21CA1934 Peo v Britton 02-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA1934 City and County of Denver District Court No. 20CR3685 Honorable Eric M. Johnson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Lessie Steve Britton,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE SULLIVAN Freyre and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 20, 2025
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Casey Mark Klekas, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Lessie Steve Britton, appeals the judgment of
conviction entered on jury verdicts finding him guilty of second
degree murder, attempted first degree murder, first degree assault,
and menacing. We affirm.
I. Background
¶2 The jury heard evidence at trial from which it could have
reasonably found the following facts.
¶3 Britton and one of the victims, Fernando Martinez-Briones,
were neighbors who both used the same alleyway to access their
garages. The two had a long-running dispute over Britton’s vehicles
blocking the alleyway.
¶4 In June 2020, Martinez-Briones and one of his sons, E.M.,
were returning home from work but couldn’t access the alleyway
because Britton’s vehicle blocked their path. Martinez-Briones
honked his horn to alert Britton that he was blocking the alleyway.
While Britton wasn’t in his vehicle at the time, he eventually heard
Martinez-Briones’s horn and moved his vehicle to unblock the
alleyway. Britton noticed, however, that the Martinez-Briones
didn’t turn into his garage once the alleyway was clear. Britton
1 then drove to the front of Martinez-Briones’s residence and blocked
his driveway.
¶5 Britton rolled down his vehicle’s window and began to argue
with Martinez-Briones and E.M. as they stood on the sidewalk.
E.M. heard Britton say that he was going to shoot his father,
prompting him to start recording the interaction on his phone.
¶6 Martinez-Briones’s other son, F.M., looked out his bedroom
window and could see Britton’s vehicle and hear yelling. F.M. also
began to record the interaction but then decided to go outside with
his baseball bat. After walking out of the house, however, F.M.
realized that his father, brother, and Britton were “just arguing” so
he dropped the bat on the lawn before approaching Britton’s
vehicle.
¶7 As the argument escalated, Britton and Martinez-Briones
began to hurl racially charged language at each other. Britton
repeatedly demanded to see Martinez-Briones’s green card and
threatened to “find this out” by calling immigration authorities.
Martinez-Briones responded by calling Britton a “[f]ucking black
turkey” and “fucking [N-word].” Hearing the latter, Britton shot
Martinez-Briones, who fell to the ground. E.M.’s recording captured
2 the shooting. As E.M. went to his father’s aid, Britton fired a
second shot, striking E.M. in his right bicep. Britton then pointed
the gun at F.M. but didn’t shoot. F.M. ran inside and called 911.
¶8 After the shooting, Britton drove himself to a police station to
turn himself in. Martinez-Briones and E.M. were transported to the
hospital. Law enforcement officers interviewed E.M. regarding the
shooting while he received treatment. Martinez-Briones eventually
died from his gunshot wound.
¶9 Although the prosecution charged Britton with first degree
murder for killing Martinez-Briones, the jury convicted him of
second degree murder. It also found him guilty of attempted first
degree murder, first degree assault, and menacing.
¶ 10 Britton now appeals. He contends the district court erred by
(1) admitting prejudicial video evidence showing E.M.’s hospital
interviews; (2) failing to instruct the jury on Britton’s right to defend
himself against multiple assailants; (3) failing to correct the
prosecutor’s misconduct during closing argument; and (4) failing to
dismiss a district court judge from the venire. Britton also
contends that the cumulative effect of the court’s errors requires
reversal. We address each argument in turn.
3 II. Admissibility of the Video Interviews
¶ 11 Britton first contends that the district court erred by admitting
three video recordings showing E.M.’s interviews with law
enforcement officers. Specifically, Britton argues that the video
interviews were inadmissible because (1) they constituted hearsay
under CRE 802; and (2) their probative value was substantially
outweighed by their unfair prejudice under CRE 403, they were
needlessly cumulative, and they amounted to improper bolstering.
We perceive no abuse of discretion in the district court’s decision
admitting the videos.
A. Additional Background
¶ 12 E.M. testified during the prosecution’s case-in-chief but
couldn’t recall certain details about the shooting. During the direct
testimony of its next witness, a responding officer, the prosecution
sought to admit three videotaped interviews between law
enforcement and E.M. The videos each showed officers speaking
with E.M. at the hospital while he received treatment for the
gunshot wound to his bicep. In the videos, E.M. appears with blood
on his hands and arms. The prosecutor argued that the videos
were relevant, among other reasons, to show E.M.’s demeanor and
4 mental state at the time and because his “recollection [wa]s
different” and more detailed in the videos.
¶ 13 After initially ruling that the videos were inadmissible, the
district court reversed course and admitted the videos on several
grounds, including as excited utterances under CRE 803(2). The
court explained that “the foundation was laid previously that these
would be excited utterances that he was still — he was in the
hospital after being shot and he was still under the influence of that
wound and of that event.” The court also (1) ruled that E.M.’s
videotaped statements were admissible as prior inconsistent
statements under section 16-10-201, C.R.S. 2024, based on the
supreme court’s direction that a witness’s actual or feigned memory
loss is “tantamount to [a] denial,” Davis v. People, 2013 CO 57, ¶ 7
n.2; and (2) overruled Britton’s CRE 403 objection. The court said,
however, that it would supervise any replays of the videos and
wouldn’t allow the jury to have “full access” during its deliberations.
B. Standard of Review and Applicable Law
¶ 14 We review a district court’s evidentiary rulings for an abuse of
discretion. People v. Hood, 2024 COA 27, ¶ 6. A district court
5 abuses its discretion when its ruling is manifestly arbitrary,
unreasonable, or unfair or when it misapplies the law. Id.
¶ 15 Hearsay isn’t admissible unless otherwise allowed by statute
or rule. CRE 802. An “excited utterance,” however, falls within an
exception to the rule against hearsay. CRE 803(2). An excited
utterance 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 condition.” Id.; see, e.g., People v. Martinez,
18 P.3d 831, 835 (Colo. App. 2000).
¶ 16 Under CRE 403, relevant evidence “may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” The district court may
exclude evidence under this rule if, for example, the evidence has
an undue tendency to suggest a decision on an improper basis,
such as “sympathy, hatred, contempt, retribution, or horror.”
