Peo v. Hazard

• Court: Colorado Court of Appeals
• Decided: January 30, 2025
• Docket: 22CA0009
• Status: Unpublished

Opinion

22CA0009 Peo v Hazard 01-30-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0009 El Paso County District Court No. 18CR2373 Honorable Frances R. Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Marquis Dantre Hazard,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division IV Opinion by JUDGE HARRIS Grove and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 30, 2025

Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Sean James Lacefield, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Marquis Dantre Hazard, appeals the judgment of

conviction entered after a jury found him guilty of first degree

murder (after deliberation) and other offenses. He contends that

the trial court erred by admitting certain evidence concerning his

police interrogation and his then girlfriend’s plea agreement; by

imposing a sentence of life in prison without the possibility of

parole; and by entering convictions on dismissed counts and failing

to merge convictions on other counts.

¶2 We agree that certain convictions and sentences must be

vacated, either because the counts were dismissed or merger

applies, and remand to the trial court for correction of the mittimus.

We otherwise reject Hazard’s claims and affirm the judgment of

conviction.

I. Background

¶3 Much of the evidence in this case was undisputed. On April

21, 2018, Nashid Rivers shot and killed two people while he and the

victims were in a car parked on a cul-de-sac in Colorado Springs.

Hazard and his girlfriend were parked nearby. After the shooting,

Rivers got into the other car, and Hazard drove to Rivers’

apartment.

1 ¶4 Later, Hazard disposed of items connected to the murders. He

first threw a bag containing Rivers’ clothes into a dumpster outside

a convenience store. He and his girlfriend then drove back to the

scene of the shooting and retrieved two cell phones, a purse, and a

backpack from the victims’ car. Hazard discarded the purse and

phones at different locations. The backpack contained about a

pound of marijuana, which Hazard either sold or gave away.

¶5 Within a few days, the police had identified Hazard as a

suspect and brought him to the police station for questioning.

During the interview, Hazard admitted that Rivers, who he knew

through an online gaming platform, had offered him $5,000 to meet

at the cul-de-sac on the morning of April 21 and drive back to

Rivers’ apartment. Hazard also admitted that he returned to the

scene after the shooting and disposed of various items connected to

the crime. But he denied knowing that Rivers intended to shoot the

victims.

2 ¶6 Hazard was charged with two counts of first degree murder

(after deliberation), two counts of first degree felony murder,1

aggravated robbery, conspiracy, and accessory and tampering

offenses. The prosecution later dismissed the aggravated robbery

counts.

¶7 At trial, to rebut Hazard’s defense that he lacked knowledge of

any plan to shoot the victims, the prosecution introduced text

messages recovered from Rivers’ cell phone. In a message sent just

before the shooting, Rivers told Hazard that he was “just bout to

dome [a victim],” which, according to a prosecution witness, meant

to shoot him in the head. Hazard responded, “Yup for sure.”

During the same exchange, Hazard acknowledged that “shit” might

“pop off” at the pick-up spot. The prosecution also introduced

evidence that Hazard and Rivers met at the cul-de-sac the night

before the shooting, where Rivers fired a gun.

1 In April 2021, the General Assembly reclassified felony murder as

a class 2 felony. Ch. 58, sec. 2, § 18-3-103(1)(b), 2021 Colo. Sess. Laws 236. The reclassification applies to offenses committed on or after September 15, 2021. Ch. 58, secs. 2, 6, § 18-3-103(1)(b), 2021 Colo. Sess. Laws 238.

3 ¶8 The jury returned guilty verdicts on all the submitted charges.

Hazard, who was nineteen at the time of the shootings and was

found guilty of murder as a complicitor, argued that the mandatory

sentence of life in prison without parole violated the Federal and

State Constitutions’ prohibition on cruel and unusual punishment.

The trial court rejected the argument and imposed the statutorily

mandated sentence. See § 18-1.3-401(1)(a)(V)(A), C.R.S. 2024.

