People v. Khalil Jamandre Sanders

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
April 28, 2022
2022COA47
No.18CA0525, People v. Sanders — Judges — Code of Judicial
Conduct — Disqualification — Impartiality; Juries — Batson
Challenges
A division of the court of appeals considers whether, in light of
the holding in Richardson v. People, 2020 CO 46, a litigant may
properly rely on C.J.C. 2.11(A) to move for disqualification of a
judge due to an appearance of partiality. The division concludes
that, where the issue is preserved, reliance on Rule 2.11(A) remains
proper. The division further concludes that even if a judge is
impartial, a disqualifying appearance of partiality may arise where,
as here, a judge presiding over a criminal case has experienced
criminal conduct similar to the conduct at issue in the case before
her. However, disqualification on these grounds is generally not
required if the prior criminal conduct was remote and
distinguishable.
The division also concludes that a trial court does not commit
plain error when it reseats a stricken juror after a successful Batson
challenge. Batson v. Kentucky, 476 U.S. 79, 99 n.4 (1986). The
division determines that, under the circumstances of this case,
reseating the stricken juror was the only complete remedy for the
wrongful challenge. People v. Valera-Castillo, 2021 COA 91, ¶ 12.
COLORADO COURT OF APPEALS 2022COA47
Court of Appeals No. 18CA0525
El Paso County District Court No. 17CR760
Honorable Barbara L. Hughes, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Khalil Jamandre Sanders,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE RICHMAN
Grove, J., concurs
Tow, J., specially concurs
Announced April 28, 2022
Philip J. Weiser, Attorney General, Paul Koehler, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Tracy C. Renner, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Khalil Jamandre Sanders, appeals the judgment of
conviction entered on jury verdicts finding him guilty of first degree
extreme indifference assault, illegal discharge of a firearm, and
menacing.1 We affirm the judgment of conviction.
I. Background
¶2 Sanders shot another motorist during a road rage incident. At
the time of the shooting, he was driving down a two-lane road that
narrowed to one lane. Jamie Vasquez, who was in the adjacent
lane, aggressively and repeatedly cut Sanders off in an apparent
attempt to keep him from passing her. In response, Sanders
partially rolled down his window, thrust his gun through the
opening, and fired a shot at Vasquez’s car. The bullet hit Vasquez,
causing serious injury.
¶3 The jury convicted Sanders of the tried charges and made
findings that supported crime of violence sentence enhancers. On
appeal, he contends that the trial court made several errors and
1Sanders was also charged with possession of a weapon by a
previous offender. He pleaded guilty to this charge and does not
appeal this conviction.
1
violated his constitutional rights to due process and a fair trial. We
address each contention in turn.
II. Disqualification of Trial Judge
A. Relevant Facts
¶4 Shortly after Sanders was charged, a district judge was
assigned to his case. Approximately ten months later, at the close
of the People’s voir dire, the judge disclosed the following to counsel
outside the presence of the venire:
A few years ago I was driving . . . and I was
shot at. Four bullets, one hit the car. There
was not another person in the car, but . . .
there were people in the middle of the road
about to go into my lane. It looked like they
were fighting, and I beeped my horn to get out
of the way and I hear pop, pop, pop, ping, and
it hit the spoiler on my car. I had to duck. . . .
I feel like you need to understand there was a
case filed. There was a . . . police report, but
there was never any filing of any charges.
There was never any person that was identified
as the shooter.
¶5 Defense counsel moved for the judge’s disqualification
pursuant to section 16-6-201(1)(d), C.R.S. 2021, and Sanders’s
constitutional rights to due process and a fair trial. Defense
counsel stated, “I don’t believe at this point that the Court can be
unprejudiced with respect to the facts of this case based on her own
2
personal experiences. . . .”2 Defense counsel also moved for a
mistrial and leave to file a motion for a change of judge.
¶6 In an oral ruling, the judge denied the motions, stating that
she (1) was not interested or prejudiced in any way; (2) had made
the record out of an abundance of caution; (3) had no familiarity
with Sanders; (4) was not familiar with any witnesses in this case as
a result of her prior case; and (5) had “presided over numerous
cases involving weapons, including guns and including cars” since
the incident. The judge also noted that the incident did not involve
two cars, occurred about three years earlier, and did not involve
road rage.
