22CA2075 Peo v Blue 08-07-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA2075 Arapahoe County District Court No. 20CR2765 Honorable Ben L. Leutwyler III, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Mario Nicholas Blue,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE BROWN Dunn and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 7, 2025
Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Leah Scaduto, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Mario Nicholas Blue, appeals the judgment of
conviction entered on a jury verdict finding him guilty of several
offenses arising from a road rage incident, including attempted first
degree murder (extreme indifference), attempted first degree assault
(serious bodily injury/deadly weapon), and attempted first degree
assault (extreme indifference). Blue contends that (1) insufficient
evidence supported his attempted extreme indifference murder
conviction or, alternatively, the attempted extreme indifference
murder statute is unconstitutionally vague and violates equal
protection as applied to him; (2) the district court erroneously
admitted unqualified expert testimony; (3) the court erroneously
instructed the jury; (4) the prosecutor committed misconduct; and
(5) the attempted assault convictions should have been merged into
each other and into the attempted murder conviction. Blue also
contends that the cumulative effect of these alleged errors requires
reversal.
¶2 We conclude that the prosecution presented insufficient
evidence to support Blue’s attempted extreme indifference murder
conviction. We also conclude that the attempted assault
convictions should merge. As a result, we remand for the district
1 court to vacate the attempted extreme indifference murder
conviction, amend the mittimus, and resentence Blue. We
otherwise affirm.
I. Background
¶3 The evidence presented at a three-day trial allowed the jury to
find the following facts.
¶4 In October 2020, Jesse Carroll was driving home from work on
Hampden Avenue in a silver truck when he saw a white sedan
driving erratically and blocking two lanes of traffic. Carroll said the
sedan had a driver (who was later determined to be Blue) and a
passenger (who was never identified). Carroll stopped next to the
sedan at a stoplight, yelled “that they drove like shit,” and flipped
Blue off. Blue swerved towards Carroll, got in front of his truck,
and slammed on the brakes. Carroll avoided hitting the sedan by
maneuvering between it and a barricade on the right side of the
road and passing it.
¶5 At some point after that, Blue got in front of Carroll again and
was far enough ahead that Carroll thought he could make a right
turn onto Jason Street to evade Blue. But in his rearview mirror,
Carroll saw Blue back up in traffic to turn and follow him. Blue
2 pulled up next to Carroll’s truck at a stop sign, and Carroll saw
Blue point a gun at him. As Carroll rolled forward, he heard the
gun discharge, and a bullet hit his truck with a loud metal “tink”
sound. Then the sedan sped off to the left.
¶6 Detective Jessica Moskal, who was a patrol officer at the time
of the incident, received a report of an aggressive driver in the area.
She saw a white sedan coming from Jason Street and Hampden
Avenue at a high rate of speed and pulled it over. The driver
identified himself as Blue and said that he had been involved in an
altercation with another driver who had thrown something at his
car. Blue described the other vehicle as a silver truck and said that
he had just been trying to catch up to it. About fifteen to twenty
minutes later, the detective received a report that a truck had been
shot at and realized the white sedan may have been involved. The
detective responded to Carroll’s house, inspected the truck, and
observed a bullet hole in a toolbox in the truck bed.
¶7 Based on these facts, the prosecution charged Blue with
reckless endangerment, prohibited use of a firearm, disorderly
conduct, menacing, illegal discharge of a firearm, attempted first
degree assault (deadly weapon), attempted first degree assault
3 (extreme indifference), attempted first degree murder (extreme
indifference), attempted first degree murder (after deliberation), and
one crime of violence sentence enhancer. A jury acquitted Blue of
attempted murder after deliberation but otherwise convicted him as
charged. For the attempted extreme indifference murder count, the
district court imposed a controlling sentence of twenty years in the
custody of the Department of Corrections. It ordered the sentences
on the other counts to be served concurrently.
II. Sufficiency of the Evidence
¶8 Blue contends that the prosecution presented insufficient
evidence to sustain his attempted extreme indifference murder
conviction. We agree.
A. Generally Applicable Law and Standard of Review
¶9 “Due process requires the prosecution to present sufficient
evidence to prove beyond a reasonable doubt every fact necessary to
constitute the crime charged.” Johnson v. People, 2023 CO 7, ¶ 13.