II. Evidentiary Issues

¶9 Hazard argues that the trial court erred by allowing the

prosecution (1) to comment on his post-arrest silence by noting

information he withheld during his interview and (2) to bolster the

girlfriend’s credibility by introducing evidence of her plea

agreement’s “truthfulness” requirement.

A. Standard of Review

¶ 10 We review a trial court’s evidentiary rulings for an abuse of

discretion. Gonzales v. People, 2020 CO 71, ¶ 25. To the extent an

evidentiary ruling implicates a defendant’s constitutional rights, we

review the issue de novo. People v. Castro, 2022 COA 101, ¶ 20.

¶ 11 Hazard did not preserve either of his evidentiary claims.

Consequently, even if the court erred, we will not reverse unless the

4 error was plain. See People v. Rodriguez, 2021 COA 38M, ¶ 7. An

error is plain when it is obvious and substantial and so undermines

the fundamental fairness of the trial as to cast serious doubt on the

reliability of the judgment of conviction. Hagos v. People, 2012 CO

63, ¶ 14. An obvious error is one that is “so clear cut . . . that a

trial judge should have been able to avoid it without benefit of

objection.” People v. Conyac, 2014 COA 8M, ¶ 54. To satisfy this

requirement, the challenged action ordinarily must contravene a

statute, a well-settled legal principle, or Colorado case law. Scott v.

People, 2017 CO 16, ¶ 16. Therefore, an error is not obvious when

a division of the court of appeals “has previously rejected an

argument being advanced by a subsequent party who is asserting

plain error.” Id. at ¶ 17.

B. Comments on Post-Arrest Silence

1. The Testimony and Comments at Trial

¶ 12 Hazard did not testify. His post-arrest statements were

introduced at trial, however, through the admission of his two-and-

a-half-hour police interview. Afterward, a detective testified that

during the interview, Hazard had failed to disclose certain

information, including

5 • that he and Rivers had met at the scene the night before;

• any explanation for why Rivers would have offered him

$5,000 for a short ride;

• that after the shootings, he deleted things from his

phone; and

• that on the morning of the shootings, he and Rivers had

exchanged text messages in which Rivers expressed an

intent to “dome” the victims and Hazard acknowledged

that “shit [might] pop off.”

During closing argument, the prosecutor returned to Hazard’s

interview omissions, arguing that

even during the police interview, [Hazard] continued concealing. Again and again and again given chances to come forward with what he knew, the context. He didn’t. Most importantly, he didn’t tell you what he and [Rivers] had discussed the night before.

¶ 13 On appeal, Hazard contends that the detective’s testimony and

the prosecutor’s argument amounted to impermissible comments

on his post-arrest silence.

6 2. Discussion

¶ 14 Every person has a constitutional right to remain silent during

police questioning. See U.S. Const. amend. V; Miranda v. Arizona,

384 U.S. 436, 460-61 (1966). Indeed, before a custodial

interrogation occurs, police must advise a suspect of this right.

Miranda, 384 U.S. at 467-68. As a result, not only is “every post-

arrest silence . . . insolubly ambiguous,” as it “may be nothing more

than the arrestee’s exercise of [his] Miranda rights,” but the

prosecutor’s use of the arrestee’s silence to impeach “would be

fundamentally unfair” given that the Miranda warnings carry an

implicit “assurance that silence will carry no penalty.” Doyle v.

Ohio, 426 U.S. 610, 617-18 (1976).

¶ 15 Thus, a prosecutor may not present evidence of or comment

on the defendant’s post-Miranda-warning silence to create an

inference of guilt. People v. Ortega, 597 P.2d 1034, 1036 (Colo.

1979); People v. Coleman, 2018 COA 67, ¶ 34. And this rule applies

even when the defendant waives his right to remain silent and

makes some statements. See Ortega, 597 P.2d at 1037 (at theft

trial, prosecutor could not impeach the defendant with his failure to

tell police that he took tools from a truck to safeguard them, even

7 though, during a post-arrest statement, he admitted taking the

tools).

