22CA1355 Peo v Corey 12-26-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1355 City and County of Denver District Court No. 21CR2074 Honorable Christopher J. Baumann, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Joseph Alden Corey,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE TOW Pawar, J., concurs Schutz, J., specially concurs
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 26, 2024
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Joseph Alden Corey, appeals the judgment of
conviction entered on a jury verdict finding him guilty of second
degree murder. We affirm.
I. Background
¶2 According to the evidence at trial, Wayne Johnson was in a
volatile relationship with Dawn Perkins. They lived in the same
house, along with members of Perkins’s family. Eventually, Perkins
got a protection order against Johnson, which forced him to move
out of the house.
¶3 Corey was friends with Perkins and her family. Some of
Perkins’s family members told Corey about Johnson’s volatile
behavior with Perkins. Despite being restrained from doing so,
Johnson would occasionally return to the house, and Perkins’s
family members would call the police. One time, Perkins’s family
member called Corey to come over to convince Johnson to leave.
Corey went to Perkins’s house and Johnson left. Corey started
staying in the garage at the house on and off and later moved into
the garage.
¶4 Eventually, Johnson was arrested for violating the protection
order, he went to jail, and a criminal protection order was put in
1 place. When Johnson was released from jail, Perkins’s family
members told Corey. Two nights after Johnson was released, Corey
slept in his girlfriend’s van parked across the street from Perkins’s
house. In the morning, Johnson knocked on the door of the house.
A family member answered the door, and Johnson asked where his
bike was. The family member slammed the door after telling
Johnson he was not allowed to be at the house.
¶5 The events that followed were captured on a neighbor’s
security camera. Corey stepped out of the van with a gun, walked
across the street towards Johnson and the house, and fired shots at
Johnson. Johnson walked towards Corey, reached the sidewalk,
turned, and walked away from Corey. Corey shot at Johnson’s
back. Corey got back into the van, and his girlfriend drove away.
Johnson collapsed on the street around the corner, covered in
blood.
¶6 Johnson died from his wounds.
¶7 Corey was charged with first degree murder. At trial, the
People’s theory was that Corey waited for Johnson to come to the
house and intended to kill him to prevent him from continuing to
harass Perkins and her family. Corey claimed he acted first in
2 defense of Perkins’s family and then in self-defense. Corey testified
that Johnon was agitated, making movements with his hands, and
continuing to move toward Corey. Corey said he asked Johnson
what he was doing at the door, and Johnson replied, “I told you,
[d]on’t get in my F-ing way, and I’m going to kill you and these
stupid Bs.”
¶8 When instructing the jury, the trial court included
instructions on self-defense and the lesser included offense of
second degree murder. The jury convicted Corey of second degree
murder.
¶9 This appeal followed.
II. Prosecutorial Misconduct
¶ 10 Corey contends that numerous remarks made by the
prosecutor throughout the trial constituted prosecutorial
misconduct. We disagree.
A. Standard of Review and Applicable Law
¶ 11 We engage in a two-step analysis when reviewing claims of
prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we determine whether the conduct was
improper based on the totality of the circumstances. Id. In doing
3 so, we evaluate claims of improper argument in the context of the
argument as a whole and in light of the evidence before the jury.
People v. Conyac, 2014 COA 8M, ¶ 132. Next, we consider whether
such actions warrant reversal under the applicable standard.
Wend, 235 P.3d at 1096.
B. Analysis
1. Dexter and Vigilante Themes
a. Voir Dire
¶ 12 Corey contends that the prosecutor committed misconduct
during voir dire by injecting themes of “vigilantism, anarchy, and
lawless society” by repeatedly referencing the show Dexter. He also
contends that the prosecutor committed misconduct when cross-
examining Corey, in closing argument, and in rebuttal closing by
referring to the themes introduced in voir dire. We disagree.
¶ 13 During voir dire, the prosecutor explained that the protagonist
of the show, Dexter, is a serial killer who murders people who have
“gotten away with murder, be it through a loophole in the justice
system or some kind of corruption.” The prosecutor then asked
multiple jurors if what Dexter did on the show was okay, and when
the jurors responded that it was not okay, the prosecutor asked
4 them why not. The prosecutor also asked jurors about taking
justice into their own hands, what was wrong with a lawless
society, and if there was room for vigilantism in society. The jurors
all responded in various ways that it was not okay and discussed
the problems created when someone took matters into their own
hands.