¶ 10 In assessing a challenge to the sufficiency of the evidence,
“[w]e review the record de novo to determine whether the evidence
before the jury was sufficient both in quantity and quality to
sustain the defendant’s conviction.” Id. (quoting Clark v. People,
4 232 P.3d 1287, 1291 (Colo. 2010)). We consider “whether the
relevant evidence, both direct and circumstantial, when viewed as a
whole and in the light most favorable to the prosecution, is
substantial and sufficient to support a conclusion by a reasonable
mind that the defendant is guilty of the charge beyond a reasonable
doubt.” Id. (quoting Clark, 232 P.3d at 1291). And in doing so, we
“give the prosecution the benefit of every reasonable inference
which might be fairly drawn from the evidence.” People v. Harrison,
2020 CO 57, ¶ 32 (quoting People v. Perez, 2016 CO 12, ¶ 25).
B. The Prosecution Presented Insufficient Evidence to Sustain the Attempted Extreme Indifference Murder Conviction
¶ 11 A person commits extreme indifference murder when, “[u]nder
circumstances evidencing an attitude of universal malice
manifesting extreme indifference to the value of human life
generally, he knowingly engages in conduct which creates a grave
risk of death to a person, or persons, other than himself, and
thereby causes the death of another.” § 18-3-102(1)(d), C.R.S.
2024.
¶ 12 “A person commits criminal attempt if, acting with the kind of
culpability otherwise required for commission of an offense, he
5 engages in conduct constituting a substantial step toward the
commission of the offense.” § 18-2-101(1), C.R.S. 2024. A
“substantial step” is “any conduct . . . which is strongly
corroborative of the firmness of the actor’s purpose to complete the
commission of the offense.” Id.
¶ 13 Thus, to convict Blue of attempted extreme indifference
murder, the prosecution had to prove beyond a reasonable doubt
that he “was aware he was engaging in conduct strongly
corroborative of the firmness of his purpose to complete the
commission of the crime of extreme indifference murder.” People v.
Anderson, 2019 CO 34, ¶ 18; see § 18-2-101(1). And Blue could
only commit the crime of extreme indifference murder if he “caused
the death of another by knowingly engaging in conduct creating a
grave risk of death to a person or persons other than himself, under
generally.” Anderson, ¶ 18; see § 18-3-102(1)(d); Montoya v. People,
2017 CO 40, ¶ 17.
¶ 14 Blue focuses his sufficiency challenge on the “universal
malice” element of the offense. Universal malice has been defined
6 as conduct objectively demonstrating “a willingness to take human
life indiscriminately, without knowing or caring who the victim may
be or without having an understandable motive or provocation.”
Garcia v. People, 2023 CO 30, ¶ 16 (quoting Candelaria v. People,
148 P.3d 178, 181 (Colo. 2006)). To meet this standard, the
defendant’s conduct must demonstrate an extreme “lack of care and
concern for the value of human life generally.” People v. Jefferson,
748 P.2d 1223, 1232 (Colo. 1988). This feature of extreme
indifference murder is what distinguishes it from, and elevates it in
culpability above, second degree murder. Anderson, ¶ 15.
¶ 15 Although extreme indifference murder is limited “to situations
in which the actor demonstrates an indifference to human life
generally, as distinguished from indifference to, or willingness to
take, a particular human life,” Jefferson, 748 P.2d at 1232
(emphases added), whether a defendant puts one individual at risk
or a group of people at risk is not dispositive, Anderson, ¶¶ 14-15;
Candelaria, 148 P.3d at 182. Rather, “the conduct proscribed by
the statute could include either acts putting at risk a single person
or acts putting at risk more than one person.” Anderson, ¶ 15.
And so long as “the act by which death is knowingly caused, by its
7 very nature or the surrounding circumstances of its commission,
objectively evidences” a willingness to take life indiscriminately, it is
irrelevant whether a defendant’s acts have the “actual effect of
endangering a number of lives, or even one life, indiscriminately.”
Id. at ¶¶ 14-15.
¶ 16 Blue contends that the prosecution failed to prove the
universal malice element of attempted extreme indifference murder
when the facts established that he fired one shot at a specific
person with whom he had been in a road rage incident. We agree
that nothing in the record would allow a reasonable juror to
conclude beyond a reasonable doubt that Blue’s conduct objectively
demonstrated a willingness to take human life indiscriminately. See
Garcia, ¶ 16; Anderson, ¶ 15.
¶ 17 True, the record reflects that Blue was driving erratically, but
Blue was not charged with attempted extreme indifference murder
for placing random lives at risk through his erratic driving. Instead,
as the prosecutor made clear in closing argument, Blue was
charged with attempted extreme indifference murder for attempting
to cause Carroll’s death by shooting at him.
8 ¶ 18 Witness testimony established that, once Carroll confronted
Blue, Blue focused his aggression on Carroll, reversing in traffic to
follow Carroll down a side street, pulling up next to Carroll at a stop
sign, and then shooting at Carroll’s truck. Although one witness
testified that Blue pointed a gun at her too, she was not the named
victim of the attempted extreme indifference murder charge, and
there was no evidence that Blue shot at her. The prosecution
presented no evidence that Blue shot at other people or cars or that
the one shot he did fire at Carroll could have possibly hit another
person or car. Instead, Blue deliberately fired a single shot at a
particular person for a particular reason. Cf. Montoya, ¶ 20 (The
evidence established attempted extreme indifference murder when
the defendant “fired five rounds from the same semi-automatic
handgun, indiscriminately, in the direction of a house, full of
party-goers.”); People v. Rubio, 222 P.3d 355, 358-59 (Colo. App.
