People v. Howard-Walker

COLORADO COURT OF APPEALS 2017COA81
Court of Appeals No. 14CA0562
El Paso County District Court No. 13CR3349
Honorable Thomas K. Kane, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kyree Davon Howard-Walker,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE BERGER
Dailey and J. Jones, JJ., concur
Announced June 15, 2017
Cynthia H. Coffman, Attorney General, Matthew S. Holman, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, M. Shelby Deeney, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury convicted defendant, Kyree Davon Howard-Walker, of
first degree burglary and conspiracy to commit first degree burglary.
He appeals, arguing that the trial court erred in (1) denying his
three challenges under Batson v. Kentucky, 476 U.S. 79 (1986), to
allegedly discriminatory peremptory strikes; (2) admitting allegedly
improper testimony from one of the investigating detectives; and (3)
failing to instruct the jury on the predicate crime of theft and failing
to define “intent.” He also claims that the prosecutor engaged in
misconduct and that that the cumulative effect of these errors
requires reversal.
¶2 We conclude that there were several trial errors, most
resulting from prosecutorial overreach and one instance of
prosecutorial misconduct. Howard-Walker’s counsel objected to
almost none of these errors and the standard of review for almost
all of them is thus plain error. None of these errors, considered by
themselves, requires reversal. Moreover, these errors did not
substantially prejudice Howard-Walker’s right to a fair trial and
thus do not require reversal under the cumulative error doctrine.
Therefore, we affirm the judgment.
1
I. Relevant Facts and Procedural History
¶3 The victim, the owner of a marijuana business, left his home
one night to run errands and spend time with his girlfriend. When
he returned home the next day, he discovered an open garage door,
a window which had been broken, and his bedroom in disarray.
The contents of the unlocked safe in his bedroom (he had evidently
forgotten to lock the safe) — some $8000 in cash, several watches,
other pieces of jewelry, and a number of credit cards — were gone.
¶4 Video from a motion-activated surveillance camera showed two
men (whom the victim did not recognize) entering the victim’s
bedroom. Both of the men were wearing baseball caps and
sunglasses, and one — allegedly, Howard-Walker — was holding a
gun. The video showed the men searching the room, opening the
safe, and removing its contents. After viewing the video, the victim
reported the burglary to the police.
¶5 A police officer responded to the victim’s home. The officer
viewed the surveillance video and took a copy of the video as
evidence. Near the broken window, the officer discovered footprints
which the victim said did not belong to him. The officer measured
and took photographs of the footprints. Consistent with the police
2
department’s policy for “cold” burglaries, no crime scene
technicians were called to the scene.
¶6 After the officer left, the victim, who also owned a video-editing
business, edited the surveillance video and made a shorter, clearer,
“enhanced” version. He sent it to a number of media outlets and
offered a reward of $1000 for information about the perpetrators.
Some of the media outlets played the video on local television
stations and advertised the reward.
¶7 Howard-Walker’s girlfriend’s uncle supposedly recognized him
from a news broadcast and contacted the police. He told the police
that, although it was difficult to discern the faces of the two men
committing the burglary, he recognized the hat and sunglasses that
Howard-Walker was wearing in the video. He also provided the
police with a photograph of Howard-Walker wearing a similar hat
and sunglasses.
¶8 Based on the uncle’s tip, one of the investigating officers,
Detective Mark Garcia, contacted Howard-Walker’s probation
officer. He showed the probation officer several still photos derived
from the surveillance video and asked if he recognized Howard-
3
Walker. The probation officer said that he was “ninety-five percent
sure” that Howard-Walker was depicted in the photos.
¶9 The police arrested Howard-Walker, and Detective Garcia
interviewed him after advising him of his Miranda rights.
Howard-Walker consistently denied that he committed the burglary.
However, at one point near the end of the interview, Howard-Walker
asked the detective “what it would get him if he gave [Detective
Garcia] the name of the other person.” The detective responded
that if Howard-Walker identified the other burglar, he would apprise
the district attorney of Howard-Walker’s assistance, which would
“help him,” but promised no concessions. Howard-Walker later
refused to speak further with the police.
¶ 10 Detective Garcia then searched (under a warrant)
Howard-Walker’s apartment. He found none of the stolen items;
none of those items were ever recovered by the police. He also
showed Howard-Walker’s live-in girlfriend the still photographs
from the surveillance video and asked if she recognized the person
in the photos. According to the detective, the girlfriend initially told
him that she was “eighty percent” certain that one of the men in the
photos was Howard-Walker. At trial, the girlfriend denied making,
4
and then recanted, that statement, claiming that Detective Garcia
had intimidated her into identifying Howard-Walker.
¶ 11 Detective Garcia also compared the photographs of the
footprints found at the scene of the burglary with the shoes that
Howard-Walker was wearing at the time of his arrest, and
concluded (and testified) that the footprints matched the shoes.
¶ 12 The prosecution charged Howard-Walker with first degree
burglary, see § 18-4-202(1), C.R.S. 2016, and conspiracy to commit
first degree burglary, see § 18-2-201, C.R.S. 2016.
¶ 13 Howard-Walker’s defense at trial was that he did not commit
the burglary and that the witnesses had misidentified him from the
video and still photos. The jury convicted Howard-Walker as
charged, necessarily rejecting his misidentification defense. The
trial court sentenced him to thirteen years in the custody of the
Department of Corrections.
II. Batson Challenges
¶ 14 Howard-Walker contends that the trial court erred when it
denied his Batson challenges to the prosecutor’s peremptory strikes
excusing three prospective jurors — one who identified himself as
African-American, and two who identified themselves as Hispanic.
5
Specifically, he challenges the trial court’s rulings on the third
Batson step, asserting that the prosecutor’s stated “race-neutral”
reasons for removing the jurors were not worthy of belief.
A. Standard of Review
¶ 15 The United States and Colorado Constitutions prohibit
peremptory strikes to dismiss prospective jurors on the basis of
race, gender, or ethnicity. Batson, 476 U.S. at 85-87; People v.
Beauvais, 2017 CO 34, ¶ 20; People v. Lucero, 2014 COA 53. In
Batson, the Supreme Court prescribed a three-step process to
evaluate claims of purposeful discrimination in jury selection.
¶ 16 First, the person challenging a peremptory strike must make a
prima facie showing that the prosecutor used a peremptory strike to
exclude a prospective juror based on his or her race. Batson, 476
U.S. at 96; Beauvais, ¶ 21.1 A prima facie showing requires only
1 While Batson v. Kentucky, 476 U.S. 79 (1986), refers only to race
as an impermissible discriminatory factor, its progeny also includes
gender and ethnicity within Batson’s proscription. See, e.g., People
v. Lucero, 2014 COA 53. Whereas “African-American” typically
describes a person’s race, the term “Hispanic” is used sometimes to
describe a person’s race and other times to describe a person’s
ethnicity. Because it is equally impermissible to discriminate based
on race and ethnicity, we apply those cases discussing race to the
challenges of the two jurors who identified themselves as Hispanic.
