19CA0504 Peo v Faudoa 12-16-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA0504
Weld County District Court No. 18CR958
Honorable Timothy G. Kerns, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Gabriel Faudoa,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE GOMEZ
Richman and Harris, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 16, 2021
Philip J. Weiser, Attorney General, Rebecca A. Adams, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Elyse M. Maranjian, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1
Defendant, Gabriel Faudoa, appeals the judgment of
conviction entered after a jury found him guilty of assault. We
affirm.
I. Background
¶ 2
Faudoa and his sister (the victim) lived in separate camper
trailers in their mother’s backyard.
¶ 3
One night, the two siblings got into an argument inside the
victim’s trailer and continued arguing outside the trailer with their
mother present. At some point, the victim told Faudoa he was
“nothing but a low life piece of shit.” That angered Faudoa, as their
mother reported based on the reaction in his face and voice.
Suddenly, the siblings were hitting each other.1 Faudoa put his
hands on the victim’s throat as the victim screamed.2 Eventually,
the mother intervened, and Faudoa left and went into his trailer.
¶ 4
The victim went into her mother’s home, called 911, and told
the dispatcher that her “brother just choked [her] out and scratched
1 At trial, the siblings’ mother said she couldn’t tell which of them
had started the hitting. However, other evidence at trial indicated
she had previously said that Faudoa started it.
2 The siblings’ mother’s statements were also inconsistent as to how
long Faudoa held the victim’s throat. She told investigating officers
it was one to two minutes but testified at trial it was only seconds.
2
[her].” The call disconnected, and the victim immediately called
back and provided further details.
¶ 5
Responding officers testified that the victim was clearly upset:
“her emotions were elevated” and she appeared to have been crying,
as “[h]er face was red [and] her eyes were watery, bloodshot, [and]
puffy.” The officers noted her difficulty speaking. For instance,
they said “her voice was hoarse,” “almost like she had laryngitis,
where her voice was going in and out”; “her voice became very
scratch[y] and high-pitched” and eventually “[s]he was whispering”
and could hardly be heard at all; and she was “coughing [and]
wheezing.” They also testified to seeing red marks on her throat
and on the side of her face.
¶ 6
The victim’s sister-in-law, whom the victim called shortly after
calling the police, similarly reported that “[s]he was crying
hysterically,” “[s]he was really upset,” and “[h]er voice was hoarse,
kind of like she had a cold, and like hard for her to talk . . . hard to
push out the words, and the volume was like raspy.”
¶ 7
Photos of the victim revealed red marks on her neck and an
abrasion on her cheek.
3
¶ 8
Faudoa was arrested and charged with second degree assault.
He was also later charged with witness tampering for statements he
made to his mother while he was in jail.
¶ 9
The victim didn’t testify at trial. The jury heard the evidence
recounted above, as well as testimony from an expert on
strangulation. At the end of trial, the jury found Faudoa guilty of
the assault charge but not guilty of the witness tampering charge.
Faudoa now appeals.
II. Analysis
¶ 10
Faudoa raises two contentions on appeal: (1) that the trial
court improperly admitted portions of the victim’s 911 calls; and
(2) that the prosecutor committed misconduct during the trial. We
address each contention in turn.
A. 911 Calls
¶ 11
Faudoa contends that the trial court erred in admitting
portions of the victim’s 911 calls because they (1) violated his right
to confront the witnesses against him; (2) contained inadmissible
hearsay; and (3) were inadmissible under CRE 403. We disagree.
4
1. Additional Facts
¶ 12
Before the trial, the prosecution filed a motion indicating that
the victim was unavailable to testify at trial, as she may have moved
out of state and couldn’t be served with a subpoena, and asking the
court to admit her statements from the two 911 calls. Defense
counsel objected, arguing the statements were inadmissible under
the Confrontation Clause, as hearsay, and under CRE 403.
¶ 13
The trial court addressed the issue at a pretrial hearing. The
court ordered that the first call — which was about twenty seconds
long and included only two statements by the victim, that “my
brother just choked me out and scratched me” and her address —
was admissible in its entirety because “the entirety of that 911 call
was made for purposes of obtaining a police response.”
¶ 14
The court then analyzed each separate statement by the victim
in the second call — which immediately followed the first and was
over five minutes long (unredacted). The court determined that
some of the victim’s statements were admissible to describe the
scene and her need for a police response, but others were not. In
the end, the court admitted the following statements:
5
“My brother just choked me out until I couldn’t breathe and
smacked me across the face.”
