v. Knobbe

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
January 16, 2020
2020COA7
No. 16CA0347, People v. Knobbe — Trials — Voir Dire; Criminal
Law — Burden of Proof — Reasonable Doubt; Constitutional
Law — Due Process
Where a trial court analogized the reasonable doubt standard
to decisions jurors make in their everyday lives, like choosing a
doctor or buying a home, a division of the court of appeals holds for
the first time that such a description constituted structural error
and required automatic reversal. The description impermissibly
lowered the prosecution’s burden of proof and thus infringed on the
defendant’s due process rights.
The division also holds that the trial court erred by omitting
language from its second degree kidnapping jury instruction. The
division further concludes that the prosecution’s evidence was
sufficient to support a kidnapping conviction and that the
prosecution is not barred from retrying the defendant on that
charge. Last, the division declines to address several issues that
may not arise on retrial.
The dissent would affirm, concluding that the trial court’s
comments were neither structural nor plain error.
COLORADO COURT OF APPEALS 2020COA7
Court of Appeals No. 16CA0347
Adams County District Court No. 14CR2817
Honorable Thomas R. Ensor, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kyotte Kyle Knobee, a/k/a Kyotee Knobbe,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE TERRY
Pawar, J., concurs
Dailey, J., concurs in part, dissents in part
Announced January 16, 2020
Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Meghan M. Morris, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 During voir dire in criminal trials, some judges — seemingly
not trusting jurors’ ability to understand and apply the standard
reasonable doubt jury instruction — have imparted to prospective
jurors the judges’ own interpretations of the prosecution’s burden of
proof. That practice is fraught with problems of constitutional
magnitude, potentially impairing a defendant’s fundamental right to
a fair trial. Our supreme court, in Johnson v. People, 2019 CO 17,
and numerous divisions of this court, as noted in People v. Tibbels,
2019 COA 175, have repeatedly cautioned against the practice.
¶2 Today, we conclude that the trial court’s error in giving such
an interpretation to prospective jurors impermissibly lowered the
burden of proof of guilt, and that we must reverse the conviction
entered against defendant, Kyotte Kyle Knobee, a/k/a Kyotee
Knobbe (Knobbe).
¶3 A jury found Knobbe guilty of second degree kidnapping
involving sexual assault, second degree kidnapping with a deadly
weapon, sexual assault of an at-risk victim, aggravated motor
vehicle theft, and third degree assault of an at-risk victim. We
reverse and remand with directions.
1
I. Factual Background
¶4 The prosecution’s evidence showed that Knobbe and the
alleged victim, P.F., were in an on-again, off-again intimate
relationship. One night, Knobbe and another friend (N.W.) visited
P.F. at her house. The three of them — who are all deaf and
communicate by sign language — visited for several hours before
going to sleep in three different areas of the house. The following
morning, N.W. and P.F. were standing outside when Knobbe came
out and asked P.F. to follow him back into the house. When P.F.
entered the kitchen, Knobbe grabbed a knife, pointed it at her, and
ordered her to move into the basement, where he threw her onto a
bed, choked her, and forcibly sexually assaulted her.
¶5 Around that time, P.F.’s parents arrived to drive her to her
son’s soccer game. P.F.’s ex-husband had custody of their son, and
attending the son’s soccer games was an important part of P.F.’s
court-ordered parenting reintegration plan. N.W. told the parents
that P.F. was inside the house. After discovering P.F.’s truck in the
garage and all the doors to the house locked, the parents drove to
their own home to retrieve their keys to P.F.’s house. When they
2
were almost home, P.F.’s mother received texts from P.F. saying
“Help” and “Kyle try to kill me.” (P.F. later said she had sent the
texts quickly while Knobbe was not looking. When asked why she
did not call 911, she said that because she is deaf, she would have
been required to complete a video call, which would have taken a
significant amount of time.)
¶6 Meanwhile, Knobbe forced P.F. into her truck at knifepoint
and drove her around in the mountains for several hours. At some
point during the drive, Knobbe threw the knife out the window.
¶7 Shortly after Knobbe and P.F. left the house, P.F.’s parents
returned to her house and found the garage open, the truck
missing, and P.F.’s phone on her bed. They called the police.
Eventually, Knobbe drove P.F. back to her neighborhood. Nearing
P.F.’s house, he saw a police officer outside, dropped P.F. off at the
corner, and drove away.
¶8 P.F. went to a hospital and underwent a sexual assault nurse
examination, which found injuries to her arms, chest, legs, and
neck, and Knobbe’s semen in her vaginal area.
3
¶9 Knobbe’s theory of defense at trial was that P.F. fabricated the
allegations to cover for the fact that she had used cocaine and had
left with Knobbe instead of attending her son’s soccer game.
Knobbe testified that after N.W. went to bed the night before the
incident, Knobbe and P.F. stayed up and used cocaine before
having consensual sex in the basement. The next morning, P.F.
came into the basement and poked him in the back with a knife,
surprising him and causing him to grab her arms and choke her to
get her to drop the knife. After calming down, P.F. told him that
she wanted to go into the mountains. Without his knowledge, P.F.
brought the knife with her, and when she pulled out the knife
during the drive, he got it away from her and threw it out a window.
During the drive, P.F. told him about her son’s soccer game and
that she was going to tell her parents that he had raped and
kidnapped her.
¶ 10 The jury convicted Knobbe of the offenses mentioned above;
acquitted him of a crime of violence sentence enhancement count
alleged in connection with the charge of sexual assault on an at-
risk victim; and could not reach a verdict on an additional charge of
4
sexual assault with a deadly weapon, which the prosecution later
dismissed.
¶ 11 At sentencing, the trial court merged the two kidnapping
offenses and sentenced Knobbe to an indeterminate term of sixteen
years to life imprisonment in the custody of the Department of
Corrections.
II. The Evidence Was Sufficient to Support a Kidnapping
Conviction
¶ 12 Knobbe asserts that the prosecution’s evidence was
insufficient to prove that he was guilty of kidnapping under section
18-3-302(3)(a), C.R.S. 2019. We address this issue first because, if
the evidence were insufficient, the guarantees against double
jeopardy in the United States and Colorado Constitutions would bar
the prosecution from retrying Knobbe on this charge. See People v.
