v. Garcia

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
June 10, 2021
2021COA80
No. 17CA1910, People v. Garcia — Criminal Law — Jury
Instructions — Universal Malice; Crimes — Murder in the First
Degree — Extreme Indifference
Addressing a novel issue, a division of the court of appeals
concludes that a trial court is not required to give a jury instruction
defining “universal malice” in a trial dealing with extreme indifference
murder. Because the division also rejects the defendant’s other
challenges to his convictions, the division affirms the judgment.
COLORADO COURT OF APPEALS 2021COA80
Court of Appeals No. 17CA1910
Adams County District Court No. 16CR2539
Honorable Donald S. Quick, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Cristobal Fernando Garcia,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE NAVARRO
Hawthorne*, J., concurs
Terry, J., specially concurs
Announced June 10, 2021
Philip J. Weiser, Attorney General, Erin K. Grundy, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Britta Kruse, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 Defendant, Cristobal Fernando Garcia, appeals the judgment
of conviction entered on jury verdicts finding him guilty of
attempted extreme indifference murder and reckless endangerment.
Addressing a novel issue, we conclude that a trial court is not
required to give a jury instruction defining “universal malice” in a
trial dealing with extreme indifference murder. We also conclude
that (1) the trial court’s descriptions of reasonable doubt,
considered as a whole, did not lower the prosecution’s burden of
proof; and (2) the prosecutor did not commit reversible misconduct.
Therefore, we affirm.
I. Factual and Procedural History
¶2 One night, Natalie Duran asked her sister for help searching
for Garcia, Duran’s live-in boyfriend with whom she has children.
The sisters searched bars and clubs before spotting Garcia driving a
car that Duran owned. Duran followed him until he stopped.
¶3 Duran got out of the car she was driving, walked up to Garcia,
and argued with him. As Duran started walking back toward her
sister, she told Garcia that she had reported her car stolen. Garcia
yelled back, “what”; aimed a handgun either at or above Duran and
1
her sister; and fired three times before running away. None of the
bullets hit the women.
¶4 The prosecution charged Garcia with three counts of
attempted first degree murder — one count on a theory of intent
after deliberation (regarding Duran) and two counts on a theory of
extreme indifference (regarding Duran and her sister). Each act
was charged as a crime of violence, and the complaint and
information was captioned “domestic violence.”
¶5 The case was tried to a jury. As to each count, the jury was
instructed on the lesser included offense of reckless endangerment.
The jury convicted Garcia of one count of attempted extreme
indifference murder (regarding Duran) and found that he had used,
possessed, or threatened to use a deadly weapon when committing
that offense. For the other two counts, the jury acquitted Garcia of
attempted murder but convicted him of reckless endangerment.
(His conviction for reckless endangerment as to Duran was later
merged into his conviction for attempted extreme indifference
murder.)
2
II. “Universal Malice” Instruction
¶6 We first reject Garcia’s contention that the trial court erred by
declining to give a jury instruction defining “universal malice.”
A. Additional Facts
¶7 In addition to giving an instruction on criminal attempt, the
court instructed the jury on the elements of extreme indifference
murder as follows:
1. That Cristobal Garcia
2. in the State of Colorado, at or about the
date and place charged,
3. under circumstances evidencing an attitude
of universal malice manifesting extreme
indifference to the value of human life
generally,
4. knowingly,
5. engaged in conduct which created a grave
risk of death to, [sic] persons other than
himself and thereby,
6. knowingly caused the death of Natalie
Duran.
This instruction tracked the applicable statute. See
§ 18-3-102(1)(d), C.R.S. 2020.
3
¶8 Defense counsel tendered an additional instruction, which
read, “‘Universal Malice’ is that depravity of the human heart which
determines to take life upon slight or insufficient provocation,
without knowing or caring who may be the victim.” The court
decided against giving this proposed instruction, ruling that the
elemental instruction “is a sufficient explanation as to what extreme
indifference means.”
