23CA0762 Peo v Bonsell 09-03-2026 COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0762 Arapahoe County District Court No. 22CR834 Honorable Joseph Whitfield, Judge
The People of the State of Colorado, Plaintiff-Appellee, v. Fermin David Bonsell, Jr., Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE GROVE
Gomez and Moultrie, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 3, 2026
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Fermin David Bonsell, Jr., appeals the judgment of conviction entered after a jury found him guilty of three counts of attempted second degree murder, one count of first degree assault, one count of second degree assault, and seven crime of violence sentence enhancers. We affirm.
I. Background
¶2 A reasonable jury could have found the following facts based on the evidence presented at trial.
¶3 One evening, Bonsell and his wife were taking fentanyl and methamphetamine. The two went to the apartment where Bonsell’s mother and stepfather lived. Once there, Bonsell and his wife began arguing and his stepfather asked them to leave. Bonsell then started arguing with his stepfather and things escalated. Bonsell had a gun and said, “[T]he next person that come[s] in here, I’m warning, is going to find four dead bodies.” Then, Bonsell shot his stepfather in the face, causing him to lose his eye; shot his wife in the arm, resulting in a fracture; hit his wife in the back of the head with the gun; and tried to shoot his mother but missed. His mother called 911, and although the call is difficult to understand, she told the dispatcher that Bonsell had shot people.
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¶4 Bonsell, who called 911 around the same time, told a different story, explaining to the dispatcher and the responding officers that his stepfather, mother, and wife had been attacked by an intruder.
¶5 When officers arrived, they found chaos at the scene. One officer described how Bonsell was pacing around the room smoking a cigarette while everyone was “screaming, trying to tell [the officer] something.” Bonsell described the shooter as a Black male with dreads and wearing a black and yellow shirt. His wife, mother, and stepfather were all present when Bonsell said this and did not contradict him. At the scene, Bonsell’s mother also told an officer that the shooter was an intruder. However, after Bonsell, his wife, and his stepfather went to the hospital, Bonsell’s mother then told the officers that Bonsell was actually the shooter.
¶6 The officers searched the apartment and did not find a gun. A few days after the shooting, however, Bonsell’s mother found a gun — which she later identified as the gun that Bonsell used in the shooting — in a bag of soil in her trash can.
¶7 Bonsell was charged with three counts of attempted second degree murder, one count each of first and second degree assault, and seven crime of violence sentence enhancers. At trial, Bonsell’s
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theory of defense was that the victims were attacked by an intruder into his mother’s apartment. However, the jury found him guilty as charged and also found that he had used a deadly weapon as to each charge. The trial court sentenced him to forty-five years in the custody of the Department of Corrections.
¶8 Bonsell now appeals, arguing that the court (1) erroneously allowed the prosecution to admit inadmissible hearsay and in doing so also violated his rights under the Confrontation Clause; and (2) violated his constitutional rights to due process, an impartial judge, and assistance of counsel.
II. Hearsay Testimony and Confrontation Clause Violation
¶9 Bonsell argues that the court reversibly erred by admitting statements his stepfather made to a forensic nurse examiner (FNE) several days after the shooting. Specifically, he contends that the court erred by allowing the FNE’s testimony because it did not properly fall within the CRE 803(4) hearsay exception and violated his constitutional rights under the Confrontation Clause. The People do not defend the trial court’s decision to admit the statements; however, they argue in a footnote that no Confrontation Clause violation occurred because the FNE’s primary purpose in
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questioning Bonsell’s stepfather was to determine how he was injured, not who injured him. Nevertheless, the People maintain that any error was harmless under both constitutional and nonconstitutional harmless error standards. We need not decide whether the FNE’s testimony was improper because we agree with the People that any error was harmless under either standard.