Faudoa was at that time in his trailer.
She didn’t need medical attention but needed the police there
“as soon as possible.”
She was at that time in the house with her mother.
“Look at my neck” (apparently said to her mother, not to the
dispatcher).3
¶ 15
The court excluded several other statements by the victim,
including, among others, statements that Faudoa was drunk, that
she hadn’t done anything to provoke him, and that he had hit her
across the face and choked her until she couldn’t breathe.
¶ 16
The calls, redacted to exclude the portions of the second call
that were held inadmissible, were played to the jury at trial.
3 The court also allowed the admission of statements indicating that
no weapons were present and that officers had just arrived, but the
redacted recording admitted at trial didn’t include those statements.
6
2. Confrontation Clause
¶ 17
Faudoa argues that the admission of the victim’s statements
from the 911 calls violated his rights under the Confrontation
Clause. We disagree.
¶ 18
Defendants have a right under the Confrontation Clause in
both the United States and the Colorado Constitutions to confront
the witnesses against them. U.S. Const. amend. VI; Colo. Const.
art. II, § 16; People v. Hernandez, 2021 CO 45, ¶ 19. These
constitutional provisions preclude the introduction of testimonial
hearsay unless the declarant is unavailable to testify and the
defendant had a prior opportunity to cross-examine the declarant.
protections are equivalent and the analysis is the same under the
federal and the state constitutions). But nontestimonial hearsay
isn’t similarly excluded and is only subject to the rules of evidence.
People v. Draper, 2021 COA 120, ¶ 77.
¶ 19
A statement is testimonial if, viewed objectively and in light of
all the circumstances, its primary purpose at the time it was made
was to be a substitute for trial testimony. Garcia, ¶ 9; Draper, ¶ 78.
Thus, for instance, when the circumstances of an interrogation
7
objectively indicate that its primary purpose is “to elicit statements
that establish or prove past events, or to elicit statements that are
potentially relevant to a later criminal prosecution, the statements
elicited are testimonial.” Raile v. People, 148 P.3d 126, 130 (Colo.
2006). By contrast, “statements made during an ongoing
emergency to assist police officers in their efforts to assess the
present situation are nontestimonial.” Id.
¶ 20
Likewise, “[a] 911 call, . . . and at least the initial interrogation
conducted in connection with a 911 call, is ordinarily not designed
primarily to ‘establis[h] or prov[e]’ some past fact, but to describe
current circumstances requiring police assistance” and thus is
ordinarily nontestimonial. Davis v. Washington, 547 U.S. 813, 827
(2006) (alteration in original) (citation omitted). Ultimately, whether
statements during a 911 call are testimonial depends on whether
they were made for the purpose of getting help or to provide
information for investigative purposes. Id. at 827-28 (a statement
during a 911 call identifying the defendant as the caller’s assailant
was not testimonial because the caller was speaking about events
as they were happening rather than describing past events, the
caller was facing an ongoing emergency, the statements were
8
necessary to resolve the present emergency rather than just to learn
what had happened in the past, and the interview was informal,
with the caller’s answers “frantic” and “in an environment that was
not tranquil”); People v. Cevallos-Acosta, 140 P.3d 116, 128-29
(Colo. App. 2005) (a statement during a 911 call identifying the
defendant as the perpetrator of a crime was nontestimonial because
“the caller was seeking immediate help for the victim; the
circumstances were exigent; and the statement . . . was neither
elicited by nor made to anybody with authority”).
¶ 21
We review de novo whether the admission of evidence violated
a defendant’s confrontation right. Garcia, ¶ 6. Similarly, we review
de novo the legal question whether a statement is testimonial.
People v. Trevizo, 181 P.3d 375, 378 (Colo. App. 2007).
¶ 22
Faudoa argues that the admitted statements were testimonial,
and thus were improperly admitted, because they “describe[] the
events as having taken place in the past,” using the past tense,
rather than what was currently happening; there was “no ongoing
emergency or immediate danger”; and the victim “insiste[d] that she
did not need medical attention but wanted the police to respond,”
suggesting the focus was on later criminal prosecution.
9
¶ 23
We are not persuaded. Instead, we agree with the trial court’s
assessment that the statements were not testimonial. Viewing the
statements objectively, their primary purpose was to elicit a police
response to what the victim perceived as an ongoing emergency.
