22CA1146 Peo v Braziel 07-25-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1146
Weld County District Court No. 19CR2864
Honorable Julie C. Hoskins, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Luke Donovan Braziel,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE FOX
Grove and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 25, 2024
Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
The Reisch Law Firm, LLC, R. Scott Reisch, Robert LeVeen, Denver, Colorado,
for Defendant-Appellant
1
¶ 1 Defendant, Luke Donovan Braziel, appeals the judgment of
conviction entered on jury verdicts finding him guilty of several
counts of conspiracy to distribute or possess, with intent to
distribute, a controlled substance and of unlawful distribution of a
controlled substance. We conclude that two of Braziel’s convictions
must be merged into a single conspiracy conviction. We otherwise
affirm the judgment.
I. Background
¶ 2 This case arises from a Weld County Drug Task Force (Task
Force) investigation into a drug distribution network that included
Braziel. During the investigation, officers learned of Braziel’s cell
phone number and lawfully obtained a wiretap on his phone line.
They also placed a surveillance camera outside of his residence.
The evidence revealed that Braziel was a distributor in the network
who would receive methamphetamine and heroin from his supplier,
Christopher Neel, that he then sold.
¶ 3 The prosecution charged Braziel with sixteen crimes alongside
ten codefendants based on the wiretap and passive surveillance
evidence. He was charged with fourteen counts of conspiracy to
sell, distribute, or possess with intent to sell or distribute a
2
controlled substance. Six counts were level 1 drug felonies because
they involved quantities of methamphetamine exceeding 112 grams.
See § 18-18-405(2)(a)(I)(B), C.R.S. 2023. Eight counts were level 2
drug felonies because they involved quantities of methamphetamine
or heroin between 7 and 112 grams. See § 18-18-405(2)(b)(I)(B).
Braziel was also charged with two counts of unlawful distribution of
a controlled substance — one level 2 drug felony and one level 3
drug felony based on the quantities distributed. See § 18-18-
405(2)(b)(I)(B), (2)(c)(II). In all, Braziel was charged with six level 1
drug felonies, nine level 2 drug felonies, and one level 3 drug felony.
¶ 4 At trial, Braziel suggested that his proximity to the network
did not equate to guilt. Braziel also argued that the prosecution
failed to prove, beyond a reasonable doubt, that the voice on the
wiretap was his. A jury found Braziel guilty as charged. The court
sentenced Braziel to six consecutive twenty-year sentences for each
level 1 drug felony — amounting to 120 years in the custody of the
Department of Corrections (DOC). Braziel also received eight-year
sentences for the level 2 drug felonies and a four-year sentence for
the level 3 drug felony, all to run concurrently with the level 1 drug
felony sentences.
3
¶ 5 On appeal, Braziel asserts three trial errors that he claims
individually or cumulatively violated his right to a fair trial. He also
seeks a proportionality review of his sentence and claims that two of
his convictions were multiplicitous.
II. Trial Errors
¶ 6 Braziel asserts that three trial errors violated his right to a fair
trial individually or cumulatively. First, Braziel challenges the trial
court’s denial of his motion for a mistrial. Second, he challenges
the trial court’s admission of exhibits under CRE 801(d)(2)(E).
Third, he claims that the prosecutor committed reversible
misconduct. We address each claim in turn.
A. Mistrial
¶ 7 First, Braziel challenges the trial court’s denial of his motion
for a mistrial after the court commented, in front of the jury, that
there was a less desirable way to present certain evidence. Braziel
also claims, for the first time on appeal, that the prejudice resulting
from the former claim of error was compounded by the admission of
an exhibit potentially implicating CRE 404(b).
4
1. Additional Background
¶ 8 Law enforcement obtained judicial approval to wiretap a cell
phone they believed belonged to Braziel, which they referred to as
target telephone three (TT-3) throughout trial. The wiretap recorded
thirty days of calls and text messages that TT-3 made and received.
¶ 9 To prove that TT-3 belonged to Braziel, the prosecution
planned to introduce a bond document from a different case where
Braziel listed the number associated with TT-3 as his phone
number. At a bench conference, the prosecutor explained that he
did not intend to introduce the document “in its entirety” but
planned to use it to establish the defendant’s identity and
connection to TT-3. Defense counsel answered, “If the Court finds
that it’s appropriate to allow that information in, I think the Court
could do it in a way that doesn’t have a date attached to it.” The
trial court concluded that the proposed exhibit was relevant and
admissible to connect TT-3 to Braziel. The prosecutor left the
bench conference under the impression that the information could
come in through testimony or through the bond document but that
if it came in through the document, the exhibit would first need to
be redacted (which the parties had not yet done).