¶ 14 Corey contends this line of questioning implied that he was a
vigilante serial killer who hunted down murderers who otherwise
were not punished by the justice system. But we agree with the
People that the prosecutor never equated Corey to Dexter or
suggested that he was a serial killer or that he hunted down a
murderer. Rather, the prosecutor used Dexter as an example to
explore the general concept of vigilantism with the jurors.
¶ 15 Corey also contends that the themes of “vigilantism, anarchy,
and lawless society” were improper during voir dire. But Corey
cites no case holding that exploring the concept of vigilantism (or
anarchy or lawless society) in voir dire is improper, nor are we
aware of any. And while our specially concurring colleague
suggests that addressing these concepts was improper because they
“were not legal issues in this case,” infra ¶ 62, we respectfully
5 disagree. Though not an element of the crime, a defendant’s motive
is often quite relevant. See, e.g., People v. Cousins, 181 P.3d 365,
371 (Colo. App. 2007) (“It is permissible to prove a defendant’s
motive for committing a crime.”); see also People v. Oliver, 2020
COA 150, ¶ 12 (acknowledging that while proof of motive is not
necessary to prove the commission of a crime, it is often relevant).
¶ 16 In short, given the facts of this case, the concept of vigilantism
was an unavoidable consideration. As a result, the prosecutor was
well within her bounds to explore the potential jurors’ attitudes
toward vigilantism. And, although inartful with her general
references to Dexter, the prosecutor’s voir dire was an attempt to
uncover potential juror biases in that area. See People v. Shipman,
747 P.2d 1, 3 (Colo. App. 1987) (“The only proper purpose of voir
dire is to determine the bias or prejudice of a potential juror.”).
b. Cross-Examination, Closing Argument, and Rebuttal Closing
¶ 17 While cross-examining Corey, the prosecutor asked, “[Y]ou
were here during jury selection, and you heard as we talked about
the dangers of being a vigilante. Do you remember those
conversations?” Corey replied that he did. The prosecutor then
asked, “And one of those dangers is that people make mistakes”
6 and “[t]hey judge a situation wrongly”? Corey agreed to both
statements.
¶ 18 During closing argument, the prosecutor said,
We cannot have a system — we cannot have a system where ordinary citizens take it upon themselves to execute other citizens based on their belief that they have done something wrong. That is anarchy, and we cannot have a system like that.
Recall what several of you said during jury selection. The greatest danger of all is that the person that has taken it upon themselves to do this may have been wrong, and that is exactly what happened in this case.
And then the prosecutor said, “Even accepting as true that
[Johnson] raised his hand and swore at him, what society would we
have if that gave us legal justification to shoot and kill someone?”
¶ 19 Corey contends that these statements were improper because
the prosecutor returned to the improper theme of vigilantism and
sought to harvest the fruits of seeds planted during voir dire,
relying on People v. McBride, 228 P.3d 216, 224 (Colo. App. 2009).
As discussed, exploring a vigilante theme during voir dire was not
improper. Nor do we find McBride persuasive. In McBride, the
prosecutor introduced an analogy in voir dire and returned to the
7 same analogy in rebuttal closing, but that was not what the division
determined to be misconduct. Rather, the division concluded that
the misconduct was the use of the analogy in rebuttal closing to
make an argument that contradicted Colorado law and distorted a
key element of attempted first degree murder. Id. at 224-25. Thus,
McBride is inapposite.
¶ 20 Further, Corey contends that the prosecutor committed
misconduct during closing argument when, “consistent with [the
prosecutor’s] improper themes injected during voir dire,” she said,
“Corey took it upon himself to act as judge, jury and executioner,
and because of that . . . Johnson is dead” and in rebuttal closing
when she said, “This was an execution.”
¶ 21 Again, the vigilante theme was not improper during voir dire.
To the extent Corey contends that the prosecutor’s words were
derogatory or inflammatory, we disagree that these statements
constituted prosecutorial misconduct. In context, the prosecutor
was arguing that the evidence supported her theory of the case that
Corey acted deliberately and intentionally (and not in self-defense)
because Corey — who was aware of the conflict between Perkins
and Johnson — waited for Johnson and killed him to prevent
8 further harassment. See People v. Strock, 252 P.3d 1148, 1153
(Colo. App. 2010) (A prosecutor may “employ rhetorical devices and
engage in oratorical embellishment and metaphorical nuance” in
closing argument. (quoting People v. Collins, 250 P.3d 668, 678
(Colo. App. 2010))).