People v. Dist. Ct., 785 P.2d 141, 147 (Colo. 1990). In reviewing a
district court’s ruling under CRE 403, we afford the evidence its
maximum probative value attributable by a reasonable fact finder
6 and the minimum unfair prejudice that can be reasonably expected.
People v. Gibbens, 905 P.2d 604, 607 (Colo. 1995). The district
court enjoys “broad discretion” in balancing the probative value of
the evidence against the danger of unfair prejudice. Id.
C. Analysis
¶ 17 At the outset, we decline to address Britton’s argument that
the videos constituted inadmissible hearsay. Although Britton
challenges certain grounds that the district court used to admit the
videos, he doesn’t challenge the court’s ruling that E.M.’s
statements on the videos fell within the excited utterance exception
to the hearsay rule. See CRE 803(2). We must therefore conclude
that the district court properly admitted the videos under this
hearsay exception, regardless of whether the court erred on the
grounds urged by Britton. See People v. Archer, 2022 COA 71, ¶ 42
(explaining the appellate court must affirm the trial court’s
admission of evidence where the appellant doesn’t challenge each
alternative ground for admitting the evidence).
¶ 18 Turning to Britton’s CRE 403 argument, we conclude the
district court acted within its broad discretion when admitting the
videos. For one, the videos were probative to help explain E.M.’s
7 lack of recollection at trial and to rebut defense counsel’s attempts
to impeach his credibility. As one example, E.M. testified on cross-
examination that he started recording the incident because he was
afraid of Britton. Defense counsel then attempted to impeach E.M.
by asking whether he recalled telling officers that he wasn’t afraid
of Britton. E.M. responded that he couldn’t recall. One of the
videos shed light on this discrepancy — it showed E.M. telling
officers that he recorded the incident on his phone after Britton
allegedly said, “I’m going to shoot you.” While the video didn’t show
E.M. saying that he was “fearful” or “afraid,” he explained that he
felt recording the interaction was necessary “in case anything
[happened].” See People v. Tyler, 745 P.2d 257, 259 (Colo. App.
1987) (“If the credibility of a witness is at issue, the jury should
8 have access to all the relevant facts, including consistent and
inconsistent statements.”).1
¶ 19 In addition, while Britton argues that the videos were
prejudicial because they depicted E.M.’s overwhelming “suffering
and sorrow,” our review reveals that E.M. was coherent and
responsive to the officer’s questions. E.M. didn’t appear in
significant pain and, although blood can be seen on his hands and
arms, the gunshot wound to his bicep wasn’t visible. See People v.
Villalobos, 159 P.3d 624, 630-31 (Colo. App. 2006) (concluding the
trial court didn’t abuse its discretion in admitting a color
photograph showing the victim’s head wound where the photograph
wasn’t “particularly shocking or inflammatory”). Moreover, while
one of the videos showed E.M. becoming emotional for a few
seconds, we can’t say that brief portion of the video created unfair
1 Britton alternatively disputes whether the entirety of the twenty-
minute-plus videos was admissible under CRE 403. But he never asked the court to redact those portions that he deemed objectionable. To the extent Britton asserts that the court’s failure to redact the videos on its own initiative constituted plain error, we disagree. Nothing in the videos was so unfairly prejudicial that the need for redactions should have been obvious to the court absent defense counsel’s request. See People v. Arzabala, 2012 COA 99, ¶ 88.
9 prejudice that substantially outweighed its probative value. See
People v. Kembel, 2023 CO 5, ¶ 53 (“[T]he fact that evidence is
prejudicial doesn’t render it inadmissible; only unfairly prejudicial
evidence is inadmissible.”).
¶ 20 The district court also mitigated the danger of any unfair
prejudice by ruling that replays of the videos must occur under the
court’s supervision, not in the jury room where jurors could replay
the videos “over and over.” See People v. Jefferson, 2014 COA 77M,
¶¶ 18-19 (identifying “[m]echanisms for controlling the jury’s
consideration of videotaped statements” to prevent “undue
emphasis,” including court supervision of replays), aff’d, 2017 CO
35. Under these circumstances, the district court didn’t abuse its
discretion by overruling Britton’s CRE 403 objection.
¶ 21 We also aren’t persuaded by Britton’s argument that the
district court should have excluded the videos because they were
cumulative of other evidence. As discussed, the videos were
relevant to a material issue — E.M.’s memory and credibility. Thus,
even if the videos were somewhat cumulative, the district court
acted within its discretion by admitting them. See Lira v. People,
445 P.2d 62, 64 (Colo. 1968) (Evidence is admissible, even if
10 cumulative, if “it sheds light on a material inquiry.”) (citation
omitted); see also People v. Salas, 902 P.2d 398, 401 (Colo. App.
1994) (if the evidence is relevant and material, the trial court
doesn’t abuse its discretion by admitting it merely because it may
be cumulative).
¶ 22 We similarly reject Britton’s arguments that the videos
improperly bolstered E.M.’s testimony. Bolstering occurs when a
witness testifies that another witness is telling the truth on a
particular occasion. Venalonzo v. People, 2017 CO 9, ¶ 32; see also
CRE 608(a). None of E.M.’s statements on the videos fit that
description, and Britton points us to no authority in which a court
has held that a victim’s videotaped interview constitutes improper
bolstering.
¶ 23 Accordingly, the district court didn’t abuse its discretion by
III. Jury Instructions on Self-Defense
¶ 24 Britton next contends that the district court erred by failing to
instruct the jury that Britton had the right to defend himself
against multiple assailants. We disagree.
11 A. Additional Background
¶ 25 As relevant here, the court provided the jury with two
instructions regarding self-defense: (1) a “deadly physical force in
defense of person” instruction as a defense to the first and second
degree murder counts and (2) a “defense of person” instruction as a
defense to the counts for attempted first degree murder, first degree
assault, and menacing. Defense counsel didn’t request a multiple
assailants instruction. Both instructions generally tracked the
pattern jury instructions in effect at the time. See COLJI-Crim.
H:11-12 (2021). Both instructions twice told the jury, for example,
that it should “consider[] all the evidence” when deciding whether
the prosecution had satisfied its burden of disproving self-defense.