Marciano, 2014 COA 92M-2, ¶ 42. We conclude that the evidence
was sufficient to support the kidnapping conviction.
¶ 13 “When assessing the sufficiency of the evidence . . . , we review
the record de novo to determine whether the evidence, viewed in the
light most favorable to the prosecution, was both substantial and
sufficient to support the conclusion by a reasonable mind that the
5
defendant was guilty beyond a reasonable doubt.” People v. Griego,
2018 CO 5, ¶ 24.
¶ 14 According to Knobbe, the prosecution’s evidence could at most
be interpreted to show that he moved the victim by forcing her to be
driven into the mountains after the sexual assault, and that
subsection 302(3)(a) can be applied only where the kidnapped
person is or will be sexually assaulted after being kidnapped. In
support of his contention, Knobbe cites section 2-4-104, C.R.S.
2019, which states that statutory “[w]ords in the present tense
include the future tense,” and Sifton v. Stewart Title Guaranty Co.,
259 P.3d 542, 544 (Colo. App. 2011) (stating that division was
unaware of any Colorado authority holding that present tense
language applies to past events).
¶ 15 Section 18-3-302(3)(a) provides, “[s]econd degree kidnapping is
a class 2 felony if . . . [t]he person kidnapped is a victim of a sexual
offense pursuant to part 4 of this article.” Nothing in the statute
indicates when the sexual offense must be committed in relation to
the kidnapping.
6
¶ 16 We do not resolve this timing conundrum because, as the
Attorney General argues, the prosecution presented evidence at trial
that Knobbe sexually assaulted the victim after he pulled a knife
from the knife block in the kitchen, pointed the knife at her, and
forcefully moved her down the stairs into a basement bedroom,
where he pushed her onto a bed and sexually assaulted her.
Viewing the evidence in the light most favorable to the prosecution,
People v. Davis, 2012 COA 56, ¶ 12, we conclude that the evidence
was sufficient to support a conviction for kidnapping. See
§ 18-3-302(1), (3), (4). Therefore, the prosecution is not barred from
retrying Knobbe on this charge.
III. The Court’s Comments on “Reasonable Doubt” Require
Reversal
¶ 17 Knobbe contends that during jury voir dire the trial court
erred by making comments that trivialized the prosecution’s burden
of proof and his presumption of innocence. We agree and conclude
that this error requires reversal.
¶ 18 During voir dire, the trial court had a discussion with potential
jurors — related at greater length below — about the prosecution’s
burden to prove guilt beyond a reasonable doubt. For now, we
7
highlight the following discussion between the court and a
prospective juror — who deliberated to a verdict — about the
reasonable doubt standard.
THE COURT: 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. Do you
understand?
THE JUROR: Yes, I do.
THE COURT: Can you hold the People to that
burden and not let them by on anything less,
and not require them to prove anything more?
(Emphases added.) The juror agreed to do so. After the close of
evidence, the court gave the jury a proper written instruction
defining the presumption of innocence, burden of proof, and
reasonable doubt, in accordance with COLJI-Crim. E:03 (2018).
A. Standard of Review
¶ 19 In Johnson, our supreme court treated a district court judge’s
supplementary commentary to jurors about the reasonable doubt
instruction as an “instruction.” See Johnson, passim. The Johnson
court also recognized that “[a]n instruction that lowers the
prosecution’s burden of proof below reasonable doubt constitutes
8
structural error and requires automatic reversal.” Id. at ¶ 8 (citing
Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993)).
B. Analysis
¶ 20 Knobbe asserts that the trial court’s description of the
reasonable doubt standard trivialized the prosecution’s burden of
proof by comparing the decision jurors make in a criminal case to
decisions they make in their everyday lives. We agree.
1. The Reasonable Doubt Standard
¶ 21 The supreme court in Johnson described the reasonable doubt
standard as a bedrock principle of American jurisprudence:
In criminal cases, the prosecution is required
to “prove every factual element necessary to
constitute the crime charged beyond a
reasonable doubt.” Vega v. People, 893 P.2d
107, 111 (Colo. 1995). This requirement
“dates at least from our early years as a
Nation” and is nothing short of
“indispensable.” In re Winship, 397 U.S. 358,
361, 364, (1970). The U.S. Supreme Court has
held that the Due Process Clause mandates
the universal application of the reasonable
doubt standard in criminal prosecutions.
See id. at 364 (“[W]e explicitly hold that the
Due Process Clause protects the accused
against conviction except upon proof beyond a
reasonable doubt of every fact necessary to
constitute the crime with which he is
charged.”). While the standard’s application is
universally mandated, courts retain some
9
flexibility in defining what constitutes a
reasonable doubt. Victor v. Nebraska, 511
U.S. 1, 5 (1994) (“[S]o long as the court
instructs the jury on the necessity that the
defendant’s guilt be proved beyond a
reasonable doubt . . . the Constitution does
not require that any particular form of words
be used . . . .”).
Id. at ¶ 10.
¶ 22 As Johnson recognized, “[t]he U.S. Supreme Court has
cautioned that further attempts by courts or parties to define
‘reasonable doubt’ do not provide clarity,” id. at ¶ 13. Johnson
quoted the admonition from Victor v. Nebraska, 511 U.S. at 22, that
“trial courts must avoid defining reasonable doubt so as to lead the
jury to convict on a lesser showing than due process requires.”
Johnson, ¶ 13. And it cautioned that “[a]ttempts to explain the
term ‘reasonable doubt’ do not usually result in making it any
clearer to the minds of the jury . . . .” Id. (quoting Holland v. United
States, 348 U.S. 121, 140 (1954), in turn quoting Miles v. United
States, 103 U.S. 304, 312 (1880)).
¶ 23 As we discuss below, in this case, the trial court’s description
of the reasonable doubt standard improperly added additional
commentary on what “reasonable doubt” is.
10
2. The Court’s Improvised Instructions Were Unlike Those in
Johnson, and They Require Reversal
¶ 24 In Johnson, the improper instruction from the trial judge
consisted only of the following words:
[Y]ou would find [a defendant] guilty only if,
after hearing all of that evidence, you just can’t
bring yourself to do it. You just have to
hesitate. It’s not there. You can’t find her
guilty because the quality or quantity of
evidence just doesn’t let you. That’s when
you’ve hesitated to act.