¶ 22 Finally, Corey contends that the prosecutor’s statements made
during voir dire, cross-examination, and closing argument misled
and unduly influenced the jury, diverted the jury from its duty to
decide the case based on the evidence, invoked community
sentiment, inflamed the passions and prejudices of the jury, and
sought a conviction based on matters irrelevant to guilt or
innocence. This is an undeveloped argument, and we decline to
address it. See People v. Curtis, 2021 COA 103, ¶ 36.
2. Misstating the Circumstances Surrounding Corey’s Self-Defense Claim
¶ 23 Corey contends that the prosecutor also committed
misconduct by misstating the law on apparent necessity, misstating
the evidence, and calling Corey “delusional.” We reject each
contention.
9 ¶ 24 First, Corey contends that the prosecutor’s numerous
statements made during closing argument and rebuttal closing that
Corey relied on “unverified” reports about Johnson, rushed to
judgment, was “delusional,” and “was operating under this delusion
and [took] it upon himself to engage” were improper because they
misstated the law regarding apparent necessity.
¶ 25 “The touchstone of self-defense is ‘reasonable belief rather
than absolute certainty,’ which can include a defendant’s use of
self-defense based on ‘apparent necessity.’” Castillo v. People, 2018
CO 62, ¶ 38 (quoting Beckett v. People, 800 P.2d 74, 78 (Colo.
1990)). “Evidence of a victim’s prior violent conduct may be
admissible as direct evidence of an essential element of a
defendant’s claim of self-defense, namely, the reasonableness of the
defendant’s belief that the victim imminently would use physical
force against the defendant.” People v. Vasquez, 148 P.3d 326, 331
(Colo. App. 2006). “[I]t is immaterial whether a defendant
personally witnessed the victim’s prior violent act or learned of the
act through the statements of others.” Id.
¶ 26 Contrary to Corey’s contention, the prosecutor did not suggest
that Corey could not lawfully act based upon his reasonable belief
10 and apparent necessity. Rather, the prosecutor argued Corey was
acting unreasonably. The prosecutor used the word “unverified” to
argue that Perkins and her family were unreliable sources of
information, thus making his reliance on their reports about
Johnson’s history of violence unreasonable. Further, in context,
the prosecutor was arguing that nothing about the circumstances
that day would have given Corey a reasonable belief that Johnson
was imminently going to use physical force against him. Thus, the
prosecutor did not misstate the law on apparent necessity.
¶ 27 Next, Corey contends that the prosecutor’s statements
regarding Corey relying on “unverified” reports misstated the
evidence. In support of this contention Corey points to evidence
that Johnson had been violent in the past. But Corey ignores all
contrary evidence. Perkins’s family member testified that Johnson
had never been physically violent with Perkins. A detective testified
that none of the calls to police about Johnson being at the house
involved allegations of domestic violence, threats, assaults, or felony
menacing. And Corey testified that he did not personally witness
Johnson being physically violent with anyone. The prosecutor
could appropriately argue from this evidence that the reports of
11 Johnson’s past violence were “unverified.” See Domingo-Gomez v.
People, 125 P.3d 1043, 1048 (Colo. 2005) (“Final argument may
properly include the facts in evidence and any reasonable
inferences drawn therefrom.”).
¶ 28 Finally, Corey contends that when the prosecutor called Corey
“delusional,” she improperly expressed her personal opinion on the
veracity of Corey’s testimony, used derogatory and inflammatory
language, tried to inflame the passions and prejudices of the jury,
and denigrated the theory of defense.
¶ 29 During defense counsel’s closing argument, Corey’s attorney
argued that Corey had to “do something.” In rebuttal, the
prosecutor responded,
I assert to you he didn’t. The circumstances of March 10, 2021, did not beckon for Mr. Corey to intervene. He was delusional. Mr. Johnson wasn’t doing anything. He was at the door asking for his bike, and that is it. He was not yelling threats at [Perkins’s family member]. He was not yelling threats at the other people in the house. He’s not trying to break into the door. That’s not what was happening that day. He was there to retrieve his only form of transportation, that he says he left there when he was arrested in August, and that’s all that was happening.