See, e.g., Hernandez v. New York, 500 U.S. 352, 355 (1991).
6
that the challenger “present evidence sufficient to raise an inference
that discrimination occurred.” Valdez v. People, 966 P.2d 587, 590
(Colo. 1998).
¶ 17 If the challenger meets his burden under step one of Batson,
the burden shifts to the prosecutor to articulate a non-
discriminatory reason for the strike. Id.
¶ 18 If the prosecutor does so, step three of Batson requires the
trial court, after giving the challenger an opportunity to rebut the
prosecutor’s reason for the strike, to determine if the prosecutor’s
reason is worthy of belief or is, instead, pretextual. Id. If the trial
court finds, based on a preponderance of the evidence, that the
prosecutor’s reason is pretextual, the court must deny the
peremptory strike. Batson, 476 U.S. at 85-87. “[T]he ultimate
burden of persuasion regarding [discriminatory] motivation rests
with, and never shifts from, the [objecting party].” Beauvais, ¶ 24
(citation omitted). Accordingly, a trial court should sustain a
Batson objection only if “the striking party’s non-discriminatory
reasons are sufficiently incredible that the discriminatory
hypothesis better fits the evidence.” Id. (citation omitted).
7
¶ 19 We review de novo whether the parties have met their
respective burdens under Batson steps one and two. Valdez, 966
P.2d at 590-91. We review the trial court’s Batson step three
determination of whether the prosecutor’s strike was motivated by
purposeful discrimination for clear error. People v. Robinson, 187
P.3d 1166, 1174 (Colo. App. 2008); People v. Gabler, 958 P.2d 505,
507 (Colo. App. 1997). We give considerable deference to a trial
court’s Batson step three findings because “[o]nly the trial court can
assess non-verbal cues, such as hesitation, voice inflection, and
facial expressions, that are not recorded on a transcript.” People v.
Wilson, 2015 CO 54M, ¶ 18. Given this deferential standard,
reversal of a trial court’s factual determination that the strike was
not motivated by discriminatory animus is justified only under
“exceptional circumstances.” Beauvais, ¶ 22 (quoting Snyder v.
Louisiana, 552 U.S. 472, 477 (2008)).
B. Analysis of the Peremptory Strikes
¶ 20 We address each of the peremptory strikes in turn.
1. Female Hispanic Juror
¶ 21 The prosecutor exercised a peremptory strike against a female
juror who identified herself as Hispanic on her jury questionnaire.
8
This met Howard-Walker’s minimal step one Batson burden. In
response to Howard-Walker’s challenge, the prosecutor said that
the juror had “apparently filled out her jury questionnaire.”
Because the significance of the juror having filled out the
questionnaire (as all of the other prospective jurors had done) is
unclear, we presume that the prosecutor’s statement as reflected in
the record resulted from a transcription error. The prosecutor also
claimed that she had “seemed jumpy” during voir dire, and
contended that the prospective juror “didn’t want to be here.”
¶ 22 The trial court did not review the juror’s questionnaire, but, in
denying the Batson challenge, said it “trust[ed]” the prosecutor’s
characterization of what was said in the questionnaire. The court
further explained that it had observed the female juror during voir
dire and that she “seemed disinterested.”
¶ 23 We first reject Howard-Walker’s argument that the trial court’s
decision not to review the female juror’s questionnaire amounted to
a summary denial of his Batson challenge and reflected the court’s
failure to weigh the evidence.
¶ 24 One important tool that a trial court uses to determine
whether the objecting party proved that the striking party exercised
9
its peremptory challenges with “discriminatory animus” is “an
assessment of the striking party’s credibility and the plausibility of
its non-discriminatory explanations.” Id. at ¶ 23. Having observed
the demeanor of the prospective juror (and, for that matter, the
prosecutor), the trial court was entitled to credit the prosecutor’s
assessment that the juror “did not want to be here.” See id. at ¶ 25;
Wilson, ¶ 14. And, though the prosecutor did not question the juror
prior to exercising his strike against her, which might raise an
inference of purposeful discrimination, Gabler, 958 P.2d at 508, the
trial court agreed that the juror had seemed “disinterested.” A
prospective juror’s disinterest in the proceedings is a legitimate,
non-discriminatory reason for exercising a peremptory strike. See,
e.g., Beauvais, ¶ 9 (use of peremptory strikes against two jurors
who had not been directly questioned because both jurors “looked
disinterested” did not violate Batson). Howard-Walker did not then
and does not now attempt to refute the trial court’s assessment of
the juror’s level of interest in the proceedings.
¶ 25 We reject Howard-Walker’s argument that the trial court
committed legal error in considering that the female Hispanic juror
was not of the same race as Howard-Walker. Though we agree that
10
Batson does not require that the excluded juror share the same
racial identity as the defendant, Valdez, 966 P.2d at 589, our
reading of the record does not support Howard-Walker’s argument.
While the trial court noted that it perceived the female juror as “a
person of color[,] . . . [a]lbeit not the same ethnicity as the
defendant,” it rested its denial of the Batson challenge on the juror’s
lack of interest in the proceedings, not on any comparison of the
races of the juror and Howard-Walker.
¶ 26 Thus, we conclude that the trial court’s Batson step three
findings with respect to the female Hispanic juror are supported by
the record.
2. African-American Male Juror
¶ 27 After the prosecutor exercised four of the prosecution’s six
peremptory strikes, he accepted the jury as then constituted, which
defense counsel characterized as “completely white.”
Howard-Walker continued exercising his peremptory strikes, which
resulted in a male juror who identified himself as African-American
joining the panel. Despite having previously accepted the jury, the
prosecutor then exercised one of its remaining peremptory strikes
against that juror.
11
¶ 28 In response to Howard-Walker’s Batson challenge, the
prosecutor explained that the prospective juror “seemed
anti-prosecution” because, in response to voir dire questions, he
said that police officers often misidentify suspects and he indicated
on his jury questionnaire that he had had a “particularly bad
experience” with law enforcement. Howard-Walker attempted to
rebut this explanation by noting that some unchallenged white
jurors had expressed similar opinions about police misidentification
and also reported negative experiences with the police.
¶ 29 The trial court denied the Batson challenge, saying that “this
isn’t a pattern yet” and because, based on its own observations, the
juror apparently believed that law enforcement officers often make
mistakes.
¶ 30 Howard-Walker asserts that the prosecutor’s retention of a
white juror who had discussed his negative views of police officers
at some length and its retention of other white jurors who had
expressed that the police sometimes make mistakes in identifying
suspects demonstrated that the prosecutor’s reasons for the strike
was pretexual. “A prosecutor’s disparate treatment of prospective
12
jurors, who, but for their race, have similar and allegedly
objectionable experiences, is pretextual.” Gabler, 958 P.2d at 508.