¶ 16 But an exception applies when the defendant makes a

statement to police that omits significant details “which are later

included in a subsequent statement.” People v. Quintana, 665 P.2d

605, 610 n.7 (Colo. 1983). In that circumstance, “the omission of

significant details is in the nature of a prior inconsistent

statement.” People v. Davis, 312 P.3d 193, 199 (Colo. App. 2010),

aff’d, 2013 CO 57; see also Castro, ¶ 29 (Whether a prosecutor may

impeach a defendant with his post-arrest statements depends on

“whether the prosecutor’s question or argument is ‘designed to draw

meaning from silence’ or instead merely ‘to elicit an explanation for

a prior inconsistent statement.’” (quoting Hendrix v. Palmer, 893

F.3d 906, 925 (6th Cir. 2018))).

¶ 17 Hazard says that the rule, not the exception, applies here

because he did not make a subsequent statement or advance an

inconsistent theory of defense at trial. Thus, he argues, the

prosecutor’s questions and argument could only have been an

attempt to imply guilt from his silence.

8 ¶ 18 We need not reach the merits of Hazard’s argument because

People v. Lewis, 2017 COA 147, forecloses a finding of plain error.

In that case, the defendant was arrested after he sent sexually

explicit messages to, and then arranged to meet, a detective posing

as a fourteen-year-old girl. Id. at ¶¶ 2-3. He waived his Miranda

rights and “talked freely” with police for “nearly forty minutes.” Id.

at ¶ 32. At trial, the theory of defense was that the defendant did

not actually believe the person with whom he was communicating

was only fourteen. Id. at ¶ 3. During closing argument, the

prosecutor “contrasted what [the defendant] had said [during the

interview] with what he had not said,” including that he had never

“categorically denied” that he would have had sex with the girl if she

had turned out to be a minor. Id. at ¶ 33.

¶ 19 On appeal, the defendant argued, as Hazard does here, that

the prosecutor’s comments on his interview omissions were an

improper attempt to imply guilt based on his right to remain silent.

Id. at ¶ 29. The division rejected this argument. It differentiated

between a scenario — like the one in Ortega — where a defendant

makes “a brief statement, answer[s] only some questions, or

volunteer[s] only limited statements” and a scenario — like the one

9 here — where a defendant “talk[s] at length, and . . . never

attempt[s] to refrain from answering inquiries” or assert the right to

silence or counsel. Lewis, ¶¶ 34-36. The division concluded that in

the latter scenario, the comments concerning omissions went “not

to [the defendant’s] silence in the face of police questioning but,

rather, to the content of his statements.” Id. at ¶ 34.

¶ 20 In light of Lewis, any error in allowing the detective’s

testimony about, or the prosecutor’s comments on, Hazard’s

interview omissions was not obvious. See Scott, ¶ 17. Contrary to

Hazard’s argument, that would be true even if we disagreed with

Lewis because, at the time of trial, Lewis was controlling precedent,

which the trial court was bound to follow. See People v. Crabtree,

2024 CO 40M, ¶ 53 (“[P]lainness refers to how obvious or clear-cut

an error is at the time it is made.”); see also People v. Tun, 2021

COA 34, ¶ 48 (a trial court’s compliance with existing binding

precedent is not plain error).

¶ 21 Nor do we view the testimony or comments as so prejudicial

that their admission casts serious doubt on the reliability of

Hazard’s conviction. The jury viewed the interview and could see

that Hazard omitted certain information that was ultimately

10 introduced into evidence. Cf. People v. McFee, 2016 COA 97, ¶ 78

(no plain error when witness testifies about an issue of which the

jury has equal knowledge). And it was the information itself, not

Hazard’s failure to disclose it, that prejudiced his defense. For

example, the fact that Hazard did not mention certain text

messages during the interview was not more prejudicial than the

fact that he exchanged text messages that tended to demonstrate

his knowledge of Rivers’ plan to shoot the victims. Likewise,

Hazard’s failure to provide an explanation about the $5,000 ride did

not suggest knowledge or guilt so much as the $5,000 offer itself

and his concession to the detective that Rivers would not have paid

that amount for a simple ride home.