A. Additional Facts
¶ 10 Bonsell’s stepfather died before the trial for reasons unrelated to the shooting and thus did not testify. Instead, at trial, the prosecutor called the FNE who had examined Bonsell’s stepfather as an expert witness. She testified that she had examined Bonsell’s stepfather six days after the shooting and followed a standardized examination procedure. The prosecutor asked if it is “important to ask a patient about how they got an injury,” and she responded:
Yes. Absolutely. The way that a patient got an injury gives me an idea of the force that may have caused that injury, what body parts might be involved with the injury, what conditions it may put them at risk for, such as an infection or bleeding or something like that.
So, yes, it’s important.
The prosecutor then confirmed that this question “assist[ed] [the FNE’s] medical diagnosis and treatment of the patient.” Building on
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this foundation, the prosecutor asked the FNE if she had asked Bonsell’s stepfather how he got his injury. Defense counsel objected on hearsay grounds. The court overruled the objection, and the FNE responded that “[h]e said that his stepson shot him.”
¶ 11 The prosecutor also asked if it was important for the FNE to know what type of weapon caused Bonsell’s stepfather’s injury, and she responded “yes” because it “helps [her] determine the severity of injury [she] may expect.” The prosecutor followed up by asking the FNE if Bonsell’s stepfather told her what weapon caused his injury, and after the FNE responded that “it was a little gun,” the defense objected on the same grounds. The court again overruled the objection.
¶ 12 During cross-examination by defense counsel, the FNE said that her examination did not affect any of Bonsell’s stepfather’s medical treatment. The defense then renewed the objection to Bonsell’s stepfather’s statements under CRE 803(4) and the Confrontation Clause, and the court again overruled the objection.
B. Harmless Error
¶ 13 The People offer only a cursory argument regarding the admissibility of the FNE’s statements, in which they acknowledge
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that other divisions of this court have found similar statements inadmissible. We therefore turn directly to whether reversal is required.1
¶ 14 When admitted testimony violates a defendant’s rights under the Confrontation Clause, we review for constitutional harmless error and reverse unless the guilty verdict “was surely unattributable to the error.” People v. Phillips, 2012 COA 176, ¶ 93 (quoting People v. Fry, 92 P.3d 970, 980 (Colo. 2004)). Relevant factors for our inquiry include:
(1) the importance of the declarant’s statement to the prosecution’s case; (2) whether the statement was cumulative; (3) the presence or absence of corroborating or contradictory evidence on the material points of the witness’s testimony; (4) the extent of the cross-
examination otherwise permitted; [and] (5) the overall strength of the prosecution’s case.
1 Where the court erroneously admits hearsay testimony, it “may
constitute constitutional error if it deprives a defendant of, among other things, his right to present a defense”; however, where a defendant is not deprived of this right, “reversal is required only if any error substantially influenced the verdict or affected the fairness of the trial.” People v. Thames, 2019 COA 124, ¶ 59. Because we conclude the error does not warrant reversal under the constitutional harmless error standard, we need not address whether reversal would be required under the less rigorous nonconstitutional harmless error standard.
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Id. (quoting Arteaga-Lansaw v. People, 159 P.3d 107, 110 (Colo. 2007)). Thus, “[t]rial error is considered harmless if there is no reasonable possibility that it affected the guilty verdict.” Arteaga- Lansaw, 159 P.3d at 110.
¶ 15 Considering each of the above factors, we conclude the court’s error in admitting the FNE’s statements was harmless beyond a reasonable doubt.
¶ 16 We first consider the importance of the statements. To be sure, statements from a victim identifying the shooter and the weapon are generally important pieces of evidence. As we explain below, however, the importance of the statements in this trial was lessened in light of the evidence that was properly admitted.
¶ 17 The second and third factors require us to consider the extent to which the inadmissible evidence was cumulative of, or corroborated by, admissible evidence. Statements from several other witnesses identified Bonsell as the shooter. Bonsell’s mother, for example, not only told the 911 dispatcher that Bonsell was the shooter, but she also identified him as the shooter during her trial testimony. A police officer further testified that Bonsell’s mother and wife had told officers Bonsell was the shooter. And Bonsell’s
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wife also identified Bonsell as the shooter at trial. Regarding the stepfather’s description of the gun as “little,” a photo of the gun admitted into evidence is consistent with that characterization. Moreover, Bonsell’s mother testified that the gun that Bonsell used in the shooting was the same one she later found hidden in the trash can, explaining that she was able to identify it because Bonsell and his wife had both shown it to her previously and taught her how to use it for self-defense. Accordingly, the statements made by Bonsell’s stepfather and described by the FNE were cumulative of and corroborated by other evidence presented at trial.