¶7 On appeal, Sanders renews his trial arguments, asserting that
a judge in a criminal case should be disqualified when she has
experienced criminal conduct similar to the conduct at issue in the
case before her.
2It is not clear whether defense counsel was arguing that the judge
was biased or was alleging an appearance of bias. Apparently
perceiving the concern to be actual bias, the judge addressed only
actual bias in her ruling.
3
B. Standard of Review and Preservation
¶8 We review de novo whether a motion to disqualify a judge
raises legally sufficient grounds for disqualification. People v.
Roehrs, 2019 COA 31, ¶ 7.
¶9 As an initial matter, although a motion for disqualification
generally must be supported by affidavits and made within fourteen
days of a judge’s assignment, we conclude that procedural
deficiencies do not preclude our review here. See § 16-6-201(3)
(requiring affidavits); Crim. P. 21 (requiring affidavits and good
cause for late-filed motions). The motion was made after the
fourteen-day deadline, but defense counsel raised the issue as soon
as she learned the pertinent facts. It was therefore timely. People
v. Dist. Ct., 192 Colo. 503, 507, 560 P.2d 828, 831 (1977). The
motion was also based solely on disclosures made in open court
and arose due to the court’s post-disclosure invitation to make an
immediate record. Under these circumstances, the issue was
preserved. See People in Interest of C.Y., 2018 COA 50, ¶ 12
(finding the issue preserved under similar circumstances).
4
C. Law and Analysis
¶ 10 Unless the law precludes her participation, a judge has a duty
to sit on a case once it is assigned. People v. Thoro Prods. Co., 45
P.3d 737, 747 (Colo. App. 2001). Sanders bases his arguments on
constitutional, legislative, and judicial limits on this duty to preside,
arguing that each layer of limitation requires disqualification.
¶ 11 The outermost layer, which places the narrowest constraints
on judges, requires that a judge be disqualified only when her
participation violates constitutional due process guarantees.3
Williams v. Pennsylvania, 579 U.S. 1, 4 (2016); No Laporte Gravel
Corp. v. Bd. of Cnty. Comm’rs, 2022 COA 6M, ¶ 2 (noting that the
Due Process Clause marks “the outer limits for judicial
disqualifications”). Due process is satisfied when a judge holds no
actual bias. Williams, 579 U.S. at 8. Here, Sanders does not
challenge the finding that the judge held no actual bias. Given this
finding, the judge’s participation was not a violation of due process.
3Sanders raised both federal and state constitutional due process
concerns. However, he makes no argument that the Colorado
Constitution provides greater due process protections than the
United States Constitution. Therefore, we undertake no separate
analysis of Colorado constitutional law.
5
¶ 12 Colorado statutes and rules provide another layer of
protection. Pursuant to section 16-6-201(1)(d), a judge “shall be
disqualified to hear or try a case if . . . [sh]e is in any way interested
or prejudiced with respect to the case, the parties, or counsel.” See
also Crim. P. 21(b). Like the Due Process Clause, this statute and
rule, by their terms, only protect litigants from participation by a
judge with actual bias. See Roehrs, ¶ 10 (stating that C.J.C. 2.11(A)
“goes further” than section 16-6-201(1)(d) and Crim. P. 21(b)
because it permits challenges not grounded on actual bias); People
v. Jennings, 2021 COA 112, ¶¶ 18-20 (distinguishing actual bias
from the appearance of bias and citing section 16-6-201(1)(d) and
Crim. P. 21(b) as prohibiting actual bias). Thus, neither the statute
nor Crim. P. 21(b) requires disqualification here.
¶ 13 Perhaps in recognition of this fact, Sanders essentially
grounds his substantive appellate arguments on C.J.C. 2.11(A),
which provides the broadest bases for recusal. Rule 2.11(A) states
that a judge “shall disqualify himself or herself in any proceeding in
which the judge’s impartiality might reasonably be questioned . . . .”
This standard is objective and requires disqualification whenever a
“reasonable observer might have doubts about the judge’s
6
impartiality.” People in Interest of A.G., 262 P.3d 646, 650 (Colo.