2009) (By using an AK-47 assault rifle to shoot an empty car,
causing “wild shots” to hit nearby occupied residences, the
defendant’s conduct “reflect[ed] an attitude of universal malice
manifesting extreme indifference to human life generally.”); People v.
Ellis, 30 P.3d 774, 778-79 (Colo. App. 2001) (“[A]mple evidence
9 existed to establish” attempted extreme indifference murder when
the defendant shot through the doors of a home knowing that it was
full of adults and children and testified he was not “directing [his]
fire at any particular individual.”).
¶ 19 We are not persuaded otherwise by the People’s argument that
Blue’s conduct demonstrated universal malice because he had no
understandable motive or provocation, and Carroll was a “total
stranger.” Although Blue overreacted and escalated the initial
encounter by shooting at Carroll, the evidence clearly revealed his
motive — Blue shot at Carroll because Carroll flipped him off and
yelled at him. And although Blue did not know Carroll’s name and
had not met him before, Carroll was the intended target of the
single gunshot Blue fired. In other words, Blue did not
indiscriminately shoot at a random passerby for no reason; he shot
at Carroll because Carroll had confronted him.
¶ 20 Candelaria and Anderson, on which the People rely to argue
that a person can engage in conduct evidencing an attitude of
universal malice even if they target a single victim, do not compel a
different result. In Candelaria,
10 there was an abundance of evidence that the defendant and those in his car were specifically searching for [one person] to kill him, [but] there was also evidence that they fired numerous shots in the direction of his vehicle, aware that other people whom they did not know or have grievances against were present in or around the vehicle.
148 P.3d at 183. Based on that evidence, the supreme court
concluded that the defendant’s conduct demonstrated universal
malice and a willingness to take human life indiscriminately. Id.
¶ 21 In Anderson, the supreme court determined that, by shooting
thirteen times in rapid succession at a random deputy who
responded to a call, the defendant’s conduct
demonstrated a willingness to take life indiscriminately, either because it objectively evidenced a willingness to kill as many as thirteen bystanders within range of the defendant’s indiscriminate shooting, or simply because it evidenced a willingness to kill whoever was pursuing him, in order to draw return fire and be killed himself.
Anderson, ¶ 20. There was also “evidence from which the jury
could find that the defendant’s gunfire was not only capable of
reaching, but in fact practically reached . . . the highway from
which the defendant had recently turned and upon which he had
only minutes before necessarily observed other travelers.” Id.
11 ¶ 22 In contrast to Candelaria and Anderson, the prosecution
presented no evidence that Blue targeted Carroll but nonetheless
engaged in conduct that indiscriminately risked other lives. And
although Blue’s conduct demonstrated an indifference to or
willingness to take Carroll’s life, it did not demonstrate a willingness
to take an unknown life indiscriminately. See Jefferson, 748 P.2d
at 1232.
¶ 23 Even viewing the evidence in the light most favorable to the
prosecution, see Johnson, ¶ 13, we cannot conclude that a rational
juror could find beyond a reasonable doubt that Blue engaged in
the charged conduct “[u]nder circumstances evidencing an attitude
of universal malice manifesting extreme indifference to the value of
human life generally,” § 18-3-102(1)(d). As a result, we must vacate
Blue’s conviction for attempted extreme indifference murder. See
People v. Mortenson, 2023 COA 92, ¶ 32 (“Generally, an appellate
court vacates a conviction when there is insufficient evidence.”).
And because we vacate Blue’s attempted extreme indifference
conviction, we need not address his alternative constitutional
challenges.
12 III. The Police Officers’ Testimony
¶ 24 Blue contends that the district court erred by allowing three
police officers to testify about the trajectory of the bullet through
Carroll’s truck because it was (1) improper expert testimony in the
guise of lay testimony and (2) unhelpful. We disagree.
A. Standard of Review and Applicable Law
¶ 25 We review a trial court’s evidentiary rulings for an abuse of
discretion. Zapata v. People, 2018 CO 82, ¶ 25. A court abuses its
discretion when its ruling is manifestly arbitrary, unreasonable, or
unfair or if it misconstrues or misapplies the law. People v. Liggett,
2021 COA 51, ¶ 16, aff’d, 2023 CO 22.
¶ 26 CRE 701 governs the admission of lay witness testimony.