¶ 18 Turning to the question of contradictory evidence, we recognize that there was at least some evidence that an intruder, rather than Bonsell, was the shooter. For instance, Bonsell’s claim of an intruder was briefly corroborated by his mother at the scene, and the other victims did not challenge Bonsell as he told officers an intruder had shot people. We acknowledge further that the prosecution’s case was based almost entirely on testimony (as opposed to forensics) and that, as a result, witness credibility was a key issue for the jury. The stepfather’s statements that Bonsell was
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the shooter and used a little gun directly contradicted Bonsell’s theory of defense.
¶ 19 While the existence of some contradictory evidence makes the question of constitutional harmlessness a closer call, the fourth and fifth factors also weigh against reversal. As to the fourth factor, the defense was permitted to fully cross-examine the FNE and elicited testimony that the FNE was not one of the stepfather’s treating medical providers in the days immediately following the shooting; she did not question him until nearly a week after he was injured, and her questioning did not result in any modifications to the stepfather’s medical treatment. Though the defense renewed its objection, and the court again overruled it, the defense did not pursue any further questioning. For instance, the defense could have attacked the credibility of the stepfather or the FNE but did not do so. In any event, the court did not limit the defense’s cross- examination of the FNE.
¶ 20 Fifth and finally, the prosecution had a strong case. Bonsell’s convictions were supported by substantial, properly admitted evidence. In addition to his mother and wife repeatedly identifying him as the shooter, the prosecution admitted testimony that his
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mother had found the gun he used after the shooting in a bag of soil and admitted photos of the gun.
¶ 21 Bonsell’s theory of defense also lacked support. While we recognize that the defense did not bear any burden of proof, the defense proffered no argument to explain why an intruder would shoot at everyone in the apartment besides Bonsell, nor was there any evidence from the prosecution’s case-in-chief suggesting Bonsell defended himself from the intruder or hid from the attack. Indeed, Bonsell’s theory was premised entirely on the credibility of his own statements and those of family members while at the scene of the crime, talking to police, in Bonsell’s presence. But after Bonsell left the scene, his mother quickly changed her story and said that Bonsell was the shooter, consistent with her 911 call. This all weighs in favor of the prosecution’s case.
¶ 22 Accordingly, we conclude Bonsell’s convictions were surely unattributable to the FNE’s challenged testimony. Thus, any error was harmless under both constitutional and nonconstitutional standards.
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III. Constitutional Rights Violations
¶ 23 Bonsell contends that the court violated his rights to due process and to judicial impartiality2 by, among other things, repeatedly impeding defense counsel’s ability to make “full objections,” to preserve objections for appeal, and to respond to the prosecution’s objections. We conclude that the court’s conduct does not warrant reversal.
A. Applicable Law and Standard of Review
¶ 24 The Due Process Clause of the United States Constitution guarantees “a fair trial before a fair tribunal.” Sanders v. People, 2024 CO 33, ¶ 27 (citing Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009)). Colorado’s due process clause, Colo. Const. art. II, § 25, similarly guarantees “the right to a trial before an impartial judge.” People v. Hall, 2021 CO 71M, ¶ 20. Together, these
2 Bonsell also argues that his constitutional right to counsel was
violated. However, we construe this argument to be substantively identical to his due process and judicial bias arguments. Indeed, Bonsell does not argue his trial counsel were ineffective or conducted themselves improperly. Rather, Bonsell contends that the court’s conduct “improperly limit[ed] defense counsel’s ability to provide effective assistance of counsel to Bonsell.” Accordingly, we address this contention together with his due process and judicial bias arguments.