¶ 22 Finally, we disagree that the prosecutor impermissibly

commented on Hazard’s right not to testify when he told the jury,

“[Hazard] didn’t tell you what he and [Rivers] had discussed the

night before.”

¶ 23 To determine whether a comment constitutes an

impermissible reference to the defendant’s failure to testify, we

consider, among other factors, whether “the comment referred

specifically to the defendant’s failure to take the stand or to rebut

11 the evidence against him”; whether the comments were “aggravated

or repetitive”; and whether the defendant was “the only person who

could refute the evidence which caused the comments to be directly

pointed at the accused.” People v. Todd, 538 P.2d 433, 436 (Colo.

1975). The prosecutor did not specifically refer to Hazard’s decision

not to testify. And because the comment was made during an

argument about what Hazard failed to tell the police, we interpret

the comment — which was brief and isolated — as a reference to

Hazard’s omissions during his interview, albeit a poorly worded

reference. Thus, we cannot say that the prosecutor’s comment,

considered in context, was “calculated or intended to direct the

attention of the jury” to his failure to testify. Howard-Walker v.

People, 2019 CO 69, ¶ 44 (citation omitted).

¶ 24 In sum, any error in allowing the detective’s testimony or the

prosecutor’s comments about Hazard’s interview omissions was not

plain and, therefore, does not warrant reversal of Hazard’s

convictions.

12 C. Bolstering by Use of the Plea Agreement

1. Evidence of the Agreement’s Truthfulness Requirement

¶ 25 Before trial, Hazard’s girlfriend pleaded guilty pursuant to a

plea agreement to accessory to a crime, a class 6 felony. She

testified that the plea agreement required her to provide truthful

statements to police and at trial. Later, a detective testified that he

had interviewed the girlfriend and reiterated that the plea

agreement required her statements to be “truthful.” The plea

agreement, which was admitted into evidence, defined a “truthful

statement” as “one that can be supported by other facts, physical

evidence, or other corroboration.”

¶ 26 On appeal, Hazard contends that the prosecution used

evidence of the plea agreement’s “truthfulness” requirement,

including its definition of truthfulness, to impermissibly vouch for

and bolster the girlfriend’s credibility.

2. Discussion

¶ 27 A prosecutor may elicit testimony that a plea agreement

requires truthful testimony so long as he does not “express an

opinion that the witness actually told the truth” or suggest that he

“possesses information unavailable to the jury.” People v. Sellers,

13 2022 COA 102, ¶ 30, aff’d, 2024 CO 64. Thus, the use of an

agreement’s “truthfulness” requirement amounts to impermissible

bolstering only if the prosecutors “explicitly or implicitly indicate

that they can monitor and accurately verify the truthfulness of the

witness’s testimony” — in other words, when the prosecutor

essentially “guarantees . . . the veracity of the witness[].” People v.

Coughlin, 304 P.3d 575, 583-84 (Colo. App. 2011) (citation omitted).

Still, “a prosecutor does not impermissibly vouch for a witness by

indicating that he or she might be able to verify the testimony.” Id.

at 584 (emphasis added).

¶ 28 Hazard contends that the prosecution presented evidence that

the girlfriend’s statements to the detective and at trial had

“independent, but unknown, corroboration” and had been verified

by the prosecution. No witness testified about a corroboration

requirement, though, or otherwise suggested that police had verified

any statements, and the prosecutor did not mention the

corroboration provision during opening statement or closing

argument. To the extent Hazard asserts that the alleged error

stemmed from questions concerning the plea agreement’s

truthfulness requirement, that assertion is contradicted by settled

14 law. See id. at 582; People v. Racheli, 878 P.2d 46, 48 (Colo. App.

1994).