People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). Under that rule, a
lay witness’ testimony is limited to “opinions or inferences” that are
(1) “rationally based on the perception of the witness”; (2) “helpful to
a clear understanding of the witness’ testimony or the
determination of a fact in issue”; and (3) “not based on scientific,
technical, or other specialized knowledge within the scope of [CRE]
702.” CRE 701.
13 B. Additional Background
¶ 27 At trial, Carroll was asked to identify the bullet hole in the
toolbox that sat in the bed of his truck, up against the cab. He also
described the “entry hole of a bullet” below the back cab window
that formed “a pretty straight line” from the bullet hole in the
toolbox. And he explained that the driver’s headrest sat “flush
against” the cab window. When the prosecutor asked about a
“black dot” in the center of the headrest, Carroll explained that part
of the interior trim of the truck had been fractured from the bullet,
“and it caused the plastic to chip off, cutting that little cut into the
back of the headrest.” When the prosecutor asked Carroll if he was
“saying that when the bullet went through the cab[,] . . . it actually
came through and damaged the back of the headrest,” Carroll
responded affirmatively.
¶ 28 Without being qualified as experts, three police officers also
testified about their observations of the damage to Carroll’s truck
and the remnants of a bullet found inside.
¶ 29 First, Officer Logan Wynder testified that he was dispatched to
Carroll’s home and inspected “the trajectory of the bullet and all the
damage” to the truck. Officer Wynder said that “[t]he bullet was
14 coming from the left side, going right” and that “[i]t hit the corner
side of the toolbox, continued and went out of the toolbox, into the
truck near the back window, through that frame, and into the
backseat of where the driver would be sitting.” The officer
confirmed that his testimony was “just based on observing where
the bullet holes were.” He also said that other officers found
“fragments of the bullet inside the vehicle.”
¶ 30 Second, Detective Moskal testified that she inspected Carroll’s
truck at his home following the incident and that he “pointed out a
bullet hole” in the toolbox in the bed of his truck “that traveled
through the toolbox and into the driver’s headrest.”
¶ 31 Third, Detective Bryan Penry testified that he also inspected
Carroll’s truck that day. He found “shavings” or “fragments of [the]
bullet[] on the floorboard and the seat, as well as damage to the
back of the . . . driver’s headrest.” After removing the headrest
cover, the detective saw “a silver mark” on the black metal of the
headrest “from where the bullet struck.” During cross-examination,
defense counsel asked Detective Perry if he could tell the jury how a
bullet trajectory analysis is done. The detective responded that he
15 had “limited training on that” and that he was not “sure exactly how
they measure” the angle since he had “done it very few times.”
¶ 32 Defense counsel did not object to any of this testimony.
C. The Officers’ Testimony Was Not Expert Testimony
¶ 33 Blue contends that the district court erred by allowing the
three police officers to give unqualified expert testimony in the guise
of lay testimony that the bullet made the mark on the driver’s seat
headrest. We are not persuaded.
¶ 34 “[T]he critical factor in distinguishing between lay and expert
testimony is the basis for the witness’s opinion.” Venalonzo v.
People, 2017 CO 9, ¶ 22. We “must consider whether the testimony
could be based on an ordinary person’s experience or knowledge.”
People v. Murphy, 2021 CO 22, ¶ 21. If so, it is proper lay opinion
testimony if it meets the requirements of CRE 701. Id. at ¶¶ 17, 20.
But if a “witness provides testimony that could not be offered
without specialized experiences, knowledge, or training, then the
witness is offering expert testimony” under CRE 702. Venalonzo,
¶ 2.
¶ 35 “Police officers regularly, and appropriately, offer testimony
under CRE 701 based on their perceptions and experiences.”
16 People v. Tallwhiteman, 124 P.3d 827, 832 (Colo. App. 2005); accord
Murphy, ¶ 21. An officer’s testimony only “becomes objectionable
when what is essentially expert testimony is improperly admitted
under the guise of lay opinions.” Stewart, 55 P.3d at 123.
¶ 36 The officers’ testimony — essentially, that the bullet struck the
toolbox on Carroll’s truck, traveled through the cab frame, and hit
the headrest, leaving a mark — was based solely on what they
observed when they inspected the truck. No evidence suggests that
the officers measured the bullet holes or calculated the bullet’s
trajectory to determine that the bullet hit the headrest. Neither
Detective Moskal nor Officer Wynder said they had any special
training or experience analyzing a bullet’s trajectory, while Detective
Penry said he had “limited training” in that area but admitted he
did not know how to measure the bullet’s angle. See Venalonzo,
¶ 22. Any ordinary person could have made the observations and
given the opinions the officers gave. See Murphy, ¶ 21; Venalonzo,
¶ 22. Indeed, Carroll reached a similar conclusion based on his
own observations.