¶ 31 The Colorado Supreme Court in Beauvais recently clarified the
required procedure for a Batson comparative juror analysis. While
“[t]wo potential jurors need not be identical in every respect,”
“[i]solated similarities do not automatically render two jurors
‘similarly situated’ for purposes of deciding a Batson challenge.”
Beauvais, ¶ 56. For example, “if an attorney strikes a female
potential juror because she is unemployed and lacks a college
degree, a male potential juror who is either unemployed or lacks a
college degree would not be similarly situated and not suitable for
comparison.” Id. at ¶ 57.
¶ 32 At least three white jurors who served on the jury expressed
views similar to the male African-American’s juror’s that police
sometimes make mistakes in identifying suspects. But none of
those jurors also expressed that they had had “a particularly bad
experience” with law enforcement. Moreover, the record
demonstrates that these jurors’ statements were more limited in
scope, while the African-American prospective juror’s statements
were broader and less deferential to the police, particularly in
13
regard to identification of a suspect in a photograph or video. For
instance, while one of the other jurors said that misidentification
sometimes happens, she also said that misidentification might
result from not getting “the best look” at the person. Another juror
similarly said that misidentification might occur due to any number
of circumstances, including the time of day and distance. Still
another asserted that misidentification could occur based on a
video or photograph if either of those mediums lacked clarity.
¶ 33 In contrast, the African-American juror opined that police
officers are no better at identifying a person in a photograph or
video than anyone else, and that misidentification may occur unless
the photograph or video was completely clear.
¶ 34 Having observed the prospective juror’s responses to questions
during voir dire, the trial court agreed with the prosecutor’s
assessment that the African-American juror seemed
“anti-prosecution,” an assessment that has record support.
Additionally, we note that the prosecutor exercised a peremptory
strike against a white juror who had similarly expressed that
“policemen are humans so they can make errors just like anybody
else.”
14
¶ 35 Howard-Walker also asserts the prosecutor’s reasons for
exercising a peremptory strike against the prospective juror were
pretextual because, although the juror indicated on his jury
questionnaire that he had had a negative experience with law
enforcement, no strikes were exercised against white jurors who
had also indicated negative experiences with law enforcement on
their questionnaires. We reject this argument because there is no
indication in the record that the trial court relied on the juror’s
negative experience with law enforcement to deny Howard-Walker’s
Batson challenge. And, as we noted above, no other juror disclosed
both a negative experience with law enforcement and a belief that
police officers sometimes misidentify suspects; thus, no other juror
was similarly situated to the excused juror. Id. at ¶¶ 56-57.
¶ 36 We recognize that the trial court said, with respect to the
denial of Howard-Walker’s challenge of the strike against the
African-American juror, that “this isn’t a pattern yet.” Had the
court concluded that Howard-Walker had not proved purposeful
discrimination with respect to the juror because he had not
established a “pattern” of discrimination, that would have been
error. A pattern of strikes may “give rise to an inference of
15
discrimination,” but is not “a necessary predicate to a [Batson]
violation.” Batson, 476 U.S. at 95-97. But the court did not rest its
Batson step three determination on whether Howard-Walker had
proved a pattern. Rather, the court, with record support, concluded
that the juror believed that police officers frequently misidentified
suspects — a central issue in the case. Howard-Walker does not
dispute that the juror expressed that police officers may misidentify
suspects. Based on the juror’s responses to voir dire questions,
and with deference to the court’s superior opportunity to judge the
juror’s demeanor, we discern no clear error by the court in
concluding that the prosecutor’s race-neutral reasons for excusing
that juror were credible.
3. Male Hispanic Juror
¶ 37 After the African-American prospective juror was excused,
another male juror, who identified himself as Hispanic, joined the
panel. The prosecutor exercised his final peremptory strike against
the juror. In response to Howard-Walker’s Batson challenge, the
prosecutor explained that the juror had reported a bad experience
with law enforcement on his jury questionnaire, had faced a
criminal conviction on charges brought by the same district
16
attorney’s office, and had indicated in his responses to voir dire
questions that he had a negative view of law enforcement.
¶ 38 Howard-Walker attempted to rebut the prosecutor’s
race-neutral explanation for the strike, asserting that the
prosecutor’s peremptory strikes had shown a pattern of excusing
“minorities” and that white jurors who had disclosed similar
experiences and views regarding the police had not been stricken.
The trial court denied the Batson challenge, noting that the
prospective juror “was quite reluctant and critical of law
enforcement generally.”
¶ 39 While it is true that a white juror said on his jury
questionnaire that he had had a particularly bad experience with
the police, his answers to questions during voir dire revealed that
his experiences were significantly different from that of the
challenged male Hispanic juror. The white juror was a firefighter.
He said that he did not have “a high impression” of the police
because they often “butted heads” at work. He then clarified that
he only had a bad impression of state patrol officers (as opposed to
other police officers) during traffic stops, and that he could put his
17
negative perceptions aside. The state patrol was not involved in
Howard-Walker’s case.
¶ 40 The dismissed male Hispanic juror also said that he felt some
police officers are “bad apples” and that he felt his liberties were “on
the line” because, generally speaking, the police were becoming “a
little militia with a private army.” There was no rehabilitative
questioning either by the court or defense counsel that would
demonstrate that the juror could set aside his negative impressions
of the police.
¶ 41 As we did with respect to the female Hispanic juror, we reject
Howard-Walker’s argument that the trial court erred in considering
that the male Hispanic juror was not of the same race as
Howard-Walker. Though the court noted that the male Hispanic
juror and Howard-Walker’s ethnicities were not the same, it
nevertheless denied the Batson challenge based on the juror’s
criticisms of law enforcement.
¶ 42 For these reasons, we conclude that the trial court’s step three
Batson findings are supported by the record, and we reject
Howard-Walker’s claims to the contrary.
18
III. Allegedly Improper Police Testimony2
¶ 43 Howard-Walker next argues that the admission of several
portions of Detective Garcia’s testimony constituted reversible error.
A. Standard of Review
¶ 44 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). “[W]e
review nonconstitutional trial errors that were preserved by
objection for harmless error.” Hagos v. People, 2012 CO 63, ¶ 12.
Under this standard, we reverse only if the error “substantially
influenced the verdict or affected the fairness of the trial
proceedings.” Id. (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo.
1986)).
2 We observe that the defendant’s selection of small portions of two
long days of trial testimony has an effect on the reader that is quite
different than the effect when reading the entire trial transcript.
When read in its entirety, the trial transcript portrays an engaged
trial court. None of the testimony objected to for the first time on
appeal was set off by any particular circumstances from the rest of
the non-objected testimony. It is very easy for an appellate court to
read a cold transcript and conclude that certain unobjected
testimony should not have been admitted. The trial court might
well come to the same conclusion if the court had the luxury of
reading a transcript. But that luxury is not available to the trial
court and that is one good reason why the standard for plain error
is so high.