See id.
¶ 26 Consistent with the pattern instructions, both instructions
also directed the jury to consider the reasonableness of Britton’s
beliefs at the time of the shooting. Specifically, the district court’s
deadly physical force instruction read in part as follows:
Mr. Britton was legally authorized to use deadly physical force upon another person without first retreating if:
12 1. he used that deadly physical force in order to defend himself from what he reasonably believed to be the use or imminent use of unlawful physical force by that other person, and
2. he reasonably believed a lesser degree of force was inadequate, and
3. he had a reasonable ground to believe, and did believe, that he was in imminent danger of being killed or of receiving great bodily injury.
¶ 27 Similarly, the district court’s defense of person instruction
read in part as follows:
The defendant was legally authorized to use physical force upon another person without first retreating if:
1. he used that physical force in order to defend himself from what he reasonably believed to be the use or imminent use of unlawful force by that other person, and
2. he used a degree of force which he reasonably believed to be necessary for that purpose.
¶ 28 Britton concedes that he didn’t request a multiple assailants
instruction, thus limiting our review to plain error. Plain error is
error that is both obvious and substantial. Hagos v. People, 2012
CO 63, ¶ 14. An error is obvious if it contravenes (1) a statute; (2) a
13 well-settled legal principle; or (3) Colorado case law. People v.
Pollard, 2013 COA 31M, ¶ 40. An error is substantial if it so
undermines the fundamental fairness of the trial as to cast serious
doubt on the reliability of the conviction. Hoggard v. People, 2020
CO 54, ¶ 13.
¶ 29 We review a district court’s decision to give or not give a jury
instruction for an abuse of discretion but review de novo whether
the instruction accurately stated the law. People v. Carter, 2015
COA 24M-2, ¶ 39. So long as the instructions accurately state the
law, the district court has broad discretion in formulating jury
instructions. Id.
¶ 30 A district court need not give a multiple assailants instruction
in every case involving both multiple assailants and self-defense.
Riley v. People, 266 P.3d 1089, 1094 (Colo. 2011). Rather, the jury
must consider the totality of the circumstances — including the
number of people reasonably appearing to be threatening the
defendant — when evaluating whether the defendant (1) reasonably
believed self-defense was necessary and (2) used reasonable force to
repel the apparent danger. Id. (citing People v. Jones, 675 P.2d 9,
14 (Colo. 1984)). “The purpose of this rule is to ensure that the jury
14 understands that it may consider all relevant evidence when
assessing the reasonableness of the defendant’s actions.” Riley,
266 P.3d at 1094; accord People v. Roberts-Bicking, 2021 COA 12,
¶¶ 27-28 (trial court’s error in denying the defendant’s multiple
assailants instruction was cured by the court’s supplemental
instruction requiring the jury to consider “the totality of the
circumstances”).
¶ 31 We discern no error, let alone plain error, in the district court’s
omission of a multiple assailants instruction. The court’s
instructions on deadly physical force and defense of person both
instructed the jury, twice, to “consider[] all the evidence” in
determining whether the prosecution had satisfied its burden of
disproving these defenses. The court’s instructions also told the
jury to consider whether Britton used the degree of force that he
“reasonably believed” was necessary and whether he had
“reasonable ground” to believe that he was in imminent danger of
being killed or receiving great bodily injury. See Riley, 266 P.3d at
1094 (upholding instruction using similar “reasonable belief”
language). By doing so, the court satisfied Riley’s requirement to
15 direct the jury to consider the totality of the circumstances, which
necessarily included the number of assailants who reasonably
appeared to threaten Britton. See id.
¶ 32 But even if we assumed that the district court’s omission of a
multiple assailants instruction constituted error, it didn’t so
undermine the fundamental fairness of the trial as to cast serious
doubt on the reliability of the conviction. The court’s two self-
defense instructions encompassed all charges against Britton: first
and second degree murder based on Britton’s fatal shooting of
Martinez-Briones, as well as the counts for the attempted murder
and assault of E.M. and menacing of F.M. Given these instructions,
the jury would have understood that it should consider all three
victims’ actions when evaluating the totality of the circumstances.
See People v. Trujillo, 83 P.3d 642, 645 (Colo. 2004) (reviewing court
must consider jury instructions as a whole).
¶ 33 We aren’t convinced otherwise by Britton’s reliance on pre-
Riley decisions from divisions of this court suggesting that the
pattern jury instructions for self-defense are insufficient. See, e.g.,
People v. Manzanares, 942 P.2d 1235, 1240 (Colo. App. 1996);
People v. Beasley, 778 P.2d 304, 307 (Colo. App. 1989). Riley
16 abrogated these cases by clarifying that a specific multiple
assailants instruction isn’t necessarily required so long as the
district court “direct[s] the jury to consider the totality of the
circumstances during its deliberations on reasonableness.” 266
P.3d at 1094; see also Roberts-Bicking, ¶¶ 20-21 (recognizing Riley
abrogated Manzanares and Beasley)
¶ 34 Accordingly, the district court didn’t err by failing to provide a
multiple assailants jury instruction.
IV. Prosecutorial Misconduct
¶ 35 Britton next contends that several instances of prosecutorial
misconduct during closing argument require reversal. We aren’t
persuaded.
A. Standard of Review and Applicable Law
¶ 36 “Whether a prosecutor’s statements constitute misconduct is
generally a matter left to the trial court’s discretion.” Domingo-
Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). We won’t
disturb the district court’s rulings regarding such statements
absent an abuse of that discretion. People v. Strock, 252 P.3d 1148,
1152 (Colo. App. 2010).
17 ¶ 37 With one exception noted below, all of Britton’s claims of
prosecutorial misconduct are unpreserved, limiting our review to
plain error. See People v. Leyba, 2019 COA 144, ¶ 55, aff’d, 2021
CO 54. Similar to the jury instruction context, reversal under this
high standard requires that the prosecutorial misconduct be
obvious and so undermine the fundamental fairness of the trial as
to cast serious doubt on the reliability of the judgment of
conviction. People v. Walker, 2022 COA 15, ¶ 28. To constitute
plain error, the misconduct must be flagrant or glaring or
tremendously improper. People v. Weinreich, 98 P.3d 920, 924
(Colo. App. 2004), aff’d, 119 P.3d 1073 (Colo. 2005). Prosecutorial
misconduct in closing argument rarely constitutes plain error. Id.