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constitutional protections are intended to ensure that a defendant is not tried before a judge who has actual bias or prejudice against them. People v. Drake, 748 P.2d 1237, 1249 (Colo. 1988).
¶ 25 “[W]hile both an appearance of impropriety and actual bias are grounds for recusal from a case, only when the judge was actually biased will we question the result.” People in Interest of A.P., 2022 CO 24, ¶ 29. A defendant asserting bias must establish that the judge had a “substantial bent of mind against him or her.” Drake, 748 P.2d at 1249. The record must show such bias clearly; mere speculative statements and conclusions are not enough. Id. Similarly, comments that “cause disappointment, discomfort, or embarrassment to counsel in the presence of the jury, without more, rarely constitute deprivation of a fair trial.” People v. Coria, 937 P.2d 386, 391-92 (Colo. 1997). Indeed, even a stern and short- tempered judge’s “expressions of impatience, dissatisfaction, annoyance, and even anger” as part of his “ordinary efforts at courtroom administration” — though discouraged — do not rise to actual bias. Liteky v. United States, 510 U.S. 540, 555-56 (1994); see also Klinck v. Dist. Ct., 876 P.2d 1270, 1277 (Colo. 1994) (“Although expressions of frustration and irritation by the court are
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to be discouraged, they nevertheless sometimes occur under the pressure of a heavy docket. In and of themselves, such expressions of frustration may not be legally sufficient to require disqualification.” (citation omitted)).
¶ 26 Under Crim. P. 51, a party preserves an issue for appeal by, “at the time [of] the court ruling . . . , mak[ing] known to the court the action which he desires the court to take or his objection to the court’s action and the grounds therefor.” In Jones v. District Court, 780 P.2d 526, 530 (Colo. 1989), the supreme court recognized that
[t]he trial judge should respect the obligation of counsel to present objections to procedures and to admissibility of evidence, to request rulings on motions, to make offers of proof, and to have the record show adverse rulings and reflect conduct of the judge which counsel considers prejudicial. Counsel should be permitted to state succinctly the grounds of his or her objections or requests; but the judge should nevertheless control the length and manner of argument.
(Quoting I ABA Standards for Criminal Justice, Standard 6-2.4 (2d ed. 1980)). The court concluded that “after allowing counsel to make a contemporaneous objection, and to state the grounds for that objection, the trial judge may, in the exercise of sound discretion, cut off further argument.” Id.
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¶ 27 We review a trial court’s restrictions on objections for an abuse of discretion, id., and we review de novo claims of due process violations and judicial bias, see People v. Garcia, 2024 CO 41M, ¶ 20; People v. Burlingame, 2019 COA 17, ¶ 11. A trial before a biased judge is structural error, requiring reversal regardless of preservation. Garcia, ¶ 21; Neder v. United States, 527 U.S. 1, 8 (1999). Other constitutional violation claims are reviewed for constitutional harmless error. Hagos v. People, 2012 CO 63, ¶ 11.
B. Additional Facts
¶ 28 On the first day of trial, during cross-examination by the defense, the court sustained an objection by the prosecution. When defense counsel tried to respond, the court told counsel that the objection had been sustained. Defense counsel then asked to approach, and the court denied the request. Defense counsel pushed back, asserting her “right to make a contemporaneous record.”
¶ 29 At this point, the court excused the jury. Outside the presence of the jury, the court said:
[T]he Court has ruled. I have ruled on the objection that’s been put forth. You do not have a right to make a record at the lectern
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during a trial when the Court has ruled. I understand your office[, the Office of the Public Defender,] believes that you have a special right to respond to every objection posed or sustained by the Court. You do not. If you wish to make a record on this, you can put it in writing. I understand the record that you wish to make because lawyers from your office tend to make it regularly. You do not have that right.
This is a trial — be quiet. This is a trial. We are in proceedings, and I have been very clear.
I will not take argument at the lectern unless I ask you for it, and I have not asked you for it.
So if you wish to pose an objection to this, put it in writing. It will be reviewed. But once a party makes an objection and I either sustain it or I deny it, that is it. You can move on or you run the risk of having your questioning cut off.