19
¶ 45 When a defendant fails to object to the admission of evidence
at trial, we will not reverse in the absence of plain error. People v.
Vecellio, 2012 COA 40, ¶ 54. “Under the plain error standard, the
defendant bears the burden to establish that an error occurred, and
that at the time the error arose, it was so clear cut and so obvious
that a trial judge should have been able to avoid it without benefit
of objection.” People v. Conyac, 2014 COA 8M, ¶ 54. Reversal is
required if the error was so grave that it “undermined the
fundamental fairness of the trial itself” so as to “cast serious doubt
on the reliability of the conviction.” Id.
B. Testimony that the Handgun in
the Surveillance Video Was “Real”
¶ 46 The prosecutor did not qualify Detective Garcia as an expert
witness. Therefore, his opinion testimony was limited to his
rationally based perceptions that were helpful to the jury in
understanding the testimony or determining a fact in issue. CRE
701; Venalonzo v. People, 2017 CO 9, ¶ 18.
¶ 47 After the surveillance video was played for the jury, which, as
noted above, showed one of the perpetrators holding what appeared
to be a handgun, the prosecutor asked Detective Garcia, “How can
20
you tell that’s a real handgun?” Detective Garcia answered, without
objection by Howard-Walker, as follows:
Well, one of the things that would make it real
is a size of the barrel. It’s a large barrel. Air
soft guns [sic] their muzzles have a red tip and
small barrel for the little air soft pellet to come
out. This is an open barrel. That’s a large
barrel for a large projectile to exit the weapon.
¶ 48 Howard-Walker argues that this was improper expert
testimony offered in the guise of lay opinion. We agree, but also
conclude that, under the circumstances, this testimony did not
constitute plain error.
¶ 49 CRE 701 governs admissibility of lay testimony. It provides
that
[i]f the witness is not testifying as an expert,
the witness’ testimony in the form of opinions
or inferences is limited to those opinions or
inferences which 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.
(Emphasis added.)
¶ 50 In a series of cases decided after Howard-Walker’s trial, the
Colorado Supreme Court clarified the standard that distinguishes
21
lay testimony from expert testimony. Marsh v. People, 2017 CO
10M; Venalonzo, ¶¶ 17-25; People v. Ramos, 2017 CO 6.
If the witness provides testimony that could be
expected to be based on an ordinary person’s
experiences or knowledge, then the witness is
offering lay testimony. If, on the other hand,
the witness provides testimony that could not
be offered without specialized experiences,
knowledge, or training, then the witness is
offering expert testimony.
Venalonzo, ¶ 2.
¶ 51 As the Venalonzo court itself recognized, the line between lay
and expert testimony may be difficult to discern. Id. at ¶ 24. This
is particularly the case when the witness is a police officer.
Stewart, 55 P.3d at 123. While police officers may offer testimony
based on their perceptions and experiences, officer lay testimony is
objectionable when it requires the application of or reliance on
specialized skills or training. Venalonzo, ¶ 19.
¶ 52 In Stewart, in analysis that was not displaced by Venalonzo,
the supreme court held that while it was appropriate for an officer
to give lay testimony about his observations of an accident scene,
his testimony crossed the expert line when he essentially
reconstructed the accident by deducing matters such as the
22
vehicle’s direction, position, and speed. 55 P.3d at 124. Similarly,
in People v. Veren, 140 P.3d 131, 139-40 (Colo. App. 2005), cited
favorably by Venalonzo, a division of this court concluded that while
an ordinary citizen might know that Sudafed contains an ingredient
that can be used to manufacture methamphetamine, the lay
witness officer’s testimony that he suspected the defendant was
manufacturing based on the amount of Sudafed in his possession
constituted expert testimony because an ordinary citizen would
probably not know how much Sudafed would be required for that
purpose. And in Ramos, ¶ 9, decided together with Venalonzo, the
supreme court held that an ordinary citizen could not be expected
to differentiate between “blood cast-off” and “blood transfer.”
¶ 53 Applying Venalonzo, we strongly doubt that ordinary citizens
can determine whether a gun depicted in a video was real or fake.
See also People v. Romero, 2017 CO 37, ¶ 15. To do so requires
expertise beyond the ken of the ordinary citizen, and such
testimony constituted expert testimony under CRE 702.
¶ 54 While this evidence was improperly admitted as lay opinion
evidence, admitting it was not plain error, for two reasons. First,
the latest supreme court formulation of the distinction between lay
23
and expert testimony was not decided until more than a year after
Howard-Walker’s trial.
¶ 55 More importantly, no Colorado case has directly addressed the
distinction between lay and expert testimony with respect to
whether a gun depicted in a video is real or fake. “Ordinarily, for an
error to be obvious, the action challenged on appeal must
contravene a clear statutory command, a well-settled legal principle,
or Colorado case law.” People v. Manyik, 2016 COA 42, ¶ 36. It
necessarily follows that any error in the admission of this brief
testimony was not obvious and thus was not plain error.
C. The Detective’s Testimony that the Perpetrator Would Have Used
the Gun if He Had Encountered the Homeowner
¶ 56 The prosecutor asked Detective Garcia, “How is that particular
handgun being used during the burglary?” Detective Garcia
answered that “[the gun] was being used in a manner that if
someone was to walk in on the individuals during the burglary or
be confronted by the police, they were ready to engage.”
Howard-Walker objected on the basis that peering into the mind of
the perpetrator regarding an event that never occurred was nothing
more than speculation, but the trial court overruled the objection.
24
¶ 57 Detective Garcia continued, saying:
[The gun] is being openly displayed with the
hand and the finger on the trigger ready to be
utilized. Individuals going through the room
with the gun out in a manner to me the way I
see it is as a threatening manner whether to
engage if a homeowner or engage by officers
that that person is ready [sic]. If he did not
intend it, I don’t believe the weapon would be
presented in that manner, scanning the room
as he is doing so as in the video.
¶ 58 Howard-Walker argues that this testimony was inadmissible
because Detective Garcia had no personal knowledge about what
the person in the video would have done with the gun had he
encountered the homeowner and thus he was improperly
speculating. We agree.
¶ 59 “A lay witness may state an opinion about another person’s
motivation or intent only if the witness had sufficient opportunity to
observe the person and to draw a rational conclusion about the
person’s state of mind.” People v. Jones, 907 P.2d 667, 669 (Colo.
App. 1995). An opinion not based on personal knowledge is
speculative and therefore inadmissible. Id. Detective Garcia was
not present during the burglary. And while he did view the video, it
is at least questionable how the video could inform a person’s
25
rational conclusion about what the perpetrator would have done
had he encountered the homeowner or the police.
¶ 60 Moreover, even if Detective Garcia had an adequate foundation
for this testimony, it likely should have been excluded both under
principles of relevancy and under CRE 403. What might have
happened was not an element of the offense; the relevant element of
the offense was the use of a deadly weapon in the course of the
burglary, which (if the gun was real) the video amply displayed. It
was immaterial whether the perpetrator might have committed an
additional crime had he encountered the homeowner or the police.