¶ 37 We reject Blue’s assertion that the officers had to personally
observe the bullet being fired at Carroll’s truck to be able to testify
17 as they did. Under CRE 701, the officers could relay “opinions or
inferences” that were “rationally based on [their] perception[s].” See
also Tallwhiteman, 124 P.3d at 832. And their opinions were
rationally based on their perceptions of the bullet holes and damage
to the truck and on the bullet fragments found on the floor of the
cab. Thus, we conclude that the court did not abuse its discretion
by admitting the officers’ testimony as lay testimony. See CRE 701;
see also People v. Caldwell, 43 P.3d 663, 667 (Colo. App. 2001)
(concluding that a former police officer working as a crime scene
technician gave proper lay testimony about the path of two bullets
through a car because the testimony was based “only [on] his
observations about the entry locations of the bullets and the path
they traveled inside the vehicle,” which were observations that
“could just as easily have been made by the jury from the
photographs”).
D. The Officers’ Testimony Was Helpful
¶ 38 Blue alternatively contends that the district court erred by
admitting the officers’ testimony under CRE 701. Specifically, he
argues that the testimony was not helpful because “the witnesses
were in no better position than the jurors to evaluate the evidence.”
18 But each of the three officers inspected the truck in person,
whereas the jurors only viewed photographs of the bullet holes and
vehicle damage. See People v. Vigil, 2015 COA 88M, ¶ 67
(concluding that a sergeant was not in the “very same position as
the jurors” because, unlike the jurors, “he personally observed the
shoeprints at the scene”), aff’d, 2019 CO 105. Based on their
personal observations of Carroll’s truck, the officers were in a better
position to give an opinion about the bullet’s trajectory than the
jurors. Accordingly, we conclude that the court did not abuse its
discretion by concluding that the officers’ testimony was helpful to
the jury. See CRE 701; see also Zapata, ¶ 25; Liggett, ¶ 16.
IV. Jury Instruction
¶ 39 Blue contends that the district court erroneously instructed
the jury that it could only draw inferences from facts that were
proved, not from the absence of evidence. We perceive no error.
¶ 40 The district court has a duty to accurately instruct the jury
concerning the controlling law. Riley v. People, 266 P.3d 1089,
1092 (Colo. 2011). We review de novo whether the jury
instructions, considered as a whole, correctly stated the law. People
19 in Interest of J.G., 2016 CO 39, ¶ 33. But “[w]e review a trial court’s
decision whether to give a particular jury instruction for an abuse
of discretion.” People v. Cline, 2022 COA 135, ¶ 32. A court abuses
its discretion when its ruling results in a misstatement of the law or
is manifestly arbitrary, unreasonable, or unfair. J.G., ¶ 33.
B. The District Court Did Not Erroneously Instruct the Jury
¶ 41 Without objection, the district court gave the jury the following
instruction offered by the prosecution (Instruction No. 4):
The evidence in this case consists of the sworn testimony of all witnesses and all exhibits which have been received in evidence.
You are to consider only the evidence in this case and reasonable inferences therefrom. An inference is a deduction or conclusion which reason and common sense lead the jury to draw from facts that have been proved.
¶ 42 Blue contends that Instruction No. 4 misstated the law and
the burden of proof by (1) telling the jury that it could only draw
inferences from “facts that have been proved” by direct evidence,
not from circumstantial evidence or from the lack of evidence; and
(2) not identifying a standard or burden by which the jury could
determine that the facts had been proved. For three reasons, we
20 conclude that Instruction No. 4 did not misstate the law or the
burden of proof.
¶ 43 First, the instruction did not erroneously preclude the jury
from drawing inferences from the lack of evidence. “[T]he absence
of an express instruction to consider the lack of evidence is not
tantamount to a prohibition on doing so.” People v. Melara, 2025
COA 48, ¶ 32 (concluding that a reasonable doubt instruction that
did not refer to the lack of evidence did not impermissibly lower the
prosecution’s burden of proof); accord People v. Schlehuber, 2025
COA 50, ¶¶ 19-20 (concluding that a court does not err by omitting
“lack of evidence” language from the reasonable doubt instruction).
Instruction No. 4 “did not forbid or even dissuade the jurors from
applying their common sense when considering the evidence in this
case, including issues or requirements that the evidence failed to
address.” Melara, ¶ 31; accord Schlehuber, ¶ 21 (“[T]he concept of
reasonable doubt inherently invites jurors to consider what
evidence is missing.”). And before the court read Instruction No. 4,
it had already correctly instructed the jury that reasonable doubt
means, in relevant part, “a doubt based upon reason and common
sense which arises from a fair and rational consideration of all of
21 the evidence, or the lack of evidence, in the case.” (Emphasis
added.) See COLJI-Crim. E:03 (2021) (model jury instruction for
presumption of innocence, burden of proof, and reasonable doubt).