5
¶ 10 Back in the jury’s presence, the prosecutor asked a Task Force
officer whether he was aware of a document containing Braziel’s
name, date of birth, signature, home address, and the relevant
phone number. The officer responded affirmatively. The following
colloquy ensued in the jury’s presence:
DEFENSE COUNSEL: That’s all hearsay.
THE COURT: Do you want the document
admitted?
DEFENSE COUNSEL: I’m objecting that all of
this is hearsay.
THE COURT: I understand the objection, and
while it is, the other way for the information to
come in, as I thought we discussed before the
jurors came in, is something that was less
desirable.
DEFENSE COUNSEL: I think if we’re going to
have these kind of discussions, then we may
need to do a bench conference here.
THE COURT: All right.
¶ 11 At the bench, defense counsel said that she was “astounded”
and “stunned” by the trial court’s “highly prejudicial” comment.
The court responded, “I disagree that my comments had that effect.
I understand your concern and I certainly will be mindful of that
going forward.” The court further explained that the officer’s
6
testimony was “innocuous” compared to the bond document,
causing the court confusion when defense counsel objected to it.
¶ 12 Defense counsel moved for a mistrial, arguing that the court’s
statement suggested to the jury that “negative and damaging”
information existed about Braziel that they would not hear. The
court disagreed, reasoning that the comment did not suggest why
another form of evidence was less desirable, or for whom. While
admitting that a bench conference would have been the more
appropriate place to discuss the evidence’s form, the court
concluded that a mistrial was not warranted.
¶ 13 Two days later, the prosecution recalled the officer and offered
the bond document into evidence. The prosecutor represented that
the document had been redacted and offered it into evidence
“subject to further redaction.” The court received the exhibit
without further record from defense counsel.
¶ 14 The exhibit that appears in our appellate record contains an
unredacted reference to the criminal case number associated with
the bond (a different case number than the one for which Braziel
7
was on trial).
1
It also shows the date that Braziel signed the
document, almost two years before the trial began.
2. Applicable Law and Standard of Review
¶ 15 A mistrial is a drastic remedy that is warranted only when the
prejudice to the accused is so substantial that its effect on the jury
cannot be remedied by other means. People v. Owens, 2024 CO 10,
¶ 125. “A trial court has broad discretion to grant or deny a
mistrial motion, and an appellate court will not disturb its decision
absent a gross abuse of discretion and prejudice to the defendant.”
Id. We review the circumstances of each case to determine if the
defendant was prejudiced. People v. Johnson, 2017 COA 11, ¶ 43.
¶ 16 A jury’s exposure to evidence of a defendant’s past criminal act
is prejudicial, but “the prejudice is not necessarily of such
magnitude as to require a mistrial.” Id. at ¶ 41. Where such
evidence is brought to the jury’s attention, the factors relevant to
the court’s mistrial determination include the nature of the
improper evidence, the weight of the admissible evidence of guilt,
1
Earlier in the day, the court had instructed the prosecutor to
submit a clean version of a different exhibit for the court record and
a redacted version of the same exhibit for the jury.
8
and the value of any cautionary instruction given. People v. Vigil,
718 P.2d 496, 505 (Colo. 1986).
¶ 17 “Generally, instructing the jurors to disregard erroneously
admitted evidence is a sufficient remedy.” Johnson, ¶ 42. But a
curative instruction will not suffice when “inadmissible evidence ‘is
so highly prejudicial . . . it is conceivable that but for its exposure,
the jury may not have found the defendant guilty.’” Id. (quoting
People v. Everett, 250 P.3d 649, 663 (Colo. App. 2010)). To
demonstrate prejudice to the accused in the context of extraneous
information, there must be a reasonable possibility that the
information affected the verdict. People v. Dore, 997 P.2d 1214,
1221 (Colo. App. 1999).
¶ 18 A trial judge must not demonstrate bias or prejudice toward
any party or witness and must avoid “making rude comments or
entering into discussions showing irritation in the presence of the
jury.” People v. Acosta, 2014 COA 82, ¶ 92 (citation omitted); see
also People v. Coria, 937 P.2d 386, 391 (Colo. 1997) (“Courts ‘must
meticulously avoid any appearance of partiality . . . .’” (quoting
People v. Hrapski, 718 P.2d 1050, 1054 (Colo. 1986))). “Casual
remarks by the trial court while passing on objections to testimony
9
do not constitute reversible error unless they reflect adversely upon
the defendant or upon the issue of his . . . guilt or innocence.”