¶ 38 When reviewing claims of prosecutorial misconduct, we
conduct a two-step analysis. 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, if the comments were improper, we evaluate whether they
warrant reversal according to the proper standard of review. Id.
¶ 39 In conducting this analysis, we consider the prosecutor’s
questionable comments in context of the argument as a whole and
18 in light of the evidence before the jury. People v. Samson, 2012
COA 167, ¶ 30. A prosecutor is permitted to comment on the
admitted evidence and the reasonable inferences that can be drawn
from the evidence, employ rhetorical devices, and engage in
oratorical embellishment and metaphorical nuance. Id. at ¶ 31.
And because arguments delivered in the heat of trial aren’t always
perfectly scripted, we give the prosecutor the benefit of the doubt
when their remarks are ambiguous or simply inartful. Id. at ¶ 30.
However, closing arguments can’t be used to mislead or unduly
influence the jury. Domingo-Gomez, 125 P.3d at 1049. A
prosecutor may not, for example, intentionally misstate the
evidence, attempt to inflame the jurors’ passions, or offer a personal
opinion as to the defendant’s guilt. See id.
B. “Baiting” Comments and Misleading the Jury Regarding Heat of Passion and the Duty to Retreat
¶ 40 Britton contends that the prosecutor’s theme during closing
argument that Britton “baited” Martinez-Briones to use the N-word
wasn’t based in fact, misled the jury about his heat of passion
defense, and wrongfully suggested that Britton had a duty to
retreat.
19 ¶ 41 During closing, the prosecutor stated repeatedly that Britton
provoked and “baited” the victims. The following comments are
illustrative:
• “[Britton] wasn’t processing that awful word. He baited
[Martinez-Briones] to use it.”
• “[Y]ou can see in that video [Britton] baiting and
continuing to try to instigate and escalate things.”
• “[Britton] was in control and baiting them as he started
to call them — threatened to call ICE, threatened to call
for their green card.”
¶ 42 Contrary to Britton’s argument, the evidence permitted the
jury to draw the inference that Britton goaded the victims into
escalating the confrontation. The record shows that Britton drove
to the front of the victims’ house, blocked their driveway, threatened
to “find out” the victims’ immigration status, and demanded to see
Martinez-Briones’s green card. Given this evidence, we can’t say
that the prosecutor’s use of “baiting” wasn’t tethered to the facts.
See Samson, ¶ 31 (prosecutor may comment on the reasonable
inferences that can be drawn from the evidence).
20 ¶ 43 Next, Britton contends that the prosecutor misled the jury
regarding his heat of passion defense by arguing (1) “[w]e have a
highly provoking word,” not a “highly provoking act”; (2) Britton’s
claim of self-defense is incompatible with heat of passion because it
necessarily meant he was “calculated” and “deliberate”; (3) heat of
passion doesn’t apply to E.M.’s acts; and (4) “a long interaction
cannot give rise to [a] heat of passion defense.”
¶ 44 We fail to see how these arguments misled the jury. As to
Britton’s first contention, we note that the district court’s heat of
passion jury instruction correctly tracked Colorado law by requiring
a “serious and highly provoking act” by the victim, not merely highly
provoking words. § 18-3-103(3)(b), C.R.S. 2024 (emphasis added);
accord United States v. Frady, 456 U.S. 152, 174 (1982) (An
instruction saying, “Mere words . . . no matter how insulting,
offensive or abusive, are not adequate to induce [sic] a homicide
although committed in passion, provoked . . . from murder to
manslaughter” was sufficient.) (alteration in original). We can
hardly fault the prosecutor for making arguments that hewed
closely to the jury instruction’s language, particularly when the
prosecutor candidly acknowledged that Martinez-Briones’s use of
21 the N-word was “contentious, hateful,” and “one of the worst words
you can use.”
¶ 45 As to Britton’s remaining heat of passion contentions, the
prosecutor was free to argue that Britton’s actions failed to satisfy
the requirements for a heat of passion defense, including the
requirement that the defendant acted upon a “sudden heat of
passion.” § 18-3-103(3)(b) (emphasis added); see Samson, ¶ 31.
¶ 46 By way of example, the video of the Britton’s initial gunshot
that killed Martinez-Briones showed that the preceding verbal
argument lasted at least one and a half minutes. And a detective
testified based on surveillance footage that ten seconds elapsed
between Britton’s initial shot and his second shot that wounded
E.M. According to E.M., he was on the ground applying pressure to
his father’s wound when Britton fired the second shot that struck
his bicep. From this, the prosecutor could reasonably argue that
Britton fired both shots after deliberation following a lengthy verbal
argument that gradually escalated. See People v. Sepulveda, 65
P.3d 1002, 1007 (Colo. 2003) (“[C]umulative provocation is an
insufficient basis for a heat of passion instruction.”). While Britton
could reasonably urge the jury to draw the opposite inference —
22 that he suddenly snapped upon being called the N-word — the
prosecutor didn’t mislead the jury by arguing that Britton failed to
establish his heat of passion defense.
¶ 47 Britton also argues that the prosecutor’s “baiting” theme
improperly implied that Britton had a duty to retreat. He points to
the prosecutor’s following remarks:
• Britton “decided not to drive away but get closer to them,
to get more in their face.”
• “Only one man was sitting in that car with nothing in
front of him, nothing behind him, and nothing on his
driver’s side preventing him from leaving.”
• “[Britton] was not surrounded. He was not about to be
beaten up. He was in control that entire time. When he
chose not to leave, he chose to goat [sic] them.”
¶ 48 Only initial aggressors must retreat before using force in self-
defense. Cassels v. People, 92 P.3d 951, 956 (Colo. 2004). As a
result, a prosecutor can’t argue that a defendant is barred from
asserting self-defense when an unused avenue of retreat remains
available, “even if offered only to attack the reasonableness of a
defendant’s use of force.” People v. Monroe, 2020 CO 67, ¶ 29.