12 In our view, the use of the word delusional was an attempt to argue
that Corey’s belief that he had to “do something” was unreasonable,
based on the circumstances. See People v. Vialpando, 804 P.2d
219, 225 (Colo. App. 1990) (“A prosecutor is afforded considerable
latitude in the right to reply to an argument by opposing counsel.”).
It was, at most, an oratorical embellishment. See Strock, 252 P.3d
at 1153.
¶ 30 Nor do we agree that the prosecutor was expressing her
personal belief as to Corey’s veracity or seeking to denigrate the
theory of defense. Rather, the prosecutor’s statement was grounded
in the evidence and reasonable inferences drawn therefrom. See
Wilson v. People, 743 P.2d 415, 418 (Colo. 1987) (recognizing the
prosecution may “draw reasonable inferences from the evidence as
to the credibility of witnesses”).
3. Misstating the Law on Duty to Retreat
¶ 31 Corey next contends that the prosecutor committed
misconduct during closing argument by suggesting that Corey had
a duty to retreat. We disagree.
¶ 32 During closing argument, when arguing that Corey acted after
deliberation and with intent, the prosecutor said, “Corey had the
13 opportunity to turn around, had the opportunity to abort the
mission, had the opportunity to stop, but yet he didn’t.” The
prosecutor also said,
There were so many avenues for [Corey] to exit. There were so many times when he could have gotten on the off-ramp, but he kept making decision after decision after conscious decision to proceed forward, and that resulted in the death of Wayne Johnson. He could have called [Perkins’s family member who answered the door]. He could have called [another family member]. He could have called police.
As you heard, when [the other prosecutor,] Ms. Mullin[,] was asking [the detective], there were remedies. With two protection orders in place, ultimately, Wayne Johnson might have been charged with a felony. The system would have run its normal course, instead of us being here on a first-degree murder case.
[Corey] didn’t — he didn’t have to leave the van. He could have gotten back in the van. If, indeed, [Johnson] is saying these terrible things when [Corey’s] just a couple feet from the van, turn around. Get in the van. Drive away. Call the police.
¶ 33 “In Colorado, only initial aggressors must retreat before using
force in self-defense.” Cassels v. People, 92 P.3d 951, 956 (Colo.
2004). “Accordingly, the prosecution may not argue that a
defendant is barred from acting in self-defense unless [he] first
14 retreats from an encounter.” People v. Monroe, 2020 CO 67, ¶ 20.
But a defendant’s decision to enter the fray may make them the
initial aggressor. Id. at ¶ 28.
¶ 34 Corey relies on Monroe and argues that the prosecutor’s
comments were improper because Corey was not the initial
aggressor. But Corey ignores that the prosecutor was asserting
that Corey was the initial aggressor because he got out of the van
and escalated the situation with Johnson, who was not being
aggressive. Indeed, the trial court instructed the jury on the initial
aggressor exception to self-defense, which Corey does not challenge.
¶ 35 The prosecutor’s argument was grounded in evidence and
reasonable inferences drawn therefrom and did not misstate the
law. See id.
¶ 36 In sum, we conclude there was no prosecutorial misconduct.
III. Supplemental Jury Instructions
¶ 37 Corey contends that the trial court erred by declining to give
his supplemental instructions on apparent necessity and retreat,
especially in light of the purported prosecutorial misconduct of
misstating the law on self-defense in closing argument. We discern
no error.
15 A. Additional Background
¶ 38 Before closing arguments, Corey tendered two supplemental
jury instructions involving apparent necessity and no duty to
retreat. The trial court declined to give these instructions, finding
“these concepts are encompassed in the general self-defense
instruction.” The court gave the jury a self-defense instruction that
tracked the model jury instruction. See COLJI-Crim. H:11 (2020).
B. Standard of Review
¶ 39 We review “instructions de novo to determine whether they
accurately inform the jury of the governing law,” People v. Oram,
217 P.3d 883, 893 (Colo. App. 2009), aff’d, 255 P.3d 1032 (Colo.
2011), but we “review a trial court’s decision to give, or not to give, a
particular jury instruction for an abuse of discretion,” People v.
Jones, 2023 COA 104, ¶ 16.
C. Analysis
¶ 40 As Corey acknowledges, divisions of this court have concluded
that when the jury is given a proper self-defense instruction, the
trial court does not abuse its discretion in declining to give
supplemental self-defense instructions. See Beckett, 800 P.2d at 78
(a separate apparent necessity instruction is not necessary where
16 jury instructions adequately informed the jury that it was required
to consider the defendant’s reasonable belief in the “necessity of
defensive action” (quoting People v. Jones, 675 P.2d 9, 14 (Colo.