People v. Rodriguez, 209 P.3d 1151, 1162 (Colo. App. 2008). The
defendant must present more than speculation concerning the
possibility of prejudice. Id. “The test is whether the trial judge’s
conduct so departed from the required impartiality as to deny the
defendant a fair trial.”
2
Id.
3. Application
¶ 19 We perceive no abuse of discretion in the trial court’s
conclusion that a mistrial was not warranted on this record.
¶ 20 As an initial matter, the opening brief suggests two possible
reasons why a mistrial was required. The judge’s comment either
exposed the jury to extraneous evidence of Braziel’s criminal history
or suggested bias against Braziel. But a careful reading of the
opening brief reveals that Braziel’s primary concern is an
evidentiary one. Braziel does not argue on appeal that the court
2
As addressed in more detail below, we interpret Braziel’s primary
challenge as evidentiary. In contrast to the argument made at trial,
Braziel does not tether his assertions on appeal to the framework of
judicial bias or the appearance of partiality. As such, we need not
address the applicable standard of reversal for such claims.
10
had an interest in the outcome of the trial, that it assumed the role
of advocate, or that its tone divulged disfavor toward him. See
Acosta, ¶¶ 92-94. We thus limit our review to whether the court’s
comment exposed the jury to “extrajudicial evidence” bearing on
Braziel’s guilt — as he claims — and conclude that it did not.
¶ 21 We are not persuaded that the court’s reference to “the other
way for the information to come in” (i.e., the bond document) was
“extrajudicial.” The prosecution presented the court with the
document’s contents as an offer of proof, and the court determined
that it was relevant and admissible. Thus, this case is starkly
distinguishable from Scott v. Ohio, 480 U.S. 923, 925 (1987), on
which Braziel relies. In that case, the trial judge expressed his
opinion that the defendant committed the crime based on what he
read in a newspaper article. Id. at 924. Here, the alleged
“extrajudicial” information that the court referenced was an
alternative, equally admissible, means to connect Braziel and TT-3.
And while we agree that a jury’s exposure to inadmissible bad act
evidence is generally prejudicial, Johnson, ¶ 41, the evidence in
question was admissible, see CRE 801(d)(2); CRE 803(8). The court
11
had previously ruled that it was relevant and later admitted it
without further objection from defense counsel.
¶ 22 The trial court aptly noted that it would have been more
appropriate to discuss the issue outside the jury’s presence. We
agree, to be sure. But we are not persuaded that the court’s brief
remark warranted the drastic remedy of a mistrial for the following
reasons.
¶ 23 First, the trial court instructed the jury that its evidentiary
rulings should not be construed to indicate a bias toward or against
either party. Upon defense counsel’s motion for mistrial, the court
offered to repeat that instruction in general terms as a means to
cure its remark. Defense counsel continued making her record
without acknowledging or accepting the court’s offer. The court
also gave the jurors a lengthy and detailed instruction prohibiting
them from considering any evidence other than what the parties
presented at trial.
¶ 24 Second, the remark was ambiguous and did not obviously
draw the jury’s attention to Braziel’s criminal history. At most, the
comment suggested that the same information connecting Braziel to
TT-3 could be introduced in a different, less desirable way (via the
12
exhibit instead of the officer’s testimony). The trial court did not
say that the alternate route was less desirable for Braziel. It could
have been less desirable to the court, to the parties, for the sake of
efficiency, or based on any other evidentiary concern that the court
instructed the jurors not to consider. Nor did the court say that the
alternate route was damaging to Braziel because it was more
prejudicial. And while an attorney might assume that a “less
desirable” form of evidence is automatically damaging to a
defendant, we hesitate to conclude that the court’s brief comment,
devoid of context, so obviously invoked Braziel’s criminal history
that a reasonable juror would have taken it that way. Cf. People v.
Ramos, 2012 COA 191, ¶¶ 38, 44 (holding that the trial court’s
comment that the defendant “did something” could have confused
or misled the jury and should be avoided on remand), aff’d, 2017
CO 6.