2011). The rule prohibits a judge from participating when her
involvement raises the appearance of bias, even if she has no actual
bias. Id.¶ 14 The People argue that Rule 2.11(A) cannot justify reversal
because, in Richardson v. People, 2020 CO 46, ¶ 39, the supreme
court emphasized that judicial ethics rules are intended to preserve
public confidence, not to protect the individual rights of litigants.
Thus, “in the absence of evidence demonstrating actual judicial bias
or prejudice, a trial judge’s potential violation of these rules does
not mandate reversal.” Id.¶ 15 We do not read Richardson to preclude consideration of the
Code of Judicial Conduct (C.J.C.) with respect to disqualification.
While Richardson held that a violation of the C.J.C. does not always
mandate reversal, the Richardson court was addressing whether a
judge must, sua sponte, recuse herself when a party has waived
disqualification despite an appearance of bias. Id. at ¶¶ 35-39; see
C.J.C. 2.11(C). Thus, Richardson turned, in part, on waiver issues
not relevant here.
7
¶ 16 Copious precedent, which was not explicitly overruled in
Richardson, suggests reversal may be warranted when a party
moves for disqualification due to an appearance of bias and the
judge, in fact, had a duty to disqualify herself. See, e.g., A.G., 262
P.3d at 650; People v. Julien, 47 P.3d 1194, 1197 (Colo. 2002) (“A
judge must also consider the Code of Judicial Conduct sua sponte
or in response to a disqualification motion in determining whether
to serve on the case.”); Zoline v. Telluride Lodge Ass’n, 732 P.2d 635,
640 (Colo. 1987) (considering the C.J.C. and concluding that “[e]ven
if the judge’s pecuniary interests alone were not grounds for
disqualification, the facts give rise to the appearance of impropriety
that requires us to reverse”); Wright v. Dist. Ct., 731 P.2d 661,
663-64 (Colo. 1987) (requiring disqualification due, in part, to an
appearance of impropriety). Thus, Sanders may properly base his
arguments on Rule 2.11(A).
¶ 17 Nonetheless, we perceive no disqualifying appearance of bias
here. Sanders has not cited, and we have not found, any Colorado
precedent holding that an appearance of bias arises whenever a
judge presiding over a criminal case has experienced criminal
conduct similar to the conduct at issue. Such a bright line rule is
8
too great an encroachment on a judge’s duty to impartially preside
over her assigned cases. See State v. Tappa, 2002 WI App 303,
¶ 14 (noting the impracticality of requiring a judge to disclose any
crime of which she was ever a victim, regardless of how much time
has passed); see also State v. Asta, 2018 UT App 220, ¶ 21 (noting
that the Utah Code of Judicial Conduct may require recusal based
on an appearance of partiality, and stating, “it cannot be that, in all
cases involving all crimes, a judge must disqualify herself if she has
previously been the victim of any similar crime”).
¶ 18 Although Colorado courts have not considered whether there
is an improper appearance of partiality when a judge has
experienced criminal conduct similar to the conduct at issue, our
review of analogous cases from other states reveals that the
necessity of disqualification depends largely on the remoteness of
the prior incident and the degree of similarity between the prior
incident and the charged conduct. See State v. Mann, 512 N.W.2d
528, 532 (Iowa 1994) (applying the Iowa Code of Judicial Conduct,
which requires recusal when “the judge’s impartiality might
reasonably be questioned,” and concluding that a judge could sit on
a child sexual assault case despite being sexually abused as a child
9
because his experiences were remote and factually distinguishable)
(citation omitted); Bishop v. State, 98 A.3d 317, 331 (Md. Ct. Spec.
App. 2014) (determining that, although he had been the victim of a
murder-for-hire plot, a judge was not required to recuse himself
from a murder-for-hire case due to an appearance of impropriety
because the facts of each case were materially different); Asta, ¶ 21
(concluding that a judge who had been a burglary victim could sit
on a burglary case in the absence of a showing that the crimes
shared compelling factual similarities).