23 Based on this holding from Monroe, which the supreme court
announced shortly before the trial in this case, the district court’s
failure to correct the prosecutor’s above remarks — suggesting that
Britton should have retreated by driving away — constitutes
obvious error. See Scott v. People, 2017 CO 16, ¶ 16 (error is
obvious if it contravenes Colorado case law).
¶ 49 Nonetheless, we conclude that reversal isn’t required because
the prosecutor’s comments didn’t so undermine the fundamental
fairness of the trial as to cast serious doubt on the reliability of the
conviction. See Walker, ¶ 28. The prosecution’s closing argument,
including rebuttal, spanned approximately thirty-one pages of
transcript. Conversely, the prosecutor’s improper statements
amounted to only eleven lines of text. See People v. Salazar, 2023
COA 102, ¶ 52 (prosecutor’s improper comments didn’t constitute
plain error, among other reasons, because they were “fleeting” when
viewed within context of closing argument as a whole). Defense
counsel’s failure to object also suggests that counsel believed the
prosecutor’s comments weren’t overly damaging. See Domingo-
Gomez, 125 P.3d at 1054.
24 ¶ 50 Moreover, the district court correctly instructed the jury in
both self-defense instructions that Britton was authorized to use
physical force upon another person “without first retreating” if the
prosecution failed to disprove the elements of self-defense. And the
court told the jury that it must follow the rules of law it provided,
even if the attorneys commented on the rules. Absent evidence to
the contrary, we must assume the jury heeded the court’s
instructions. People v. Villa, 240 P.3d 343, 352 (Colo. App. 2009).
¶ 51 Given all of this, we conclude the district court’s failure to sua
sponte correct the prosecution’s comments suggesting that Britton
had a duty to retreat doesn’t warrant the “drastic remedy” of
reversal under the plain error standard. Domingo-Gomez, 125 P.3d
at 1055.
C. Appeal to Sympathy and Inflaming the Passions of the Jury
¶ 52 Britton contends that the prosecutor committed misconduct
and inflamed the passions of the jury by referring to “extremely
emotional” aspects of the case.
¶ 53 Britton points, for example, to the prosecutor’s remark that
“[t]here’s a lot of sadness in this case.” But he acknowledges that
the prosecutor made this comment while highlighting the court’s
25 instruction that sympathy, bias, and prejudice must not influence
the jury’s decision. See Crim. P. 30 (counsel may comment on the
jury instructions during argument).
¶ 54 Even so, Britton asserts that the prosecutor went further by
reminding the jury about E.M.’s request at the hospital to provide
officers with additional information about Britton pointing a gun at
his brother, commenting on E.M.’s “robotic” yet “[u]nderstandabl[e]”
demeanor, and discussing E.M.’s embarrassment from his
disfigurement and partial loss of use of his right arm.
¶ 55 These comments weren’t improper when considered in the
context of the prosecutor’s argument as a whole. See Samson, ¶ 30.
A prosecutor is allowed to urge the jury to draw reasonable
inferences regarding a witness’s demeanor and credibility. People v.
Constant, 645 P.2d 843, 846 (Colo. 1982). Moreover, the prosecutor
made her comment about E.M.’s request to provide additional
information regarding his brother while summarizing the evidence
showing that Britton pointed a gun at F.M., thus committing
menacing. See § 18-3-206, C.R.S. 2024. Similarly, the prosecutor
referred to E.M.’s disfigurement and accompanying embarrassment
to establish that he suffered serious bodily injury — an essential
26 element of first degree assault. See § 18-3-202(1)(a), C.R.S. 2024.
While the prosecutor’s comments touched on E.M.’s trauma, they
were properly “anchored in the evidence, not in emotion” and didn’t
ask the jury to “do justice” for the victims regardless of whether the
jury believed the prosecution’s evidence. Salazar, ¶ 51.
D. Other Crimes, Denigrating Defense Counsel, and Offering Personal Opinions
¶ 56 We also reject Britton’s contentions that the prosecutor
committed misconduct by (1) suggesting that Britton committed
other crimes by operating an illegal mechanic’s business in the
alleyway; (2) calling Britton’s self-defense claim “laughable,” thereby
denigrating defense counsel; and (3) injecting her personal opinion
about Britton’s behavior.
¶ 57 Contrary to Britton’s suggestion, the prosecutor didn’t
mention Britton’s allegedly illegal mechanic’s business to
improperly suggest that Britton had bad character or acted in
conformity with that character on a particular occasion. See CRE
404(b). Rather, the prosecutor said that the legality of Britton’s
business was “not an issue,” “not an element here,” and “not a
matter you have to resolve to decide this case.” Viewed in context,
27 the prosecutor’s comments were merely an attempt to “draw the
jury’s focus to relevant evidence” and away from irrelevant evidence.
People v. Serra, 2015 COA 130, ¶ 89.
¶ 58 Nor do we discern any misconduct in the prosecutor’s
characterization of Britton’s self-defense claim as “laughable.” The
prosecutor said, “[I]t’s laughable in the face of [the] video; that the
defendant was scared. He didn’t look scared at all. He didn’t look
like he was in fear.” Considering the statements together, they
served as a comment on the evidence and the strength of Britton’s
theory of the case, not as a personal attack on defense counsel. See
People v. Iversen, 2013 COA 40, ¶¶ 37-38 (rejecting a similar
challenge to the prosecutor’s use of “laughable”).
¶ 59 We also don’t interpret any of the prosecutor’s remarks as
offering her own personal opinion about Britton’s guilt. The
prosecutor said: (1) “I just want to walk you through the
prosecution’s belief as to each of the verdict forms”; (2) Britton’s
behavior on the video “is textbook behavior of knowingly”; and
(3) “[Y]ou should automatically, after consideration, reject” reckless
manslaughter. In her first statement, the prosecutor prefaced the
term “belief” with “the prosecution’s belief,” making clear that she
28 wasn’t conveying her own personal opinion as to Britton’s guilt but
simply expressing the prosecution’s position that the evidence was
sufficient to support convictions on the charged counts. See People
v. Seller, 2022 COA 102, ¶ 26, aff’d on other grounds, 2024 CO 64.