So, the court did expressly instruct the jury that it could consider
the lack of evidence, albeit in a separate instruction. See Johnson
v. People, 2019 CO 17, ¶ 14 (“We do not consider jury instructions
in isolation; rather, we consider them ‘in the context of the
instructions as a whole . . . .’” (quoting Estelle v. McGuire, 502 U.S.
62, 72 (1991))).
¶ 44 Second, the instruction did not prohibit the jury from
considering circumstantial evidence. The instruction did not
reference or distinguish between direct and circumstantial evidence.
Separately, the court correctly instructed the jury that “[a] fact may
be proven by either direct or circumstantial evidence. Neither is
necessarily more reliable than the other.” And it defined direct
evidence as “first-hand observation of the fact in question” and
circumstantial evidence as “based on observations of related facts
that may lead you to reach a conclusion about the fact in question.”
The instructions collectively informed the jury that it could base its
verdict on circumstantial evidence. See id.
22 ¶ 45 Third, although Instruction No. 4 itself did not identify a
burden or standard of proof, the balance of the instructions
collectively made clear that the prosecution alone bore the burden
to prove beyond a reasonable doubt each element of the charged
crimes. See id. The court instructed the jury that “[e]very person
charged with a crime is presumed innocent. This presumption of
innocence remains with [Blue] throughout the trial and should be
given effect by you unless, after considering all of the evidence, you
are then convinced that he is guilty beyond a reasonable doubt.” It
informed the jury that “[t]he burden of proof is upon the
prosecution to prove to the satisfaction of the jury beyond a
reasonable doubt the existence of all the elements necessary to
constitute the crime charged.” It correctly defined reasonable
doubt. And it told the jury that “[n]o single instruction describes all
the law which must be applied; the instructions must be considered
together as a whole.”
¶ 46 Thus, we conclude that the instructions, as a whole, correctly
stated the law, and the court did not abuse its discretion by giving
Instruction No. 4. See J.G., ¶ 33.
23 V. Prosecutorial Misconduct
¶ 47 Blue contends that the district court plainly erred when it
allowed the prosecutor to commit misconduct during closing
argument by (1) evoking racist stereotypes; (2) exploiting
“erroneous” Instruction No. 4; and (3) providing expert testimony.
We disagree.
A. Standard of Review
¶ 48 We engage in a two-step analysis when reviewing claims for
prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we determine whether the prosecutor’s conduct
was improper based on the totality of the circumstances. Id.
Second, we decide whether such actions warrant reversal under the
proper standard. Id.
¶ 49 We review unpreserved claims of prosecutorial misconduct
under the plain error standard. People v. McMinn, 2013 COA 94,
¶ 58. “To constitute plain error, prosecutorial misconduct must be
flagrant or glaringly or tremendously improper, and it must so
24 undermine the fundamental fairness of the trial as to cast serious
doubt on the reliability of the judgment of conviction.” Id.1
B. Racist Stereotypes
¶ 50 Blue contends that the prosecutor evoked racist stereotypes
during closing argument by describing Blue as “hunting” Carroll.
We are not persuaded.
1. Additional Background
¶ 51 During closing, while arguing that Blue eventually directed his
aggressive driving at Carroll, the prosecutor told the jury that Blue
1 Blue argues that we should review claims of prosecutorial
misconduct that evoke racist stereotypes de novo and automatically reverse regardless of preservation. He points to a recent case in which the Washington Supreme Court reviewed unpreserved claims of race-based prosecutorial misconduct de novo and imposed an automatic reversal rule due to the grave violation that occurs when a “prosecutor resorts to racist argument and appeals to racial stereotypes or racial bias to achieve convictions.” State v. Bagby, 522 P.3d 982, 990-97 (Wash. 2023) (citation omitted). We note that the Washington Supreme Court determined that a prosecutor’s race-based misconduct requires automatic reversal “when a prosecutor flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant’s credibility or the presumption of innocence.” Id. at 990. That standard is not all that different from how we determine whether to reverse for prosecutorial misconduct under plain error review. See People v. McMinn, 2013 COA 94, ¶ 58. But because we conclude that the prosecutor’s conduct was not improper, we need not determine whether automatic reversal would be appropriate.
25 reversed “in oncoming traffic, he back[ed] up his car far enough
that he c[ould] make that turn onto Jason and start his hunt over
again.” A few minutes later, while arguing that Blue’s actions
evidenced an attitude of universal malice, the prosecutor said that
“[a]fter driving, after hunting, [Blue] took the shot.” She continued,
So either you believe that he deliberately wanted to kill [Carroll] by taking that shot, by hunting him down, or you have to at least believe that he took the shot knowing what happens when a bullet hits a human, knowing the danger a gun can cause, knowing what a firearm is.
