Background
In June 2015, Steven Todd Whitt attacked his wife, Debra Robertson, in their yard after an argument about finances. Whitt struck Robertson in the head with a rock (causing at least two distinct injuries), then repeatedly strangled and suffocated her by placing his hands and eventually his shirt over her mouth and nose. After regaining consciousness, Robertson drove herself to a hospital for treatment. Whitt was charged with attempted second-degree murder, one count of second-degree assault, and two counts of first-degree assault.
Whitt’s first trial ended in mistrial before opening statements. At the second trial, he was convicted on all counts. He appealed, and the Colorado Court of Appeals vacated the convictions, finding that the trial court had admitted improper evidence. The case was remanded for a third trial. At the third trial, Whitt was again convicted on all counts.
The Court’s Holding
The court affirmed Whitt’s convictions, holding that the trial court did not abuse its discretion in admitting testimony from three medical experts or evidence of a prior 2013 strangulation incident. Although the prosecution failed to provide updated expert disclosures as ordered, the court found no prejudice because the defense had previously reviewed the experts’ testimony from the second trial and the prosecutor represented that the third-trial testimony would be substantially similar. Defense counsel’s own admission that the original 2015 endorsements “technically would serve as notice” and her failure to identify any material changes in the experts’ qualifications undermined Whitt’s prejudice argument.
The court rejected Whitt’s claim that the medical experts testified outside their scope of expertise or improperly bolstered the victim’s testimony. Dr. Scott Geiger (emergency room physician) properly testified within his expertise about the victim’s two distinct head injuries and serious bodily injury. Rebecca Parsons-Gerstel (trauma nurse) similarly stayed within her expertise when testifying that the victim’s injuries were consistent with strangulation and suffocation, and that the victim presented as having experienced trauma. Her statement that trauma nurses “go in unbiased” was not improper bolstering of the victim’s credibility. The trial court’s jury instruction that jurors were not bound by expert testimony further protected against any improper bolstering.
Regarding the 2013 incident in which Whitt had attempted to strangle Robertson, the court held that although the prosecution failed to provide proper notice under Colorado Rule of Evidence 404(b) at the third trial, Whitt suffered no prejudice because he had been notified before the second trial. The evidence was admissible to prove intent and plan under CRE 404(b)(2).
Key Takeaways
- Defense counsel’s prior exposure to expert testimony and acknowledgment that prior disclosures provided adequate notice precludes a finding of prejudice from late or missing expert disclosures, even when a trial court’s discovery order is violated.
- Testimony by a medical professional that a victim’s injuries are consistent with a particular cause or mechanism of injury does not constitute improper bolstering merely because it corroborates the victim’s account.
- Prior similar acts evidence (such as a prior strangulation attempt) is admissible under CRE 404(b)(2) to prove intent or plan, even without formal compliance with notice requirements when the defendant had prior notice of the prosecution’s intent to rely on such evidence.
- Trial court instructions limiting the jury’s reliance on expert testimony are critical to preventing improper usurpation of the jury’s factfinding role.
Why It Matters
This decision clarifies important boundaries in Colorado criminal procedure regarding expert disclosures and the admission of evidence in retrials. It establishes that defense counsel’s prior familiarity with expert testimony and explicit acknowledgment of adequate notice can defeat claims of prejudice from discovery violations, even when a trial court’s specific orders are technically violated. Prosecutors and trial courts may take some comfort that strict adherence to expert disclosure deadlines is not always mandatory when the substance of the testimony has been previously disclosed.
The decision also reinforces the permissive standards for expert testimony under Colorado Rule of Evidence 702 and reaffirms that evidence is not improper “bolstering” merely because it is consistent with a victim’s testimony. For prosecutors, this creates more flexibility in presenting corroborating expert evidence. For defense practitioners, the decision underscores the importance of making specific, contemporaneous objections at trial (rather than relying on prior trial objections in a retrial) and clearly articulating on appeal how expert evidence or prior act evidence actually prejudiced the defendant’s case.