Despite Faudoa’s description of the emergency as having passed by
then, the victim may have felt Faudoa was an ongoing threat since,
according to her statements, the assault had “just” occurred and he
was still in his trailer on the property. And although the victim
didn’t believe she needed medical care, her demeanor on the calls
was “frantic,” much like the caller in Davis, 547 U.S. at 827.
¶ 24
We conclude, then, that each of the admitted statements was
nontestimonial. The victim’s statements at the beginning of both
calls saying her brother had “choked [her] out” and “scratched” or
“smacked” her were, like most initial statements in a 911 call, made
not to establish past facts but “to describe current circumstances
requiring police assistance.” Id. The victim may have used the past
tense, as she was speaking right after rather than during the
choking, but that doesn’t negate the fact that she was explaining to
the dispatcher why she needed police assistance. The statements
about where Faudoa was, where the victim was, who she was with,
10
and her need for police but not medical assistance described what
was then occurring and could enable authorities to adequately
respond to the situation. And the comment to “[l]ook at my neck”
was apparently made to the victim’s mother, not to the dispatcher
or for the purpose of establishing a fact at trial. See Ohio v. Clark,
576 U.S. 237, 249 (2015) (“Statements made to someone who is not
principally charged with uncovering and prosecuting criminal
behavior are significantly less likely to be testimonial than
statements given to law enforcement officers.”).
3. Hearsay
¶ 25
Faudoa next argues that the victim’s statements in the 911
calls were hearsay statements that don’t fall under the excited
utterance exception. Again, we disagree.
¶ 26
Hearsay statements, which are statements made by someone
other than the declarant while testifying at trial that are offered to
prove the truth of the matter asserted, are generally inadmissible
unless they fall within an exception. CRE 801(c), CRE 802.
¶ 27
One such exception applies to an excited utterance, which is a
“statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or
11
condition.” CRE 803(2). To fall within this exception, a statement
must (1) relate to an event that is sufficiently startling to render
inoperative normal reflective thought processes of the observer;
(2) be a spontaneous reaction to the occurrence; and (3) be
supported by evidence that the declarant observed the event.
People v. Vanderpauye, 2021 COA 121, ¶ 31.
¶ 28
In determining whether a statement was spontaneous, courts
may consider such factors as the lapse of time after the startling
event, whether the statement was made in response to an inquiry,
whether it was accompanied by outward signs of excitement or
emotional distress, and the choice of words used. People v. Abdulla,
2020 COA 109M, ¶ 65. Statements made in response to
questioning can be excited utterances. Id. at ¶ 72.
¶ 29
A trial court is best positioned to determine whether a
statement was an excited utterance. Id. at ¶ 65. Thus, we review
its decision for an abuse of discretion. Vanderpauye, ¶ 16. A court
abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair, or if it misapplies the law. Id.
¶ 30
While defense counsel raised this objection in her pretrial
filing, the court didn’t rule on it at the hearing. And when counsel
12
objected to admission of the 911 calls at trial, she raised only other
issues but not hearsay. Nonetheless, we will treat this objection as
preserved and assume the trial court implicitly overruled the
objection. See People v. Butler, 2017 COA 117, ¶ 47.
¶ 31
We perceive no abuse of discretion in allowing the statements
into evidence as excited utterances. It’s clear from both calls that
the victim was reacting to a startling event she had experienced;
that she was crying, breathing heavily, and still under the stress of
that event; and that her words were more of a spontaneous reaction
to the event than the operation of a normal reflective thought
process. See Vanderpauye, ¶ 31; Abdulla, ¶ 65.
¶ 32
We reject Faudoa’s arguments to the contrary. Although the
prosecution didn’t establish exactly how much time passed between
the assault and the victim’s 911 calls, other evidence supported
that the calls were made very soon after the assault and while the
victim was still acting under the stress of the assault. For instance,
the victim said her brother had “just” choked her, and she was
crying, breathing heavily, and speaking frantically during the calls.
See Compan v. People, 121 P.3d 876, 883 (Colo. 2005) (evidence
that the victim was upset, crying, and talking excitedly during two
13
calls to a friend following an assault indicated that the calls were
made “in near temporal proximity to the startling event”), overruled
on other grounds by Nicholls v. People, 2017 CO 71. And the
responding officers and sister-in-law who spoke to the victim
shortly after the calls reported that “her emotions were elevated,”
“[s]he was really upset,” and “[s]he was crying hysterically.” See
People v. Martinez, 18 P.3d 831, 835 (Colo. App. 2000) (descriptions
of the victim as being distressed, emotional, and upset supported
findings that her assault was startling and that her statements were
made under the stress caused by the assault).