B. Standard of Review and General Principles
¶9 We review de novo whether the jury instructions adequately
informed the jury of the governing law, Riley v. People, 266 P.3d
1089, 1092 (Colo. 2011), but a trial court has substantial discretion
to formulate instructions if they are correct statements of the law
and adequately cover the issues presented, People v. Payne, 2019
COA 167, ¶ 16. Therefore, we review for an abuse of discretion a
trial court’s decision to give, or not to give, a particular jury
instruction. Id. A trial court does not abuse its discretion unless
its decision was manifestly arbitrary, unreasonable, or unfair, or
was based on an erroneous understanding of the law. People v.
Esparza-Treto, 282 P.3d 471, 480 (Colo. App. 2011).
4
¶ 10 Instructions that accurately track the language of the
applicable statute are generally sufficient. People v. Gallegos, 260
P.3d 15, 26 (Colo. App. 2010). Ordinarily, words and phrases in a
statute should be “read in context and construed according to the
rules of grammar and common usage.” § 2-4-101, C.R.S. 2020.
Words and phrases “that have acquired a technical or particular
meaning, whether by legislative definition or otherwise,” must be
defined for the jury accordingly. Id.; Griego v. People, 19 P.3d 1, 7
(Colo. 2001). Conversely, a definitional instruction is not required
for a term or phrase familiar to a reasonable person of common
intelligence, especially when the term’s meaning is not so technical
or mysterious as to create confusion in jurors’ minds. Payne, ¶ 18.
“When a jury indicates no confusion about the meaning of a
statutory term, the trial court’s failure to issue such a definition
does not require a new trial.” Id.5
C. The Meaning of “Universal Malice”
¶ 11 Colorado statutes do not define “universal malice.” Nor is the
phrase defined in the Model Jury Instructions.1 So we consult case
law to discover its meaning.
¶ 12 Long ago, our supreme court addressed the concept of
universal malice in Longinotti v. People, 46 Colo. 173, 102 P. 165(1909). At the time, a Colorado statute described one form of first
degree murder as murder “perpetrated by any act greatly dangerous
to the lives of others, and indicating a depraved mind regardless of
human life.” Id. at 176, 102 P. at 166 (quoting R.S. 1908, § 1624).
The court reasoned that, although every fatal act is greatly
dangerous to the life of the person killed, the legislature classified a
killing act “indicating a depraved mind regardless of human life” as
first degree murder “not because [the killer] has atrociously
murdered a particular individual, but because his act has evinced
universal malice, a malice against mankind in general.” Id. The
1 The Model Jury Instructions were amended in 2014 to remove any
definition of “universal malice.” Compare COLJI-Crim. F(265)
(2008) (defining universal malice), with COLJI-Crim. F (2014)
(containing no such definition), and COLJI-Crim. F (2020)
(containing no such definition).
6
court approved the following explanation: “By ‘universal malice,’ we
do not mean a malicious purpose to take the life of all persons. It is
that depravity of the human heart, which determines to take life
upon slight or insufficient provocation, without knowing or caring
who may be the victim.” Id. at 181, 102 P. at 168 (citation omitted).
We call this “the Longinotti definition.”
¶ 13 Decades later, in People v. Jefferson, 748 P.2d 1223 (Colo.
1988), the supreme court first considered a first degree murder
statute that explicitly mentioned “universal malice.” The statute
read then as it does now: extreme indifference murder occurred
“[u]nder circumstances evidencing an attitude of universal malice
manifesting extreme indifference to the value of human life
generally.” Id. at 1230 (citing § 18-3-102(1)(d), C.R.S. 1982). When
discussing “universal malice,” the court used the Longinotti
definition but also substituted other descriptions. For instance, the
court referred to “those acts greatly dangerous to the lives of
persons other than the one killed, revealing a depraved mind,” a
“notion of cold-bloodedness,” and a case where “the circumstances
of [the killer’s] actions evidence that aggravated recklessness or
cold-bloodedness which has come to be known as ‘universal
7
malice.’” Id. at 1228, 1231, 1232. Indeed, the court explained that
“[f]rom the earliest statutory formulation which proscribed
‘depraved heart murder’ through the narrowing construction of
Longinotti, and ultimately to the most recent formulation codified in
the statute under review, the defining characteristic of the
continuum has remained the same: ‘aggravated recklessness.’” Id.
at 1231.