¶ 29 The only reference to corroboration was in the plea agreement

itself, and defense counsel did not object to its admission. So even

if the agreement’s truthfulness definition implied that the

girlfriend’s testimony had been corroborated or verified, the court

did not plainly err by admitting the agreement unless the error was

obvious. As a general matter, a plea agreement is admissible. See,

e.g., Racheli, 878 P.2d at 48. For the error to be obvious, then, the

court had to know, without the benefit of an objection, that this

particular plea agreement contained a truthfulness definition

(consisting of a single sentence on page three of a thirteen-page

agreement) that might imply corroboration or verification of the

girlfriend’s statements. Hazard does not offer any theory to support

an obviousness finding under these circumstances, and we cannot

discern one.

¶ 30 We also disagree that admission of the plea agreement, even if

the truthfulness definition implied corroboration, prejudiced

Hazard. He says that the jury might have read the agreement and

assumed from the truthfulness definition that the girlfriend’s trial

15 testimony had been corroborated or verified, even though some

statements were uncorroborated. But the four statements Hazard

identifies as uncorroborated were either corroborated by other

evidence or of such limited probative value that the jury’s

assumption of corroboration would not have prejudiced his defense.

(1) According to the detective, the girlfriend told him that

Hazard and Rivers went to the cul-de-sac the night before

the murders, and one of them shot a gun. The

girlfriend’s statement was corroborated by cell phone

evidence placing Hazard at the scene that night and a

photograph taken shortly before the murders showing

Rivers with a gun.

(2) The detective also testified that the girlfriend recalled

Rivers saying, just after the shootings, that he had

“domed” the victims. True, the veracity of that statement

was unverified, but the prosecution introduced text

messages in which Rivers told Hazard he intended to

“dome” the victims, and the evidence established that

Rivers shot both victims in the head.

16 (3) Whether Hazard initially told the girlfriend that they were

going to the gym on the morning of the murders, as the

girlfriend testified, was immaterial, considering that

Hazard admitted during his interview that he did not go

to the gym, and both Hazard and the girlfriend told police

that she was present at the scene.

(4) The girlfriend testified that Rivers instructed her and

Hazard to dispose of evidence, a statement corroborated

by Hazard in his interview. And an assumption of

corroboration would not have prejudiced Hazard in any

case, as the statement tended to show that Rivers, not

Hazard, ordered the destruction of evidence.

¶ 31 Accordingly, we perceive no plain error in the admission of the

plea agreement or testimony about its truthfulness requirement.

III. Constitutionality of the Life-Without-Parole Sentence

¶ 32 Both the Federal and Colorado Constitutions prohibit “cruel

and unusual punishments.” U.S. Const. amend. VIII; Colo. Const.

art. II, § 20. Recognizing that “children are constitutionally

different from adults for purposes of sentencing,” the Supreme

Court has held that mandatory life-without-parole sentences for

17 juveniles are unconstitutional. Miller v. Alabama, 567 U.S. 460,

470-71 (2012).

¶ 33 On appeal, Hazard argues that because mandatory life-

without-parole sentences for juveniles violate the Eighth

Amendment, and “youthful offenders” (a class Hazard defines as

“those under 21 years old at the time of the offense”) share many of

the characteristics of juveniles, then mandatory life-without-parole

sentences for youthful offenders also violate the Eighth

Amendment.

¶ 34 But the Supreme Court has already considered and rejected

this argument, which is just another way of saying that drawing a

constitutional line at eighteen is arbitrary. In Roper v. Simmons,

543 U.S. 551, 574 (2005), the Court acknowledged that the

“qualities that distinguish juveniles from adults do not disappear

when an individual turns 18,” and it foresaw objections to

“[d]rawing the line at 18 years of age.” Nonetheless, it determined

that “a line must be drawn,” and eighteen is a rational place to

draw it, as that is the “point where society draws the line for many

purposes between childhood and adulthood.” Id.

18 ¶ 35 We may not redraw an Eighth Amendment line — that is up to

the Supreme Court. See People v. Parks, 987 N.W.2d 161, 172

(Mich. 2022) (“[W]e cannot contradict the Supreme Court if it has

drawn a clear and unambiguous line under the United States

Constitution between those under the age of 18 and those aged 18

and older.”); see also United States v. Chavez, 894 F.3d 593, 609

(4th Cir. 2018) (declining to redraw Miller’s line between juvenile

and adult, even though “individual differences in maturity will

necessarily mean that age-based rules will have an element of

arbitrariness”); United States v. Williston, 862 F.3d 1023, 1039-40

(10th Cir. 2017) (recognizing that Miller’s “age cutoff” between

juveniles and adult offenders raises “some element of arbitrariness”

but explaining that “[i]f the Miller ruling is to be expanded, it is the

province of the Supreme Court to do so”).

