22CA1903 Peo v Hicks 02-27-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1903 Boulder County District Court No. 21CR266 Honorable Nancy W. Salomone, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Robert William Hicks,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE YUN Harris and Martinez*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 27, 2025
Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Eric A. Samler, Alternate Defense Counsel, Hollis A. Whitson, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Robert William Hicks appeals the judgment of conviction
entered on jury verdicts finding him guilty of second degree murder
and third degree assault. He contends that the district court erred
by (1) failing to appropriately instruct the jury on self-defense;
(2) limiting his questioning of a witness; and (3) denying his motion
to suppress testimony regarding statements he made and
observations of his demeanor while he was in police custody. We
reject those contentions and affirm the conviction.
I. Background
¶2 On February 14, 2021, Hicks and his roommate (the victim)
met up with another friend to celebrate the friend’s birthday. That
afternoon, while the three were driving to a restaurant to get
something to eat, Hicks and the victim got into a fistfight.
According to the friend’s testimony at trial, the victim ended up with
swollen eyes, a bloody nose, bloody lips, and swollen cheeks after
being “hit about 20 times.” After the three returned to the
apartment Hicks and the victim shared, the friend went home,
leaving Hicks and the victim alone.
¶3 Approximately forty-five minutes later, Hicks called 911 and
told the operator that the victim was having trouble breathing, had
1 “some sort of trauma to his stomach,” and needed paramedics.
Hicks said that he did not know what happened and “had no idea”
what had caused the victim’s condition.
¶4 When the police arrived, one of the two responding officers
found the victim unconscious in his bedroom. The victim was
transported to the hospital, where he was pronounced dead. A
forensic pathologist testified at trial that the victim had suffered
eleven stab wounds spanning from his mid-thigh to his chest, one
of which “injured the left iliac artery and the left iliac vein,” leading
to a “quick mass of blood loss.” The pathologist testified that a
person would have lost consciousness “within seconds” after
sustaining such wounds.
¶5 The other responding officer stayed with Hicks in the living
room area. Hicks told the officer that the victim “possibly fell on
something sharp and . . . possibly did something to his own health.”
Approximately ten minutes later, the officer placed Hicks in
handcuffs and moved him into the hallway outside the apartment
door. Hicks was subsequently taken to the police station and
placed in an interview room. At no point that evening did the police
2 advise him of his rights under Miranda v. Arizona, 384 U.S. 436
(1966).
¶6 The People charged Hicks with third degree assault for the
fistfight and first degree murder for the stabbing. Hicks testified at
trial that he stabbed the victim in self-defense. Specifically, he
testified that he was eating dinner in the kitchen when the victim
approached him, “holding a knife in his right [hand] down by his
waist,” and grabbed his head. Fearing for his life, Hicks “started
jabbing and poking at [the victim] repeatedly with the knife that [he]
had” been using to eat. After Hicks stabbed him, the victim
retreated to his bedroom. The prosecution’s theory of the case was
that the physical evidence did not support Hicks’s testimony that
the fight started in the kitchen. Rather, the evidence showed that
Hicks attacked the victim in his bedroom, where the police later
found him unconscious.
¶7 The jury found Hicks guilty of third degree assault and second
degree murder, and the district court sentenced him to thirty-six
years in prison.
¶8 Hicks now appeals.
3 II. Self-Defense Instruction
¶9 Hicks contends that the district court reversibly erred by
refusing to instruct the jury on his right to use deadly force to repel
a second degree assault and by failing to provide a definition of
“great bodily injury.” We are not persuaded.
A. Standard of Review
¶ 10 “We review jury instructions de novo to determine whether the
instructions accurately informed the jury of the governing law,”
considering “all of the instructions given by the trial court together
to determine whether they properly advised the jury.” Roberts v.