¶ 14 Since Jefferson, the supreme court has continued to use
various descriptions of universal malice in the context of extreme
indifference murder. See, e.g., Montoya v. People, 2017 CO 40, ¶ 15
(“[E]xtreme indifference murder had become distinguishable from
second degree murder only in the sense that the actual killing act
had to be one objectively demonstrating a willingness to take life
indiscriminately.”); Candelaria v. People, 148 P.3d 178, 181 (Colo.
2006) (recognizing that extreme indifference murder includes
“conduct that, by its very nature and the circumstances of its
commission, evidences a willingness to take human life
indiscriminately, without knowing or caring who the victim may be
or without having an understandable motive or provocation”). The
court has also clarified that, when in Jefferson it had “distinguished
8
the killing conduct necessary for extreme indifference murder as a
type not directed against a particular person,” the court “did not
mean to suggest that one could not intentionally kill a particular
individual in a manner demonstrating a willingness to take human
life indiscriminately, or that doing so would not fall within” section
18-3-102(1)(d). Candelaria, 148 P.3d at 182.
¶ 15 Synthesizing this history, our supreme court has recently
explained again that “the requirement that the killing conduct be
engaged in under circumstances evidencing an attitude of universal
malice manifesting extreme indifference to the value of human life
generally” “describe[s] a killing act objectively demonstrating a
willingness to take life indiscriminately.” People v. Anderson, 2019
CO 34, ¶ 15 (emphasis added).2
2 In fact, the phrase “a willingness to take life indiscriminately”
effectively captures the Longinotti definition, being “that depravity of
the human heart, which determines to take life upon slight or
insufficient provocation, without knowing or caring who may be the
victim.” Longinotti v. People, 46 Colo. 173, 181, 102 P. 165, 168
(1909). Killing “indiscriminately” is the functional equivalent of
killing “without knowing or caring who may be the victim.” And
because there is no degree of provocation that justifies the
indiscriminate taking of human life, indiscriminate killing is by
definition without sufficient provocation. Cf. People v. Lara, 224
P.3d 388, 395 (Colo. App. 2009) (“A person does not act ‘under
circumstances evidencing an attitude of universal malice
9
D. The Trial Court’s Instructions Were Adequate
¶ 16 Garcia’s tendered definition of “universal malice” mostly
conformed to the Longinotti definition. As illustrated, however, the
Longinotti definition is neither the exclusive nor the most recent
formulation of universal malice. Rather, our supreme court has
refined the concept to mean a willingness to take life
indiscriminately. See id. In other words, circumstances
“evidencing universal malice manifesting extreme indifference to the
value of human life generally” are those “evidencing a willingness to
take life indiscriminately.” Montoya, ¶ 21. The question, therefore,
is whether the trial court’s instructions adequately conveyed that
concept. If so, no additional definition was necessary. See Payne,
¶ 18; see also People v. Phillips, 91 P.3d 476, 484 (Colo. App. 2004)
(“[N]o additional instruction is required when the original
instructions adequately inform the jury.”). We conclude that the
court’s instructions, which followed the statutory language, were
adequate.
manifesting extreme indifference to the value of human life
generally’ if he or she acts in reasonable defense of others.”),
overruled in part by People v. Pickering, 276 P.3d 553 (Colo. 2011).
10
¶ 17 We presume that the jury applies the common meaning or
meanings of terms. People v. Sims, 2020 COA 78, ¶ 19. And we
may consult a recognized dictionary to determine how a reasonable
juror would construe a term’s meaning. Id.; see Cowen v. People,
2018 CO 96, ¶ 14.
¶ 18 In the ordinary sense, “universal malice” connotes an
unrestricted willingness to do harm without sufficient justification.
This follows because “universal” means “including or covering all or
a whole collectively or distributively without limit or notable
exception or variation” or “relatively unrestricted in application,”
while “malice” means an “intention or desire to harm another
[usually] seriously through doing something unlawful or otherwise
unjustified.” Webster’s Third New International Dictionary 1367,
2501 (2002). In addition, the statute modifies “universal malice”
with the phrase “manifesting extreme indifference to the value of
human life generally.” § 18-3-102(1)(d). That phrase connotes a
heightened awareness and disregard of a fatal risk as well as a total
lack of concern or caring about human life. See People v. Marcy,
628 P.2d 69, 79 (Colo. 1981), superseded by statute as recognized
in Jefferson, 748 P.2d at 1230; Esparza-Treto, 282 P.3d at 480.