¶ 33
Nor is application of the exception undermined by the fact that
the victim had moved a short distance away from the location of the
assault before calling 911. It is enough that the evidence from the
calls and from other witnesses suggests she was still under the
stress of the assault. See Compan, 121 P.3d at 883 (evidence of the
victim’s emotional distress supported application of the exception to
statements she made to a friend after she had removed herself from
the immediate vicinity of an assault); People v. King, 121 P.3d 234,
238 (Colo. App. 2005) (evidence of the victim’s emotional distress
supported application of the exception to statements she made an
14
unknown period of time after she was assaulted and stabbed and
after she had reached a place of safety).
4. CRE 403
¶ 34
Faudoa also argues that the victim’s statements in the 911
calls should’ve been excluded under CRE 403 because they were
“emotionally charged” yet had minimal probative value because they
didn’t provide context for the incident. We disagree.
¶ 35
Relevant evidence may be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice.” CRE
403. “Evidence is unfairly prejudicial if it has an ‘undue tendency
to suggest a decision on an improper basis . . . such as sympathy,
hatred, contempt, retribution, or horror.’” People v. Clark, 2015
COA 44, ¶ 18 (alteration in original) (quoting People v. James, 117
P.3d 91, 93-94 (Colo. App. 2004)). In reviewing the court’s ruling,
we assume the maximum probative value a reasonable fact finder
might give the evidence and the minimum unfair prejudice to be
reasonably expected. Id.
¶ 36
The trial court rejected defense counsel’s CRE 403 objection at
trial, finding that the “probative value [of the evidence] is not
substantially outweighed by any asserted prejudice.” We review
15
this ruling for an abuse of discretion. See Vanderpauye, ¶ 16. A
court abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair, or if it misapplies the law. Id.
¶ 37
We discern no abuse of discretion in admitting the statements.
The statements were probative in setting the scene of the crime and
establishing what had happened. In particular, the victim’s
statement that her brother had “choked [her] out until [she]
couldn’t breathe” made it more likely than not that Faudoa had
applied sufficient pressure to impede or restrict the victim’s
breathing — a fact that was hotly contested at trial and was
relevant to establishing one of the elements of second degree
assault. See § 18-3-203(1)(i), C.R.S. 2021.
¶ 38
The statements also were not overly emotional or otherwise
unfairly prejudicial. And to the extent that the statements that
were admitted didn’t provide further context, it was because Faudoa
had successfully prevented the admission of other statements
during the call about what may have led to the incident.
B. Prosecutorial Misconduct
¶ 39
Faudoa argues that the prosecutor committed misconduct by
(1) making statements regarding the victim’s absence at trial that
16
suggested the case had been prescreened, presented the
prosecutor’s personal opinion of Faudoa’s guilt, and implied
personal knowledge of evidence not presented to the jury; and
(2) inflaming the jury’s passion. We disagree.
¶ 40
We apply a two-step analysis in evaluating claims of
prosecutorial misconduct. People v. Curtis, 2021 COA 103, ¶ 49.
First, we determine whether the prosecutor’s statements were
improper based on the totality of the circumstances. Id. Then, if
the statements were improper, we determine whether the conduct
warrants reversal under the applicable standard — harmless error
if the defendant objected in the trial court (and the error is not of a
constitutional dimension) and plain error if the defendant did not.
Id. at ¶¶ 49-50; People v. Sauser, 2020 COA 174, ¶ 80.
¶ 41
Faudoa preserved some of his objections but failed to preserve
others. For those that are preserved, reversal is required under the
harmless error standard only if an error substantially influenced
the verdict or affected the fairness of the trial. Sauser, ¶ 80. For
those that are not preserved, reversal is required under the plain
error standard only if an error was obvious and was substantial,
meaning that it so undermined the fundamental fairness of the trial
17
as to cast serious doubt on the reliability of the judgment of
conviction. People v. Maloy, 2020 COA 71, ¶ 11.
¶ 42
The trial court has discretion to determine whether a
prosecutor has committed misconduct. People v. Snider, 2021 COA
19, ¶ 31. Accordingly, we won’t disturb the court’s rulings on
claims of misconduct absent a gross abuse of discretion resulting in
prejudice and a denial of justice. Sauser, ¶ 78.