¶ 36 Hazard’s argument relying on the state constitution is equally

unavailing. Although state courts are free to interpret state

constitutional provisions more expansively than identical provisions

of the United States Constitution, see Rocky Mountain Gun Owners

v. Polis, 2020 CO 66, ¶ 34, our supreme court has declined to

interpret article II, section 20, of the Colorado Constitution to

19 provide greater protection than the Eighth Amendment. See Sellers

v. People, 2024 CO 64, ¶ 36; cf. Commonwealth v. Mattis, 224

N.E.3d 410, 415 (Mass. 2024) (extending Miller’s holding to twenty-

year-olds under the state constitution);2 Parks, 987 N.W.2d at 170

(extending Miller’s holding to eighteen-year-olds under the state

constitution, which “has historically afforded greater bulwarks

against barbaric and inhumane punishments”); Matter of Monschke,

482 P.3d 276, 279 n.6, 280 (Wash. 2021) (extending Miller’s holding

to twenty-year-olds under the state constitution, which “provides

greater protection than the Eighth Amendment”) (citation omitted).

¶ 37 The exercise of our independent judgment is still limited by

“standards elaborated by controlling precedents.” Graham v.

Florida, 560 U.S. 48, 61 (2010) (citation omitted). Accordingly, only

our supreme court, not this court, can decide that article II, section

20, provides greater protections than the Eighth Amendment,

2 The Massachusetts Supreme Court had previously held that the

state’s Declaration of Rights affords criminal defendants greater protections “than are available under corresponding provisions of the Federal Constitution.” Diatchenko v. Dist. Att’y for Suffolk Dist., 1 N.E.3d 270, 283 (Mass. 2013).

20 which, in turn, would provide an avenue for extending Miller to non-

juveniles.

IV. Erroneously Entered Convictions

A. Aggravated Robbery

¶ 38 Before jury deliberations, the prosecution dismissed the two

counts of aggravated robbery and the associated crime of violence

sentence enhancers. Nonetheless, the trial court entered

convictions and sentences for aggravated robbery.

¶ 39 Hazard contends, the People concede, and we agree that the

court erred by entering convictions on the substantive counts and

the sentence enhancers. See People v. Oliver, 2018 COA 146, ¶ 11

(“[A] judgment of conviction absent a jury verdict of guilty is

structural error . . . .”).

B. Conspiracy

¶ 40 Hazard was convicted of one count of conspiracy to commit

first degree murder and two counts of conspiracy to commit

aggravated robbery. The court entered separate convictions and

sentences on the three counts.

¶ 41 Hazard contends, the People concede, and we agree that

because the underlying crimes were part of a single criminal

21 episode, the court should have merged the conspiracy convictions

and entered a single conviction and sentence for conspiracy to

commit first degree murder. See § 18-2-201(4) (“If a person

conspires to commit a number of crimes, he is guilty of only one

conspiracy so long as such multiple crimes are part of a single

criminal episode.”); People v. Woodyard, 2023 COA 78, ¶ 86 (In

accordance with double jeopardy principles, “a single conspiratorial

agreement may not be divided into multiple charges.”) (citation

omitted).

V. Disposition

¶ 42 The convictions and sentences for aggravated robbery (counts

10 and 26) and the convictions for the associated sentence

enhancers (counts 11, 12, 27 and 28) are vacated, as are the

convictions and sentences for conspiracy to commit aggravated

robbery (counts 13 and 29). Accordingly, we remand to the trial

court for correction of the mittimus. In all other respects, the

judgment of conviction is affirmed.

JUDGE GROVE and JUDGE PAWAR concur.