11
And the phrase conveys this meaning in ordinary terms that do not
require a definitional instruction. See Esparza-Treto, 282 P.3d at
480. Hence, the statutory language makes clear that the actor’s
unrestricted and unjustified willingness to harm others includes the
potential to cause death. See also § 18-3-102(1)(d) (extreme
indifference murder occurs when the defendant knowingly causes
death under the circumstances described in the statute); Montoya,
¶ 16. This common understanding of the statutory language —
reflected in the instructions here — conveys the concept of “a
willingness to take life indiscriminately.” Anderson, ¶ 15.
¶ 19 Because the instructions were accurate and adequate, and
because the jury expressed no confusion about their meaning, we
conclude that the trial court did not abuse its discretion by
declining to further instruct the jury on universal malice. See
Esparza-Treto, 282 P.3d at 480.3
3 In so concluding, we necessarily disagree with Garcia’s suggestion
that an additional instruction on universal malice was necessary
given the particular fact pattern here. Finally, to the extent Garcia
argues that his tendered instruction encompassed his theory of the
defense and thus the trial court was obligated to give it, we do not
consider this argument because he raised it for the first time in his
reply brief. See People v. Dubois, 216 P.3d 27, 28 (Colo. App.
2007), aff’d, 211 P.3d 41 (Colo. 2009).
12
III. The Trial Court’s Reasonable Doubt Explanations
¶ 20 Next, we conclude that the trial court’s explanations of
reasonable doubt do not require a new trial.
A. Additional Facts
¶ 21 During voir dire of prospective jurors, the trial court gave a
definition of reasonable doubt that tracked the model instruction.
See COLJI-Crim. E:03 (2020). The court then had the following
exchange with a prospective juror:
THE COURT: Did you drive to the courthouse
today?
PROSPECTIVE JUROR: I did.
THE COURT: Did you come to a red light?
PROSPECTIVE JUROR: Probably, yes.
THE COURT: Okay. And when the light
turned green, did you proceed through the
intersection?
PROSPECTIVE JUROR: Yes.
THE COURT: Did you get in the middle and
hesitate?
PROSPECTIVE JUROR: No.
THE COURT: So you had enough information
that you wouldn’t hesitate in the intersection,
you would proceed?
13
PROSPECTIVE JUROR: Right.
THE COURT: So does that make sense, folks?
That would be an example of proof beyond a
reasonable doubt; you don’t hesitate.
¶ 22 During the court’s ensuing questioning of a different
prospective juror, the juror confirmed that he had driven on a
highway to the courthouse and the highway had not been crowded.
The court asked, “But usually when you get on a highway, do you
have to hesitate because you don’t know where the gap is for you to
get on and you have to figure that out?” The prospective juror said,
“That’s what the sign is for.” The court responded:
Some situations, you hesitate when it’s a
matter of importance; and some situations,
you have enough information and you make a
call; and that’s totally up to each of you. But
you have the obligation, when you go back into
the jury room, to talk about the case. My
guess is, all 12 would not agree on every case
to begin with.
So it’s your obligation to apply your view of the
evidence; but also, it’s your obligation to work
with the other jurors to determine what they
observed of the evidence. Is that something
you think you could do, sir?
The prospective juror answered, “Yes.”
¶ 23 Neither party objected to any of the above.
14
¶ 24 At the close of evidence, the court again gave oral and written
instructions consistent with the model jury instruction. See COLJI-
Crim. E:03. The instructions explained, in part, that reasonable
doubt “is a doubt which is not a vague, speculative or imaginary
doubt, but such a doubt as would cause reasonable people to
hesitate to act in matters of importance to themselves.”
B. Analysis
¶ 25 As noted, we review de novo whether jury instructions
accurately informed the jury of the law. Johnson v. People, 2019
CO 17, ¶ 8. “An instruction that lowers the prosecution’s burden of
proof below reasonable doubt constitutes structural error and
requires automatic reversal.” Id.¶ 26 When assessing whether a trial court improperly instructed on
reasonable doubt, we ask whether there is a reasonable likelihood
the jury applied the instructions in an unconstitutional manner.