People, 2017 CO 76, ¶ 18. But we review a district court’s decision
to give, or not give, a particular jury instruction for an abuse of
discretion. People v. Jones, 2023 COA 104, ¶ 16. “An abuse of
discretion occurs when a trial court’s ruling is manifestly arbitrary,
unreasonable, or unfair, or contrary to law.” People v. Van Meter,
2018 COA 13, ¶ 9.
¶ 11 “[W]hen the evidence presented properly raises the issue of an
affirmative defense, the affirmative defense effectively becomes an
additional element of the charged offense . . . .” Roberts, ¶ 22. If a
district court fails to properly instruct the jury on an affirmative
4 defense, “then the prosecution’s burden of proof has been
impermissibly lowered, implicating a defendant’s constitutional
rights.” Pearson v. People, 2022 CO 4, ¶ 16. “Such an error, if
preserved, is subject to constitutional harmless error review.” Id. A
constitutional error requires reversal unless it was harmless beyond
a reasonable doubt. Hagos v. People, 2012 CO 63, ¶ 11. Under
this standard, we must reverse if there is any reasonable possibility
that the error might have contributed to the conviction. Id.
B. Governing Law
¶ 12 “[A] person is justified in using physical force upon another
person in order to defend himself” 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.”
§ 18-1-704(1), C.R.S. 2024. “Deadly physical force may be used
only if a person reasonably believes a lesser degree of force is
inadequate” and, as relevant here, either (1) “[t]he actor has
reasonable ground to believe, and does believe, that he . . . is in
imminent danger of being killed or of receiving great bodily injury,”
5 or (2) “[t]he other person is committing or reasonably appears about
to commit” first or second degree assault. § 18-1-704(2)(a), (c).
¶ 13 “Great bodily injury,” which is not statutorily defined, means
the same thing as “serious bodily injury,” which is statutorily
defined. People v. Reed, 695 P.2d 806, 808 (Colo. App. 1984)
(“[T]here is no rational basis for distinguishing between ‘great’ and
‘serious’ as applied to bodily injury.”). At the time of Hicks’s trial,
“serious bodily injury” was defined as
bodily injury which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.
§ 18-1-901(3)(p), C.R.S. 2022.1
¶ 14 As relevant here, a person commits first degree assault if,
“[w]ith intent to cause serious bodily injury to another person, he
causes serious bodily injury to any person by means of a deadly
weapon.” § 18-3-202(1)(a), C.R.S. 2024.
1 The definition has since been updated to clarify that “a
penetrating knife . . . wound” constitutes serious bodily injury. § 18-1-901(3)(p), C.R.S. 2024.
6 ¶ 15 Again as relevant here, a person commits second degree
assault if,
(b) [w]ith intent to cause bodily injury to another person, he . . . causes such injury to any person by means of a deadly weapon; or
....
(d) [h]e recklessly causes serious bodily injury to another person by means of a deadly weapon.
§ 18-3-203(1)(b), (d), C.R.S. 2024.
¶ 16 “Bodily injury” means “physical pain, illness, or any
impairment of physical or mental condition.” § 18-1-901(3)(c),
C.R.S. 2024.
C. Additional Background
¶ 17 At trial, as discussed above, Hicks testified that he was eating
dinner in the kitchen when the victim approached him with a knife
and violently grabbed his head. To defend himself, he started
“jabbing and poking” at the victim with the knife he had been using
to eat. On direct examination, Hicks testified about his fear of
injury and the possibility that the victim had in fact cut him:
[DEFENSE COUNSEL:] Why did you feel like you needed to defend yourself? What were you afraid of?
7 [HICKS:] He was going to stab me. And based on the earlier incident that we had during the day, I would have got stabbed.
[DEFENSE COUNSEL:] So in your mind, you believed that he was going to stab you?
[HICKS:] He was, yeah.
[DEFENSE COUNSEL:] Now, is it possible he may have cut you in some way or cut your clothing?
[HICKS:] He might have briefly made an attempt to stab me, and he might have made contact, and, sure, he might have got me,[2] but I was a good bit quicker than he was, and he — it was — it was nothing near the extent of what ended up happening to him.
On cross-examination, Hicks confirmed that he “believed [the
victim] was going to stab [him]” and that he believed he was “going
to be seriously injured” or “possibly killed.”
¶ 18 Hicks tendered instructions that would have informed the jury
that he was justified in using deadly force not only if he reasonably
believed he was in imminent danger of being killed or of receiving
great bodily injury, § 18-1-704(2)(a), but also if the victim
reasonably appeared poised to commit first or second degree
2 Hicks later testified that the victim did not injure him in any way
with the knife.
8 assault, § 18-1-704(2)(c). He also tendered instructions setting
forth the elements of first and second degree assault.