1. Statements Related to the Victim’s Absence
¶ 43
Faudoa argues that in an effort to explain why the victim
wasn’t appearing at trial and why the prosecution was proceeding
in her absence, the prosecutor made various statements improperly
suggesting that the case had been prescreened, that she personally
believed Faudoa was guilty, and that she was aware of evidence not
presented to the jury. We are not persuaded.
¶ 44
Faudoa challenges statements made at three separate times at
trial. First, he points to the prosecutor’s statements during voir
dire. At one point, the prosecutor said,
[Y]ou will not hear from the victim in this case.
She will not come in, testify against her
brother. I wanted to talk about whether or not
the District Attorney’s office and law
enforcement should continue in cases --
18
¶ 45
Defense counsel objected that this was a “stake-out” question,
and the court overruled the objection. The prosecutor went on to
ask the prospective jurors to consider why someone might not want
to testify against a family member and whether they would be
concerned about the victim’s absence at trial. She then stated,
In a scenario where a person feels
uncomfortable, feels pressure from her family,
feels like maybe it would be worse if she came
to court, is that something you can imagine as
a reason why someone would not want to come
to court and testify?
¶ 46
Defense counsel objected. The court sustained the objection;
struck that statement; and instructed the jury that it wasn’t to
speculate as to why the prosecution “may or may not present
certain evidence” but was to “weigh the evidence that is in the
record” and, as appropriate, “consider the lack of evidence.”
¶ 47
Faudoa next points to the following remarks by the prosecutor
during opening statement:
The first thing you’re going to hear about is the
fact that [the victim] will not be testifying. You
already heard about that. How am I going to
prove this case without [the victim]? You are
not going to hear from her on the stand, but
you are going to hear from her within the rules
of evidence. I am going to provide you with
everything I can, all the statements that I can.
19
¶ 48
Defense counsel objected on the basis that the prosecutor was
testifying. The court overruled the objection.
¶ 49
Finally, Faudoa points to these statements in the prosecutor’s
closing argument:
PROSECUTOR: [T]his is a difficult case. It’s
challenging. I made no surprise, no mystery
about it when I talked to you during jury
selection. But every single one of you told me
that if the evidence was there, law enforcement
should investigate, the District Attorney
should pursue.
DEFENSE COUNSEL: Objection. Using office
status to convey credibility based on charges.
THE COURT: I’m going to sustain. This is as
to evidence, not charging decision.
PROSECUTOR: All of you said if the evidence
was there, you thought it was okay, and, in
fact, you thought it was right for charges to be
brought --
DEFENSE COUNSEL: Objection.
PROSECUTION: -- if that was appropriate.
THE COURT: Overruled.
¶ 50
Prosecutors have wide latitude to make arguments based on
the facts in evidence and reasonable inferences that may be drawn
from those facts. People v. Strock, 252 P.3d 1148, 1153 (Colo. App.
2010). Nonetheless, prosecutors must not use improper methods
20
calculated to produce a wrongful conviction. People v. Fortson,
2018 COA 46M, ¶ 13. Thus, for instance, they may not refer to a
screening process that a case was sufficient to pass through,
Domingo-Gomez v. People, 125 P.3d1043, 1052 (Colo. 2005);
express a personal opinion as to the defendant’s guilt, People v.
Rhea, 2014 COA 60, ¶ 75; or suggest they have personal knowledge
of evidence unknown to the jury, Fortson, ¶ 48.
¶ 51
The statements challenged in this case did not run afoul of
these rules. First, the prosecutor didn’t suggest the case had been
screened or even allude to a screening process. Cf. Domingo-Gomez,
125 P.3d at 1052 (prosecutor expressly referenced “a screening
process for charging cases,” which the prosecutor said “takes the
type of evidence that we have here”). What she referred to instead
was a choice to continue prosecuting the case without assistance
from the victim. That reference, unlike a statement about
screening, doesn’t “convey that the prosecution had additional
inculpatory evidence unknown to the jury.” Id. And the apparent
point of the prosecutor’s statements was not to improperly bolster
the decision to prosecute the case but, instead, to elicit jurors’
reactions to a criminal case proceeding without a testifying victim
21
and to argue that the evidence could support a conviction even
without the victim’s testimony.
¶ 52
Second, the prosecutor didn’t express a personal belief in
Faudoa’s guilt. None of her challenged statements referred to her
own beliefs about Faudoa’s guilt. Instead, they focused on the
absence of the victim and the evidence supporting a finding of guilt.