¶ 61 Even so, we conclude on this record that any error was
harmless. If the jury believed that the gun would have been used
had the perpetrators encountered the homeowner or the police, that
belief could have prejudiced the jurors against Howard-Walker. But
the jury could have drawn this inference for itself (still another
reason why the testimony should not have been admitted); the fact
that Detective Garcia testified about such an immaterial (but easily
drawn) inference did not, in our view, “substantially influence[] the
verdict or affect[] the fairness of the trial proceedings.” Hagos, ¶ 12
(quoting Tevlin, 715 P.2d at 342).
26
D. The Detective’s Identification of Howard-Walker in the Video
¶ 62 Detective Garcia testified, without objection, that he was “one
hundred percent” certain that he recognized Howard-Walker as one
of the perpetrators in the video.
¶ 63 Howard-Walker argues that because Detective Garcia testified
that his “time and experience on the Police Department” helped him
to make this identification, his identification of Howard-Walker was
improper expert testimony. He also argues that the identification
invaded the province of the jury and was substantially more
prejudicial than probative. Following precedents from the supreme
court and other divisions of this court, we reject these arguments.
¶ 64 A lay witness may testify regarding the identity of a person
depicted in a surveillance photograph (or, for that matter, a video),
“if there is some basis for concluding that the witness is more likely
to correctly identify the defendant from the [video] than is the jury.”
Robinson v. People, 927 P.2d 381, 382 (Colo. 1996). That is the
case here.
¶ 65 Though Garcia’s contact with Howard-Walker came after he
had seen the video (a fact that is not relevant under Robinson), he
nevertheless was in a better position than the jury to identify
27
Howard-Walker as one of the perpetrators in the video because he
had had close, face-to-face contact with him during the police
interview. What’s more, while Howard-Walker was clean-shaven
during the trial, he, like the perpetrator in the video, had facial hair
during the police interview, making Detective Garcia’s testimony
that much more helpful to the jury. Any allegation (which is not
made explicitly by Howard-Walker) that Detective Garcia’s
perception was somehow tainted by the fact that he only met
Howard-Walker after viewing the video goes to the weight of his
testimony, not its admissibility. No specialized knowledge is
required to recognize an individual in a video.
¶ 66 This evidence was obviously probative of a material fact —
indeed, the critical fact at issue. Merely because Detective Garcia’s
testimony may have been detrimental to Howard-Walker did not
render that testimony unfairly prejudicial. Kelly v.
Haralampopoulos by Haralampopoulos, 2014 CO 46, ¶ 47. And it
did not “invade the province of the jury,” Davis v. People, 2013 CO
57, ¶ 27, a contention that was rejected dispositively by Robinson.
Accordingly, we discern no error, much less plain error, in the
admission of this testimony.
28
E. The Detective’s Testimony Regarding Probable Cause
¶ 67 The prosecutor asked Detective Garcia to describe his
investigation. In a lengthy, narrative response, the detective
testified that he wrote the search warrant for Howard-Walker’s
apartment, had it reviewed by his supervisor, and “once [the
supervisor] said there was probable cause, took the warrant to [a
judge] for review.” Though Howard-Walker did not object to this
testimony, he nevertheless argues on appeal that the trial court
should have stepped in, sua sponte, and prohibited the testimony.
¶ 68 When probable cause to search or arrest is not at issue, “it is
improper to present to the jury evidence about obtaining an arrest
or search warrant.” People v. Mullins, 104 P.3d 299, 301 (Colo.
App. 2004). This is so because whether the police believed and a
judge found that there was probable cause to arrest a defendant is,
under most circumstances, irrelevant to determining whether the
prosecution proved the commission of a crime beyond a reasonable
doubt. Id.; see CRE 401. We agree with Howard-Walker that
probable cause was not at issue in this case and this evidence
should not have been admitted.
29
¶ 69 Under some circumstances, police officers may testify about
why they took certain investigative steps, even when this testimony
“touches upon prohibited subjects.” People v. Penn, 2016 CO 32,
¶ 32. For instance, in Casias v. People, 160 Colo. 152, 162, 415
P.2d 344, 349 (1966), superseded by statute on other grounds as
stated in People v. Ceja, 904 P.2d 1308 (Colo. 1995), the supreme
court held it was not error for a detective to testify that he arrested
the defendant on the “strength of the warrant” because that
testimony was relevant to the prosecutor’s explanation of the
circumstances of the arrest. But in this case, Detective Garcia did
not need to describe the search and arrest warrants process to
explain the investigation; thus, his testimony on those matters
should not have been admitted.
¶ 70 However, because under some circumstances testimony
regarding probable cause is admissible, and because Detective
Garcia’s reference to probable cause was fleeting, we cannot
conclude that the error was obvious. Therefore, there was no plain
error. People v. Renfro, 117 P.3d 43, 48 (Colo. App. 2004).
30
F. Testimony Regarding the Girlfriend’s
Reaction to Identifying Howard-Walker
¶ 71 Detective Garcia testified that when he interviewed
Howard-Walker’s girlfriend, she said that she was “eighty percent”
certain that she recognized Howard-Walker in the stills of the
surveillance video. He further testified that she “was getting
emotional” and “really began crying,” observations that were
perfectly appropriate for a lay witness to express. CRE 701; People
v. Hulsing, 825 P.2d 1027, 1032 (Colo. App. 1991). But then the
prosecutor asked Detective Garcia why he thought the girlfriend
was “getting emotional,” an inquiry into the girlfriend’s state of
mind that the detective was neither competent to undertake or to
give testimony about. He answered that it was because “[s]he
recognized her boyfriend in the photos.” As with almost all of the
testimony relied on for reversal, Howard-Walker did not object.
¶ 72 Howard-Walker asserts that this testimony was improper
because Detective Garcia had no personal knowledge, as required
by CRE 602, to know what the girlfriend was thinking when she
started “getting emotional” and was crying. We conclude that the
31
admission of this evidence was erroneous, but did not constitute
plain error.
¶ 73 Questions regarding the girlfriend’s initial identification of
Howard-Walker from the surveillance video, and the reliability of
that identification, were fully explored during the trial, and the jury
had extensive information to make its judgment on that issue.
Moreover, the jury was just as able as the officer to decide why the
girlfriend was crying (again, another reason why this evidence
should not have been admitted). Given this, we cannot conclude
that the brief testimony by the officer in this respect was obviously
improper or “undermine[d] the fundamental fairness of the trial.”
Conyac, ¶ 54.
G. The Detective’s Testimony Regarding Howard-Walker’s
Statement About Possibly Identifying the Other Perpetrator
¶ 74 Detective Garcia testified that when he interviewed
Howard-Walker about the burglary, Howard-Walker asked him,
“[w]hat would it get me if I told you the name of the other person [in
the video]?” The prosecutor asked the detective what he thought
that statement meant, and he answered, without objection, “[t]hat
32
[Howard-Walker] was involved and knows who the other person was
that committed the burglary.”