¶ 25 Third, the remark was fleeting and was not brought back to
the jury’s attention after it was made. See People v. Shreck, 107
P.3d 1048, 1060 (Colo. App. 2004) (concluding that prejudice is
minimized where a reference to uncharged crimes was brief and not
repeated in front of the jury); Johnson, ¶ 45 (same).
13
¶ 26 For these reasons, the trial court did not abuse its discretion
by denying Braziel’s mistrial motion.
¶ 27 To the extent that Braziel challenges the exhibit’s reference to
a different criminal case number, the contention was not preserved,
¶ 14 (holding that plain error is obvious, substantial, and so
undermines the fundamental fairness of trial as to cast serious
doubt on the reliability of the judgment of conviction).
¶ 28 The prosecutor told the trial court that the exhibit had been
partially redacted, and defense counsel raised no objection to the
redactions. Thus, we are unpersuaded that the court obviously and
substantially erred by admitting the bond document. See People v.
Glasser, 293 P.3d 68, 74 (Colo. App. 2011) (no error where
challenged evidence resulted from a mistake by the parties). The
document was one of over a hundred exhibits introduced at trial, it
was not referenced again after its admission, and it was cumulative
of testimony that the jury had already heard. The case number in
the corner of the document was small, it was never brought to the
jury’s attention, and it began with the same year as the case at
issue (19CR) — demanding close attention to detail for the
14
discrepancy to be discovered. And Braziel’s convictions were
supported by recordings of phone calls that he made, text messages
that he exchanged with his supplier and customers, and video
surveillance of his home — further reducing the possibility that the
admission of a bond document from a different case cast serious
doubt on the reliability of his convictions. See Shreck, 107 P.3d at
1060 (“[A] mistrial is not automatically required simply because
some reference was made to other inadmissible bad act evidence.”);
People v. Elagnaf, 829 P.2d 484, 489 (Colo. App. 1991) (“Moreover,
the defendant has failed to show that the jury’s exposure to an
exhibit which was referred to during the trial and contained
information cumulative to the testimony of one of the trial witnesses
prejudiced his defense. Under these circumstances, we conclude
no error, much less plain error, was occasioned.”).
B. Admission of the Drug Ledgers
¶ 29 Second, Braziel challenges the admission of ledgers
documenting Braziel’s ongoing debt to Neel, claiming that the
prosecution failed to establish by a preponderance of the evidence
that they were made in the course of the charged conspiracy.
15
1. Additional Background
¶ 30 Michael Wright, a Task Force officer, was certified as an expert
in drug culture and drug distribution. Wright testified that in the
drug industry, distributors frequently use ledgers to keep track of
paid and unpaid debts. Wright testified to a process called
“fronting,” where one person lends drugs to another person without
being paid, with the understanding that the purchase price will be
repaid once the borrowed drugs are sold. Ledgers, he testified,
document debts as they are created and satisfied.
¶ 31 The prosecution introduced ledgers found in Neel’s residence
that documented the ongoing tabs of Braziel and others. Defense
counsel objected on relevance, hearsay, foundation, and
speculation grounds. The trial court initially overruled the
objection, but almost immediately followed up with the prosecution
about the hearsay objection. After hearing argument on the
hearsay issue, the court concluded that the ledgers were
nontestimonial co-conspirator statements and that sufficient
evidence, including phone calls between Neel and Braziel and
surveillance footage of their interactions, corroborated the fact that
Neel created the ledgers. Defense counsel then objected to the
16
ledgers’ admission because the exhibits contained at least two
distinct handwritings, and the prosecution presented no
handwriting experts or testimony from anyone who observed Neel
making the ledgers.
¶ 32 The court then asked the prosecution to lay further foundation
regarding the source of the handwriting. After doing so, the
prosecution argued that the names and amounts documented in
the ledgers corresponded with the wiretap and passive surveillance
evidence, showing that the ledgers were made by Neel or at his
direction. Satisfied with the additional record and argument, the
court received the ledgers into evidence under CRE 801(d)(2)(E).
2. Applicable Law and Standard of Review
¶ 33 Hearsay, an out-of-court statement offered to prove the truth
of the matter asserted, is generally inadmissible. See CRE 801(c);
CRE 802. Under CRE 801(d)(2)(E), however, an out-of-court
statement is not hearsay if it is offered against a party, and it was
made by a co-conspirator of the party. To admit evidence under
CRE 801(d)(2)(E), the proponent of the evidence (here, the
prosecution) must show “by a preponderance of the evidence that
the defendant and the declarant were members of a conspiracy and
17
that the declarant’s statement was made during the course and in
furtherance of the conspiracy.” People v. Montoya, 753 P.2d 729,
733-34 (Colo. 1988).