Id. at ¶ 4.
¶ 25 Though the supreme court concluded that the addition by the
trial court in that case to the “reasonable doubt” instruction was
“problematic,” id. at ¶ 17, it declined to reverse the conviction
because the trial court’s addition was “too nonsensical to be
understood by the jury,” was given only once during voir dire, was
not referenced by either party at any time, and was “flanked by the
proper instruction regarding the burden of proof at the beginning
and end of the trial,” id. at ¶¶ 1, 15.
¶ 26 Here, too, the jury was given proper “reasonable doubt”
instructions at the beginning and end of trial. But unlike in
Johnson, where the trial court gave a brief and incorrect description
11
of a legal standard, id. at ¶ 9, the court here went into more detail
on the subject of reasonable doubt. And unlike in Johnson, the
court’s description here was not so “isolated and nonsensical,” id.,
as to overcome any concern that the jury would misapply the
reasonable doubt standard. Even though Johnson treated
instructional error on reasonable doubt as structural error,
Johnson, ¶ 8 — meaning an error that would require automatic
reversal — we follow the supreme court’s lead in that case, and
proceed to consider whether the instructional error would have
made enough of a difference to require reversal. See id. at ¶¶ 9, 18.
As we conclude below, unlike in Johnson, the court’s error here
requires reversal.
¶ 27 Johnson came after a long line of cases from across the United
States recognizing the problem of trial courts attempting to redefine
the reasonable doubt standard for juries. A division of this court
has recognized that
[w]ell-intentioned trial courts, seeking to
provide additional clarity to prospective jurors,
sometimes feel the urge to go beyond these
instructions and either insert their own
supplemental instructions or attempt to add
“flesh to the bones” of the standard
12
instructions by providing examples and
hypotheticals. Divisions of this court have
repeatedly expressed disapproval of the
practice, because such instructions run the
risk of confusing the jurors and may even
lower the burden of proof or diminish the
presumption of innocence.
People v. Flynn, 2019 COA 105, ¶ 42; accord Tibbels, ¶ 40 (“strongly
discourag[ing]” trial courts’ use of “everyday illustrations to explain
reasonable doubt”); People v. Camarigg, 2017 COA 115M, ¶ 46
(“[E]quat[ing] the burden of proof to an everyday choice can be
improper.”); but see People v. Avila, 2019 COA 145, ¶¶ 42-48
(upholding conviction where trial court likened application of the
“beyond a reasonable doubt” standard to the decisions one makes
when buying produce and deciding whether to buy a house with a
crack in the foundation).
¶ 28 Since at least 1914, Colorado appellate courts have been
discouraging trial courts from creating their own formulations of
reasonable doubt. See Foster v. People, 56 Colo. 452, 458, 139 P.
10, 12 (1914) (“[W]e [have previously] called the attention of district
attorneys and trial judges, and now do so again, to the advisability
of following an approved instruction on the subject of reasonable
13
doubt . . . , for the reason that this is the safe practice, and obviates
the necessity of considering instructions on the subject differently
worded.”). And yet, the issue arises again and again in the court of
appeals. See Tibbels, ¶ 33 (“[T]wenty-two decisions of this court,
both published and unpublished, have repeatedly discouraged trial
courts’ use of illustrations to explain reasonable doubt, the
presumption of innocence, and other legal concepts.”).
a. The Court’s Colloquy
¶ 29 At the start of voir dire, the court announced to the jury venire
that he had “about 13 points to make” and that he would make
them with “the first 13” prospective jurors. Addressing each of
those jurors directly, he engaged them in a colloquy about certain
trial concepts, using folksy, colorful, and memorable language.
¶ 30 The judge began by describing the charges that had been
lodged against Knobbe. He then moved to a description of his own
interpretation of the reasonable doubt standard.
¶ 31 The judge asked a potential juror, “Are you a reasonable
person?” After the juror responded, “I believe so,” the judge gave
the following description of the reasonable doubt standard. He
14
began with an almost verbatim quotation of part of the actual, legal
definition of the standard that the jurors would be given at the close
of trial (included in the first quoted paragraph, below). See COLJI-
Crim. E:03. The judge then went on to give his own interpretation
of the meaning of that standard:
THE COURT: The burden of proof that the
People have is called beyond a reasonable
doubt. And that means a doubt that would
cause a reasonable person to hesitate and
pause in matters of importance to themselves.
Do you understand?
THE JUROR: Yes, I do.
THE COURT: Have you ever heard the term
beyond a shadow of a doubt?
THE JUROR: Yes, I have.
THE COURT: Sure. We all have. It is great
for books. It is great for the theatre. It has
pizzazz. Beyond a shadow of a doubt. But
there is no such thing in any court as proof
beyond a shadow of a doubt. Because if you
think of that term, that means there is
absolutely no doubt whatsoever. If life has
taught us anything, life has taught us nothing
we do as human beings can be proven beyond
a shadow of a doubt. Anything can happen.
We don’t run our lives that way, but anything
could happen. We could have an earthquake
in Brighton, Colorado. Fracking. I don’t know.
But I am not worried about it.
15
Whoever would have thought somebody could
land a jet airliner in the middle of the Hudson
River and nobody gets hurt? But it happened.
But we don’t base our lives on those things.
I don’t know how best to explain it. 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. Do you
understand?
THE JUROR: Yes, I do.
THE COURT: Can you hold the People to that
burden and not let them by on anything less,
and not require them to prove anything more?
THE JUROR: Yes, Your Honor, I can do that.
(Emphases added.)
¶ 32 After extracting this promise from the juror, the judge went on
to discuss his view of other trial concepts with prospective jurors.
b. Discussion
¶ 33 A jury can only fulfill its constitutional role of finding each
element of a charged offense beyond a reasonable doubt when it
has been properly instructed. Griego v. People, 19 P.3d 1, 7 (Colo.
2001). “[I]f the trial court properly instructed the jury on the law —
even with ‘objectionable language . . . [in] the trial court’s
16
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)).
¶ 34 We conclude that the trial court improperly instructed the jury
on the reasonable doubt standard, and that, for the following four
reasons, reversal of Knobbe’s conviction is required.
