1. Applicable Law

¶ 35 A witness is prohibited from testifying that another witness

told the truth on a particular occasion. CRE 608(a); Venalonzo v.

People, 2017 CO 9, ¶ 32. This type of testimony is considered

improper “bolstering.” People v. Wittrein, 221 P.3d 1076, 1081-82

(Colo. 2009). “Testimony that another witness is credible is

especially problematic where the outcome of the case turns on that

witness’s credibility.” Venalonzo, ¶ 33.

¶ 36 Rule 403 also provides that relevant evidence may be excluded

if its probative value is “substantially outweighed” by considerations

of “needless presentation of cumulative evidence.” CRE 403. But

“[t]he fact that evidence is cumulative does not, by itself, render the

evidence inadmissible.” Thompson, ¶ 184 (quoting People v.

Pahlavan, 83 P.3d 1138, 1140 (Colo. App. 2003)).

20
2. Discussion

¶ 37 We disagree that the district court abused its discretion by not

excluding Higashi’s testimony.

¶ 38 First, Higashi’s testimony did not unfairly bolster Thornton’s

testimony. Higashi did not testify that Thornton was telling the

truth or that his testimony or analysis was credible. Instead, he

independently verified Thornton’s findings because, as Thornton

explained, “we have two people look at everything” to avoid potential

errors. Higashi testified that he reviewed the cartridge cases,

conducted his own analysis, and independently reached the

conclusion that they “were all fired by the same firearm.” Although

this testimony corroborated Thornton’s conclusion, it did not

constitute improper bolstering. See Venalonzo, ¶¶ 32-33; Wittrein,

221 P.3d at 1081-82. “[E]xpert testimony generally tends to bolster

or attack the credibility of another witness,” but this on its own is

insufficient to deny admission of the evidence. People v.

Vanderpauye, 2021 COA 121, ¶ 60 (quoting People v. Koon,

724 P.2d 1367, 1370 (Colo. App. 1986)).

¶ 39 Second, Higashi’s testimony was not needlessly cumulative of

Thornton’s testimony. Though the experts had similar

21
qualifications and education, they had different roles in CBI’s

process of firearm toolmark identification. Thornton testified about

his role as the primary examiner, which involved test-firing the

weapon to produce samples for comparison and comparing those

samples to the cartridge casing found at the crime scene. Higashi,

on the other hand, testified about his role as the verifier, which

involved his own independent analysis of the cartridge casings.

Although both experts came to the same conclusion, we cannot say

that the court abused its discretion in determining that the

probative value of Higashi’s testimony was not substantially

outweighed by the needless presentation of cumulative evidence.

See CRE 403. The court could reasonably have found that the

testimony of both witnesses was necessary to provide a complete

picture of the process used by CBI to analyze the toolmarks left by a

firearm. And the district court instructed the jury that “[t]he

number of witnesses testifying for or against a certain fact does not,

by itself, prove or disprove that fact.”

D. Testimony Interpreting Surveillance Footage

¶ 40 We next turn to Costello’s contention that the district court

committed reversible error by allowing a detective to offer lay

22
opinion testimony interpreting a portion of the surveillance footage

and identifying Costello in it. We discern no plain error.

1. Additional Background

¶ 41 A detective was assigned as the lead investigator of this case.

She authored the arrest warrant for Costello, which included a

recent mugshot of him, and she conducted a lengthy in-person

interview with Costello after his arrest. When the detective testified

at trial, the prosecution showed the surveillance footage recorded at

the apartment complex — consisting of multiple different camera

angles — and asked her to “orient [the jury] on where within the

complex th[e] camera is and . . . what area it covers.” The detective

also, without objection, narrated what she saw in the footage and

why that was important to her investigation.

¶ 42 Some of the footage was clear and the detective was able to

identify Costello based, in part, on Costello’s distinctive hat that she

collected upon his arrest. But the footage of the moments before

the shooting was less clear. In that footage, two distant figures

walk out of frame and roughly twenty-one seconds later a loud

gunshot can be heard. While it appears that one of the figures is

23
wearing red and the other white, no other identifying features are

discernable in the footage.

¶ 43 The detective testified about the footage as follows:

Q. Leading up to the sound that we heard, how
many individuals were you able to see?

A. Two.

Q. And were you able to recognize them based
on their appearance from other clips that
you’ve seen?

A. Yes.

Q. Who were you able to see in that clip?

A. I see the victim and [Costello].

She later clarified that she identified Costello in the footage because

“a glimpse of a person wearing a red sweatshirt passes behind th[e]

building.”