¶ 75 Howard-Walker argues that this testimony was improper
because it constituted an impermissible opinion on his guilt. A
witness may not testify that he believes that the defendant
committed the crime at issue. Penn, ¶ 31.
¶ 76 But the officer did not testify that Howard-Walker was guilty;
he only testified what he thought Howard-Walker’s statement
meant. The inference that may be drawn from Howard-Walker’s
statement is obvious to any reasonably intelligent person, so even if
the officer’s testimony was improper, it did not undermine the
fundamental fairness of the trial. Conyac, ¶ 54.
H. Testimony About Whether Howard-Walker was Being Truthful
¶ 77 The prosecutor asked Detective Garcia whether he felt that
Howard-Walker was “forthcoming” or “truthful” during the police
interview. Detective Garcia answered “no” to both questions.
Howard-Walker did not object to this testimony.
¶ 78 It is improper to ask one witness to opine on the truthfulness
of another. Liggett v. People, 135 P.3d 725, 733 (Colo. 2006).
Though a detective may testify about his assessment of an
33
interviewee’s credibility when that testimony is offered to provide
context for the detective’s interrogation tactics and investigative
decisions, Davis, ¶ 17, Detective Garcia’s testimony was not offered
for those purposes and was therefore improper.
¶ 79 But that error does not rise to the level of plain error. As in
Liggett, 135 P.3d at 734, there was ample evidence before the jury
to support Howard-Walker’s convictions without relying on
Detective Garcia’s improper testimony. Multiple witnesses
identified Howard-Walker as one of the men in the video,
Howard-Walker’s shoes were consistent with the footprints found
near the broken window of the victim’s home, and the jury was
entitled to determine that Howard-Walker’s offer to give up the
name of the other suspect meant that he was involved in the crime.
Thus, Howard-Walker has not shown that that testimony
undermined the fundamental fairness of the trial. Id. at 734-35;
Conyac, ¶ 54.
IV. Prosecutorial Misconduct
¶ 80 Howard-Walker next asserts that the prosecutor engaged in
three instances of reversible misconduct.
34
¶ 81 We engage in a two-step analysis to review 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.
Second, we decide whether any misconduct warrants reversal
according to the proper standard of review. Id.
¶ 82 Because Howard-Walker did not object to any of the
prosecutor’s statements, we review for plain error. Id. at 1097.
A. Confronting the Girlfriend About Perjury
¶ 83 The girlfriend testified that she did not remember telling
Detective Garcia that she had recognized Howard-Walker in the
video. She and the prosecutor then engaged in the following
colloquy:
Q. All right. Now, you understand that today
you have been sworn in under oath, right?
A. Right.
Q. And you understand how perjury works,
right?
A. Right.
Q. You realize you have been sworn to tell the
truth, the whole truth, and nothing but the
truth?
35
A. Yes, I do.
Q. And you understand that perjury is not
telling the truth in court?
A. Right.
Q. And so it’s your testimony today that you
did not identify anyone from that videotape?
A. Right, no.
¶ 84 “A prosecutor’s statement or question indicating his belief that
a witness committed perjury is improper.” People v. Romero, 2015
COA 7, ¶ 37. But even if the prosecutor stepped over the
permissible line in repeatedly suggesting that the girlfriend was
committing perjury, because the prosecutor did not threaten,
coerce, or otherwise “drive[] [her] ‘off the stand,’” any such
misconduct was not reversible. Id. (quoting Webb v. Texas, 409
U.S. 95, 95-98 (1972)).
¶ 85 As in Romero, ¶ 40, the prosecutor’s statements were brief and
did not silence the witness or alter the girlfriend’s testimony; she
continued to answer the prosecutor’s questions, and, at least at
first, continued to assert that she had never identified
Howard-Walker in the video stills. The girlfriend later, in response
to a different line of questioning, changed her testimony by saying
36
that she had told Detective Garcia that she had recognized
Howard-Walker. But even then, she asserted that she only did so
because Detective Garcia had allegedly pressured or intimidated
her. Thus, as in Romero, ¶ 40, the girlfriend’s testimony “was
virtually the same before and after the prosecutor’s references to
perjury.” Under these circumstances, any error did not amount to
plain error.
B. Prosecutor’s Comment on the Girlfriend’s Truthfulness
¶ 86 In closing argument, the prosecutor said that the girlfriend
“was not forthcoming,” “was not being honest,” and was “not a
credible witness.”
¶ 87 A prosecutor is permitted to comment on the evidence,
including the reasons why the jury should believe or not believe a
particular witness, as long as the prosecutor does not go so far as
to call that witness a “liar.” Domingo-Gomez v. People, 125 P.3d
1043, 1050 (Colo. 2005). Indeed, drawing reasonable inferences
from the evidence regarding the credibility of witnesses is one of the
fundamental purposes of closing argument. Id. at 1048-50. These
statements did exactly that and were not improper.
37
¶ 88 As the prosecutor pointed out in closing argument, the
girlfriend’s testimony conflicted with that of Detective Garcia.
Indeed, the girlfriend gave inconsistent testimony at trial — at first
she claimed that she had never told Detective Garcia that she had
identified Howard-Walker in the video stills, and then, after some
probing, said that she had in fact identified Howard-Walker. The
prosecutor fairly characterized this testimony as confusing and “all
over the place.” Like in Domingo-Gomez, id. at 1051, the evidence
supported a reasonable inference that the girlfriend’s testimony was
false, and thus the prosecutor’s comments were proper.
C. Reference to Howard-Walker’s Decision Not to Testify
¶ 89 The Fifth Amendment forbids comment by the prosecution on
the accused’s decision not to testify. Griffin v. California, 380 U.S.
609, 615 (1965). An impermissible comment is one that “in
context, was calculated or intended to direct the attention of the
jury to the defendant’s neglect or failure to exercise his right to
testify in his own behalf.” Martinez v. People, 162 Colo. 195, 200,
425 P.2d 299, 302 (1967).
¶ 90 We agree that the prosecutor stepped over the line when he
told the jury in closing argument that the only person who knew the
38
location of the fruits of the burglary was Howard-Walker and “he
won’t [testify].” We view this statement as a reference to Howard-
Walker’s decision not to testify. U.S. Const. amend. V; Colo. Const.
art. II, § 18; People v. Todd, 189 Colo. 117, 121, 538 P.2d 433, 436
(1975).
¶ 91 Had Howard-Walker objected to this testimony, and had it
been admitted over objection, we would review for constitutional
harmless error, but no objection was made and thus we review for
plain error. People v. Miller, 113 P.3d 743, 749 (Colo. 2005). Under
this standard, only prosecutorial misconduct which is “flagrantly,
glaringly, or tremendously improper” warrants reversal.