¶ 34 A court may consider the alleged co-conspirator’s statement as
foundation for its admissibility, but there must also be some
corroborating evidence of the conspiracy apart from the alleged co-
conspirator’s statement itself. Id. at 736. The required
corroborating evidence may take several forms, including
circumstantial evidence of the conspiracy or the defendant’s own
statements. Id.
¶ 35 We review a trial court’s rulings on the admissibility of
evidence for an abuse of discretion. People v. Brown, 2022 COA 19,
¶ 57. A court abuses its discretion when its decision is manifestly
arbitrary, unreasonable, or unfair, or where it applies an incorrect
legal standard. People v. Rodriguez, 2022 COA 98, ¶ 12.
¶ 36 On appeal, Braziel argues that the trial court improperly
admitted the ledgers under CRE 801(d)(2)(E), but for a different
reason. At trial, defense counsel argued that the prosecution failed
to lay sufficient foundation to establish by a preponderance of the
evidence that Neel was the declarant. While Braziel briefly
18
acknowledges that argument in the opening brief, his primary
contention is that nothing in the record connects the ledger entries
to any of the discrete, and time-limited, drug distribution
conspiracies that formed the basis of the charges against him.
Because Braziel makes the timing argument for the first time on
appeal, we reverse only for plain error. See Hagos, ¶ 14.
3. Application
¶ 37 For the challenged statements to be admissible, the
prosecution had to prove by a preponderance of the evidence that
the ledgers were made during the course and in furtherance of the
conspiracy. See Montoya, 753 P.2d at 733-34. Braziel claims that
the prosecution failed to do so because the ledgers were not dated.
¶ 38 Even if we assume the trial court erred in admitting the
ledgers as statements made during the course and in furtherance of
the conspiracy, any error was not plain such that the court was
required to intervene on its own. First, the ledgers did not amount
to a substantial part of Braziel’s trial. True, they did implicate his
ongoing debt with Neel. But that was not new information as far as
the jury was concerned; indeed, the wiretap evidence documented
Braziel and Neel’s conversations about the status of Braziel’s debt.
19
Second, the ledgers amounted to a very small portion of the
testimony in the context of the six-day trial. They were not as
prejudicial to Braziel as the wiretap evidence, passive surveillance,
and controlled buy involving a confidential informant. And the
prosecution did not reference the ledgers during closing argument.
¶ 39 To the extent that Braziel asserts the preserved claim of error
on appeal — that the prosecution failed to establish that Neel was
the declarant — we are unpersuaded. The trial court acted within
its discretion in concluding that the following evidence established,
by a preponderance of the evidence, that the ledgers were made by
Neel or transcribed at his direction:
• The ledgers were found in Neel’s residence.
• The ledgers documented debts of Neel’s known
associates, including some of Braziel’s co-conspirators.
• The ledgers corresponded with previously admitted
evidence of ongoing debt between Neel and Braziel related
to drug distribution.
• A love note was left for “Christopher” (Neel’s first name)
by his wife in an adjacent notebook page on one of the
ledgers.
20
¶ 40 Further, Braziel had ample opportunity to challenge the
ledgers on cross-examination. See People v. Lesslie, 939 P.2d 443,
451 (Colo. App. 1996) (“Once authenticity is established, defects in
the physical evidence go to the weight of that evidence.”); see also
Montoya, 753 P.2d at 735 (trial court may consider weight of
weaknesses in the proffered evidence in evaluating preliminary
question of admissibility). Perceiving no reversible error in the
ledgers’ admission for the foregoing reasons, we need not decide
whether the ledgers were also admissible as nonhearsay statements
not offered for the truth of the matter asserted.
C. Prosecutorial Misconduct
¶ 41 Third, Braziel claims that the prosecutor committed reversible
misconduct by likening Braziel’s conduct to “selling poison in the
community.”
1. Additional Background
¶ 42 During closing argument, the prosecutor referred to the
methamphetamine and heroin that Braziel distributed as “poison”:
And we know here based on all the evidence,
the totality of the evidence, this drug
trafficking organization that consisted of Mr.
Braziel, Christopher Neel . . . and several
others . . . that the objective, the common goal,
21
the business was the distribution of poison or
illegal narcotics into this community.