1984))); see also People v. Zukowski, 260 P.3d 339, 348-49 (Colo.
App. 2010).
¶ 41 The self-defense instruction told the jury that Corey was
justified in using self-defense “without first retreating” if the
remaining elements were met, and it repeatedly referred to Corey’s
“reasonable beliefs.” The self-defense instruction correctly stated
the law and encompassed the apparent necessity and no duty to
retreat concepts. See Beckett, 800 P.2d at 76-78; Zukowski, 260
P.3d at 347-49.
¶ 42 Corey nevertheless contends that the trial court should have
sua sponte reconsidered its earlier decision not to give Corey’s
tendered supplemental instructions after closing arguments, during
which the prosecutor purportedly misstated the law on self-defense.
As discussed, we reject Corey’s argument that the prosecutor
misstated the law in closing argument. Therefore, we discern no
abuse of discretion in the trial court declining to give Corey’s
supplemental instructions.
17 IV. Disposition
¶ 43 The judgment is affirmed.
JUDGE PAWAR concurs.
JUDGE SCHUTZ specially concurs.
18 JUDGE SCHUTZ, specially concurring.
¶ 44 I concur with the result reached by my colleagues in the
majority. I also agree with the majority’s well-reasoned analysis of
the issues presented with the exception of the prosecutorial
misconduct analysis, supra Part II.B.1. Unlike my colleagues, I
conclude that the prosecutor’s repeated references to the television
series Dexter and the associated themes of vigilantism, anarchy,
and lawlessness during voir dire, Corey’s cross-examination, and
closing argument were improper. But because I conclude that the
improper argument did not so undermine the fundamental fairness
of the trial that it casts serious doubt on the reliability of the
conviction, I agree that reversal is not required. See Hagos v.
People, 2012 CO 63, ¶ 14.
¶ 45 I therefore concur with the result reached by the majority. I
write separately, however, to explain the basis for my conclusion
that the prosecutor’s conduct was improper, and my concerns over
the all too frequent use of similar inflammatory rhetorical devices
by prosecutors.
19 I. Standard of Review and Applicable Law
¶ 46 The parties agree that defense counsel failed to object to the
prosecutor’s repeated references to the television series Dexter.
Thus, I review for plain error. An error is plain if it is obvious and
substantial. Id. Reversal for plain error is warranted only if the
error undermines the fairness of the trial to a degree that it casts
serious doubt on the reliability of the conviction. Id.
¶ 47 Criminal trials are an adversary process. Thus, as the
People’s advocate, prosecutors are allowed “wide latitude in the
language and presentation style used to obtain justice” during
closing argument. Domingo-Gomez v. People, 125 P.3d 1043, 1048
(Colo. 2005). Moreover, “[g]iven the sometimes fuzzy line between
hard-but-fair blows and foul blows, and because arguments
delivered in the heat of trial are not always perfectly scripted,
reviewing courts accord prosecutors the benefit of [the] doubt where
remarks are ‘ambiguous,’ or simply ‘inartful.’” People v. McBride,
228 P.3d 216, 221 (Colo. App. 2009) (citations omitted).
¶ 48 The question of whether a prosecutor’s argument crosses the
line between permitted advocacy and prohibited prejudicial conduct
is entrusted, in the first instance, to the trial court’s sound
20 discretion. People v. Duncan, 2023 COA 122, ¶ 30. But even when
a trial court does not exercise its discretion to prohibit a
prosecutor’s improper argument, our appellate courts have not
hesitated to correct such omissions when the error is obvious and
substantial. See Harris v. People, 888 P.2d 259, 265 (Colo. 1995)
(“[I]f an appellate court concludes that prejudice created by a
prosecutor’s conduct was so great as to result in a miscarriage of
justice, a new trial may be granted notwithstanding the trial court’s
failure to impose such sanction.”).
¶ 49 The supreme court has developed numerous standards to
assist courts in defining the limits of proper prosecutorial advocacy.
Id. at 264. Thus, the court has concluded that it is improper for a
prosecutor to use arguments calculated to inflame the passions or
prejudices of a jury. People v. Oliver, 745 P.2d 222, 228 (Colo.