Domingo-Gomez, 125 P.3d at 1053.
¶ 92 While we do not condone the prosecutor’s comment, we
nevertheless conclude that the comment did not amount to plain
error, for two reasons.
¶ 93 First, the comment was a single, minimal reference. See
People v. Travis, 192 Colo. 169, 171, 558 P.2d 579, 580-81 (1976);
People v. Gilkey, 181 Colo. 103, 106, 507 P.2d 855, 857 (1973);
People v. Petschow, 119 P.3d 495, 505-06 (Colo. App. 2004).
39
¶ 94 Second, the jury was correctly instructed, several times, that
Howard-Walker had an absolute right not to testify and that no
adverse inference from his exercise of that right was permissible.
People v. Garcia, 2012 COA 79, ¶ 20 (we presume that the jury
followed the court’s instructions, absent evidence to the contrary)
(citing Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1088 (Colo.
2011)); see also State v. Escalante-Orozco, 386 P.3d 798, 826 (Ariz.
2017). There is no suggestion in the record that the jury did not
heed this instruction.
¶ 95 We therefore conclude that the prosecutor’s statement was not
“flagrantly, glaringly, or tremendously improper,” Domingo-Gomez,
125 P.3d at 1053, and did not fundamentally undermine the
fairness of the trial, Conyac, ¶ 54.
V. Adequacy of the Jury Instructions
¶ 96 Howard-Walker next argues that the trial court erred when it
failed to instruct the jury on the predicate crime of theft, and when
it failed to define the word “intent.” The parties agree and we
concur that the jury instructions were deficient because they failed
to instruct on the elements of theft, but we nevertheless conclude
that the error was not reversible.
40
¶ 97 “We review jury instructions de novo to determine whether
[they] as a whole accurately informed the jury of the governing law.”
People v. Ridgeway, 2013 COA 17, ¶ 12 (citation omitted). When,
as in this case, no objection is made to the jury instructions, we
reverse only for plain error. Id. at ¶ 9. As noted, “[p]lain error
occurs when, after a review of the entire record, the appellate court
can say with fair assurance that the error so undermined the
fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction.” Bogdanov v. People, 941
P.2d 247, 255 (Colo.), amended, 955 P.2d 997 (Colo. 1997).
¶ 98 The United States and Colorado Constitutions require the
prosecution to prove every element of the charged offense beyond a
reasonable doubt. Griego v. People, 19 P.3d 1, 7 (Colo. 2001); see
U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend. VI; U.S. Const.
amend. XIV, § 1; Colo. Const. art. II, § 16; Colo. Const. art. II, § 23;
Colo. Const. art. II, § 25. “To preserve this constitutional right, a
trial court must properly instruct the jury on every element of a
crime.” Ridgeway, ¶ 12.
A. The Elements of Burglary and the Predicate Crime of Theft
¶ 99 The elements of burglary with a deadly weapon are as follows:
41
 the defendant;
 knowingly entered unlawfully, or remained unlawfully
after a lawful or unlawful entry;
 in a building or occupied structure;
 with intent to commit therein a crime, other than
trespass;
 against another person or property; and
 the defendant used a deadly weapon or possessed and
threatened the use of a deadly weapon in effecting the
burglary.
§ 18-4-202(1).
¶ 100 The trial court must instruct on both the elements of burglary,
as well as the elements of the underlying crime (in this case, theft).
People v. Palmer, 87 P.3d 137, 140 (Colo. App. 2003).
Howard-Walker did not object to the instruction; indeed, his
counsel approved it.3 When the elemental instructional error
3 Because Howard-Walker’s counsel affirmatively approved the jury
instructions, there is an argument that Howard-Walker waived any
instructional error. See United States v. Olano, 507 U.S. 725, 733
(1993); People v. Rediger, 2015 COA 26, ¶ 64 (cert. granted Feb. 16,
2016). The Attorney General does not argue that Howard-Walker
waived the instructional error. Because we conclude for other
42
relates to an element that is not contested at trial, the failure to
instruct is not plain error. People v. Cowden, 735 P.2d 199, 202
(Colo. 1987).
¶ 101 In Cowden, the defendant was charged with six counts of
felony theft. Id. at 200. The trial court failed to instruct the jury
that it must find that the value of the stolen property was between
$200 and $10,000, one of the elements of the theft charge. Id. at
201. The supreme court held that, at least as to five of the theft
counts, because the prosecution presented uncontested evidence
that the value of the allegedly stolen items was more than $200, the
deficiency in the instructions did not require reversal.
¶ 102 Similarly, in People v. Fichtner, 869 P.2d 539, 541
(Colo. 1994), the supreme court held that the trial court’s failure to
define “serious bodily injury” in the jury instruction on menacing
with a deadly weapon, although erroneous, was not plain error. In
that case, the prosecution presented uncontested evidence that the
defendant had threatened the victim with an axe handle. Id. His
defense was that he was only using the axe handle to defend his
reasons that the deficient instructions do not require reversal, we
do not address whether Howard-Walker waived the error.
43
property; he never contested the victim’s assertion that she had
feared that she was in imminent danger of suffering serious bodily
injury. Id. at 544. Accordingly, the court concluded that because
whether the defendant had placed the victim in fear of imminent
serious bodily injury was not at issue in the case, the trial court’s
instructional error did not constitute plain error. Id.
¶ 103 We agree with both parties that the trial court failed to
properly instruct the jury on the elements of burglary. The jury was
instructed to find Howard-Walker guilty if it found that he entered
the victim’s home “with intent to commit therein a crime, other than
trespass,” but the instructions did not identify the underlying crime
or define its elements. Howard-Walker argues that this deficiency
meant that the jury could have convicted him for his intent to
commit any crime, without unanimously agreeing that he intended
to commit any particular crime. We reject this argument.
¶ 104 The complaint and information alleged that Howard-Walker
broke into the victim’s home and committed theft. The jury viewed
the surveillance video, which depicted a person (whom several
witnesses identified as Howard-Walker) stealing the contents of the
victim’s safe. Howard-Walker never argued that the crime captured
44
by the surveillance video was any crime other than theft, nor did he
assert that a crime did not occur; his only defense was that he did
not commit the crime. Under these facts, we cannot discern what
underlying crime could have been committed, other than theft.
¶ 105 Moreover, during both opening statement and closing
argument the prosecutor asserted that Howard-Walker broke into
the victim’s home with the intent to commit theft. The record
demonstrates that the specification of the underlying crime was not
a controverted element of the burglary offense; therefore, the court’s
failure to instruct the jury on theft was not plain error. Cowden,
735 P.2d at 203.
B. Intent
¶ 106 For similar reasons, we reject Howard-Walker’s argument that
the court’s failure to define the word “intent” was plain error.