Cf. People v. Vialpando, 2020 COA 42, ¶ 57 (prosecutor told the
jury, among other things, “I think you’ll agree with me at the end of
testimony, that the defendant is guilty of the charges”) (cert. granted
Oct. 12, 2020).
¶ 53
And third, the prosecutor didn’t suggest that she was aware of
evidence unknown to the jury that would support a guilty verdict.
Her statement that she was going to offer all the evidence she could
under the rules of evidence was vague and didn’t necessarily imply
that she was aware of additional evidence she couldn’t present to
the jury — particularly given that she made this statement in the
context of proceeding in the absence of testimony from the victim.
Nor did her statement give any indication, if there was any other
evidence, what that evidence might be. Cf. Fortson, ¶¶ 47-48
22
(prosecutor said the defendant had committed instances of sexual
assault in addition to those charged).
¶ 54
At most, some of the prosecutor’s statements may have been
inartful. See People v. Samson, 2012 COA 167, ¶ 30 (“[B]ecause
arguments delivered in the heat of trial are not always perfectly
scripted, reviewing courts accord prosecutors the benefit of the
doubt when their remarks are ambiguous or simply inartful.”). But
they did not cross the line into prosecutorial misconduct.
¶ 55
And, to the extent that any of the prosecutor’s statements
were objectionable, they were brief and isolated, were cured by the
trial court’s rulings sustaining some of the objections and striking
one of the statements, and didn’t substantially influence the
verdict, affect the fairness of the trial, or so undermine the
fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction. See Sauser, ¶ 80; Maloy,
¶ 11.
2. Inflaming the Jury’s Passion
¶ 56
Lastly, Faudoa argues that the prosecutor improperly used
arguments calculated to inflame the jury’s passion by saying the
23
victim was traumatized and felt like she was going to die. Again, we
are not persuaded.
¶ 57
Faudoa again challenges statements made at different times
during the trial. Those statements include:
In opening statements: “[Y]ou’re . . . going to hear about
how [the victim] sounded when she was saying those
things [on the 911 calls] . . . . Crying and hysterical,
screaming and traumatized.” (The court overruled
defense counsel’s objection to the word “traumatized.”)
In opening statements: “You’re going to hear what it feels
like to have had someone’s hand around your neck, to
feel like you couldn’t breathe, to feel like you might die.
You’re going to hear what that sounds like.” (The court
didn’t rule on defense counsel’s objection but let the
prosecutor rephrase the statement.)
In opening statements: “[Y]ou’re going to hear from a
woman who has clearly gone through trauma.” (No
objection was made to this statement.)
In closing argument: “[W]hat you heard [the victim’s
sister-in-law] say is exactly what you guys heard on the
24
911 call, which is someone that [has] experienced
trauma.” (The court overruled defense counsel’s
objection.)
In rebuttal closing: “[Faudoa] doesn’t get to strangle
someone when she says bad things to him. He doesn’t
get to make her feel like she is going to die.” (No
objection was made to this statement.)
¶ 58
Prosecutors may use rhetorical devices and oratorical
embellishments in opening statements and closing arguments.
People v. Manyik, 2016 COA 42, ¶ 27; Strock, 252 P.3d at 1153.
But such embellishments become improper if they induce the jury
to determine guilt on the basis of passion or prejudice. Manyik,
¶ 27; Strock, 252 P.3d at 1153.
¶ 59
The evidence in this case — particularly the victim’s demeanor
and statements during her 911 calls, the other witnesses’ testimony
about her emotional state and her difficulty speaking shortly after
she had made the calls, and the photos showing marks on her neck
and face — supports an inference that the victim was traumatized
when Faudoa choked her. That same evidence, along with the
25
expert evidence on strangulation, also supports an inference that
she may have felt she was going to die.
¶ 60
Thus, it was not improper for the prosecutor to make
references to the victim’s trauma. See Maloy, ¶ 65 (prosecutor’s
reference to the victim’s trauma wasn’t improper because, “[w]hile
there was no direct evidence that [the victim] suffered trauma,
reasonable jurors could have inferred that [she] would have
experienced trauma based on the evidence presented”). Instead, as
the trial court properly concluded, these were the type of oratorical
embellishments that are allowed at trial. See Manyik, ¶ 27; Strock,
III. Conclusion
¶ 61
The judgment is affirmed.
JUDGE RICHMAN and JUDGE HARRIS concur.