1987). It is also improper for prosecutors to encourage a jury to
retaliate against a defendant; rather, the “prosecutor’s argument
should be restricted to the evidence and reasonable inferences to be
drawn therefrom on the issue of whether guilt is proven beyond a
reasonable doubt.” People v. Ferrell, 613 P.2d 324, 326 (Colo.
1980).
21 ¶ 50 These essential principles are so well entrenched that they are
embodied in standards promulgated by the American Bar
Association to define the proper scope of prosecutorial advocacy.
See ABA Standards for Criminal Justice, Prosecution Function (4th
ed. 2017), https://perma.cc/FCN4-QPAY. Thus, in voir dire,
prosecutors should ask prospective jurors questions “solely to
obtain information relevant to the well-informed exercise of
challenges” and should not use “[v]oir dire . . . to argue [their] case
to the jury.” Id. § 3-6.3(d). And in closing argument, “the
prosecutor should present arguments and a fair summary of the
evidence that proves the defendant guilty beyond reasonable
doubt.” Id. § 3-6.8(a). Conversely, the “prosecutor should not make
arguments calculated to appeal to improper prejudices of the trier
of fact. The prosecutor should make only those arguments that are
consistent with the trier’s duty to decide the case on the evidence,
and should not seek to divert the trier from that duty.” Id. § 3-
6.8(c).
¶ 51 These precepts are also incorporated into Colorado Rule of
Professional Conduct 3.4(e): “A lawyer shall not . . . in trial, allude
to any matter that the lawyer does not reasonably believe is relevant
22 or that will not be supported by admissible evidence . . . or state a
personal opinion as to . . . the guilt or innocence of an accused.”
¶ 52 These rules derive from the fact that prosecutors are
differently situated than a typical advocate in the judicial arena.
“Prosecutors have a higher ethical responsibility than other lawyers
because of their dual role as both the sovereign’s representative in
the courtroom and as advocates for justice.” Domingo-Gomez, 125
P.3d at 1049. “Because the prosecutor represents the State and the
People of Colorado, their ‘argument is likely to have significant
persuasive force with the jury.’” Id. (citation omitted).
¶ 53 Diligent assessment of the bounds of prosecutorial misconduct
is essential. Courts should evaluate “the context in which
challenged prosecutorial remarks are made . . ., including the
nature of the alleged offenses and the asserted defenses, the issues
to be determined, the evidence in the case, and the point in the
proceedings at which the remarks [are] made” while bearing in mind
that “[i]rrelevant issues or evidence may not be injected into the
case at any juncture.” Harris, 888 P.2d at 266.
23 II. Analysis
1. Additional Facts
¶ 54 The prosecutor’s improper references to the fictional serial
killer Dexter were pervasive and permeated this trial from beginning
to end. The prosecution began by describing the premise of Dexter
in voir dire:
Dexter is a forensic bloodstain analyst by day. He works for the Miami-Dade Police Department, and he’s a fictional character on, I believe, Netflix. But at night, he leads a secret, parallel life where he hunts down — he’s a serial killer, and he hunts down people who have — he believes have gotten away with murder, be it through a loophole in the justice system or some kind of corruption, okay?
¶ 55 After setting that stage, the prosecutor engaged prospective
juror M.C. in the following exchange:
Q. But what Dexter does, is [it] okay?
A. No.
Q. Why not?
A. Because of the chance of error, simply because of that alone. He’s not going to be right 100 percent of the time, even if he thinks he is.
Q. And so what’s the downside then?
24 A. I mean, compounding the injustice that was done in the first place, punishing [an] innocent person and letting a guilty person go.
Q. So the chance of error. Okay. Thank you.
¶ 56 The prosecutor continued the same line of inquiry with
prospective juror K.O.:
Q. All right. . . ., you raised — you also see Dexter. What do you think? Is it okay if he’s out there doing this? Taking out the —
A. Not really. He’s a vigilante, and he’s going above what was there, although sometimes he goes after people that aren’t even on the radar.
Q. He does.
A. That just kind of gets — that kind of goes over the edge, because, how does he know?
Q. How does he know?
A. You know, he hears, maybe, a couple of keywords or something, and then he’s — or sees an accident, and he goes, I got to look at this.