¶ 35 First, the court’s improvised description of the standard was
an incorrect statement of the law that lowered the prosecution’s
burden of proof. See Tibbels, ¶ 33 (“Because the prosecution has
the burden of proving every charge beyond a reasonable doubt, any
instruction on reasonable doubt that lowers this burden of proof
violates a defendant’s constitutional right to due process.”).
¶ 36 As the judge initially — correctly — told the jurors, a
“reasonable doubt” is “a doubt that would cause a reasonable
person to hesitate and pause in matters of importance to
themselves.” See COLJI-Crim. E:03; People v. Robb, 215 P.3d 1253,
1262-63 (Colo. App. 2009) (upholding this part of the reasonable
doubt instruction).
17
¶ 37 We see nothing wrong with the court’s attempt to distinguish
the “beyond a reasonable doubt” standard from the “beyond a
shadow of a doubt” phrase, popularized in television courtroom
dramas.
¶ 38 But the court then told the jurors that the reasonable doubt
standard for criminal convictions is “a standard that we use a lot of
times,” which is simply untrue; and by telling jurors that their
decision is no more consequential than choosing a doctor “or
whatever,” the court improperly trivialized the prosecution’s burden
of proof.
¶ 39 Few decisions that people make have the gravity of deciding
whether to convict an accused person of a crime. See Robb, 215
P.3d at 1262-63 (trial courts should emphasize “the kind of doubt
that would make a person hesitate to act, rather than the kind on
which he would be willing to act” (quoting Holland, 348 U.S. at
140)); Commonwealth v. Ferreira, 364 N.E.2d 1264, 1273 (Mass.
1977) (“[A]ll references to examples taken from the jurors’ lives
should be avoided. . . . The degree of certainty required to convict
is unique to the criminal law. We do not think that people
18
customarily make private decisions according to this standard nor
may it even be possible to do so.”); see also, State v. Walker, 265
P.3d 191, 196 (Wash. Ct. App. 2011) (prosecutor erroneously
described the reasonable doubt standard as “a common standard
that you apply every day” and compared it to having surgery and
leaving children with a babysitter); cf. People v. Van Meter, 2018
COA 13, ¶ 32 (concluding that prosecutor’s description of beyond a
reasonable doubt standard using analogy to partially completed
jigsaw puzzle with image of space shuttle was improper, but it did
not amount to reversible plain error because, without the guidance
provided in that judicial decision, impropriety of use of the analogy
was not “so clear-cut that a trial judge should have been expected
to avoid it without benefit of an objection” (quoting People v. Carter,
2015 COA 24M-2, ¶ 58)); Camarigg, ¶ 50 (concluding that a
prosecutor’s use of an analogy to filling in a jigsaw puzzle did not
improperly quantify or trivialize the State’s burden to prove the
defendant’s guilt beyond a reasonable doubt).
¶ 40 Because determining an accused person’s guilt beyond a
reasonable doubt is such an extraordinary occurrence, subject to
19
an unusually stringent burden, we respectfully disagree with the
division in Avila, ¶¶ 42-48, that it was not error for a trial court to
liken the “beyond a reasonable doubt” standard to the decision one
makes when buying produce. See Tibbels, ¶ 34 (noting that “the
risk of lessening the burden of proof increases when analogies to
everyday experiences are used to explain the concept of reasonable
doubt” (citing Victor, 511 U.S. at 24 (Ginsburg, J., concurring in
part and concurring in the judgment))).
¶ 41 Second, the judge’s commentary was part of a lengthy, highly
emphasized, Socratic colloquy with individual prospective jurors. It
cannot have failed to color the jurors’ perceptions of the
prosecution’s burden. Thus, it is distinct from the “isolated”
comment that deterred the supreme court from reversing the
conviction in Johnson, ¶ 9.
¶ 42 Third, the judge’s commentary came at the beginning of trial,
when prospective jurors were forming their first impressions of the
case and of the task on which they were about to embark. We
cannot conclude that jurors would have paid less heed to
commentary on an issue as critical as “reasonable doubt” simply
20
because it was made at the beginning of trial, rather than at the
end, when the jury was formally given the written instructions. Cf.
Deleon v. People, 2019 CO 85 (reversing conviction because trial
court failed to give a no-adverse-inference instruction about the
defendant’s right to remain silent, as the defendant had requested,
during final charge to jury).
¶ 43 Case law has relied on the principles of primacy and recency
and their effect on memory and perception, and has recognized that
those principles can be considered in determining whether to
reverse a criminal conviction. See Domingo-Gomez v. People, 125
P.3d 1043, 1052 (Colo. 2005) (“Rebuttal closing is the last thing a
juror hears from counsel before deliberating, and it is therefore
foremost in their thoughts.”); People v. Robinson, 2017 COA 128M,
¶ 36 (“[W]e . . . recognize, as have numerous scientists and
academics, that principles of primacy may cause statements and
arguments made early in a trial to have a disproportionately
influential weight.” (first citing L. Timothy Perrin, From O.J. to
McVeigh: The Use of Argument in the Opening Statement, 48 Emory
L.J. 107, 124 (1999); then citing John B. Mitchell, Why Should the
21
Prosecutor Get the Last Word?, 27 Am. J. Crim. L. 139, 157-58
(2000))), rev’d, 2019 CO 102; Dudley v. State, 951 P.2d 1176, 1180
(Wyo. 1998) (“[W]e recognize[] the accepted psychological impact of
the testimony of witnesses presented first or last under the theory
of ‘primacy and recency.’” (quoting Whiteplume v. State, 841 P.2d
1332, 1340 (Wyo. 1992))).
¶ 44 Thus, the fact that the judge’s description of the “beyond a
reasonable doubt” standard came so early in the trial made it more
likely that it would be memorable when it came time for the jury to
apply the standard during deliberations.
¶ 45 And fourth, the court made a point of extracting a commitment
from the juror to “hold the People to [the] burden” as the court had
just described it — namely, “a standard that we use a lot of
times . . . when we do important things in our lives, like buying a
home, or choosing doctors, or whatever.” (Emphasis added.) As we
have discussed above, the court’s description of the burden was not
the exacting standard required by law. The choice of a doctor “or
whatever” certainly does not have the same gravity as the decision
about guilt beyond a reasonable doubt.
22
¶ 46 Though the court extracted a promise from just one potential
juror to hold the prosecution only to the burden as the court
described it, this promise could not have failed to impress the
judge’s defined standard on other jurors. And the juror who gave
the promise to the court ultimately sat on the jury and deliberated
to a verdict.