2. Analysis
¶ 52 Blue argues that the prosecutor’s characterization of Blue’s
conduct as “hunting” Carroll “tap[ped] into deep-seated racial
prejudices dehumanizing Black people” because words “commonly
associated with animals . . . can ‘activate the juror’s mental
association’ with racial stereotypes, including the stereotype of
Black people as animalistic and . . . ‘the super-predator trope.’”
(Citation omitted.) He argues that the prosecutor inflamed the
passions of the jury by invoking “some of the most damaging and
pernicious stereotypes that have historically infected American
society and undermined confidence in the criminal justice system.”
26 ¶ 53 To be sure, racism in the justice system cannot be tolerated.
See Peña-Rodriguez v. Colorado, 580 U.S. 206, 224 (2017) (“[R]acial
bias” is “a familiar and recurring evil that, if left unaddressed,
would risk systemic injury to the administration of justice.”). But
Blue does not point us to anything in the record beyond the
prosecutor’s use of the word “hunt” to demonstrate that she
attempted to evoke racist stereotypes.2
¶ 54 While prosecutors may not use arguments calculated to
inflame the passions and prejudices of the jury, they must be given
wide latitude during closing argument to “refer to the strength and
significance of the evidence, conflicting evidence, and reasonable
inferences that may be drawn from the evidence.” People v. Carter,
2015 COA 24M-2, ¶¶ 70-71 (quoting People v. Walters, 148 P.3d
331, 334 (Colo. App. 2006)). The common meaning of the word
“hunt” is “to pursue with intent to capture” or “search out.”
Merriam-Webster Dictionary, https://perma.cc/R6FE-SLFA. And
2 The only other portion of the record that Blue cites to support this
argument is the testimony of Stephanie Strand, who described Blue as driving “slouched down really low” with his hat low. Blue argues that Strand’s testimony was racist, but Strand’s testimony is not the prosecutor’s conduct, and the prosecutor did not reference this portion of Strand’s testimony.
27 here, the evidence established that after Carroll yelled at Blue and
flipped him off, Blue targeted Carroll. Carroll tried to get away from
Blue, but Blue chased Carroll down — including by reversing in
traffic to follow Carroll down a side street. Once Blue caught
Carroll, he shot at him. Viewing the prosecutor’s statements “in the
context of the argument as a whole and in light of the evidence
before the jury,” McMinn, ¶ 60, we do not see her use of the term
“hunt” as an improper attempt to inflame the passions of the jury
by evoking racial stereotypes.
C. Jury Instruction
¶ 55 Blue contends that the prosecutor (1) exploited “erroneous”
Instruction No. 4 by telling the jury that it could not consider his
theory of defense without direct evidence that the passenger shot
the gun and (2) lowered and shifted the prosecution’s burden of
proof to him. We reject these contentions.
¶ 56 During rebuttal closing argument, the prosecutor reminded
the jury that it was her burden to prove the case beyond a
reasonable doubt. She told the jurors they “[could ]not speculate
about evidence that [they] did or did not hear; [they] c[ould] only
28 look at the evidence [they] ha[d].” She said, “There is no evidence
that the passenger in this case ever touched a gun. In fact, the
evidence you have is that Mario Blue, the defendant, pointed a gun
at the victim and shot it.” She also told the jury it could not
“speculate as to what [the passenger] could have said or what his
role may have been because there[] [was] no evidence of that.” The
prosecutor argued it would be “unreasonable to look at the victim,
to look at his car, to look at the physical evidence, and say the
victim was never shot at. The only other way that that bullet could
have been there there’s no evidence of.”
¶ 57 We have already concluded that Instruction No. 4 did not
erroneously prohibit the jury from drawing inferences from
circumstantial evidence or the lack of evidence. Even so, the
challenged remarks were not tied to Instruction No. 4 at all. The
prosecutor did not discuss the types of evidence the jury could draw
inferences from or suggest that the jury could not consider Blue’s
defense because it was not based on direct evidence. So we fail to
see how the prosecutor “exploited” Instruction No. 4.
29 ¶ 58 Instead, after reminding the jury that it was her burden to
prove the charges beyond a reasonable doubt, the prosecutor
simply argued that there was no evidence to support Blue’s theory
of defense that the passenger was the shooter. She did not argue
that Blue was required to offer evidence to support his theory, only
that the jury should not speculate to find a reasonable doubt. See
COLJI-Crim. E:03 (2021). Viewing the prosecutor’s remarks in
context, we conclude that they did not lower or shift the burden of
proof. See People v. Strock, 252 P.3d 1148, 1154-55 (Colo. App.