Id. at ¶ 14. To answer that question, we do not consider an
instruction in isolation; rather, we view it in the context of the
record as a whole and consider the illustration’s nature, scope, and
timing. Id. at ¶¶ 14, 18; People v. Tibbels, 2019 COA 175, ¶ 32
(cert. granted June 29, 2020). If, given the context of the entire
15
record, “the trial court properly instructed the jury on the law —
even with ‘objectionable language . . . [in] the trial court’s
elaboration of the reasonable doubt instruction’ — then there is no
violation of due process.” Johnson, ¶ 14 (quoting People v.
Sherman, 45 P.3d 774, 779 (Colo. App. 2001)); People v. Avila, 2019
COA 145, ¶ 45. With these principles in mind, we conclude that
the trial court’s elaboration of reasonable doubt in voir dire here —
while ill-advised — did not lower the prosecution’s burden of proof
when viewed in light of the entire record.
¶ 27 The United States Supreme Court, the Colorado Supreme
Court, and many divisions of this court have cautioned that
“further attempts by courts or parties to define ‘reasonable doubt’”
beyond the standard instruction “do not provide clarity.” Johnson,
¶ 13 (citing Holland v. United States, 348 U.S. 121, 140 (1954));
Tibbels, app. (collecting cases). Even so, appellate courts have
concluded that the extraneous reasonable doubt analogies given in
various cases did not lower the prosecution’s burden of proof. See
Johnson, ¶ 18; Tibbels, ¶¶ 35-40; Avila, ¶¶ 46-48; People v. Flynn,
2019 COA 105, ¶ 49. But see People v. Knobee, 2020 COA 7, ¶ 49
(cert. granted June 29, 2020).
16
¶ 28 Assuming without deciding that the trial court’s comments in
voir dire here amounted to a jury instruction, we reach the same
conclusion. As in those cases where appellate courts have affirmed
a conviction despite a problematic reasonable doubt analogy, “the
trial court provided the instruction to the jury verbally and only
once.” Johnson, ¶ 18; see Tibbels, ¶ 37; Avila, ¶ 47; Flynn, ¶ 49. “It
was not mentioned or referenced again throughout the entirety of
the proceedings, including closing arguments.” Johnson, ¶ 18.
“The court read the correct definitions of reasonable doubt and the
burden of proof immediately preceding the improper verbal
instruction.” Id.; see Avila, ¶ 47; Flynn, ¶ 49. “Additionally, the
court correctly instructed the jury numerous times regarding the
presumption of innocence, reasonable doubt, and the burden of
proof.” Johnson, ¶ 18; see Tibbels, ¶ 39; Avila, ¶ 47.
¶ 29 Also, this case is distinguishable from Knobee, where the
division reversed on this issue. The trial court in that case said
during a colloquy with a prospective juror, “I don’t know how best
to explain [reasonable doubt]. It is a standard that we use a lot of
times, beyond a reasonable doubt, when we do important things in
our lives, like buying a home, or choosing doctors, or whatever.”
17
Knobee, ¶ 31. The court then asked the juror, “Can you hold the
People to that burden and not let them by on anything less, and not
require them to prove anything more?” Id. The juror answered in
the affirmative. Id.¶ 30 The division concluded that the trial court’s statements
trivialized reasonable doubt and required reversal due to a
combination of four reasons — at least two of which are absent
here. See id. at ¶ 34. First, the judge’s commentary in Knobee was
“part of a lengthy, highly emphasized, Socratic colloquy with
individual prospective jurors,” different from the isolated comment
in Johnson. Id. at ¶ 41. Here, however, the trial court’s traffic-light
comment was fleeting and not highly emphasized. Second, the trial
court in Knobee extracted a commitment from a prospective juror to
apply the notion of reasonable doubt as the court had described,
and that juror was ultimately empaneled. See id. at ¶¶ 45-46. The
trial court here extracted no commitment from a juror to apply the
reasonable doubt standard as described in the court’s traffic-light
18
analogy, and the prospective juror who took part in that analogy
was not empaneled.4
¶ 31 Considering all this, we do not discern a reasonable likelihood
that the jurors applied the trial court’s isolated analogy in a manner
that reduced the prosecution’s burden of proof.