Q. Right.
A. And then he goes from there, and then he decides, you know, this guy’s got to go.
¶ 57 The prosecutor proceeded to repeat this same line of
questioning with an additional fourteen prospective jurors,
repeatedly invoking themes of lawlessness, vigilantism, and
25 anarchy. Four of the prospective jurors who the prosecutor directly
examined served as jurors on this case. And all the seated jurors
were present when all sixteen of the prospective jurors were
examined in a similar manner concerning Dexter and the related
prosecutorial themes.
¶ 58 The prosecutor referenced these voir dire discussions during
the trial, including during the cross-examination of Corey:
Q. Now, Mr. Corey, you were here during jury selection, and you heard as we talked about the dangers of being a vigilante. Do you remember those conversations?
A. Yes, I do.
Q. And one of those dangers is that people make mistakes.
A. Yes, ma’am.
Q. They judge a situation wrongly.
The prosecutor then proceeded to question Corey about the factual
basis of his testimony, suggesting that his statements about the
threat and proximity posed by the victim were mistaken. The clear
purpose of these questions was to suggest that Corey’s perceptions
26 about the alleged threat Johnson posed were distorted like those of
the character in Dexter, by his lawless vigilantism.
¶ 59 The prosecution drove the direct comparison home during her
initial closing argument:
We cannot have a system — we cannot have a system where ordinary citizens take it upon themselves to execute other citizens based on their belief that they have done something wrong. That is anarchy, and we cannot have a system like that.
Recall what several of you said during jury selection. The greatest danger of all is that the person that has taken it upon themselves to do this may have been wrong, and that is exactly what happened in this case.
The prosecutor summed up her initial closing argument with the
following statement: “Ladies and gentlemen, Joseph Corey took it
upon himself to act as judge, jury and executioner, and because of
that, Wayne Johnson is dead.”
¶ 60 Rebuttal closing is the last substantive thing the jury hears
before it begins its deliberations and, therefore, has a
disproportionate impact on jurors. See Domingo-Gomez, 125 P.3d
at 1052 (“Rebuttal closing is the last thing a juror hears from
counsel before deliberating, and it is therefore foremost in their
27 thoughts.”). Near the completion of her rebuttal closing, the
prosecutor invoked her well-developed rhetorical theme a final time:
“This was an execution. Period.”
2. Obvious and Substantial Error
¶ 61 Given the prosecutor’s repeated use of the Dexter-related
themes of anarchy, lawlessness, and vigilantism, I must respectfully
disagree with my colleagues’ characterization of these arguments as
merely “inartful.” Supra ¶ 16. This was not a passing, unforeseen
comment made in the heat of argument. See McBride, 228 P.3d at
221 (excusing unscripted inartful comments made on the heat of
trial). To the contrary, the use of the Dexter analogy was a carefully
scripted effort to compare the actions of Corey to that of a vigilante
serial killer. And the prosecutor used the comparison, and
resulting juror statements, to suggest that Corey’s unlawful desires
lead him to misperceive Johnson’s actions, thereby undermining
the facts he testified to in support of his theories of defense.
¶ 62 Nor am I persuaded by the majority’s conclusion that “the
prosecutor never equated Corey to Dexter” but rather “used Dexter
as an example to explore the general concept of vigilantism with the
jurors.” I reject this effort to excuse the prosecutor’s misconduct.
28 In the first instance, concepts of vigilantism and anarchy were not
legal issues in this case. Corey did not, and indeed could not have,
asserted that his conduct was excused because Johnson deserved
to be killed. Rather, his claims were defense of others and self-
defense, principles firmly established under Colorado law. See
§ 18-1-704(1), C.R.S. 2024 (Subject to certain limitations, “a person
is justified in using physical force upon another person in order to
defend himself or a third person from what he reasonably believes
to be the use or imminent use of unlawful physical force by that
other person, and he may use a degree of force which he reasonably
believes to be necessary for that purpose.”). In my estimation, the
prosecutor injected the concepts of vigilantism, anarchy, and
lawlessness as rhetorical straw men, designed to marginalize Corey
and his theories of defense.
¶ 63 And having constructed the straw men, the prosecution chose
to attack them using a highly prejudicial analogy to the actions of a
serial killer. Moreover, even if one accepts the majority’s conclusion
that it was appropriate to explore concepts of vigilantism, there was
absolutely zero need to explore those concepts by analogy to the
actions of serial killer. To state the obvious, the prosecutor could
29 have simply asked a prospective juror, “What are the risks of taking
revenge or acting outside the law?” To my reading, using the Dexter
analogy to explore these irrelevant concepts reflects the prosecutor’s
intent to prejudice the jury against Corey.
