Peo v. Giovanni

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.

1. Additional Facts

¶ 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

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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.

1. Additional Facts

¶ 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.

1. Additional Facts

¶ 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?

A: No.

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.

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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.

2. Standard of Review and Relevant Law

¶ 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.

3. Analysis

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?

Officer Whittenberg: I did.

¶ 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.

39