And the prosecutor properly buttressed her final two statements
with descriptions of the evidence that the prosecution alleged
proved that Britton acted knowingly. See id. at ¶ 24 (prosecutor’s
use of phrases to “summarize the evidence presented” and draw
reasonable inferences from that evidence didn’t convey her personal
opinion); see also Samson, ¶ 31 (prosecutor may employ oratorical
embellishment).
E. Misstatement of Facts
¶ 60 Britton contends that the prosecutor committed misconduct
by misstating several facts during closing argument. He challenges
six specific statements. We address each in turn.
¶ 61 “Final argument may properly include the facts in evidence
and any reasonable inferences drawn therefrom.” Domingo-Gomez,
125 P.3d at 1048.
29 1. Statement 1
¶ 62 In the first challenged statement, the prosecutor said,
“Because I can. That’s the defendant’s mentality. That’s why he
shot . . . Martinez-Briones. Because I can.” In the video of the
shooting, Britton can be heard saying, “Because I can,” in response
to Martinez-Briones yelling, “Stay away from the fucking street,”
and “I’m tired of your fucking shit.” Based on this evidence, the
prosecutor could reasonably urge the jury to infer that Britton’s
cavalier mentality towards the alleyway dispute pervaded the entire
interaction, including the shooting. See Samson, ¶ 31.
2. Statements 2 and 3
¶ 63 In the second challenged statement, the prosecutor said, “Vile
words, but very clear that nobody else had any weapon there, and
nobody was a real threat to [Britton].” And in the third she said,
“And this here, this bat, the defense admitted, doesn’t have to do
with anything. The defendant never said he saw that bat. The bat
was dropped. Nobody ever saw it. Another distraction from the
compelling evidence that you have here.”
¶ 64 Britton argues that these statements inaccurately implied that
none of the victims possessed weapons during the dispute, even
30 though F.M. testified that he grabbed a baseball bat as he walked
out of his house. But F.M. also testified that he dropped the bat on
the front lawn as he made his way towards Britton’s vehicle
because he saw that Britton and his father “were just arguing.”
F.M.’s testimony is consistent with other evidence. The video of the
shooting briefly shows F.M. standing near his father with only a
phone in his left hand. Further, Britton testified that he saw F.M.
standing behind his vehicle with a “silver thing” in his hand. The
bat that defense counsel admitted into evidence was black and lime
green.
¶ 65 Given this evidence, the prosecutor’s statements didn’t
constitute a misstatement of the facts in evidence. See Domingo-
Gomez, 125 P.3d at 1048.
3. Statement 4
¶ 66 Britton argues that the fourth statement, “[Britton] knows how
to kill,” wrongfully implied that he had experience killing people.
But Britton omits important context from the prosecutor’s two
immediately preceding statements: “Again, [Britton] admitted he’s
armed. He’s shot since he was 9.” See Samson, ¶ 30 (the court
evaluates alleged prosecutorial misconduct in the context of the
31 argument as a whole). And Britton himself testified that he
previously served in the military, received training on how to use
guns, had carried a gun for twenty-two years, and learned to shoot
when he was nine years old. Based on this testimony, the
prosecutor could reasonably ask the jury to find that Britton
possessed the gun skills necessary to shoot and kill someone.
4. Statement 5
¶ 67 In Britton’s fifth challenged statement, the prosecutor asked,
“Was [Britton] trying to ensure that . . . Martinez-Briones was dead,
or was he trying to kill [E.M.], a person that he now knows has
recorded the incident?” Britton argues that this statement is
nothing more than speculation that he shot E.M. to destroy the
video evidence. But again, Britton leaves out important context.
Immediately before this statement, the prosecutor asked
rhetorically, “What was [Britton] trying to do? That’s another thing
we don’t have to prove is why.” Considered together, these
statements didn’t constitute misconduct. A prosecutor may
properly provide guidance to jurors during closing argument
regarding evidence and issues that are red herrings or otherwise
unessential to the elements of the offense. See Domingo-Gomez,
32 125 P.3d at 1048 (Counsel may “point to different pieces of evidence
and explain their significance within the case.”).
¶ 68 In any event, a defendant’s motive, while not an essential
element, may be relevant to show their intent at the time of the
alleged offense. See, e.g., People v. Villanueva, 2016 COA 70, ¶ 55.
Here, the prosecution elicited evidence that E.M. posed no danger to
Britton but rather was on the ground tending to his father’s wound
when Britton shot him in the bicep. The prosecutor could therefore
reasonably ask the jury to infer that Britton shot E.M. either in
retaliation for recording the incident or as part of an attempt to
destroy the video evidence, not in self-defense. See Samson, ¶ 31.
5. Statement 6
¶ 69 Lastly, Britton challenges a sixth statement in which the
prosecutor said, “One thing I want you to think about is that
testimony that you heard from the defendant. I knew I was wrong.
He knew he was not justified, didn’t have any regret or remorse.
Instead, what you hear is, oh, he didn’t just look like he was
Mexican, he was Mexican, and I know he was illegal.”
¶ 70 Britton argues that the prosecutor made this statement to
exploit Britton’s remorse and argue that he expressly admitted his
33 guilt. Unlike his challenges to the prosecutor’s other statements,
Britton preserved this argument through a timely objection.
¶ 71 Britton testified that he voluntarily drove to the police station
to turn himself in after the shooting because he “knew [he] was
wrong,” and “[t]here was no doubt about that.” When asked on
cross-examination whether he requested to see the victims’ green
cards because they were Mexican, Britton responded, “No. They are
Mexicans,” and “[t]hey didn’t look like nothing. . . . I called them —
that’s what they were. They were Mexicans.” Britton also testified
that individuals born in other countries “don’t earn the right to call
me the [N-word].”
¶ 72 Because Britton voluntarily testified, we perceive no
misconduct in the prosecutor’s comments. When a defendant
chooses to testify, the prosecutor is permitted in closing argument
to urge the jury to draw reasonable inferences from their testimony,
just like that of any other witness. See People v. Rogers, 68 P.3d
486, 492 (Colo. App. 2002) (“A defendant cannot have it both ways.