2. Preservation and Applicable Law

¶ 44 Costello did not contemporaneously object to the detective’s

testimony, so this issue is unpreserved. We therefore apply the

plain error standard of reversal, which is met only when an error “is

obvious and substantial, and . . . so undermines the fundamental

fairness of the trial as to cast serious doubt on the reliability of the

24
judgment of conviction.” People v. McFee, 2016 COA 97, ¶ 71;

Hagos v. People, 2012 CO 63, ¶ 14.

¶ 45 Under CRE 701, a lay witness may offer an opinion. Colorado

Supreme Court precedent construing the rule permits police officers

to identify defendants in surveillance footage. Robinson v. People,

927 P.2d 381, 384 (Colo. 1996). But there are limits to such

testimony: “a lay witness may testify regarding the identity of a

person depicted in a surveillance photograph if there is some basis

for concluding that the witness is more likely to correctly identify

the defendant from the photograph than the jury.” Id. at 382. A lay

witness’s opinion based on exactly the same information that the

jury has cannot be helpful to the jury. McFee, ¶ 76.

3. Discussion

¶ 46 Costello contends that the detective’s testimony was

inadmissible lay opinion testimony under CRE 701 and that its

admission was plain error. The People contend that the testimony

was not improper because, as the lead investigator assigned to the

case, the detective was familiar with Costello and therefore more

likely than the jury to correctly interpret the surveillance footage.

Without deciding whether the district court’s admission of the

25
testimony was error (or obvious error), we conclude that reversal is

not warranted because the admission of this evidence, even if

erroneous, does not “cast serious doubt on the reliability of the

judgment of conviction.” McFee, ¶ 71.

¶ 47 “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

evidence than they are . . . .” Id. at ¶ 78. But here, the detective

testified that her identification of Costello in the challenged footage

was “based on [his] appearance from other clips” and because, in

the footage, “a glimpse of a person wearing a red sweatshirt passes

behind th[e] building.” Thus, like in McFee, the detective’s

interpretation of this footage was “presented as simply a thirteenth

set of [eyes], albeit a set of [eyes] belonging to a police officer.” Id.

¶ 48 Costello also cross-examined the detective regarding her

identifications, and the detective conceded that the distinct clothing

and facial features that allowed her to identify Costello were not

discernible in the less clear surveillance footage. See People v.

Vasquez, 155 P.3d 588, 595 (Colo. App. 2006) (holding that

admission of a police officer’s testimony in which he identified a

26
man in a photograph as the defendant was harmless where the

defendant had the opportunity to cross-examine the officer on his

testimony).

¶ 49 The jury watched each of the recordings, heard Costello’s

cross-examination of the detective, and was instructed to reach its

own conclusions about what happened. See id.; McFee, ¶ 79.

Accordingly, even if it was improper for the detective to identify

Costello in the footage, “the jury had no reason to accept [her]

opinion and could evaluate [the footage] for itself.” McFee, ¶ 79.

¶ 50 We are not persuaded otherwise by Costello’s assertion that

the detective’s “interpretation of the video ultimately amounted to

an opinion that Costello was guilty and committed the offense,”

thereby invading the province of the jury. Although the detective

identified Costello as the person depicted in the surveillance video,

she did not take the additional step of stating that, in her opinion,

he committed the charged offense. See People v. Penn, 2016 CO 32,

¶ 31; Gallegos v. People, 403 P.2d 864, 873 (Colo. 1965) (“[T]o say

[the witness] identified the defendants does not give rise to the

conclusion that they were, therefore, guilty of the crime charged.”).

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E. Testimony by the Victim’s Mother and the Photograph of the
Victim

¶ 51 We next reject Costello’s contention that the district court

abused its discretion by permitting the victim’s mother to testify

and by admitting an “in-life” photograph of the victim because the

testimony and the photograph were unfairly prejudicial.

1. Applicable Law

¶ 52 Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” CRE 401. But relevant evidence may be excluded if

its probative value is substantially outweighed by the danger of

unfair prejudice. CRE 403.

¶ 53 The balancing test under Rule 403 strongly favors the

admission of evidence. Masters v. People, 58 P.3d 979, 1001 (Colo.

