Peo v. Lewis

• Court: Colorado Court of Appeals
• Decided: November 7, 2024
• Docket: 22CA0130
• Status: Unpublished

Opinion

22CA0130 Peo v Lewis 11-07-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0130 Adams County District Court No. 16CR265 Honorable Donald S. Quick, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Mark Antonio Lewis,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I Opinion by JUDGE SULLIVAN J. Jones and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 7, 2024

Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Mark Antonio Lewis, appeals the judgment of

conviction entered on a jury verdict finding him guilty of second

degree murder. We affirm.1

I. Background

¶2 A grand jury indicted Lewis in January 2016 for the murder of

Forest Paskins (the victim). A jury subsequently found him guilty of

first degree murder. But a division of this court reversed his

conviction and remanded the case for a new trial, concluding that

the district court erred by instructing the jury on the initial

aggressor exception to self-defense. People v. Lewis, (Colo. App. No.

1 Before we start, we note that in the second amended opening

brief, Lewis’s counsel altered the formatting of citations to the record by removing spaces, even after being granted leave to file an oversized 14,000-word opening brief. For example, the first transcript citation in the second amended opening brief appears as “TR 12/9/16, p.2-3,” rather than as “TR 12/9/16, p. 2-3,” artificially lowering the citation’s word count from four words to three. The combined effect of these alterations caused the actual word count in Lewis’s brief to exceed the 14,000-word limit that this court authorized. Counsel’s alterations continued in the reply brief but notably didn’t appear in Lewis’s initial opening brief or the first amended opening brief, both of which the court struck for exceeding the word limit. Counsel’s conduct violates C.A.R. 28(e) and the Court of Appeals Policy on Citation to the Record, https://perma.cc/NU53-ZBFQ. We explicitly disapprove of this practice and expect that it will not happen again.

1 17CA0219, May 21, 2020) (not published pursuant to C.A.R. 35(e))

(Lewis I).

¶3 On retrial, Lewis testified in his own defense, asserting that he

had acted in self-defense. The jury heard evidence from which it

could reasonably find the following facts.

¶4 In May 2015, Lewis moved into the home of his then girlfriend,

Zackeia White, where White’s children and mother also lived. The

victim lived in the house’s basement and was a longtime friend of

White’s mother.

¶5 On September 5, 2015, after Lewis and White returned from

an evening out, White’s mother told them that the victim had either

“beat her up or pushed her.” White and her mother went to the

basement and argued with the victim. Lewis stepped down two

stairs from the kitchen onto a landing that led to the basement and

called out for White (a door to the back patio also opens into the

landing). After White climbed the stairs and walked past Lewis, the

victim walked up the stairs and began arguing with him. Lewis told

the victim to “chill the fuck out.” The victim responded that the

argument had nothing to do with Lewis. Lewis then noticed a box

2 cutter in the victim’s hand, prompting him to step back into the

kitchen to retrieve a knife from the counter.

¶6 After additional verbal exchanges, the victim appeared to be

leaving through the backdoor next to the landing. The victim

reversed course, however, and charged at Lewis by grabbing his

throat with both hands. In response, Lewis swung the knife at the

victim, killing him. Afterwards, Lewis pulled the victim’s body out

of the house to the back patio. Lewis and White wrapped the victim

in a tablecloth and transported his body in White’s van to a grassy

area near a creek, where they hid the victim’s body. A couple

walking their dog later discovered it.

¶7 The police arrested Lewis a few days later on charges

unrelated to this case. While in jail, Lewis disclosed to another

inmate his and White’s involvement in the victim’s death. The

police eventually suspected Lewis’s involvement in the victim’s

death and attempted to question him. Lewis invoked his

constitutional right against self-incrimination, declined to answer

the police officers’ questions, and requested an attorney.

¶8 At the conclusion of the retrial, the jury found Lewis guilty of

second degree murder.

3 ¶9 Lewis now appeals. He contends that (1) the court committed

multiple errors when instructing the jury; (2) the court erred by

admitting improper expert testimony under the guise of lay

testimony; (3) the prosecutor committed misconduct during opening

statement, closing argument, and while cross-examining Lewis; (4)

the court and the prosecution erred by failing to preserve and

disclose grand jury materials; and (5) the cumulative impact of

multiple errors requires reversal. We disagree with these

contentions and affirm.

II. Jury Instructions

¶ 10 Lewis raises several contentions related to the court’s jury

instructions. We address those contentions first.

A. Generally Applicable Standards of Review and Legal Principles Regarding Jury Instructions

¶ 11 In general, we review jury instructions de novo to determine

whether the instructions as a whole accurately informed the jury of

the governing law. People v. Theus-Roberts, 2015 COA 32, ¶ 18. If

they do, the trial court enjoys substantial discretion in formulating

the instructions and deciding whether additional instructions are

required. Id. We similarly review a trial court’s decision whether to

4 give a particular jury instruction for an abuse of discretion. People

v. Singley, 2015 COA 78M, ¶ 40. A trial court abuses its discretion

when its decision is manifestly arbitrary, unreasonable, or unfair or

is based on a misapplication of the law. People v. Maloy, 2020 COA

71, ¶ 54.