If he talks, what he says or omits is to be judged on its merits or
demerits.” (quoting United States v. Goldman, 563 F.2d 501, 503
(1st Cir. 1977))). The prosecutor therefore could reasonably argue,
34 based on Britton’s testimony, that (1) he drove to the police station
because he knew he was wrong to shoot Martinez-Briones and
E.M.; and (2) he harbored resentment towards the victims, rather
than remorse, due to their immigration status and Martinez-
Briones calling him the N-word.
F. References to Racially Charged Language
¶ 73 Britton contends that the prosecutor committed misconduct
by (1) saying Britton was the “first to throw” a racial slur despite no
evidence to that effect and (2) equating Martinez-Briones’s use of
the N-word with Britton’s statements about the victim’s immigration
status.
¶ 74 At a threshold matter, we note that the record confirms that
both Britton and the victims used racially charged language during
their argument. But there is at least some evidence from the video
suggesting that Britton was the first to inject the issue of race into
the dispute.2 Britton said, “Let me find out,” and “We’re going to
find this out,” near the beginning of the video, which Martinez-
2 We use the term “race” here expansively to encompass biases
based on race, ethnicity, and national origin, while acknowledging that Britton’s comments were primarily based on the victims’ national origin. See People v. Ojeda, 2022 CO 7, ¶ 1 n.1.
35 Briones clearly interpreted as a threat that Britton would call
immigration authorities. Martinez-Briones subsequently yelled at
Britton, “You started first — you started first.”
¶ 75 Even assuming, however, that Britton didn’t intend his initial
statements to convey a racially charged threat, the prosecutor’s
comment that Britton was the “first to throw” a racial slur wasn’t so
egregious that it undermined the fundamental fairness of the trial
as to cast serious doubt on the reliability of the conviction. See
Walker, ¶ 28. Britton repeatedly demanded that Martinez-Briones
provide his green card and said, “Let me check you out,” implying
that he wanted to verify Martinez-Briones’s immigration status.
When coupled with Britton’s own testimony about the victims’
immigration statuses, the prosecutor could reasonably argue that
Britton acted out of anger and racial animus rather than self-
defense. Under these circumstances, we fail to see how the
prosecutor’s isolated comment that Britton instigated the racially
charged insults, even if incorrect, might cast doubt on the reliability
of the conviction. See People v. Raehal, 971 P.2d 256, 259 (Colo.
App. 1998) (concluding error wasn’t plain where the prosecutor’s
“improper remark was not repeated”).
36 ¶ 76 We also aren’t persuaded that the prosecutor committed
misconduct by equating Britton’s green card remarks with
Martinez-Briones’s use of the N-word. The prosecutor asked the
jury, “Why is a man asking another man about his green card other
than to make them feel less than. That is a hurtful thing to do. . . .
[I]t is just as deplorable to use the N word.”
¶ 77 We recognize, and don’t mean to understate, the highly
offensive nature of the word used by Martinez-Briones and its
unique ability to evoke “a history of racial violence, brutality, and
subordination.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116
(9th Cir. 2004). The prosecutor conceded as much, calling the word
hateful, contentious, and one of the “worst words” a person can
use. But Britton’s demands for Martinez-Briones’s green card were
also reprehensible. And while the prosecutor’s attempt to compare
one racist insult to another may have been perilous and inartful,
counsel is permitted to comment on the evidence admitted at trial,
including the defendant’s own words. See Samson, ¶ 31; cf. Rogers,
68 P.3d at 492.
¶ 78 Accordingly, we reject Britton’s contentions that the
prosecutor committed reversible misconduct.
37 V. Refusal to Dismiss a Judge from the Venire
¶ 79 Britton next contends that the district court erred during jury
selection by refusing to dismiss another district court judge from
the venire after the parties mutually agreed that the court should
dismiss her. We disagree.
¶ 80 During jury selection, the parties approached the bench and
informed the court that “the parties were in agreement” that it
should release the judge from the venire. The court responded that
the judge hadn’t “claim[ed] hardship” and that the parties’
agreement to release her didn’t constitute a challenge for cause.
Defense counsel never challenged the judge for cause but rather
elected to exercise a peremptory strike to excuse her.
¶ 81 We review a district court’s decision to release or not release a
potential juror from the venire for an abuse of discretion. Cf. People
v. Clemens, 2017 CO 89, ¶ 13 (appellate court reviews the district
court’s ruling on a challenge for cause for an abuse of discretion).
¶ 82 To the extent Britton contends that the district court should
have dismissed the judge for cause, we conclude Britton waived this
claim. Waiver is “the intentional relinquishment of a known right or
privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (citation omitted). A
38 waiver may be implied when the defendant “engages in conduct that
manifests an intent to relinquish a right or privilege or acts
inconsistently with its assertion.” Forgette v. People, 2023 CO 4,
¶ 28. Waiver extinguishes error, including appellate review of the
alleged error. Id. at ¶ 30; see also Crim P. 24(b)(2) (challenges to
the “qualifications and competency of the prospective jurors” are
waived if not raised before the jurors are sworn); Richardson v.
People, 2020 CO 46, ¶¶ 25-26, 30 (defendant waived challenge to
judge’s wife serving on jury by deliberately choosing not to
challenge her).
¶ 83 Defense counsel never challenged the judge for cause, even
after the district court informed the parties that it didn’t view their
mutual agreement as a proper challenge for cause. Defense counsel
also demonstrated that she understood the court’s ruling by saying,
“[S]ometimes there’s agreements that a person may not be a proper
fit,” but “[i]t’s not always challenged for cause statutorily.” After the
court declined to excuse the judge based on the parties’ agreement,
defense counsel opted to excuse her by exercising a peremptory
strike. Thus, because Britton was aware of the opportunity to
39 challenge the judge for cause but never did so, we conclude Britton
waived his claim. See id.
¶ 84 To the extent that Britton argues that the district court should
have accepted the parties’ mutual agreement to excuse the judge,
we aren’t persuaded. During the jury selection process, counsel
may attempt to excuse a prospective juror by either challenging the
juror for cause, § 16-10-103, C.R.S. 2024, or exercising a
peremptory challenge, § 16-10-104, C.R.S. 2024. No third option
exists, and we decline to judicially create one based on the parties’
mutual agreement in this case. Doing so would undermine citizens’
ability to serve on a jury when they are otherwise statutorily
eligible. Cf. Powers v. Ohio, 499 U.S. 400, 407 (1991) (“[W]ith the
exception of voting, for most citizens the honor and privilege of jury
duty is their most significant opportunity to participate in the
democratic process.”).