Defense counsel did not object. The prosecutor then said, “So over
a 30-day span the defendant distributed 14 pounds, one pound less
than that bag that I just held up, out into our community.” Defense
counsel objected to the second statement, and the trial court
warned the prosecutor to avoid appeals to community safety. The
court repeated its instruction to the jury to not let sympathy or
emotion influence their decision.
¶ 43 The prosecutor concluded his argument by saying, without
objection, “The evidence supports that the defendant was
distributing narcotics in this community . . . .”
¶ 44 During rebuttal closing, the prosecutor said, “He’s profiting
from poison,” and “[w]e’re accusing him of distributing drugs in the
community.” Defense counsel did not object.
2. Applicable Law and Standard of Review
¶ 45 We engage in a two-step analysis when reviewing claims of
prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we determine whether the prosecutor’s conduct
was improper based on the totality of the circumstances. Id.
22
Second, we decide whether such actions warrant reversal under the
proper standard of review. Id. “While a prosecutor can use every
legitimate means to bring about a just conviction, [he] has a duty to
avoid using improper methods designed to obtain an unjust result.”
Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005).
¶ 46 “Prosecutors may not use arguments calculated to inflame the
passions and prejudices of the jury.” People v. Salazar, 2023 COA
102, ¶ 50. Nor should a prosecutor ask the jury to consider the
wishes of the community or send the community a message about a
particular type of crime in reaching its verdict. People v. Marko,
¶ 47 We review the unpreserved references to “poison” for plain
error, see Hagos, ¶ 14, and will not reverse unless the misconduct
was obvious and substantial, and so undermined the fundamental
fairness of the trial as to cast serious doubt on the reliability of the
judgment of conviction, People v. Smith, 2018 CO 33, ¶ 24.
¶ 48 “Prosecutorial misconduct in closing argument rarely
constitutes plain error.” People v. Smalley, 2015 COA 140, ¶ 37;
see also Hagos, ¶ 23 (Reversals on plain error review “must be rare
to maintain adequate motivation among trial participants to seek a
23
fair and accurate trial the first time.”). Reversal for plain error is
only warranted when there is a substantial likelihood that the error
affected the verdict. People v. Constant, 645 P.2d 843, 847 (Colo.
1982). Thus, even if improper, a prosecutor’s comments during
closing do not necessarily warrant reversal if the combined
prejudicial impact of the statements does not cast serious doubt on
¶ 66.
¶ 49 To the extent that Braziel preserved a general community
safety argument, the court addressed the objection by warning the
prosecutor not to make appeals about community safety and
instructing the jury not to let bias or sympathy influence their
decision. Defense counsel did not request further relief, and
appellate counsel does not challenge the adequacy of the court’s
remedy.
3. Application
¶ 50 The prosecutor’s comments about poison in the community
were not one of those rare instances that so undermined the
fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction. See Smith, ¶ 24.
24
¶ 51 First, while the statements at times referenced “the
community,” the prosecutor never asked the jury to send a message
to the community or use the community’s wishes as a reason to
reach a verdict that was not otherwise grounded in the evidence.
See Marko, ¶ 221. Instead, the argument was grounded in the
evidence that the jury was to consider in reaching its decision. And
the references were brief, passing comments made in the context of
a fifty-page argument largely focused on the wiretap evidence. See
Salazar, ¶ 52 (prosecutor’s comment during closing argument did
not warrant reversal under the plain error standard where the
remark was fleeting in the context of the argument as a whole); see
also United States v. Moya-Breton, 329 F. App’x 839, 845-46 (10th
Cir. 2009) (finding no plain error where the prosecutor urged the
jury to take drug dealers off the streets and to “help keep these
kinds of poisons away from their intended recipients”).
¶ 52 Second, overwhelming evidence supported Braziel’s
convictions, including wiretap evidence documenting him engaging
in drug deals, passive surveillance corroborating that the deals took
place, and a controlled buy where Braziel sold drugs to a
25
(prosecutorial misconduct in closing argument did not warrant
reversal under the plain error standard because, among other
things, overwhelming evidence supported the guilty verdict).
¶ 53 Finally, defense counsel’s failure to contemporaneously object
to the “poison” references Braziel now challenges on appeal
indicates that the comments were not overly damaging in the
context of live argument. See Domingo-Gomez, 125 P.3d at 1054;
People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010) (counsel’s
failure to object is a factor that may be considered in examining the
impact of a prosecutor’s argument and may demonstrate that
counsel believed the live argument was not overly damaging).