IV. Prosecutorial Misconduct
¶ 32 Garcia argues that the prosecutor committed misconduct by
(1) referencing domestic violence during voir dire and opening
statement “without any basis for believing such evidence would be
admitted”; and (2) improperly evoking sympathy for the victims. We
discern no reversible error.
A. Statements Regarding Domestic Violence
¶ 33 During voir dire and opening statement, the prosecutor
mentioned that one victim, Duran, would not be testifying at trial,
noted that she had avoided the attempts to serve her a subpoena,
asked prospective jurors whether they understood that “there are
4 The trial court’s question about entering a highway did not truly
go anywhere. The prospective juror did not respond directly, and
the court then made the innocuous remark that in “[s]ome
situations, you hesitate when it’s a matter of importance; and some
situations, you have enough information and you make a call.”
19
reasons why domestic violence victims may not want to prosecute a
case,” and referred to her nonappearance as related to the
“domestic violence component to this case.” Defense counsel did
not object.
¶ 34 On appeal, Garcia says the prosecutor lacked a good faith
basis “to inject the ‘domestic violence component’” into the trial.
See People v. Adams, 708 P.2d 813, 815 (Colo. App. 1985) (“A
prosecutor should not intentionally use the voir dire to present
factual matter which the prosecutor knows will not be admissible at
trial or to argue the prosecution’s case to the jury.”) (citation
omitted). But considering “the context of the argument as a whole
and in light of the evidence before the jury,” we conclude that the
prosecutor did not commit misconduct. People v. Samson, 2012
COA 167, ¶ 30.
¶ 35 Given that the charges were captioned as crimes of domestic
violence in the complaint, the trial court in its introductory remarks
informed prospective jurors — before the prosecutor’s remarks
challenged on appeal — that the charges were “alleged to be an act
of domestic violence.” Both parties referenced domestic violence
during voir dire — for example, defense counsel referred to the
20
charges as “an attempted murder alleged to be domestic violence
and a [sic] handgun related.” So we disagree that, at the time of the
challenged statements, the prosecutor had no indication that
evidence of domestic violence would be admitted at trial.
¶ 36 In any event, evidence of domestic violence was admitted. “An
act of ‘domestic violence’ is ‘an act or threatened act of violence’
against a person with whom the perpetrator has had an ‘intimate
relationship,’ such as current married persons, persons who had a
past marriage, persons who currently or once lived together, and
parents of the same child.” People v. Jaso, 2014 COA 131, ¶ 12
(quoting § 18-6-800.3, C.R.S. 2020). The evidence presented at trial
showed that Garcia was the father of two of Duran’s children,
Garcia and Duran lived together at the time of the charged incident,
and he fired a gun three times in her direction during an argument
after she said she had reported the car stolen. Together, the
evidence permitted the inference that Garcia used or threatened
violence against a person with whom he had an intimate
relationship and that he did so “as a method of coercion, control,
punishment, intimidation, or revenge.” § 18-6-800.3(1). Thus, the
prosecutor’s reference to domestic violence was permissible and,
21
regardless, did not constitute plain error even to the extent it
suggested that Duran did not appear at trial due to domestic
violence. See People v. Dominguez-Castor, 2020 COA 1, ¶¶ 85-86
(“Prosecutorial misconduct is plain error only if it is ‘flagrantly,
glaringly, or tremendously improper.’”) (citation omitted).
B. Victim Sympathy
¶ 37 In opening statement, the prosecutor said,
At the end of the trial, you will have heard
from [Duran’s sister]; you will have heard from
[another eyewitness]; you will have heard from
Detective Peterson and other law enforcement
professionals. You will have some
photographs for exhibits. You will see the
shell casings from the bullets, and you will
know that the defendant is guilty. At that
point, [we] will ask you to hold this defendant
accountable for what he did to see that justice
is done in this case and to find him guilty.
Thank you.
Defense counsel did not object.
¶ 38 In the prosecutor’s rebuttal closing argument, the following
exchange occurred:
PROSECUTOR: We’ve already talked about the
evidence that shows intent to kill and extreme
indifference. I’m going to ask you again like I
did in opening, now is the time to do the right
thing in this case.