¶ 19 His proposed first degree assault instruction tracked the
language of section 18-3-202(1)(a) and would have informed the
jury that a person commits first degree assault if, with intent to
cause serious bodily injury to another person, he causes serious
bodily injury to any person by means of a deadly weapon. His
proposed second degree assault instruction tracked the language of
section 18-3-203(1)(d) and would have informed the jury that a
person commits “assault in the second degree (reckless)” if the
person “recklessly caused serious bodily injury to another person,
by means of a deadly weapon.” He also tendered an instruction
containing the definition of “serious bodily injury.”
¶ 20 At the jury instruction conference, the prosecutor argued that,
because “the testimony that we have is that [Hicks] was in fear for
his life or essentially receiving great bodily injury,” it was sufficient
under the facts of this case to instruct the jury that he was entitled
to use deadly force if he reasonably believed he was in imminent
danger of being killed or of receiving great bodily injury. The court
agreed that it should include only those instructions that “are
9 factually supported by the evidence,” and it declined to give Hicks’s
tendered instructions regarding first and second degree assault.
Because the definition of “serious bodily injury” was contained in an
instruction listing definitions relevant to first and second degree
assault, this definition was also not provided to the jury.
¶ 21 Ultimately, the jury was instructed as follows:
The defendant was legally authorized to use deadly physical force upon another person without first retreating if:
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.
D. Second Degree Assault
¶ 22 Hicks argues that the district court erred by refusing to
instruct the jury that he was justified in using deadly force if the
victim reasonably appeared about to commit second degree assault.
See § 18-1-704(2)(c). Specifically, he argues that a person may
10 commit second degree assault intending to cause only bodily injury,
not serious bodily injury, see § 18-3-203(1)(b), and that “[t]he jury
could have believed that it was unreasonable for Mr. Hicks to
believe that [the victim] would cause him serious or great bodily
injury, but they could have believed that it was reasonable for
Mr. Hicks to believe that [the victim] . . . might cause him pain.”
Relying on Kaufman v. People, 202 P.3d 542 (Colo. 2009), he argues
that the district court’s failure to instruct the jury that he was
justified in using deadly force if he “reasonably believed that [the
victim] intended to cause [him] bodily injury” lessened the
prosecution’s burden of disproving his affirmative defense of
self-defense.
¶ 23 Assuming, without deciding, that this issue was preserved and
that the district court erred by failing to instruct the jury on bodily
11 injury, thereby lessening the prosecution’s burden of proof,3 we
conclude that any error was harmless beyond a reasonable doubt.
¶ 24 Even if we assume Hicks acted in self-defense, the evidence is
overwhelming that Hicks did not act with a reasonable degree of
force. See Bartley v. People, 817 P.2d 1029, 1034 (Colo. 1991) (“A
constitutional error is harmless when the evidence properly received
against a defendant is so overwhelming that the constitutional
violation was harmless beyond a reasonable doubt.”). While Hicks
claimed that he “wasn’t trying to cause [the victim] harm” and that
he stabbed the victim for only “a couple seconds,” he inflicted eleven
stab wounds on the victim, spread all over the victim’s body. And
while Hicks claimed to have stabbed the victim in response to the
victim approaching him with a knife, the victim had no apparent
defensive injuries and Hicks had no knife injuries from the victim.
3 Contrary to Hicks’s argument on appeal, his tendered instruction
did not inform the jury that “a person may commit second degree assault intending to cause only bodily injury.” Instead, his tendered instruction informed the jury that a person commits second degree assault (reckless) by causing “serious bodily injury.” This is because his tendered instruction did not come from section 18-3-203(1)(b), C.R.S. 2024 (describing an “intent to cause bodily injury”), but instead came from section 18-3-203(1)(d) (describing recklessly causing “serious bodily injury”).
12 In fact, Hicks appeared unable to recreate the physical movements
that could have caused the eleven stab wounds. Thus, even if the
jury believed there was a reasonable doubt as to whether Hicks
acted in self-defense, there was overwhelming evidence that he did
not act with a reasonable degree of force when he stabbed the
victim eleven times. See § 18-1-704(2).