¶ 47 Jurors look to trial court judges as authoritative sources of the
law, and usually, such confidence is properly placed. Given that
the trial judge’s description of “reasonable doubt” was part of a
lengthy and highly emphasized presentation to prospective jurors, it
could have encouraged all of the jurors to rely on the judge’s
incorrect interpretation of the law.
¶ 48 Therefore, unlike the trial court’s discussion of reasonable
doubt in Johnson, the judge’s description here was not so “isolated
and nonsensical,” Johnson, ¶ 9, as to overcome any concern that
the jury would misapply the reasonable doubt standard. The trial
court’s comments here were not isolated, and though incorrect, we
cannot describe them as “nonsensical.”
23
¶ 49 The judge’s extraction of the juror’s promise to apply the
burden of proof as the judge incorrectly described it renders this
case distinct from cases where appellate courts have declined to
reverse convictions. And the court’s analogies to reasonable doubt
here were more nebulous (buying a home, choosing doctors, “or
whatever”) than those in Flynn and Tibbels, which were not found to
require reversal. See Tibbels, ¶¶ 24-26 (likening reasonable doubt
to whether one would hesitate to buy a house that has a
“structurally significant” crack in the foundation); Flynn, ¶¶ 35-38
(likening reasonable doubt to whether one could doubt if the
courthouse would “stand for another 24 hours [even though there
might be visible] cracks . . . in the foundation” and whether a
juror’s mother might have gotten the juror’s date of birth wrong).
3. The Giving of a Proper Jury Instruction at the Close of Trial
Did Not Cure the Court’s Error
¶ 50 Even though, after three days of trial, the court provided the
jury with a proper reasonable doubt jury instruction under COLJI-
Crim. E:03, and told the jury that those instructions “contain the
rules of law that you must apply to reach your verdict,” we conclude
that the damage had already been done during voir dire, as
24
discussed above, by the trial court’s lessening of the prosecution’s
burden of proof.
¶ 51 The jurors’ review, during deliberations, of the more formal
language of the pattern “beyond a reasonable doubt” jury
instruction would not have been sufficient to dislodge the judge’s
memorable and implanted notion of the incorrect standard.
¶ 52 We conclude that this is so even though, before reading the
stock jury instructions, the court told the jurors, “you must all
follow the instructions as I give them to you” (emphasis added).
Instead of vitiating the court’s error, this language reinforced that
the judge himself was the authority on the law. In fact, the judge
said, “It is my job to decide what rules of law apply to this case”
(emphasis added), and jurors would have had no way of discerning
stock jury instructions from those improperly described by the
judge during voir dire. Cf. Flynn, ¶ 49 (trial court’s improper
hypotheticals discussing reasonable doubt standard did not lower
the burden of proof and did not constitute reversible error where
“each of the hypotheticals here was discussed verbally, and only
once”; none was mentioned again at any time during the
25
proceedings; the trial court read the correct definitions of beyond a
reasonable doubt and presumption of innocence
contemporaneously with the discussions; the court “repeatedly
referred back to the appropriate standard definition of reasonable
doubt”; and the correct instructions were again read to the jury
after the close of evidence).
¶ 53 We note that, about eight months before Knobbe’s trial, this
same trial court judge had been advised in remand instructions in
an opinion from a division of this court not to analogize the concept
of reasonable doubt “to decisions people make in their everyday
lives” because “[s]uch analogies run the risk of impermissibly
trivializing the jury’s task in determining [the] defendant’s guilt.”
People v. Mortensen, slip op. at 12 (Colo. App. No. 12CA1096, Feb.
19, 2015) (not published pursuant to C.A.R. 35(f)).
¶ 54 Because, in this case, the court’s improper description of the
standard of proof lowered the prosecution’s burden of proving guilt,
we conclude that the error was a structural error that requires
reversal of the conviction. See Johnson, ¶ 8; see also People v.
Kanan, 186 Colo. 255, 259, 526 P.2d 1339, 1341 (1974) (“Prejudice
26
to the defendant is inevitable when the court instructs the jury in
such a way as to reduce the prosecution’s obligation to prove each
element of its case beyond a reasonable doubt.”); People v. Owens,
97 P.3d 227, 237-38 (Colo. App. 2004) (The court’s erroneous
revised instruction “effectively reduced the prosecution’s burden of
proof and permitted the jury to find the asportation element of
second degree kidnapping based on legally insufficient grounds.”).
¶ 55 Deleon does not change the result we reach here. In Deleon,
the supreme court addressed a trial court’s failure to properly
instruct a jury on a defendant’s right to remain silent. There, the
supreme court held that, because a trial court improperly failed at
the close of trial to give a jury instruction on the defendant’s right
to remain silent (i.e., not to testify), the error required reversal, even
though, during jury voir dire, the court and counsel had properly
emphasized that right. Deleon, ¶ 15.
¶ 56 True, in that case, the supreme court emphasized the
importance of final jury instructions in ensuring a fair trial to a
defendant, even though a proper instruction had been given during
jury voir dire in that case. Id. at ¶ 27. But that explanation does
27
not convince us that the giving of a proper final reasonable doubt
instruction in Knobbe’s case vitiates the error in the trial court’s
initial instructions as to the meaning of “reasonable doubt.” The
court in Deleon did not create an excuse for giving improper
instructions during the jury voir dire phase of trial.
¶ 57 And, in Deleon, the supreme court said that the purpose of the
trial court’s comment during voir dire about the defendant’s right
not to testify “was to determine whether the potential jurors could
act impartially and conscientiously apply the law, not to instruct the
jury on the law itself.” Id. at ¶ 26 (emphasis added). As discussed
above, we are convinced that the judge here was trying to instruct
the jury during voir dire “on the law itself” — and improperly so.
¶ 58 Importantly, unlike in Deleon, in this case, a juror who
deliberated to verdict had agreed to be bound by the incorrect
burden of proof as described by the judge.
IV. Presumption of Innocence
¶ 59 Defendant also argues that the trial court erred when,
addressing jurors at the start of voir dire, the court gave its own
interpretation of the presumption of innocence. Because we are
28
reversing the conviction based on the trial court’s improper
description of the burden of proof, we need not address its
description of the presumption of innocence. We say only that, as
with the description of the burden of proof, it is not within the trial
court’s purview to redefine the presumption of innocence for jurors.