¶ 54 Accordingly, because any misconduct by the prosecutor
during closing argument neither substantially influenced the verdict
nor cast serious doubt on the reliability of the judgment of
conviction, reversal is not required. See Hagos, ¶ 14; Nardine, ¶ 66.
D. Cumulative Error
¶ 55 Braziel next contends that we must reverse because the trial
court’s errors, together, undermined the fairness of the trial.
¶ 56 “[R]eversal [is] required when ‘the cumulative effect of
[multiple] errors and defects substantially affected the fairness of
26
the trial proceedings and the integrity of the fact-finding process.’”
Howard-Walker v. People, 2019 CO 69, ¶ 24 (quoting People v.
Lucero, 200 Colo. 335, 344, 615 P.2d 660, 666 (1980)). While plain
errors can be considered for cumulative error purposes, we cannot
discern how any combination of the preserved claims of error and
the unpreserved claims of error — which were not plain — could
have deprived Braziel of a fair trial. See People v. Vidauri, 2019
COA 140, ¶ 97, rev’d in part on other grounds, 2021 CO 25.
III. Proportionality Review
¶ 57 The trial court sentenced Braziel to six consecutive twenty-
year sentences for each level 1 drug felony for which he was
convicted — amounting to 120 years in DOC custody. Braziel now
asks this court to remand the case to the trial court for a
proportionality review. Because Braziel’s rationale for a
proportionality review is unavailing, remand is not warranted.
¶ 58 The United States and Colorado Constitutions prohibit
sentences that are “grossly disproportionate” to the crime. Wells-
Yates v. People, 2019 CO 90M, ¶¶ 5, 10. When a defendant
requests a proportionality review, he alleges that his sentence is
“grossly disproportionate to the crime” and is, therefore, an
27
unconstitutionally cruel and unusual punishment. People v.
Kennedy, 2023 COA 83M, ¶ 12. We review de novo whether a
sentence is grossly disproportionate. Wells-Yates, ¶ 35.
¶ 59 A proportionality review involves a two-step process: an
abbreviated proportionality review and, if needed, an extended
proportionality review. Kennedy, ¶ 12. The abbreviated
proportionality review requires the sentencing court to compare the
gravity or seriousness of the offense with the harshness of the
penalty to determine whether the sentence gives rise to an inference
of gross proportionality. Id. at ¶ 13. If the court finds such an
inference, it conducts an extended proportionality review,
comparing the defendant’s sentence to sentences for other crimes in
the same jurisdiction and sentences for the same crime in other
jurisdictions. Wells-Yates, ¶¶ 7-8, 17. “[A]n abbreviated
proportionality review will almost always yield a finding that the
sentence is not unconstitutionally disproportionate . . . .” Id. at
¶ 21.
¶ 60 “While most proportionality challenges occur in habitual
criminal cases, the same principles apply in nonhabitual cases.”
28
People v. Sellers, 2022 COA 102, ¶ 57 (cert. granted on other
grounds May 15, 2023).
¶ 61 “If there are multiple triggering offenses, the reviewing court
must look at the sentence imposed for each such offense and
engage in a proportionality review of that sentence because each
sentence represents a separate punishment for a distinct and
separate crime.” Wells-Yates, ¶ 24 (citing Close v. People, 48 P.3d
528, 538-39 (Colo. 2002)) (rejecting proportionality review of the
cumulative impact of several sentences). If a proportionality review
were to assess “the cumulative effect of the sentences imposed on
all the triggering offenses, it could result in an inference of gross
disproportionality merely because the defendant committed
multiple crimes.” Id. Thus, any review of Braziel’s sentences would
be of each sentence individually. See id. at ¶ 74.
¶ 62 Braziel does not ask for a proportionality review of each of his
level 1 drug felony sentences; instead, he asks only for a review of
the “de facto life sentence” resulting from the consecutive
imposition of his sentences. Wells-Yates precludes the relief Braziel
seeks. See id.