¶ 25 Additionally, the evidence is overwhelming that, contrary to
Hicks’s testimony, the fatal wound was inflicted with a knife in the
bedroom. While Hicks claimed he stabbed the victim in the kitchen
and severed his artery there, the tested blood in the kitchen was
Hicks’s own, not the victim’s.4 And while Hicks claimed that the
victim walked from the kitchen into the bedroom after Hicks
stabbed him and that Hicks talked to the victim through the
bedroom door for at least fifteen minutes, the pathologist testified
that the wound to the victim’s left iliac artery would have rendered
him unconscious within seconds or a few minutes. Further, there
was only one knife found in the bedroom. While Hicks claimed that
the knife found in the victim’s bedroom was the one the victim used
4 Hicks testified that he cut himself on the knife he used to stab the
victim.
13 to attack him and that he never touched it, eighty-eight percent of
the DNA on the handle of that knife belonged to Hicks. Since Hicks
never testified that the victim attacked him in the bedroom, the
infliction of the fatal wound there undermines his claim of
¶ 26 Following Kaufman, we continue to narrowly focus on the
particular facts of Hicks’s self-defense claim to determine whether
the conviction here was influenced by the district court’s failure to
instruct the jury that Hicks was justified in using deadly force if he
reasonably believed the victim intended to cause him only bodily
injury. In Kaufman, the supreme court held that the district court
plainly erred by erroneously instructing the jury that second degree
assault required an intent to cause serious bodily injury rather
than merely bodily injury. 202 P.3d at 549. At trial, there was
conflicting testimony regarding whether the victim had his arms in
the air as he approached the defendant or whether he reached
behind his back as he approached, leading the defendant to believe
he was reaching for a weapon. Id. at 547. After analyzing the
testimony in detail, including testimony regarding the victim’s
physical size, intoxication, and use of an antisemitic slur, the
14 supreme court concluded that “the evidence may have supported a
jury finding of intent to cause [only] bodily injury.” Id. at 550.
Because the jury was precluded from considering “whether [the
defendant’s] actions were justified if he reasonably believed that [the
victim] only intended to cause him bodily injury (i.e., physical
pain),” the instructional error could have prevented the jury from
accepting the defendant’s claim of self-defense, and reversal was
required under the plain error standard. Id. at 549.
¶ 27 This case, in contrast, did not turn on Hicks’s perception of
whether the victim intended to cause him bodily injury with a knife
or serious bodily injury, whether with a knife or by any other
means. Rather, it turned on whether or not the jury believed that
the victim attacked Hicks with a knife at all. As Hicks put it, the
“central dispute was whether (as Mr. Hicks testified) [the victim]
came out of his room with a knife and tried to attack Mr. Hicks as
he was eating, or whether (according to the People’s theory) [the
victim] never left his room but instead was attacked there by
Hicks.” If the jury believed that the victim attacked Hicks with a
knife, then the risk of serious bodily injury was obvious — as Hicks
himself repeatedly testified, he believed he was going to be stabbed
15 and was “going to be seriously injured” or “possibly killed.”5
Because the only self-defense theory offered at trial was that the
victim attacked Hicks with a knife, causing him to fear being killed
or seriously injured, the jury had no basis to believe that Hicks
feared only bodily injury but not serious bodily injury.
¶ 28 While a slight possibility may exist that the jury could have
believed that (1) Hicks used a reasonable degree of force; (2) the
fatal wound was not inflicted in the bedroom, or the victim attacked
Hicks in the bedroom; or (3) Hicks had a reasonable fear of bodily
injury from a knife but not serious bodily injury, the likelihood of
the jury having a reasonable doubt as to all of these propositions is
so remote that we conclude there is no reasonable possibility that
any error might have contributed to the conviction. Thus, the
court’s failure to instruct on fear of bodily injury as a defense was
harmless beyond a reasonable doubt.
5 Although Hicks argues in his reply brief that his testimony
reflected merely “a fear of being injured in general,” he acknowledges several times in his opening brief that he testified he was afraid specifically of being stabbed, noting that “Mr. Hicks testified he was afraid that [the victim] would stab him” and “Mr. Hicks feared that [the victim] would stab him.”
16 E. Definition of “Great Bodily Injury”
¶ 29 Next, Hicks argues that, because the jury was instructed that
self-defense required a belief “that he was in imminent danger of
being killed or of receiving great bodily injury,” the district court
erred by failing to provide a definition of “great bodily injury.”
Because “great bodily injury” and “serious bodily injury” mean the
same thing, Reed, 695 P.2d at 808, he argues that the court should
have provided the definition of serious bodily injury set forth in
section 18-1-901(3)(p), C.R.S. 2022. We conclude that any error
was harmless beyond a reasonable doubt.