V. The Court’s Instruction Addressing Kidnapping By Use of a
Deadly Weapon
¶ 60 The prosecution charged Knobbe with second degree
kidnapping under section 18-3-302(4)(a)(II) and (III). Knobbe
argues that the court’s jury instruction failed to track the statutory
language of subsections (II) and (III) because it omitted mention
that, to convict him of kidnapping with a deadly weapon, the
kidnapping had to be “accomplished by” the use of a deadly
weapon. We agree.
¶ 61 Second degree kidnapping is elevated to a class 3 felony if
“[t]he kidnapping is accomplished by the use of a deadly weapon or
any article used or fashioned in a manner to cause a person to
reasonably believe that the article is a deadly weapon” or “[t]he
kidnapping is accomplished by the perpetrator representing verbally
29
or otherwise that he or she is armed with a deadly weapon.”
§ 18-3-302(4)(a)(II), (III) (emphases added).
¶ 62 An element of a sentencing enhancement, like a criminal
offense, has to be proved to a jury beyond a reasonable doubt. See
People v. Jamison, 220 P.3d 992, 995 (Colo. App. 2009). If, on
retrial, the court again instructs the jury on this charge, it must
instruct the jury that, to convict of this charge, the jury has to find
that the kidnapping was “accomplished by” the use of a deadly
weapon.
VI. Sex Offender Lifetime Supervision Act
¶ 63 Knobbe was sentenced under the Colorado Sex Offender
Lifetime Supervision Act of 1998, sections 18-1.3-1001 to -1012,
C.R.S. 2013. On appeal, he contends that the Act is
unconstitutional. We see no reason to depart from the well-
reasoned decisions of other divisions of this court that have
consistently upheld the constitutionality of the Act. See, e.g.,
People v. Sabell, 2018 COA 85, ¶ 47; People v. Relaford, 2016 COA
99, ¶ 72; People v. Torrez, 2013 COA 37, ¶ 88; People v. Collins, 250
P.3d 668, 679 (Colo. App. 2010); People v. Villa, 240 P.3d 343, 359
30
(Colo. App. 2009); People v. Firth, 205 P.3d 445, 452 (Colo. App.
2008); People v. Lehmkuhl, 117 P.3d 98, 108 (Colo. App. 2004);
People v. Dash, 104 P.3d 286, 290-92 (Colo. App. 2004); People v.
Oglethorpe, 87 P.3d 129, 133-36 (Colo. App. 2003); People v. Strean,
74 P.3d 387, 393-95 (Colo. App. 2002).
VII. Issues Not Addressed Because They May Not Arise on Retrial
A. Jury Instruction on Sexual Assault Sentence Enhancer to
Kidnapping Charge
¶ 64 Knobbe asserts that the trial court incorrectly instructed the
jury regarding the sexual assault sentence enhancer to the
kidnapping offense. See § 18-3-302(3)(a) (providing that second
degree kidnapping is a class 2 felony if the person kidnapped is a
victim of a sexual offense pursuant to sections 18-3-401 to -418,
C.R.S. 2019). According to Knobbe, the court’s instructions allowed
the jury to find applicability of the sexual assault sentence
enhancer to second degree kidnapping “even if the sexual assault
occurred before the kidnapping began.” He asserts that the
prosecution’s theory at trial was that Knobbe first sexually
assaulted the victim and then kidnapped her by driving her into the
mountains.
31
¶ 65 Because we cannot anticipate whether the prosecution will
advance a theory on retrial that this section applies merely because
the victim was a victim of sexual assault, or whether it will, instead,
advance a theory that the kidnapping preceded the sexual assault,
we decline to address this argument.
B. Sentencing for Kidnapping Involving Sexual Assault and Crime
of Violence Sentence Enhancement
¶ 66 Knobbe asserts errors in the court’s sentencing decisions.
Because we cannot tell whether the asserted sentencing errors will
arise on retrial, and if so, whether they will arise in the same
context, we decline to address them.
VIII. Conclusion
¶ 67 The judgment is reversed, and the case is remanded for a new
trial.
JUDGE PAWAR concurs.
JUDGE DAILEY concurs in part and dissents in part.
32
JUDGE DAILEY, concurring in part, dissenting in part.
¶ 68 I dissent from the majority’s conclusion that the trial court’s
comments in voir dire constituted structural error requiring
reversal.
¶ 69 The majority holds that two of the court’s comments
improperly trivialized the reasonable doubt standard. The two
comments were:
I don’t know how best to explain it. 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. Do you understand?
THE JUROR: Yes, I do.
THE COURT: Can you hold the People to that
burden and not let them by on anything less,
and not require them to prove anything more?
THE JUROR: Yes, Your Honor, I can do that.
(Emphases added.)
¶ 70 The comments were not given to the jury in writing.
¶ 71 I agree that the comments quoted above were problematic: the
first because it trivialized the reasonable doubt standard, and the
second not because it independently trivialized the standard but
only because it could be perceived as incorporating the contents of
33
the first comment. See People v. Tibbels, 2019 COA 175, ¶ 34
(“[T]he risk of lessening the burden of proof increases when
analogies to everyday experiences are used to explain the concept of
reasonable doubt[.]”); see also Tou Fue Yang v. State, No. A-11787,
2017 WL 838809, at *3 (Alaska Ct. App. Mar. 1, 2017) (unpublished
opinion) (“We have previously cautioned against using these types
of ‘daily-life’ analogies . . . , noting the general disapproval of such
analogies across various jurisdictions and the uniform concern that
such analogies often act to minimize the State’s burden of proof.”);
People v. Johnson, 9 Cal. Rptr. 3d 781, 783 (Cal. Ct. App. 2004)
(“We are not prepared to say that people planning vacations or
scheduling flights engage in a deliberative process to the depth
required of jurors or that such people finalize their plans only after
persuading themselves that they have an abiding conviction of the
wisdom of the endeavor. Nor can we say that people make such
decisions while aware of the concept of ‘beyond a reasonable
doubt.’”); Holmes v. State, 972 P.2d 337, 343 (Nev. 1998)
(“[C]ommentary analogizing reasonable doubt with major life
decisions such as buying a house or changing jobs is improper
34
because these decisions involve elements of uncertainty and risk-
taking and are wholly unlike the kinds of decisions that jurors must
make in criminal trials.”).