2002). By requiring that the probative value of the evidence be

“substantially outweighed” by the danger of unfair prejudice, “the

rule makes clear that the need for exclusion must be great.” Id.

Thus, when reviewing a district court’s exercise of discretion under

Rule 403, an appellate court must afford the evidence the

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maximum probative value attributable by a reasonable fact finder

and the minimum unfair prejudice to be reasonably expected.

People v. Gibbens, 905 P.2d 604, 607 (Colo. 1995).

2. Discussion

¶ 54 Costello argues that the victim’s mother’s testimony and the

in-life photograph had minimal relevance and risked unfair

prejudice against him. While we agree with Costello that the

evidence did not have much probative value, what probative value it

did have was nevertheless not substantially outweighed by the

danger of unfair prejudice.

¶ 55 Evidence that the victim “was once alive was of consequence to

the charge[] of murder . . . because [the] crime[] require[s] proof that

the defendant ‘caused the death of a person.’” People v. McClelland,

2015 COA 1, ¶ 49. And though this point was undisputed,

evidence is not inadmissible solely because the issue is stipulated

to or established through other testimony. See People v. White,

606 P.2d 847, 849 (Colo. 1980). Thus, the testimony and

photograph had some probative value, albeit a minimal amount, on

the elements of the charged crime.

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¶ 56 Turning to prejudice, the testimony of the victim’s mother was

brief and almost exclusively biographical, and the photograph was a

simple, relatively unexpressive headshot of the victim without any

other people in it. Immediately before the mother began to testify

and the photograph was admitted, the district court instructed the

jury that it could not be influenced by sympathy. Absent evidence

to the contrary, we presume the jury followed this instruction. See

People v. Carter, 2015 COA 24M-2, ¶ 59.

¶ 57 Given the court’s instruction and the limited nature of the

testimony, Costello does not explain how allowing the victim’s

mother to testify risked unfair prejudice. Instead, he focuses his

argument almost entirely on the admission of the in-life photo of

the victim. Relying on McClelland, Costello argues that the photo

was unfairly prejudicial because it portrayed the victim in a

different light than the testimony did.

¶ 58 In McClelland, the division held that the district court erred by

admitting three in-life photos of a homicide victim smiling with his

family and son because (1) they contrasted with eyewitness

testimony that the victim was “yelling and intoxicated immediately

prior to the shooting,” and (2) the prosecution “unfairly capitalized”

30
on the photos by using them to elicit the jury’s sympathy during

opening statement and closing argument. McClelland, ¶¶ 52, 56.

¶ 59 For three reasons, this case is distinguishable from

McClelland. First, and most importantly, in McClelland, the

defendant asserted he acted in self-defense and the victim’s

“demeanor immediately prior to the shooting was a crucial issue at

trial.” Id. at ¶ 55. In this case, conversely, the victim’s conduct was

not relevant to the shooting. And although the photo did contrast

somewhat with testimony about the victim’s demeanor the night of

the shooting, it did so to a lesser degree than in McClelland, where

the victim had been described as “yelling and intoxicated.” Id. at

¶ 52. Second, the People did not highlight the photo or use it to

generate sympathy in closing like the prosecution did in McClelland.

See id. The prosecutor here showed the photograph during opening

statements but did not otherwise reference it aside from having the

victim’s mother authenticate it. Third, only a single in-life

photograph of the victim was admitted, as opposed to the three

photos of the victim with his family in McClelland. See id. at ¶ 57

(noting that the district court could consider allowing fewer in-life

photographs on retrial).

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¶ 60 Thus, giving the challenged testimony and photograph the

maximum probative value and minimal prejudicial effect, Gibbens,

905 P.2d at 607, we conclude that the district court did not abuse

its discretion by admitting the evidence.

F. Cumulative Error

¶ 61 Finally, we reject Costello’s contention that the cumulative

effect of the alleged errors in his trial mandates reversal.

¶ 62 We have identified one error — failing to limit the firearm

toolmark identification experts’ testimony — and assumed

another — allowing the detective to interpret the surveillance

footage — for the purpose of our analysis. Having concluded that

neither error individually warranted reversal, we further conclude

that the two errors did not “collectively prejudice the substantial

rights” of Costello to the extent that we should reverse his

conviction for first degree murder. Howard-Walker v. People, 2019

CO 69, ¶ 25.

III. Disposition

¶ 63 The judgment is affirmed.

JUDGE HARRIS and JUDGE GRAHAM concur.

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