¶ 30 In general, “[w]hen the legislature includes particular
definitions for terms it uses in a statute, those definitions, not an
average person’s understanding of the terms, govern.” People v.
Rigsby, 2020 CO 74, ¶ 24. In this case, however, the precise
definition of great or serious bodily injury was never implicated. If
the jury believed Hicks’s testimony, then it was clear that he had a
reasonable fear of being stabbed or killed. But if the jury accepted
the prosecution’s version of events — that Hicks attacked the victim
in his bedroom and never faced any danger — then the definition of
great or serious bodily injury was irrelevant. In either case, there is
17 no reasonable possibility that the lack of the definition might have
contributed to Hicks’s conviction.
¶ 31 Indeed, any error in failing to define great or serious bodily
injury would have inured to Hicks’s benefit. The jury received an
instruction in connection with the third degree assault charge
defining “bodily injury” as “physical pain, illness, or any impairment
of physical or mental condition.” Without a definition of great or
serious bodily injury, the jury would reasonably have relied on that
definition to discern the meaning of “great bodily injury.” Thus, the
alleged instructional error could only have benefited Hicks because
the jury would likely have interpreted “great bodily injury” to mean
simply “great physical pain,” thereby raising the prosecution’s
burden by allowing Hicks to use deadly force if he was in
reasonable fear of “great physical pain” as opposed to “a substantial
risk of death, a substantial risk of serious permanent
disfigurement, a substantial risk of protracted loss or impairment of
the function of any part or organ of the body, or breaks, fractures,
or burns of the second or third degree.” § 18-1-901(3)(p), C.R.S.
2022.
18 ¶ 32 We thus conclude that no reversible instructional error
occurred.
III. Evidentiary Ruling
¶ 33 Hicks contends that the district court erred by limiting his
questioning of a detective who helped process the crime scene. We
again disagree.
¶ 34 The district court has broad discretion in determining the
admissibility of evidence based on its relevance, probative value,
and prejudicial impact. People v. Elmarr, 2015 CO 53, ¶ 20. This
includes the discretion to rule on the admissibility of expert
testimony. Kutzly v. People, 2019 CO 55, ¶ 8. We review these
evidentiary rulings for an abuse of discretion. People v. Quillen,
2023 COA 22M, ¶ 14. The district court abuses its discretion if its
decision is manifestly arbitrary, unreasonable, or unfair, or if the
court misapplies the law. Id.
¶ 35 Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
19 the evidence.” CRE 401. 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. CRE
403. Evidence that is not relevant is not admissible. CRE 402.
¶ 36 “If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of
an opinion or otherwise.” CRE 702. Expert testimony “is that
which goes beyond the realm of common experience and requires
experience, skills, or knowledge that the ordinary person would not
have.” Venalonzo v. People, 2017 CO 9, ¶ 22. To determine
whether expert testimony is admissible under CRE 702, the court
must determine, among other things, the “qualifications of the
witness.” People v. Shreck, 22 P.3d 68, 70 (Colo. 2001).
¶ 37 A detective who helped process the crime scene was asked by
her supervisor “to conduct a walk-through of the apartment in
relation to blood pattern analysis.” In a report of her findings, she
20 wrote that there was blood “consistent with an arterial spurt stain”
on the dishwasher in the kitchen. According to her report,
• such a stain “is created when blood is ejected in a stream
under pressure, often occurring when an artery or the
heart is breached, and the circulatory system is still
under pressure”;
• “[i]t is known from the autopsy report that [the victim]
received a stab wound . . . to the left internal iliac artery
and left iliac vein”; and
• “[t]he stain patterns in the kitchen would be indicative of
this injury being created in the kitchen.”
However, this initial analysis was later disproven by DNA testing
that showed it was not the victim’s blood on the dishwasher —
rather, it was Hicks’s blood. Hicks testified that he accidentally cut
himself.