¶ 72 But I do not agree that those comments constituted an
“instruction” that, under Sullivan v. Louisiana, 508 U.S. 275 (1993),
could constitute structural error requiring automatic reversal. In
my view, a court’s comments during voir dire are much less formal
than — and, consequently, do not attain a similar status to —
specific instructions by the court as to the applicable law. See
Tibbels, ¶ 36 (“[T]he illustration was unlike a formal instruction of
law.”); People v. Flynn, 2019 COA 105, ¶ 44 n.5 (“We do not believe
that every comment made by a trial court to the jury panel during
voir dire is automatically an instruction.”); People v. Boyd, 2015
COA 109, ¶ 12 (opining that the court’s comments during voir dire
discussions were not an instruction), aff’d, 2017 CO 2; cf. People v.
Medina, 906 P.2d 2, 30–31 (Cal. 1995) (“[E]rrors or misconduct
occurring during jury voir dire, prior to the introduction of evidence
35
or the giving of formal instructions, are far less likely to have
prejudiced the defendant.”). 1
¶ 73 The majority, of course, takes a different view. It relies on
Johnson v. People, 2019 CO 17, ¶ 7, where the supreme court,
without explanation, treated a trial court’s voir dire comments
about the “hesitate to act” part of the reasonable doubt standard as
an instruction. The supreme court did not, however, have to
determine the character of the court’s comments, inasmuch as it
concluded that the particular comments would not have misled the
jury anyway. Id. at ¶ 9.
¶ 74 More telling than Johnson, I think, is the supreme court’s
more recent decision in Deleon v. People, 2019 CO 85. In Deleon,
the supreme court reversed a defendant’s conviction because the
trial court never instructed the jury, as it indicated it would, at the
close of the evidence that the jury could not draw an adverse
inference from the defendant’s failure to testify. Id. at ¶ 29. The
court had told the jury this during voir dire. Id. at ¶ 4. But the
1 That the court’s comments were not meant as instructions is
reflected in the ambivalent (i.e., “I don’t know how best to explain
it”) manner in which it began its remarks.
36
supreme court took great pains to explain why the trial court’s voir
dire comments did not constitute an instruction:
[T]hey were given during the early stages of the
trial process; they were made with the purpose
of determining potential juror mindset; they
indicated that the jury would receive further
instructions later in the trial; and when the
instructions were read prior to closing
arguments, the jury was told by the judge that
the instructions were the law they must follow.
Id. at ¶ 15.
Elucidating further, the court said:
[T]he trial court’s initial remarks failed to
constitute an effective instruction based on
both their timing and their content. To be
sure, the trial court did state that [the
defendant] had “no obligation to present any
evidence or testimony at all. [He] does not
have to testify. And if he chooses not to testify,
you cannot hold it against him in any way that
he did not.” But it made that comment during
voir dire. That is, the purpose of the comment
was to determine whether the potential jurors
could act impartially and conscientiously apply
the law, not to instruct the jury on the law
itself. . . .
Additionally, the content of the trial court’s
statements was not definitive. Before opening
statements, the trial court told the jury that
“[a]ll the evidence and law that you will have to
decide the case will be presented to you . . .
That evidence and the Court’s instructions
37
should be the only basis for your verdict.”
(Emphasis added.) Then, near the end of trial,
the trial court told the jury that “[the court]
will now instruct you on the law which you
must apply in order to reach your verdict. . . .
You must follow all of the rules as I explain
them to you.”. . . In sum, the trial court told
the jury that it would eventually explain the
law that the jury must apply, but the court
then failed to instruct the jury about the law
regarding the right to remain silent.
Id. at ¶¶ 26-27 (footnote omitted).
¶ 75 So, the supreme court in Johnson, without discussion, labeled
voir dire comments by a judge as an instruction, but in DeLeon,
after considerable discussion, it rejected that same label for the
same type of comments. Because, to me, DeLeon (due to its
discussion) is the more persuasive of the two, I conclude (consistent
with other decisions of this court, cited earlier) that the court’s voir
dire comments did not constitute an “instruction” subject to
structural error review.
¶ 76 Indeed, another division of this court has explicitly rejected
“structural error” analysis in connection with a trial court’s
“assume[d]” improper use of a reasonable doubt analogy during voir
dire. People v. Baca, 2015 COA 153, ¶¶ 11-13. And, like other
38
divisions of this court, I would analyze the impact of Knobbe’s
unpreserved claim of error under a plain error standard of review.
See id. at ¶ 12; see also Flynn, ¶ 39; People v. Carter, 2015 COA
24M-2, ¶¶ 50-51 (applying plain error review to “jigsaw puzzle”
comments made by the prosecutor and court during voir dire).
¶ 77 To qualify as plain error, an error must be both “obvious and
substantial.” Hagos v. People, 2012 CO 63, ¶ 14. For plain error
purposes, an error is “obvious” if it contravenes (1) a clear statutory
command; (2) a well-settled legal principle; or (3) Colorado case law.
Scott v. People, 2017 CO 16, ¶ 16. For plain error purposes, an
error is “substantial” if it is “seriously prejudicial” — that is, if it so
undermines the fundamental fairness of the trial as to cast serious
doubt on the reliability of the defendant’s conviction. People v.
Ujaama, 2012 COA 36, ¶ 43; see also Hagos, ¶ 14.
¶ 78 I assume, for purposes of this appeal, that the court’s error
was “obvious.”2 The error was not, however, “substantial.”