¶ 19 Here, all the record reflects is that the judge was driving when
shots were fired and at least one shot hit her car. Although
similarities between the criminal conduct experienced by the judge
and Sanders’s charged conduct are material to whether there was a
disqualifying appearance of bias, such similarities are not
dispositive. We must also consider facts that distinguish the prior
incident. We find it significant that the judge was not actually shot
or injured in the prior incident, and there was no indication that
she was the target of the shooter or that shots were fired due to
road rage. In addition, the incident occurred three years earlier and
did not result in charges or a trial. Given the remoteness of the
10
incident and the material differences between the conduct charged
in this case and the conduct described by the judge, we conclude
there is no appearance of partiality that would lead a reasonable
observer to doubt the judge’s impartiality. Therefore,
disqualification was not required.
III. Batson Violation
A. Relevant Facts
¶ 20 At the close of voir dire, as the parties exercised their
peremptory challenges, Juror W was called to the jury box to
replace an excused juror. The People immediately exercised a
peremptory challenge to Juror W, and the defense raised a Batson
challenge. See Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting
racial discrimination in the jury selection process). At a bench
conference, defense counsel asserted that the strike was racially
motivated. As proof she noted that, like Sanders, Juror W is Black.
She also noted that the venire included only three Black jurors out
of sixty. The People set forth a purported neutral reason for the
strike. Finding that the record did not support the People’s
assertions, the court sustained the Batson challenge, ended the
11
bench conference, and reseated Juror W without any further
objection or explanation to the empaneled venire.
¶ 21 Juror W served on the jury on the first day of trial. The jury
was instructed to return two days later at 8:20 a.m. On the next
day of trial, by approximately 8:45 a.m., Juror W had not appeared.
The court stated that it was having trouble contacting her, and the
parties agreed to a recess. After the break, the court explained to
counsel that Juror W had given the court the wrong phone number.
Even so, the court had determined that Juror W was on her way to
the courthouse, but she was still on a bus awaiting transfer. The
following discussion ensued:
Court: So I understand Counsel wants to keep
proceeding without [Juror W].
People: That’s correct, Your Honor. We have
two alternates.
Defense: That’s fine, Your Honor.
The trial then proceeded without Juror W.
¶ 22 Sanders now asserts that the trial court committed structural
error by (1) reseating Juror W after the Batson challenge was
sustained rather than discharging the entire venire and restarting
12
the jury selection process; and (2) proceeding without Juror W on
the second day of trial.
B. Law and Analysis
1. Reseating of Juror W
¶ 23 We first consider Sanders’s assertion that the trial court’s
decision to reseat Juror W was erroneous.4 Although he did not
object when Juror W was reseated and therefore forfeited his
argument, he raises the contention on appeal, and we will review for
plain error. People v. Rediger, 2018 CO 32, ¶ 40.
¶ 24 The Colorado Supreme Court has not squarely addressed the
appropriate remedy for Batson violations or the relevant standard of
reversal. People v. Wilson, 2015 CO 54M, ¶ 9 n.3 (concluding that
no Batson violation occurred and declining to “address whether
such a violation constitutes structural error”). However, in Batson
itself, the Supreme Court of the United States discussed the
propriety of reseating a challenged juror:
4 Sanders argues that reseating Juror W was a “structural error”
that requires automatic reversal because it affected the framework
of the trial. People v. Vigil, 2013 COA 102, ¶ 31. We disagree that
this type of error is among the errors that have been recognized as
structural. Id.
13
[W]e express no view on whether it is more
appropriate in a particular case . . . for the trial
court to discharge the venire and select a new
jury from a panel not previously associated
with the case, or to disallow the discriminatory
challenges and resume selection with the
improperly challenged jurors reinstated on the
venire.
Batson, 476 U.S. at 99 n.24 (emphasis added) (citation omitted).
Thus it acknowledged that in “a particular case” either dismissing
the venire or reseating the juror may be “more appropriate.” Id.(emphasis added). By implication, both remedies are “appropriate”
under the Constitution and left to the discretion of the trial judge.
See id. In light of this language, we conclude that reseating Juror
W was not error, plain or otherwise.