¶ 107 The culpable mental state “intent” is an element both of
burglary and conspiracy to commit burglary. §§ 18-2-201, 18-4-
202. As such, it must have been “established with the same
certainty as any other material element of the crime[s].” Palmer v.
People, 964 P.2d 524, 527 (Colo. 1998). Thus, to convict a
defendant of burglary and conspiracy to commit burglary, the jury
45
must conclude beyond a reasonable doubt that the defendant’s
“conscious objective [was] to cause the specific result proscribed by
the statute[s] defining the offense[s].” § 18-1-501(5), C.R.S. 2016.
Because the word “intent” carries a “technical or particular
meaning,” its definition must be presented to the jury. Griego, 19
P.3d at 7 (citation omitted).
¶ 108 In this case, the trial court’s failure to provide the definition of
“intent” to the jury was error. But Howard-Walker did not challenge
whether the evidence showed that the person in the video acted
“with intent.” When a person is seen on a surveillance video seizing
items that do not belong to him, it is not a leap of faith to infer that
he intended to take the victim’s property. Indeed, Howard-Walker’s
only defense was that it was not he, but some other person, who
was depicted taking the victim’s property in the video. He never
argued or suggested that the person depicted in the video did not
intend to dispossess the lawful owner of the seized property. Under
these circumstances, the trial court’s failure to define the culpable
mental state did not constitute plain error. Fichtner, 869 P.2d at
544.
46
VI. Cumulative Error
¶ 109 Finally, Howard-Walker argues that the cumulative effect of
the trial court’s errors and prosecutorial misconduct violated his
right to a fair trial. Although we have identified several evidentiary
errors (none of which, considered by themselves, requires reversal),
one instance of prosecutorial misconduct, and two instructional
errors, we ultimately conclude that these errors, viewed
cumulatively, did not substantially prejudice Howard-Walker’s right
to a fair trial. People v. Munsey, 232 P.3d 113, 124 (Colo. App.
2009).
¶ 110 As an initial matter, we note that we have identified both one
preserved error (reviewed for harmless error) and several
unpreserved errors (reviewed for plain error). The preserved error
was the detective’s testimony about what Howard-Walker would
have done had he encountered the homeowner (or anyone else)
during the burglary. The unpreserved errors were the deficient jury
instructions; portions of the detective’s testimony (that the gun was
real, that a judge had determined that there was probable cause to
search Howard-Walker’s apartment, why the girlfriend cried during
the police interview, and whether Howard-Walker was being
47
“truthful” during the police interview); and one instance of
prosecutorial misconduct.
¶ 111 In view of our finding both preserved and unpreserved errors,
we follow the Tenth Circuit’s protocol in United States v. Caraway,
534 F.3d 1290, 1302 (10th Cir. 2008), to determine whether there
was cumulative error warranting reversal. There, the Tenth Circuit
held as follows:
First, the preserved errors should be
considered as a group under harmless-error
review. If, cumulatively, they are not
harmless, reversal is required. If, however,
they are cumulatively harmless, the court
should consider whether those preserved
errors, when considered in conjunction with
the unpreserved errors, are sufficient to
overcome the hurdles necessary to establish
plain error. In other words, the prejudice from
the unpreserved error is examined in light of
any preserved error that may have occurred.
Id. Because we have identified only one preserved error, and have
determined that the error was harmless, we proceed to the next
step to determine whether the combined effect of all of the errors
constituted plain error.
¶ 112 To resolve whether there was cumulative error, we must
determine whether “[n]umerous formal irregularities . . . in the
48
aggregate show the absence of a fair trial.” Munsey, 232 P.3d at
124 (quoting Oaks v. People, 150 Colo. 64, 66-67, 371 P.2d 443,
446 (1962)).
¶ 113 Few Colorado cases provide meaningful guidance as to when
multiple errors rise to the level of reversible cumulative error. See,
e.g., People v. Roy, 723 P.2d 1345 (Colo. 1986); People v. Scheidt,
182 Colo. 374, 385, 513 P.2d 446, 452 (1973); People v. Reynolds,
194 Colo. 543, 575 P.2d 1286 (Colo. 1978); Oaks, 150 Colo. at 66-
67, 371 P.2d at 446.
¶ 114 Some guidance is provided by federal cases. A court evaluates
whether the total effect of errors warrants reversal based on a
number of non-exclusive factors, including: the nature and number
of the errors committed; their interrelationship, if any, and
combined effect; how the district court dealt with the errors as they
arose (including the efficacy of any remedial efforts); the strength of
the government’s case; and the length of the trial. United States v.
Baker, 432 F.3d 1189, 1223 (11th Cir. 2005), abrogated in part and
on other grounds as recognized by United States v. Charlestain, 662
F. App’x 691, 692 (11th Cir. 2016).
49
¶ 115 In Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011), the
Ninth Circuit recognized that habeas corpus relief may be granted
when the otherwise harmless errors “amplify each other in relation
to a key contested issue in the case.” The court determined that
because the defendant’s claimed errors did not have a “synergistic
effect,” the combined effect of which might “infect the trial with
unfairness,” he was not entitled to habeas corpus relief. Id.
¶ 116 In this case, even the most serious error — the improper
comment on Howard-Walker’s exercise of his right against
self-incrimination — was fleeting, and the less serious errors bore
little relation to each other. Whether the gun in the video was “real”
was unrelated to the critical issue in the case, which was whether
Howard-Walker was one of the perpetrators of the burglary. The
same is true of the erroneous jury instructions and Detective
Garcia’s testimony about how Howard-Walker might have used the
gun had he encountered the homeowner or the police.
¶ 117 Detective Garcia’s testimony about probable cause, that he did
not believe Howard-Walker was being “truthful” during the police
interview, and that the girlfriend was upset because she had
recognized Howard-Walker in the video stills may have tended to
50
undermine Howard-Walker’s misidentification defense. But each of
these references was brief. Howard-Walker’s failure to object to any
of these errors is one indication that, in context, his trial counsel
did not consider the now-objected-to testimony to be seriously
prejudicial to Howard-Walker. People v. Rodriguez, 794 P.2d 965,
972 (Colo. 1990) (“The lack of an objection may demonstrate
defense counsel’s belief that the live argument, despite its
appearance in a cold record, was not overly damaging.”) (citation
omitted).
¶ 118 Even when considered cumulatively, these errors were
relatively small events scattered over the course of a two-day trial,
during which substantial evidence was presented — including
Howard-Walker’s question to Detective Garcia about what it would
get him if he gave up the name of the other perpetrator — from
which the jury reasonably could have concluded that
Howard-Walker was the man with the gun. See Miller, 113 P.3d at
751 (Colo. 2005) (finding no plain error in light of overwhelming
evidence of the defendant’s guilt).
¶ 119 Because Howard-Walker received a fair trial in spite of the
identified errors, we conclude that a new trial is not warranted.
51
VII. Conclusion
¶ 120 The judgment of conviction is affirmed.
JUDGE DAILEY and JUDGE J. JONES concur.
52