22
DEFENSE COUNSEL: Objection, Your Honor.
That’s burden shifting – “Doing the right
thing,” “Now is the time to look at the evidence
and determine that they proved it beyond a
reasonable doubt.”
THE COURT: It’s closing argument. So the
jury knows that the burden of proof is on the
prosecution. Go ahead.
PROSECUTOR: See that justice is done in this
case and find this defendant guilty. Thank
you.
¶ 39 On appeal, Garcia argues that the prosecutor improperly
indicated that a guilty verdict was necessary to do justice for the
victims. We conclude that this claim was not preserved. Defense
counsel at trial framed the objection as “burden shifting,” not as an
improper call for the jury to return a guilty verdict to do justice for
the victims. Thus, we review for plain error. See Martinez v. People,
2015 CO 16, ¶ 14 (claim is unpreserved when the defendant on
appeal alters the grounds for objection). “An error is plain if it is
obvious, substantial, and so undermined the fundamental fairness
of a trial as to cast serious doubt on the reliability of the
conviction.” Dominguez-Castor, ¶ 85.
¶ 40 The prosecutor’s appeal to justice was so minimally prejudicial
that reversal is not required under any standard. The prosecutor’s
23
argument was brief and a small part of summation. See People v.
Carter, 2015 COA 24M-2, ¶ 73 (concluding that these factors
mitigated the prejudicial effect of improper argument). In opening
statement and in closing argument, the prosecutor asked the jury
to “do the right thing” only after discussing the evidence. In
context, the prosecutor asked the jury to “hold [Garcia]
accountable” because the evidence tended to show Garcia was
guilty, and the jury likely would have understood his statements
accordingly.
¶ 41 In sum, we are not persuaded that the prosecutor’s comments
“so inflamed and impassioned” the jury “that it could not render a
fair and impartial verdict” based on the evidence. See People v.
Mason, 643 P.2d 745, 753 (Colo. 1982) (quoting People v. Elliston,
181 Colo. 118, 126, 508 P.2d 379, 383 (1973)). Thus, any error
was harmless and surely did not constitute plain error. See
Dominguez-Castor, ¶ 86.
¶ 42 Finally, because we have assumed only one harmless instance
of prosecutorial misconduct, there is no cumulative error upon
which to reverse. See Townsend v. People, 252 P.3d 1108, 1112
(Colo. 2011).
24
V. Conclusion
¶ 43 The judgment is affirmed.
JUDGE HAWTHORNE concurs.
JUDGE TERRY specially concurs.
25
JUDGE TERRY, specially concurring.
¶ 44 I concur in the majority’s reasoning and the result reached. I
write separately to emphasize that trial courts should not attempt
to explain or simplify application of the reasonable doubt standard.
¶ 45 I agree with the majority that the reasonable doubt analogies
in this case did not improperly lower the prosecution’s burden of
proof. This is so because the situations that the trial court
described when explaining reasonable doubt were clear to the jury
and were not a matter of uncertainty. The court emphasized
situations where the juror had enough information to make a
decision and did not hesitate in doing so. Thus, because there was
no uncertainty in these analogies, the burden of proof was
unaffected.
¶ 46 However, although I conclude that reversal is not required, I
emphasize that trial courts should not impart reasonable doubt
analogies to juries. Comparing reasonable doubt to the decisions
one makes in everyday situations, such as while driving, tends to
make jurors think that deciding whether a defendant is guilty is a
decision that can be made as quickly and casually as the decision
whether to enter an intersection or merge onto a highway. Such
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decisions are far simpler than deciding whether a defendant
accused of a crime is guilty or not. See People v. Knobee, 2020 COA
7, ¶ 39 (cert. granted June 29, 2020) (“Few decisions that people
make have the gravity of deciding whether to convict an accused
person of a crime.”). Because analogies that compare reasonable
doubt to everyday decisions tend to oversimply the concept of
reasonable doubt, such analogies should not be imparted to jurors
or potential jurors. Cf. Johnson v. People, 2019 CO 17, ¶ 13
(“[A]ttempts by courts or parties to define ‘reasonable doubt’ do not
provide clarity.”).
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