¶ 25 Our conclusion that reseating Juror W was not erroneous is
also supported by existing precedent. The trial court followed a
procedure that was later approved in People v. Valera-Castillo, 2021
COA 91, ¶ 12. There, the division explained that a Batson
challenge must be made “while the trial court has the ability to
correct the error by disallowing the offending strike.” Id. It can do
so, the division reasoned, by declining to release the stricken juror
from jury service and requiring her to remain in the courtroom until
14
all peremptory strikes have been exercised. According to the
division, this procedure is proper because “reseating is the only
effective way to protect the equal protection rights of all parties
involved.” Id.¶ 26 We agree with the Valera-Castillo division’s reasoning and
conclude that reinstating the challenged juror appears to be the
only complete remedy for a wrongful Batson challenge under the
circumstances presented here. Otherwise, counsel making an
improper challenge would have gotten what he desired — the
dismissal of the challenged juror — although the objection to his
conduct was sustained. Id. at ¶ 12 n.4 (noting that starting over
gives the party that improperly exercised a strike the outcome it
sought). Indeed, any other result could encourage unscrupulous
counsel to provoke Batson challenges through knowingly improper
peremptory strikes. Assuming such challenges are sustained,
counsel will have obtained, by improper means, the dismissal of a
qualified venire simply because they found it undesirable.
¶ 27 Reseating Juror W was appropriate in this case because we
have no reason to suspect the other jurors knew why Juror W was
stricken and reseated. The relevant discussion occurred at a bench
15
conference out of the jury’s hearing. Thus, any possibility the jury
knew the reason for the strike, and any potential prejudice arising
from the challenge itself, was minimal. See Jones v. State, 683 A.2d
520, 529 (Md. 1995) (noting that the likelihood of prejudice is
minimal if counsel explains the reasons for the strike during a
bench conference). The reseating of Juror W was not erroneous.
2. Dismissal of Juror W
¶ 28 The People assert that Sanders waived his contention that
Juror W’s later dismissal was erroneous. We agree.
¶ 29 Waiver occurs when a party intentionally relinquishes a
known right or privilege. Rediger, ¶ 39. Here, the trial court asked
the parties whether they had made an agreement to dismiss Juror
W, alerting Sanders of the opportunity to object. The People
confirmed that an agreement had been reached, and Sanders did
not object. His counsel instead replied, “that’s fine.” Sanders’s
explicit affirmation, through counsel, that he had no objection to
Juror W’s dismissal and his implicit agreement that he had
stipulated to her dismissal was an “unequivocal act indicative of a
waiver.” Id. at ¶ 42 (quoting Dep’t of Health v. Donahue, 690 P.2d
16243, 247 (Colo. 1984)). We therefore conclude that the issue is
waived, and we decline to address it.5
IV. Jury Instructions Regarding the Absent Victim
A. Relevant Facts
¶ 30 At the time of trial, Sanders had previous felony convictions.
As the trial began, the People informed the court of a concern that
the victim, Vasquez, who knew of Sanders’s background, would
insist on testifying about his criminal history despite being
instructed not to do so. However, although she was subpoenaed,
Vasquez did not show up on the first day of trial. The People
therefore requested, and the court issued, a warrant for her arrest.
5 In his reply brief, Sanders argues that even if he waived the right
to have Juror W sit on his petit jury, he has standing to raise Juror
W’s right to serve. While we affirm that the Equal Protection Clause
is violated when the State uses a peremptory challenge to exclude
potential jurors on the basis of race, and that a defendant has
standing to raise this issue on behalf of a juror, see Powers v. Ohio,
499 U.S. 400, 409 (1991), Juror W’s right to sit on a jury is not at
issue here. Juror W was, in fact, allowed to sit on the jury despite
the State’s attempt to exclude her on the basis of race. Thus, no
Batson violation remained once Juror W was reseated. Juror W’s
later dismissal was due to her tardiness, an issue not implicating
constitutional protections recognized in Powers or Batson.
17
¶ 31 On the second day of trial, before Vasquez was found, defense
counsel questioned the lead detective in this case. She asked him
whether he was “aware that [the prosecutor] requested . . . an arrest
warrant for the victim’s arrest.” The People objected and the court
sustained the objection.
¶ 32 Later, Vasquez arrived, but she was not called as a witness.
The People explained to the court and counsel that although she
was present, when the prosecution met with her and instructed her
not to testify regarding Sanders’s criminal history, she became irate
and refused to sign a statement promising to comply. One of the
prosecutors stated, “I’m afraid that if we put her on the stand that
she would mistry this case. I can’t in good conscience put her on
the stand.” The People asked the court to quash the warrant.