¶ 38 Hicks first sought to have the detective testify to the
conclusions in her report “to corroborate his testimony that the
confrontation with [the victim] occurred in the kitchen.” But the
district court determined that the detective was not qualified as a
blood spatter expert and that there was “little to no . . . content in
21 [her] report which could be elicited” that was outside the scope of
expert testimony. Hicks did not challenge the court’s ruling that
the detective was not qualified to give expert testimony, but he
argued that she could still testify “[t]hat she was asked to do a
walk-through in relation to blood pattern analysis”; “that she
walked around and she looked at different locations . . . where there
was blood located”; and “that there can be pertinent or helpful
information gained from looking at the different blood patterns.”
¶ 39 The prosecutor objected to this testimony on two grounds.
First, it was cumulative, because another detective had already
testified that the police look for blood at a crime scene in order to
figure out what happened. And second, it risked confusing the
jury, because
the second that we put a detective on the stand to testify about going in there to look at blood pattern[s], this jury, based on the questions that they just asked related to this last witness, is going to have 150,000 questions about what those patterns mean and what they told her and what she was able to determine from them, and she’s not qualified to provide that testimony. And then the jury is going to be wondering, even though they’re instructed not to, well, why aren’t these questions being answered.
22 The district court sustained the objection and ruled that “there will
not be testimony on this issue presented by [the detective].”
D. Discussion
¶ 40 Hicks argues that the district court erred by not permitting the
detective to testify that she walked through the apartment “in
relation to blood pattern analysis” and that law enforcement can
gain “helpful information . . . from looking at the different blood
patterns.” Although he insists that he “was not seeking to elicit an
expert opinion,” he argues that the detective’s testimony was
“pivotal” to the “central dispute” regarding whether the victim
attacked Hicks in the kitchen or Hicks attacked the victim in his
bedroom.
¶ 41 Hicks does not explain how the detective’s testimony about
gaining information from blood patterns could have supported his
account that he stabbed the victim in the kitchen without straying
into the realm of expert testimony. Nor does he explain how the
detective’s testimony could have supported his account of the
incident given that the blood on the dishwasher was not from the
victim. Further, we agree with the district court that the detective’s
testimony would have been cumulative, as another detective who
23 helped process the crime scene testified about the bloodstains in
the apartment and the fact that the police looked for blood in
“various locations to sort of help tell the story of where people were
moving around.” We thus discern no abuse of discretion in the
court’s ruling limiting the detective’s testimony. See Elmarr, ¶ 20.
¶ 42 We are not persuaded otherwise by Hicks’s alternative
argument that the detective’s testimony was necessary to allow him
“to point out to the jury that law enforcement could have done
further investigation and testing of the [blood] evidence” but did not
do so. On the contrary, another detective testified that, although
she could have had the “bloodstains and patterns analyzed by an
expert to determine how they potentially may have been deposited,”
she chose not to “send any sort of photographs or information to
have a blood spatter expert analyze these blood stains.” Hicks was
thus able to elicit that law enforcement could have ordered expert
blood spatter analysis but elected not to. And during closing
argument, defense counsel discussed the alleged deficiencies in the
investigation and emphasized the potential evidence that was not
collected or presented, including blood spatter analysis. See
People v. Brown, 2014 COA 155M-2, ¶ 16 (concluding that no
24 reversible error occurred where the defendant “was able to present
to the jury most of the evidence underlying his contention that the
police investigation was deficient and to argue the purported
inadequacy in closing”).
IV. Miranda Violation
¶ 43 Last, Hicks argues that, because he was never given a Miranda
advisement, the district court should not have allowed testimony
regarding (1) his demeanor while in police custody; (2) statements
he made about the fistfight; and (3) the fact that he did not initially
say that he had acted in self-defense. We begin by describing the
governing law and standard of review, then turn to Hicks’s
arguments.
A. Governing Law and Standard of Review
¶ 44 Before conducting a custodial interrogation, officers must give
a suspect a Miranda advisement to inform him of his constitutional
rights to remain silent and request an attorney. Miranda, 384 U.S.
at 444. Statements made during a custodial interrogation are
admissible in the prosecution’s case-in-chief only if they were
preceded by a Miranda advisement (unless the suspect voluntarily,
25 knowingly, and intelligently waived his rights, an issue not relevant
to this appeal). See Sanchez v. People, 2014 CO 56, ¶ 11.
¶ 45 In reviewing a district court’s ruling on a motion to suppress,
we defer to the court’s factual findings if they are supported by the
record and review the court’s application of law de novo. See
People v. Sampson, 2017 CO 100, ¶ 16. When a defendant raises
Miranda contentions on appeal that he did not raise before the
district court, we review those contentions for plain error. Phillips v.