¶ 30 After asking if defense counsel understood its admonition, the court continued:
That’s it. Then that is it. There is no other record for you to make. You do not have the right to make a record after I have ruled. You also don’t have a right to make a record now because I have not given you permission.
There is no case that you can put forth. I’ve heard your office repeatedly cite People v.
District Court.[3] I’m mindful of the record you want to make, and I have reviewed that case,
3 The court later clarified that the case it was referring to was Jones v. District Court, 780 P.2d 526 (Colo. 1989).
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and the parties disagree, and the Court rules and that’s it. I have reviewed the case. I understand the record. The request is denied.
The court then asked both defense counsel and the prosecutor if they understood — stating the rule would apply to the prosecutor as well — and brought the jury back to the courtroom. Defense counsel finished cross-examination without further issue.
¶ 31 That evening, the defense filed a motion called “Defense Record Pertaining to Court’s Curtailment of His Lawful Cross- Examination of Prosecution Witness and Continued Request to Make Contemporaneous Records.” The next day, while outside the presence of the jury, defense counsel asked for a ruling on the motion and renewed the defense’s objection from the previous day.
¶ 32 The court responded at length from the bench, explaining how “the practice in this division” is that if the court “sustain[s] an objection, that is it” and “[t]here is no additional record that a party needs to make.” The court reiterated that it would not permit speaking objections and that counsel were to be succinct in their objections and responses. The court also explained that “[i]f a party wishes to make a record of some form or fashion, you can certainly request to approach,” but if the court “den[ies] that request, then
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that’s it” and the party can instead file a written motion to make the record.
¶ 33 Then, the court referred back to Jones, explaining it is “the case that the defense usually cites for this particular issue.” The court stated: “Jones does not hold what I believe your office have routinely pushed and believed that it does hold.” Under its interpretation of Jones, the court explained, it could “control the length and manner of the argument,” and “[w]hether or not to permit further argument at a later time is also within the Judge’s discretion.”
¶ 34 After this conversation, the jury entered the courtroom and the second day of trial began. Defense counsel repeatedly made objections, responded to objections, and approached the bench to elaborate on their arguments without issue.
¶ 35 The next time an issue arose between defense counsel and the court was during the prosecution’s examination of the FNE who had assessed Bonsell’s stepfather. Defense counsel objected, and twice renewed the objection, to the hearsay testimony discussed above. In renewing the objection for the third time, defense counsel began
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to cite the Colorado and Federal Constitutions, but the court cut her off and told counsel to approach the bench.
¶ 36 At the bench, the court said once again that it prohibits speaking objections and instructed the parties to be succinct. The court and defense counsel then disagreed as to the defense’s specific objection, and the following colloquy ensued:
[Defense Counsel]: I would ask that if we continue with this record, I understand that the Court wants to lecture me on this, I would ask that we excuse the jury so they don’t see your facial expressions right now which are clearly exasperated specifically with defense counsel. So I would ask that we have the jury either step out of the room or I understand the Court doesn’t like my objections. I am not trying to violate the Court’s order. So I would ask that we either address this particular objection or have the jury be excused so you can further address this particular issue without the jury seeing your facial expressions.
[Court]: Your request is denied. My facial expressions are covered by my mask first and foremost.
[Defense Counsel]: They can see your eyes blinking at me.
[Court]: Counsel, listen. I’ve had enough. I’m explaining to you what the rules are in this courtroom. If you cannot abide by them, then we’re going to have to have a different conversation about what goes. Okay. It’s been
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made very clear. This is the third time we’ve had this conversation about objections specifically. When you object be succinct. That is the record. If you can’t understand that or can’t function within this courtroom, then perhaps you can find somewhere else to try your case, but for now, since this case is here in this division, these are the rules of the courtroom.