¶ 33 At the jury instruction conference, defense counsel noted that,
to cure any prejudice caused by her question to the lead detective,
the court had invited her to draft an additional instruction. The
tendered instruction read:
In deliberating, you may use the fact that the
alleged victim absented herself, as a factor to
consider in determining whether the District
Attorney has met their burden. You may
further consider, the fact that the District
18
Attorney has the power to subpoena witnesses
and the ability to request a warrant for a
failure to appear on a subpoena in deciding
whether the District Attorney has proven his
case beyond a reasonable doubt.
The People objected to giving this instruction, and the court
sustained the objection, noting that the reasonable doubt
instruction already informed the jury that it could consider a lack of
evidence in determining whether the People met their burden of
proof.6 On appeal, Sanders contends that the trial court abused its
discretion by declining to give his instruction because it properly
stated the law.
B. Law and Analysis
¶ 34 We review the jury instructions de novo to determine whether
they correctly informed the jury of the law. As long as we are
satisfied that the jury was adequately instructed on the law, we
review the trial court’s decision to give or decline to give a particular
instruction for an abuse of discretion. People v. Roberts-Bicking,
6 The reasonable doubt instruction stated: “Reasonable doubt
means doubt based on upon reason and common sense which
arises from a fair and rational consideration of all the evidence, or
the lack of evidence, in the case.”
19
2021 COA 12, ¶ 17. A court abuses its discretion when its ruling is
manifestly arbitrary, unfair, or unreasonable. Id.¶ 35 Contrary to Sanders’s contention, a trial court is not obligated
to give any jury instruction submitted by the defendant simply
because it correctly states the law. “An instruction with respect to
a missing witness is appropriate only if the witness’ absence is due
solely to the actions of the People.” People v. Raibon, 843 P.2d 46,
51 (Colo. App. 1992). Here, both parties had the power to call
Vasquez to testify and both chose not to do so in light of Vasquez’s
unwillingness to comply with evidentiary constraints. Crim. P. 17.
Thus, her absence was not the exclusive result of the People’s
conduct, and the court was not required to give the proposed
instruction. Raibon, 843 P.2d at 51.
¶ 36 Further, although Vasquez’s failure to testify was relevant to
whether the People met their burden of proof, a trial court is not
required to give a supplemental instruction that merely sets forth a
principle already encompassed in the existing instructions. People
v. Welsh, 176 P.3d 781, 787 (Colo. App. 2007). As the trial court
correctly noted, the existing reasonable doubt instruction informed
the jury it should consider a lack of evidence when rendering its
20
verdict. And, in closing argument, the defense was allowed to draw
the jury’s attention to Vasquez’s absence.
¶ 37 For these reasons, we perceive no abuse of discretion by the
trial court.
V. Prosecutorial Misconduct
¶ 38 Finally, Sanders asserts that his trial was tainted by
prosecutorial misconduct emanating from four groups of statements
by the prosecutors. He did not object to these statements at trial.
A. Law
¶ 39 When reviewing claims of prosecutorial misconduct, we engage
in a two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.
2010).
¶ 40 We first determine whether the challenged statements were
improper, considering the totality of the circumstances. Id.Whether statements were improper depends on their nature and
whether the statements directed the jury’s attention toward
considerations outside its purview. People v. Perea, 126 P.3d 241,
247 (Colo. App. 2005). Counsel may comment on the evidence, the
reasonable inferences to be drawn therefrom, and the instructions.
Id. A prosecutor may also draw the jury’s attention to evidence that
21
raises questions about a witness’s credibility and, based on the
evidence, draw reasonable inferences regarding the credibility of
witnesses. Id.¶ 41 If we determine that a prosecutor’s statements were improper,
we consider whether the improper statements warrant reversal
under the applicable standard of review. Wend, 235 P.3d at 1096.
Where, as here, plain error review applies, we reverse “only when an
error so undermines the fundamental fairness of the trial itself as to
cast serious doubt on the reliability of the jury’s verdict.” Domingo-
Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005).
B. Vasquez’s Absence
¶ 42 During rebuttal argument, one of the prosecutors discussed
Vazquez’s absence from trial. He stated,
The defense wants to know why [Vasquez] is
not here. Would you like to see the person
that did this to you? Do you want to face him?
Would you want to talk to him about what
happened to you that day, the feelings you felt,
the insecurities that you have now? Is it any
surprise that she’s not here? No. It’s not.