2010) (a prosecutor’s comments on the lack of evidence supporting
a defendant’s theory did not improperly shift the burden of proof).
Accordingly, we perceive no error, let alone plain error. See
McMinn, ¶ 58.
D. Expert Testimony
¶ 59 Blue contends that the prosecutor gave improper expert
testimony in closing argument by (1) discussing the witnesses’
inability to identify Blue because they were focused on the gun and
(2) arguing that the bullet “disintegrated” in the headrest. We
disagree.
30 1. Witness Perception
¶ 60 During closing, the prosecutor argued that inconsistencies in
the witnesses’ ability to identify Blue after the incident related to
whether each witness was distracted by a gun:
[T]he difference between Caitlin Rasmussen, who was able to identify [Blue] from a lineup, and Jesse Carroll and [Stephanie] Strand is the presence of a gun. Because, when [Strand] was looking at the driver, she looked down and she saw the driver holding that gun, and that’s where her focus went to. When Jesse Carroll saw that driver holding a gun, that’s where his focus went to.
¶ 61 Blue argues that the prosecutor’s comments were improper
because they were not supported by expert testimony at trial yet
implied “the results of social science research, and there was no
reason to believe average jurors would be knowledgeable about the
effects a weapon has on eyewitness perception and memory.” But
the prosecutor did not suggest that her explanation was grounded
in research the jury had not heard. And arguing that a witness
may not be able to focus on anything but a gun being pointed at
them is not outside the realm of an average person’s experience.
See Murphy, ¶ 21; Venalonzo, ¶ 22; cf. People v. Davis, 280 P.3d 51,
54 (Colo. App. 2011) (concluding that the prosecutor committed
31 misconduct during closing argument by discussing the stages of
rape trauma syndrome when no such evidence was presented at
trial and the prosecutor’s detailed argument implied that he had
specialized knowledge and expertise). Accordingly, the prosecutor’s
statements were not improper. See McMinn, ¶¶ 59-60.
2. “Disintegrate”
¶ 62 While discussing the bullet fragments found in Carroll’s car,
the prosecutor said,
[Carroll] said he was shot, and that’s the bullet hole (indicating). That bullet hole goes through . . . the toolbox, through the cab, into the back of the driver-side headrest where his head is; so far in with enough strength that it is still managing to damage that metal. Eventually, it would disintegrate, leaving evidence of bullet fragments. That corroborates that he was shot.
¶ 63 Blue contends that the prosecutor’s remarks were not rooted
in the evidence, but two police officers testified that there were
bullet fragments and shavings found inside Carroll’s truck. The
prosecution also admitted photo exhibits of the bullet shavings.
Thus, the prosecutor’s remarks were based on the evidence
presented at trial. See Carter, ¶ 71.
32 ¶ 64 Blue also contends that the prosecutor’s statement that “the
bullet disintegrated in the headrest was not common sense,” but it
was clear from the witness testimony and the exhibits that the
bullet had split apart in some way. And multiple witnesses testified
that the bullet hit the headrest. The prosecutor’s choice of the word
“disintegrate” to describe that evidence was not based on
specialized knowledge or expertise; it was, at most, oratorical
embellishment. See id. at ¶ 70. Accordingly, we perceive no
improper conduct. See McMinn, ¶¶ 59-60.
VI. Merger
¶ 65 Blue contends that the attempted assault (deadly weapon)
conviction and the attempted assault (extreme indifference)
conviction should have merged into each other and into the
attempted extreme indifference murder conviction because they
were all based on the same act against the same victim. See People
v. Moore, 877 P.2d 840, 845 (Colo. 1994). The People do not
dispute that merger is required. Although we have vacated the
attempted extreme indifference murder conviction, we agree that
the assault convictions should merge with each other because they
were based on the same act against the same victim. See id. We
33 remand the case for the district court to amend the mittimus
accordingly.
VII. Cumulative Error
¶ 66 Blue contends that, even if the alleged errors do not
individually require reversal, their cumulative prejudicial impact
does. But because we have found no error, the cumulative error
doctrine does not apply. See Howard-Walker v. People, 2019 CO 69,
¶ 25 (“For reversal to occur based on cumulative error, a reviewing
court must identify multiple errors that collectively prejudice the
substantial rights of the defendant, even if any single error does
not.”); People v. Shanks, 2019 COA 160, ¶ 76 (cumulative error
doctrine only applies when multiple errors were committed, not
merely alleged).
VIII. Disposition
¶ 67 We vacate the attempted extreme indifference murder
conviction and remand the case to the district court to merge the
assault convictions, amend the mittimus, and resentence Blue. We
otherwise affirm the judgment of conviction.
JUDGE DUNN and JUDGE SCHOCK concur.