29
¶ 63 But even individually, Braziel’s sentences are unlikely to give
rise to an inference of gross disproportionality. True, the Colorado
Supreme Court recently held that not all narcotics offenses are per
se grave or serious. Id. at ¶ 66. But Braziel was convicted of
purchasing significant quantities of methamphetamine and heroin
from his supplier for the purpose of resale. Indeed, the evidence
showed that Braziel successfully resold the drugs. Further, Braziel
was sentenced in the middle of the presumptive sentencing range
for level 1 drug felonies without sentence enhancers or habitual
counts, and his offenses are parole eligible. See § 18-1.3-
401.5(2)(a), C.R.S. 2023; see also Wells-Yates, ¶ 14. Thus, we
conclude that even a properly raised proportionality challenge
would have been unavailing under the initial abbreviated step.
IV. Merger
¶ 64 Finally, Braziel contends that two of his level 1 drug felony
convictions — counts thirteen and fourteen — were multiplicitous
because they involved a single transaction on the same day.
¶ 65 The United States and Colorado constitutions prohibit placing
someone twice in jeopardy for the same offense. Whiteaker v.
People, 2024 CO 25, ¶ 10. Thus, punishing an individual twice for
30
the same offense runs afoul of double jeopardy principles. People v.
Grosko, 2021 COA 28, ¶ 24. We do not review double jeopardy
sentencing errors for plain error; instead, we automatically merge
the multiplicitous convictions to remedy such errors. Whiteaker,
¶ 24.
¶ 66 To determine whether a defendant is prosecuted for
multiplicitous charges under the same statute, we apply a two-
pronged test. People v. Manzanares, 2020 COA 140M, ¶ 41. First,
we determine whether the statutorily defined unit of prosecution
permits the charging of multiple offenses. Id. Next, we review the
allegations in support of each offense to determine whether the
defendant’s conduct constituted factually distinct offenses. Id.
¶ 67 Section 18-2-201(4), C.R.S. 2023, provides that “[i]f a person
conspires to commit a number of crimes, he is guilty of only one
conspiracy so long as such multiple crimes are part of a single
criminal episode.” Accordingly, if a court concludes multiple alleged
conspiracy offenses are all part of a single criminal episode, then
only one conspiracy exists, and the district court should dismiss
59, 595 P.2d 225, 228 (1979). Conversely, if the trial court finds
31
that the substantive offenses were not part of the same criminal
episode, then the court should deny a motion to dismiss the
charges as multiplicitous. Id.
¶ 68 To determine whether a defendant’s conduct constitutes
factually distinct offenses in the conspiracy context, we apply
various factors, including whether (1) the acts alleged occurred
during the same timeframe; (2) the type of overt act alleged is the
same; (3) the unlawful objective of the alleged conspiracies is the
same; (4) the modus operandi is the same; and (5) the same
evidence would be relevant to both charges. Pinelli, 197 Colo. at
558, 595 P.2d at 227. The following factors indicate that the
prosecution charged different criminal episodes: (1) different
parties; (2) different counties; (3) different agreements; and
¶ 69 Here, the conduct underlying counts thirteen and fourteen is
best characterized as a singular agreement to exchange a specified
quantity of methamphetamine in two installments. On September
28, 2019, Braziel tried to purchase a pound of methamphetamine
from Neel. Neel told Braziel that he had 308 grams of
methamphetamine that Braziel could pick up right away, and that
32
he would owe Braziel the additional 140 grams. Neel would not
charge Braziel for the pound until he could provide the remaining
140 grams. The pair exchanged the first 308 grams around 5 p.m.
Later that night, Braziel and Neel arranged a second meeting to
exchange (1) the remaining 140 grams, and (2) the proceeds Braziel
had thus far received from selling the first installment. That
exchange occurred at approximately 11:40 p.m.
¶ 70 On these facts, we cannot conclude that Braziel’s conduct
constituted factually distinct offenses. The exchanges involved the
same two people, in the same county, within hours of each other.
See id. Notably, and unlike the other charged conspiracies, these
counts originated from the same agreement: that Braziel would
purchase one pound of methamphetamine from Neel. See Pinelli,
agreement underlying the transactions is relevant to both counts,
further suggesting multiplicity. See id. Because the two conspiracy
counts resulted from the same agreement, we conclude that the
pound’s delivery in two installments is of no moment. See Davis,
¶ 26.
33
¶ 71 Thus, we merge Braziel’s convictions for counts thirteen and
fourteen and remand for the trial court to amend the mittimus.
V. Disposition
¶ 72 The judgment of conviction is affirmed in part and vacated in
part, and the case is remanded with directions for the trial court to
amend the mittimus to reflect merger of Braziel’s convictions for
counts thirteen and fourteen.
JUDGE GROVE and JUDGE SULLIVAN concur.