¶ 43 Sanders asserts that these statements were improper because
the prosecutor (1) asked the jury to sympathize with Vasquez and
put themselves in her place; (2) misrepresented Vasquez’s motives
22
for failing to testify; and (3) suggested that, given her distress, it
would be unfair to compel her to testify, thereby making an
improper comment on his constitutional right to confront adverse
witnesses. See U.S. Const. amend. VI. We are not persuaded.
¶ 44 Colorado courts have indeed deemed it improper, in the guilt
phase of a criminal trial, for a prosecutor to direct the jury to follow
the “golden rule” and imagine themselves in the victim’s place.
People v. Rodriguez, 794 P.2d 965, 973 (Colo. 1990). However,
prosecutors are afforded considerable latitude when they are
replying to arguments made by the defense. People v. Lovato, 2014
COA 113, ¶ 63. When determining whether arguments were
improper, courts must “weigh the effect of those remarks on the
trial, and also take into account defense counsel’s ‘opening salvo.’”
Id. (quoting Perea, 126 P.3d at 247).
¶ 45 Here, defense counsel’s opening salvo involved telling the jury,
inaccurately, that it was up to the People to bring in the alleged
victim so that the jury could judge her credibility. People v. Walters,
821 P.2d 887, 889 (Colo. App. 1991) (holding there is no
constitutional requirement that crime victims testify); Crim. P. 17
(stating that both parties may subpoena witnesses). Defense
23
counsel also asked the jury to consider the import of Vasquez’s
absence, imploring it to evaluate, “[W]hat does she have to hide? . . .
What does she have to say about her dangerous and aggressive
driving behavior?” Given defense counsel’s willingness to impute
hypothetical motives to Vasquez (despite her knowledge of
Vasquez’s true motives) and to misstate the law, we cannot say it
was improper for the prosecutor to reply with hypothetical
questions that implied different motives. Further, because the
arguments presented were hypothetical, we do not view them as
misrepresenting Vasquez’s actual motives to the jury. Because they
were made in response to similar defense arguments, it is also clear
that the prosecutor was not commenting on the right to confront
adverse witnesses.
C. Burden of Proof
¶ 46 As one of the prosecutors began her closing argument, she
reminded the jury that assault in the first degree was the most
serious charge Sanders faced. She then stated,
Now this is just like an equation. X plus Y
equals Z. This is the formula you get to follow.
Or if you’re a baker like me, you have
ingredients to make a cake. You got all the
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ingredients; you put them in the right order,
you get a cake at the end.
Later, the prosecutor said, “All the evidence you heard are pieces for
the puzzle. This is the final puzzle.”
¶ 47 Sanders contends that these statements improperly trivialized
the People’s burden of proof. We disagree.
¶ 48 Comparing the People’s burden of proof to simple activities is
generally improper, or at least problematic, especially if the
prosecutor quantifies how much doubt is “reasonable doubt” or
trivializes the People’s burden. See People v. Camarigg, 2017 COA
115M, ¶¶ 44-47 (noting that the use of a puzzle analogy can be
problematic, especially if the speaker quantifies the concept of
reasonable doubt); see also Tibbels v. People, 2022 CO 1, ¶ 49
(concluding that a judge’s use of a crack-in-the-foundation
illustration to explain reasonable doubt improperly lowered the
People’s burden of proof).
¶ 49 But in this case, no such comparison was made. When the
prosecutor raised these analogies, she was telling the jury that it
had to consider each element of each charge in determining
whether Sanders was guilty. Puzzle analogies, and analogies like it,
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are not improper when used in this context, especially where there
was no attempt to quantify the amount of proof necessary to solve
the puzzle. The prosecutor’s comments did not trivialize the
People’s burden.
D. Personal Opinions
¶ 50 During closing argument, defense counsel stated that she
wanted the jury to hold Sanders “accountable” for the assault. She
asserted, however, that he should not be convicted of first degree
assault because he acted in a sudden heat of passion.
¶ 51 In rebuttal, one of the prosecutors stated, “I want you to ask
yourselves is Mr. Sanders interested in being held accountable or
being held accountable by what he thinks I can prove?” He then
repeated the phrase, “I can prove . . . .” numerous times. The
prosecutor also compared the credibility of an adverse witness with
Sanders’s credibility, implying that the witness was more credible.