People, 2019 CO 72, ¶ 38. Plain error is an error that is obvious
and substantial. Hagos, ¶ 14. An error is “obvious” if the
challenged action contravened a clear statutory command, a well-
settled legal principle, or Colorado case law. People v. Thompson,
2018 COA 83, ¶ 34, aff’d, 2020 CO 72. An error is “substantial” if
it so undermined the fundamental fairness of the trial itself as to
cast doubt on the reliability of the judgment of conviction. Hagos,
¶ 14.
B. Testimony Regarding Hicks’s Demeanor
¶ 46 Hicks argues for the first time on appeal that the district court
should not have permitted two officers who spoke with him while he
was handcuffed in the hallway outside his apartment to testify
26 about his demeanor. Specifically, he argues that the officers should
not have been allowed to testify that (1) “when we would ask some
questions, [Hicks] would almost seem like he was about to cry at
certain points”; and (2) Hicks became “belligerent” and “combative”
when asked questions. Because this argument is unpreserved, we
review for plain error.
¶ 47 Hicks provides no authority, nor are we aware of any, for the
proposition that “Miranda required the court to suppress [the
officers’] descriptions of Hicks’s demeanor when he was asked
questions.” Contrary to Hicks’s argument, Miranda applies to a
suspect’s statements, not to officers’ observations of the suspect.
See People v. T.C., 898 P.2d 20, 25 (Colo. 1995) (“The remedy for a
Miranda violation . . . is suppression of the statements obtained.”).
Given the lack of authority to support Hicks’s position, we conclude
that any error in the district court’s failure to suppress the officers’
testimony regarding his demeanor was not obvious. See Thompson,
¶ 34.
¶ 48 To the extent Hicks argues that his demeanor was an
expressive statement, he does not develop that argument. We
27 therefore decline to address it. See People v. Stone, 2021 COA 104,
¶ 52 (appellate courts do not address undeveloped arguments).
C. Statements About Fistfight
¶ 49 Second, Hicks argues that the district court should not have
permitted an officer who spoke with him while he was handcuffed to
testify regarding the fistfight earlier that day between Hicks and the
victim. Specifically, the officer had the following colloquy with the
prosecutor:
[PROSECUTOR:] At any point did Mr. Hicks make a statement referencing the prior incident?
[OFFICER:] Yes.
[PROSECUTOR:] And what was the statement that Mr. Hicks made to you?
[OFFICER:] He said that they were arguing a little bit earlier, and then — excuse my language — that a little bitch was acting like a little bitch.
[PROSECUTOR:] Did Mr. [Hicks] also indicate, no, there was no prior incident?
[OFFICER:] He did, yes.
[PROSECUTOR:] Did he indicate who he was referring to when he mentioned the little bitch?
[OFFICER:] No.
28 ¶ 50 The officer did not testify that Hicks made these statements in
response to a question. Rather, Hicks’s statements appear to have
been spontaneous and voluntary. Spontaneous and voluntary
statements are not subject to suppression. See People v. White,
632 P.2d 609, 612 (Colo. App. 1981) (“spontaneous and voluntary
utterances” did not need to be suppressed even though the
defendant had not been given Miranda warnings before he made the
statements). We thus discern no error in their admission.
D. No Initial Mention of Self-Defense
¶ 51 Third, Hicks argues, without citation to the record, that
“[b]ecause Miranda warnings were never given,” “the officers [should
not] have been allowed to testify that Mr. Hicks did not state he was
acting in self-defense.” Parties “should not ‘expect the court to
peruse the record without the help of pinpoint citations.’”
O’Quinn v. Baca, 250 P.3d 629, 632 (Colo. App. 2010) (citations
omitted). Nevertheless, we believe Hicks is referring to the following
exchange between the prosecutor and one of the officers who
responded to his 911 call:
[PROSECUTOR:] Did he ever indicate to you that he was just defending himself?
29 [OFFICER:] No.
¶ 52 Hicks does not develop his argument to explain why this
testimony is inadmissible and should have been suppressed. We
therefore do not address it. See Stone, ¶ 52.
V. Disposition
¶ 53 The judgment is affirmed.
JUDGE HARRIS and JUSTICE MARTINEZ concur.