¶ 64 Finally, I cannot excuse the prosecutor’s rhetorical devices as
a proper analogy. The supreme court rejected a similar argument
in Harris, where the prosecutor compared the defendant to Sadaam
Hussein. 888 P.2d at 262. In doing so, the supreme court
reminded us that a prosecutor’s closing argument is more than just
a forensic exercise:
These multiple references to the character of Saddam Hussein, the military operations in the Persian Gulf, and the bravery of American troops may well reflect creative inspiration and rhetorical sophistication — attributes admirable in any advocate. However, as our decisions have established, presentation of closing arguments is not simply an exercise in oratorical skill. . . . Repeated references to events occurring outside the courtroom, involving persons not party to the proceedings, can all too easily encourage jurors to abandon their role of evaluating the evidence under circumscribed legal standards. While argumentative devices may properly be employed to strengthen a point or a perspective, they cannot be utilized to turn the impartial quest for truth into an impassioned expression of anger.
30 Id. at 266.
¶ 65 Applying these principles, the supreme court concluded,
“Whether resulting from carefully planned strategy, from inspired
rhetorical creativity, or from other causes, the prosecutor's
comments repeatedly encouraged the jurors to compare Harris and
his conduct to conduct and personalities irrelevant to the case.” Id.
Thus, applying the plain error standard the court concluded that
the trial court’s failure to correct the prosecutor’s improper conduct
was an obvious and substantial error. Id. at 266-67.
¶ 66 A couple of additional broader points bear mentioning.
Unfortunately, our trial and appellate courts are too often
confronted with addressing whether a prosecutor has engaged in
improper conduct, particularly when addressing a jury. Some of
this activity is attributable to the sometimes gray line between
permissible advocacy and rhetorical excess. And in some instances,
such issues are attributable to defense counsel’s unfounded effort
to search for error that would justify a mistrial or reversal. But too
often, the issue arises because the prosecutor has elected to push
or exceed the boundaries of permissible argument.
31 ¶ 67 It is important for prosecutors to recognize and reflect on the
unique and special role with which they have been entrusted. Their
polestar is not victory, it is justice. Garcia v. People, 2022 CO 6,
¶ 18 n.6 (“A prosecutor’s ultimate goal is justice, which is not
always synonymous with victory.”). The effective fulfillment of this
essential role requires a significant measure of self-restraint. Given
the emotionally charged circumstances of many criminal
accusations, an inclination to succumb to clever rhetorical devices
can blur professional conscience. And as illustrated by the
circumstances of this case, our forgiving standards of reversal do
not provide a reliable means of deterrence against such excesses.
¶ 68 In the end, the criminal justice system is dependent upon the
unflinching professionalism of prosecutors. Across this state, many
prosecutors consistently meet that challenge. But most is not
sufficient; we need all prosecutors to assume that mantle.
3. Impact on Judgment of Conviction
¶ 69 Despite my conclusion that the prosecutor made repeated
improper references to Dexter, vigilantism, and anarchy, I cannot
conclude that the trial court’s error in permitting such conduct
rises to the level of reversible plain error. Aside from Corey’s
32 testimony, no evidence supported the conclusion that Johnson
threatened anyone on the day he was murdered. The person who
answered the door in response to his knock stated that Johnson
simply inquired about his bike. And there was no evidence that
Johnson was armed or attempted to enter the home.
¶ 70 Contradicting Corey’s testimony, the prosecution introduced a
door camera video that captured the shooting. The video showed
Corey exiting the van where he had spent the night and walking
toward Johnson with his pistol drawn. The video captured Corey
firing three shots as Johnson was walking towards him. The video
then showed Johnson turning to walk away from Corey. When
Johnson was approximately ten feet from Corey and heading away
from him, Corey fired the fatal shot into Johnson’s back. This video
provided the jury with overwhelming evidence that Corey was not
acting in defenses of others or himself when he killed Johnson.
Given this undisputed evidence, I cannot conclude that the
prosecutor’s improper conduct “cast serious doubt on the reliability
of the judgment of conviction.” Hagos, ¶ 14 (citation omitted).
Accordingly, I conclude that the trial court’s error was harmless.
33 III. Conclusion
¶ 71 For these reasons, I agree with my colleagues’ conclusion that
Corey’s conviction must be affirmed.