When I say a succinct record, I mean it be succinct. You don’t need to constitutionalize an objection on the record in front of the jury. I understand what the rules are. Cite the rule. If there needs to be some additional context to it, you can ask to approach. If I grant you that request, it’s granted. I’ll hear from you. If I don’t, that’s it. The purposes of an objection are for the Court to make a ruling on a matter of law. That’s a rule. It’s basic. It’s simple. It’s not —
[Defense Counsel]: I would ask — [Court]: Be quiet.
[Defense Counsel]: I would ask the Court to stop denigrating me.
[Court]: I’m not denigrating you, Counsel. [Defense Counsel]: Stop calling me simple.
[Court]: I said the rule is simple, not you, the rule itself.
[Defense Counsel]: There’s that implication when the Court keeps telling me those are simple rules.
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[Court]: There is no implication. Listen to my words. I’m being very clear with you, to both parties . . . .
The court then reiterated for the fourth time that parties are to be succinct in their objections, asking both parties if they understood and stating that it did not “want to see this again from either side.”
¶ 37 Defense counsel continued to explain her “ethical obligation to also cite constitutions under the State and Federal Constitutions” and said that the court was “prohibiting [her] from doing that.” The court responded that citing the constitution and “constitutionalizing” an objection was not required to ensure appellate preservation. The court continued:
If you feel the need to further supplement all of these objections, make a note of them and you can put it in writing, but you constitutionalize each one of them pursuant to whichever constitutional provisions you wish to cite, but for the purposes of moving the trial forward, I don’t need the edification. I’m telling you that right now. If you do it, we’re going to end up having a different conversation about how much your even ability to ask or cross-
examine or interject is limited. I don’t want to do that. I don’t — I understand when parties are not clear, but this has now been made clear. It’s been made clear to both parties so there shouldn’t be any confusion.
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Defense counsel clarified that if she were to constitutionalize an objection, the court would take other measures such as curtailing her cross-examination. The court responded:
I’m not saying I’ll have to. I’m saying I don’t wish to, but if you can’t operate within the confines of the Court, there may be some limitation of further argument which is proscribed by the Court which is allowed for in the Court’s discretion.
Counsel, I don’t wish to do that, but I am telling you now, A, you’re incorrect in terms of your belief that you have to constitutionalize every objection. That is wrong. That’s a training matter that we can address later. B, if I’ve asked you to be succinct and you can’t, then we have to revisit that. Okay. I don’t want to. I’m telling you now, if you — if there’s some issue that you have that you believe and you’ve expressed to me you believe you have to, I’m telling you that you don’t, so for the purposes of this trial, don’t do it again.
¶ 38 At this point, the court addressed the hearsay objection to the FNE’s testimony (although it never resolved the Confrontation Clause objection). The trial proceeded without further issue, and at multiple points, the court sustained defense counsel’s objections and allowed defense counsel to approach the bench.
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C. Analysis
¶ 39 Bonsell maintains that the above interactions, which he characterizes as the “court’s lectures and admonishments to defense counsel,” violated his constitutional right to due process and to an impartial judge. We are not persuaded.
¶ 40 We recognize that the court exhibited frustration, and perhaps even anger, with defense counsel. The court’s repeated references to “your office” — the Office of the Public Defender — also suggested some degree of irritation with the Office of the Public Defender generally. While the court’s impatience and choice of words were not ideal, see Klinck, 876 P.2d at 1277; Drake, 748 P.2d at 1249, for several reasons we are not persuaded that reversal is required.
¶ 41 First, the court’s prohibition on speaking objections was well within its discretion under Jones and not indicative of actual bias. The court did not preclude either party from making contemporaneous objections, nor did it prohibit parties from stating succinctly the grounds for their objections. Jones, 780 P.2d at 530. Indeed, the court allowed the defense to make — and subsequently sustained — numerous objections, and the court permitted the defense to approach the bench to elaborate on its arguments
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multiple times. Rather than improperly eliminating the defense’s opportunity to object, the record reveals that the court exercised its discretion to “control the length and manner of argument.” Id. (quoting I ABA Standards for Criminal Justice, Standard 6-2.4).