¶ 52 Sanders asserts that these arguments constituted improper
personal opinions because the prosecutor encouraged the jury to
rely on what he had personally proven, and he expressed an
opinion on the truth or falsity of testimony.
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¶ 53 A prosecutor may not express a personal belief in the truth or
falsity of testimony, but he may draw reasonable inferences about
the credibility of witnesses based on the evidence. Wilson v. People,
743 P.2d 415, 419 (Colo. 1987). Here, when the prosecutor
asserted that he could prove certain propositions or facts, and when
he discussed credibility, he tied his statements to specific pieces of
evidence. We therefore view these comments as reasonable
inferences regarding the credibility of witnesses based on the
evidence. People v. Rogers, 220 P.3d 931, 938 (Colo. App. 1997)
(noting that a prosecutor’s commentary about what the People
could prove, when tied to specific evidence, was not improper),
overruled on other grounds by Garcia v. People, 2022 CO 6. Further,
although ill-advised, a prosecutor’s use of the first person singular
does not automatically transform his expression of confidence into
a personal opinion. People v. Fears, 962 P.2d 272, 285 (Colo. App.
1997) (concluding that although the prosecutor referred to himself
in the first person singular, this fact did not turn otherwise proper
arguments into improper vouching for the credibility of witnesses).
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E. Misstatements of Law
¶ 54 Finally, Sanders asserts that one of the prosecutors
improperly told the jury during rebuttal argument, “I don’t want you
to consider what Khalil Sanders considered[.] I want you to
consider the evidence put before you. I want you to give it the
weight you think it’s due.” Sanders contends that the import of this
statement was that his testimony was not evidence the jury should
consider. A statement to that effect is inaccurate, and Sanders
correctly points out that a prosecutor should not misstate the law.
People v. McMinn, 2013 COA 94, ¶ 62. When read in context,
however, this statement was merely a clumsy attempt to refocus the
jury’s attention on favorable evidence in response to defense
counsel’s closing argument. Perea, 126 P.3d at 248 (noting that a
prosecutor may attempt to draw the jury’s attention to back to
relevant evidence).
¶ 55 We perceive no error, much less plain error, by the trial court.
VI. Conclusion
¶ 56 Perceiving no reversible error, we affirm the judgment.
JUDGE GROVE concurs.
JUDGE TOW specially concurs.
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JUDGE TOW, specially concurring.
¶ 57 I agree that the trial court committed no error by reseating
Juror W and by declining to give the defense-tendered jury
instruction regarding the witness’s absence. I also agree that the
prosecutors did not engage in prosecutorial misconduct. Thus, I
concur in Parts III, IV, and V of the majority opinion.
¶ 58 I also agree that there was no appearance of partiality, and
thus the trial court did not err by denying the motion for
disqualification.
¶ 59 I write separately because much of the majority’s analysis in
Part II.C is merely an advisory opinion. Given that we conclude
that there was no appearance of partiality, we need not address
whether reversal would be required had there been one.
¶ 60 That question is not an easy one to answer. Our supreme
court recently has held that “in the absence of evidence
demonstrating actual judicial bias or prejudice, a trial judge’s
potential violation of [the Code of Judicial Conduct] does not
mandate reversal.” Richardson v. People, 2020 CO 46, ¶ 39.
Further elucidating the point, the supreme court said, “[i]n contrast
to judicial canons seeking to prevent the appearance of impropriety,
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laws requiring disqualification of a biased or prejudiced judge are
designed to ensure that litigants receive a fair, impartial trial.” Id.(quoting People in Interest of A.G., 262 P.3d 646, 652 (Colo. 2011)).
The import of this observation, at least arguably, is that reversal is
not appropriate for a mere appearance of impropriety because the
defendant’s trial was not presided over by a judge with actual bias
or prejudice.
¶ 61 On the other hand, the supreme court did not say, at least
explicitly, that reversal in such a case would never be warranted.
¶ 62 In short, the post-Richardson landscape has not been charted.
But in light of our determination that there was no appearance of
impropriety at all, our journey does not take us into that territory.
We, therefore, should not endeavor to unnecessarily map it.
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