2 I do so without determining whether “obviousness” of error is
measured as of the time of trial or the time of appeal, see
Henderson v. United States, 568 U.S. 266 (2013) (majority measured
it as of the time of appeal; three-member dissent would measure it
as of the time of trial). Even though there was no published
39
¶ 79 The court’s two comments were made in the midst of a lengthy
(i.e., approximately thirty-five-transcript-page) colloquy the court
had with prospective jurors covering a number of topics, to wit: (1)
the specific charges in the case; (2) decisions are to be based on
nothing but the evidence and the law; (3) a defendant’s
presumption of innocence; (4) the prosecution always has the
burden of proof; (5) sentencing is for the court, not the jury, to
decide; (6) the prosecution’s “beyond a reasonable doubt” burden of
proof; (7) the judge determines the law, the jury the facts; (8) jurors
should not be concerned with what happens at bench conferences;
(9) witness credibility is for the jury to determine; (10) a trial is not
a contest between attorneys; (11) judging guilt or innocence is not
Colorado case as of the time of trial specifically holding comments
of the type made here improper, published Colorado cases had
recognized the potential impropriety of similar comments, see
People v. Marko, 2015 COA 139, ¶¶ 208-11 (no plain error in
prosecution’s analogizing reasonable doubt to people’s decisions to
drive vehicles), aff’d, 2018 CO 97; People v. Cevallos-Acosta, 140
P.3d 116, 123 (Colo. App. 2005) (no plain error in prosecution’s use
of analogy to “important decisions such as buying a house” to
explain reasonable doubt), and courts from other jurisdictions had
uniformly held such comments improper. See People v. Pollard,
2013 COA 31M, ¶ 41 & n.3 (considering such circumstances in
determining the “obviousness” of error).
40
the same as judging the person; and (12) the jurors must take and
apply the law as given to them — “word for word” — “in the
instructions of law that it would receive at the end of the case.”
¶ 80 I “acknowledge the possibility that the jury might have viewed
the concept of reasonable doubt through the lens of the court’s . . .
illustration[s].” Tibbels, ¶ 35. But “[s]peculation does not suffice to
demonstrate plain error.” Ujaama, ¶ 62 (quoting State v. Clinkscale,
911 N.E.2d 862, 870 (Ohio 2009)); see Jones v. United States, 527
U.S. 373, 394-95 (1999) (“Where the effect of an alleged error is so
uncertain, a defendant cannot meet his burden of showing that the
error actually affected his substantial rights.”).
¶ 81 Relying on the concept of “primacy,” the majority asserts that
it is “more likely” that the jury erroneously evaluated the reasonable
doubt standard in light of the examples mentioned by the court
because those examples “came so early” in the trial. Supra ¶ 45.
¶ 82 The majority, however, overlooks, four things: (1) the judge’s
comments on the reasonable doubt standard were not the first,
second, third, fourth, or even fifth matter mentioned in the court’s
41
lengthy colloquy; (2) over three days of intervening events at trial 3
passed between the court’s comments and the time the court
formally and properly instructed the jury verbally and in writing at
the end of the case; (3) the primacy effect, upon which the majority
relies, “is often contradicted by the ‘recency effect,’ which states
that people will remember, and be influenced by, the last
information to which they are exposed,” Kathryn M. Stanchi, The
Power of Priming in Legal Advocacy: Using the Science of First
Impressions to Persuade the Reader, 89 Or. L. Rev. 305, 346
(2010); 4 and (4) the last information to which the jury was exposed
regarding the definition of reasonable doubt was the proper oral
and written instructions of the court. Under these circumstances,
3E.g., voir dire by counsel, opening statements, and presentation of
evidence by both the prosecution and defense.
4 In fact, “[i]n the jury trial context, interestingly, recency seems to
be far more influential, and studies suggest that trial lawyers for
both sides should present their material in a climactic order with
the most important material at the end.” Kathryn M. Stanchi, The
Power of Priming in Legal Advocacy: Using the Science of First
Impressions to Persuade the Reader, 89 Or. L. Rev. 305, 347 (2010);
cf. Domingo-Gomez v. People, 125 P.3d 1043, 1052 (Colo. 2005)
(rebuttal closing “foremost” in jurors’ minds because it is the last
thing they hear).
42
it is purely speculative to infer that the court’s brief and isolated
voir dire comments on reasonable doubt likely so infected the jury’s
mindset that it was unable to properly apply the reasonable doubt
standard.
¶ 83 If “[i]n the context of the entire 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)). Thus, when the trial court uses an illustration to
explain the concept of reasonable doubt, we consider the
illustration’s nature, scope, and timing in determining whether its
use violated due process. See People v. Villa, 240 P.3d 343, 357
(Colo. App. 2009).
¶ 84 Here, the court’s comments were made in voir dire; they were
brief and but a small part of an otherwise lengthy colloquy covering
numerous topics; they were made not at the outset nor at the end of
that colloquy, but somewhere near the middle of it; insofar as I can
determine, they were no more emphasized than any other part of
43
the lengthy colloquy; neither the trial court nor the prosecutor
referenced the erroneous remarks again; the court gave the jury the
proper instruction on the reasonable doubt standard, in accordance
with the Model Jury Instructions, orally and in writing, before
deliberations; and, in the absence of evidence to the contrary, we
ordinarily presume the jury followed the court’s instruction.
¶ 85 Under the circumstances, there is not, in my view, a
reasonable likelihood that the jurors selected for trial misapplied
the reasonable doubt standard,5 and the court’s comments neither
jeopardized the fairness of the trial nor cast serious doubt on the
reliability of the verdict. Consequently, no error — plain or
otherwise — requiring reversal occurred here. See Johnson, ¶ 18
(“We note that the trial court provided the [contested] instruction to
the jury verbally and only once. It was not mentioned or referenced
again throughout the entirety of the proceedings, including closing
5 This “reasonable likelihood that the jury applied the contested
instruction in an unconstitutional manner” test was utilized by the
supreme court in Johnson v. People, 2019 CO 17, to determine
whether the court’s comments on the “hesitate to act” part of the
reasonable doubt instruction lowered the prosecution’s burden of
proof in violation of due process. Id. at ¶¶ 14-15.
44
arguments.”); Baca, ¶¶ 13-14 (concluding that no plain error
occurred in part because the improper comments were “isolated,”
and the court twice read the proper reasonable doubt instruction to
the jury and provided it with a written copy); People v. Estes, 2012
COA 41, ¶ 12 (finding the risk of prejudice from improper comments
during voir dire was “mitigated by the court’s written jury
instructions and other statements correctly explaining the
applicable burdens”).
¶ 86 Because the court’s comments “trivializing” the reasonable
doubt standard during voir dire are not on par with a “defective”
instruction defining reasonable doubt, and because, under the
circumstances, the court’s comments were not plainly erroneous, I
would affirm Knobbe’s judgment of conviction.
45