¶ 42 We acknowledge that, to the extent the court suggested that it was unnecessary for the defense to constitutionalize its objections to preserve arguments for appeal, it was incorrect. See People v. McFee, 2016 COA 97, ¶ 30 (“Ordinarily, a general hearsay objection is insufficient to preserve a Confrontation Clause claim.”). But it is at least arguable that the court was not making such a broad pronouncement and was instead trying to convey that counsel need not constitutionalize every objection, such as objections that only have evidentiary, not constitutional, grounds. In any event, a court’s incorrect legal rulings are not grounds for a judicial bias or partiality motion, especially where, as here, the defense’s ability to preserve arguments for appeal was not impacted. Liteky, 510 U.S. at 555. Indeed, all of Bonsell’s appellate arguments — including his constitutional challenge to the FNE’s testimony — were preserved for appeal.
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¶ 43 Second, the court emphasized more than once that the same rules applied to both the prosecution and defense. And although the court’s comments arose in response to the defense’s arguments, the comments did not reflect adversely on Bonsell himself and were instead directed at counsel’s conduct. See People v. Rodriguez, 209 P.3d 1151, 1162-63 (Colo. App. 2008) (holding that the “trial judge’s conduct did not so depart from the required impartiality as to deny defendant a fair trial,” in part because “[t]he judge’s comments were directed at both defense counsel and the prosecution” and the comments did not reflect “adversely on defendant; rather they were directed at the attorneys and the attorneys’ conduct in the courtroom and indicated the court’s desire to keep the proceedings moving along”), aff’d, 238 P.3d 1283 (Colo. 2010).
¶ 44 Third, most of the court’s “lectures and admonishments” occurred at the bench or outside the presence of the jury. Bonsell maintains the court did not hide its irritation with defense counsel from the jury when it cut defense counsel off while speaking and excused the jury, but this only happened once. And it is not clear from the record that the jury would have perceived the excusal as a direct result of the court’s irritation. What is clear, however, is that
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most of the court’s behavior was unlikely to affect the jurors’ verdict because it was outside of their earshot. See id. at 1162.
¶ 45 Bonsell’s reliance on the court’s alleged violations of the Code of Judicial Conduct is misplaced. “[T]hese ethical rules are ‘intended to protect public confidence in the judiciary rather than to protect the individual rights of litigants.’” Richardson v. People, 2020 CO 46, ¶ 39 (citation omitted). “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.
¶ 46 Similarly, Bonsell’s reliance on People v. Vialpando, 809 P.2d 1082 (Colo. App. 1990), does not persuade us there was a clear showing of judicial bias. Bonsell’s case is different than Vialpando in key respects. In Vialpando, the defendant raised fifty-three separate incidents during trial, a significant number of which were improper. Id. at 1084. By contrast, Bonsell points to only two instances where the court exhibited frustration with defense counsel. And while the court expressed its frustration at length, the record does not show, as it did in Vialpando, that “throughout
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the trial, the judge demonstrated an attitude of prejudice against the defense.” Id.
¶ 47 Based on the record as a whole, we cannot conclude that the court’s conduct clearly established a bias or prejudice that would have prevented it from dealing fairly with Bonsell. See People v. Julien, 47 P.3d 1194, 1197 (Colo. 2002). Nor can we conclude that the court’s conduct denied Bonsell the impartiality required for a fair trial. See Rodriguez, 209 P.3d at 1162. As such, we discern no reversible error.
IV. Cumulative Error
¶ 48 Bonsell contends that the cumulative impact of the alleged errors requires reversal. We “reverse for cumulative error only where, although numerous trial errors individually have been found harmless, in the aggregate those errors prejudiced the defendant’s substantial rights and deprived him or her of a fair trial.” People v. Herdman, 2012 COA 89, ¶ 78 (citation omitted). “[C]umulative error requires that numerous errors be committed, not merely alleged.” Id. At most, we identified one error that was harmless. Thus, we do not reverse for cumulative error.
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V. Disposition
¶ 49 The judgment is affirmed.
JUDGE GOMEZ and JUDGE MOULTRIE concur.