¶ 85 Accordingly, the district court didn’t abuse its discretion by
declining to excuse the judge from the venire based on the parties’
agreement.
40 VI. Speaking Spanish at Sentencing
¶ 86 Britton next contends that the district court erred by speaking
Spanish for a portion of the sentencing hearing, thus violating both
his right to be present and his right to due process. We discern no
plain error requiring reversal.
¶ 87 During sentencing, the district court spoke in Spanish at three
different points. Britton asserts that the court spoke in Spanish to
the victims and their family, and the People agree with that
interpretation of the transcript. But the transcript doesn’t indicate
what was said or whether the court was merely translating what it
had just spoken in English into Spanish. The transcript says only
“Spanish-Speaking.” The court spoke in English, however, when
speaking directly to Britton and when explaining the reasons for its
sentence.
¶ 88 Britton didn’t object or request an interpreter. Nor did defense
counsel on appeal request to settle the record to determine what the
court had said in Spanish. See C.A.R. 10(g)(1).
41 B. Standard of Review and Applicable Law
¶ 89 “A defendant has a right to be present at every critical stage of
a criminal trial.” People v. Wingfield, 2014 COA 173, ¶ 17. This
includes sentencing. People v. Hernandez, 2019 COA 111, ¶¶ 22,
24; see also Crim. P. 43(a) (“The defendant shall be present” at the
“imposition of sentence.”). A defendant’s inability to understand the
language spoken by the court may abridge their right to be present.
See People v. James, 937 P.2d 781, 783 (Colo. App. 1996). The
appointment of an interpreter is therefore “crucial to safeguarding
the fundamental fairness of the trial.” People v. Avila, 797 P.2d
804, 806 (Colo. App. 1990). Without it, the trial proceedings
become “but a ‘babble of voices’ and [the] defendant is but an
‘insensible object’ who passively observes in complete
incomprehension.” Id. at 805 (quoting United States ex rel. Negron
v. New York, 434 F.2d 386, 388-89 (2d Cir. 1970)).
¶ 90 We review de novo whether the district court violated a
defendant’s constitutional right to be present. Wingfield, ¶ 13.
However, because Britton didn’t object or request an interpreter, we
will reverse only if Britton demonstrates plain error. See People v.
Chavez, 2012 COA 61, ¶ 13.
42 C. Analysis
¶ 91 The People don’t defend the district court’s actions but rather
argue that its decision to speak in Spanish didn’t rise to plain error.
Given the People’s position, we will assume without deciding that
the court erred by speaking in Spanish during sentencing and
proceed to evaluate whether the error amounted to an obvious error
that so undermined the fundamental fairness of the proceeding as
to cast doubt on the reliability of the convictions. See People v.
Vigil, 251 P.3d 442, 447 (Colo. App. 2010) (“[W]e need not decide
whether the court actually erred if it is clear that the alleged error
was not obvious.”); see also Galvan v. People, 2020 CO 82, ¶ 45
(summarizing party presentation principle).
¶ 92 Even giving Britton the benefit of this assumption, however,
we don’t perceive plain error that warrants reversal. As to the
obviousness of the error, Britton point us to no Colorado case law,
and we’ve located none, holding that a trial court errs when it
speaks to victims or their family in their native language during a
portion of the sentencing hearing while still speaking in English
when imposing its sentence and providing its reasoning. See Scott,
¶ 17 (“[A]n error is generally not obvious when nothing in Colorado
43 statutory or prior case law would have alerted the trial court to the
error.”).
¶ 93 We also fail to see how the district court’s decision to speak in
Spanish to the victims and their family so undermined the fairness
of the proceeding as to cast doubt on the reliability of the
conviction. The court spoke in English both when speaking directly
to Britton and when providing its reasons for its sentence. See
People v. Watkins, 613 P.2d 633, 637 (Colo. 1980) (sentencing court
must state “the basic reasons” for its sentence, although the
“reasons need not be lengthy”).
¶ 94 While the record before us doesn’t reveal whether the court
provided additional reasoning for its sentence when it spoke in
Spanish, the burden fell to Britton to supply an adequate record for
our review, including by seeking to settle the record in the district
court if necessary. See C.A.R. 10(g)(1); People v. Duran, 2015 COA
141, ¶ 12. Absent such a record, we decline to presume that the
court provided additional reasoning for its sentence in Spanish.
See LePage v. People, 2014 CO 13, ¶¶ 15-16 (“According to the
presumption of regularity, appellate courts presume that the trial
judge did not commit error absent affirmative evidence otherwise,”
44 and “[t]he effect of this presumption is that the party asserting error
must affirmatively show that it occurred.”).
¶ 95 Accordingly, the district court didn’t plainly err when it spoke
in Spanish to the victims and their family during a portion of the
sentencing hearing.
VII. Cumulative Error
¶ 96 Britton contends that the cumulative effect of the district
court’s errors requires reversal. The cumulative error doctrine
requires reversal when “the cumulative effect of [multiple] errors
and defects substantially affected the fairness of the trial
proceedings and the integrity of the fact-finding process.” Howard-
Walker v. People, 2019 CO 69, ¶ 24 (alteration in original) (quoting
People v. Lucero, 615 P.2d 660, 666 (Colo. 1980)).
¶ 97 We have found one error in the district court’s failure to
correct a misstatement during the prosecutor’s closing argument
and assumed one other possible error during sentencing for
purposes of our plain error analysis, finding both nonprejudicial.
We conclude that these errors, either alone or together, didn’t
substantially affect the fairness of Britton’s proceedings or the
integrity of the factfinding process. See People v. Vialpando, 2022
45 CO 28, ¶¶ 40-46 (finding five errors viewed in the aggregate didn’t
constitute cumulative error that deprived the defendant of a fair
trial).
VIII. Disposition
¶ 98 We affirm the judgment.
JUDGE FREYRE and JUDGE SCHOCK concur.