¶ 12 We review preserved instructional errors for nonconstitutional

harmless error, reversing only if the error substantially influenced

the verdict or affected the fairness of the trial proceedings. People v.

Koper, 2018 COA 137, ¶ 9 (citing Hagos v. People, 2012 CO 63,

¶ 12). But we review unpreserved claims of error for plain error.

People v. Miller, 113 P.3d 743, 749-50 (Colo. 2005). Plain error is

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. People v. Sloan, 2024 COA 52M, ¶ 36. To constitute

plain error in the context of jury instructions, the defendant must

also show that the record reveals a reasonable possibility that the

5 instructional error contributed to the conviction. Miller, 113 P.3d at

750.

B. Heat of Passion

¶ 13 Lewis contends that the court erred by refusing to provide the

jury with a heat of passion instruction, which could have mitigated

his culpability. We disagree.

1. Additional Background

¶ 14 Lewis testified that, after verbally arguing with the victim and

asking the victim to leave the house, the victim brandished a box

cutter. In response, Lewis stepped into the kitchen; procured a

knife; looked at the victim; and said, “[I]f you come at me with that

[box cutter], I’ll kill your ass. Don’t do that.” Although Lewis said

he didn’t recall what he did with his knife at that point, he testified

that he “kept it close.”

¶ 15 Lewis told the jury that, after he warned the victim, it

appeared the victim was leaving the house through the door next to

the landing when the victim turned around and started strangling

Lewis. According to Lewis, the victim told him, “[F]uck you, you

leave,” and “I’ll kill you” while strangling him. Lewis tried to back

up, throw punches at the victim, and get the victim to “chill” out.

6 Lewis testified that he then swung the knife at the victim “once or

twice,” causing the victim to fall. Lewis said he felt fear because he

“could’ve possibly died” from the strangulation.

¶ 16 The court rejected Lewis’s requested heat of passion

instruction, concluding that the victim’s strangulation of Lewis

warranted a self-defense instruction but that it didn’t constitute the

type of highly provoking act that would trigger a sudden heat of

passion.2

2. Standard of Review and Applicable Law

¶ 17 We review de novo whether sufficient evidence exists to

support a requested jury instruction, reviewing the evidence in the

light most favorable to giving the instruction. Castillo v. People,

2018 CO 62, ¶ 32; People v. Silva, 987 P.2d 909, 914 (Colo. App.

1999).

¶ 18 Second degree murder is normally a class 2 felony, but is

reduced to a class 3 felony if performed under heat of passion.

2 Lewis points out that the court at his first trial instructed the jury

on heat of passion. But we’re not reviewing the evidence or the court’s instructions in that trial. Instead, we must determine whether the evidence at his second trial supported giving his requested heat of passion instruction.

7 § 18-3-103(3)(a)-(b), C.R.S. 2024. Heat of passion requires four

elements: (1) the act causing the death was performed upon a

sudden heat of passion; (2) the offense was caused by a serious and

highly provoking act of the intended victim; (3) the provoking act

was sufficient to excite an irresistible passion in a reasonable

person; and (4) between the provocation and the killing, an

insufficient interval of time passed for “the voice of reason and

humanity to be heard.” § 18-3-103(3)(b); People v. Garcia, 826 P.2d

1259, 1262 (Colo. 1992). A “sudden heat of passion” under the first

element is tantamount to “a sudden, unanticipated loss of self-

control in response to the victim’s provocation.” People v.

Sepulveda, 65 P.3d 1002, 1007 (Colo. 2003).

¶ 19 As the gatekeeper of evidence warranting jury instructions, the

trial court doesn’t err by rejecting a proposed heat of passion

instruction if “the theory is not grounded in and supported by the

evidence.” People v. Dooley, 944 P.2d 590, 596 (Colo. App. 1997).

3. Analysis

¶ 20 We conclude that Lewis didn’t present evidence on the first

required element. At the outset, to the extent Lewis argues that his

heated verbal exchange with the victim justified his requested

8 instruction, words alone rarely rise to the level of provocation

required for a heat of passion instruction. See United States v.

Frady, 456 U.S. 152, 174 (1982) (Approving an instruction saying,

“Mere words . . . no matter how insulting, offensive or abusive, are

not adequate to induce [sic] a homicide although committed in

passion, provoked . . . from murder to manslaughter.”) (alteration in

original); People v. Ramirez, 56 P.3d 89, 94-95 (Colo. 2002) (holding

refusal of marriage proposal and demand to leave the home weren’t

sufficiently provocative to justify a heat of passion instruction).

¶ 21 Even when the victim’s actions are added to the mix, the

evidence didn’t reveal “a sudden, unanticipated loss of self-control”

by Lewis in response to the victim’s provocation. Sepulveda, 65

P.3d at 1007. Lewis testified that he initially grabbed the knife to

pressure the victim to put the box cutter down, and after securing

the knife, he warned the victim by saying, “[I]f you come at me with

that [box cutter], I’ll kill your ass.” This statement shows that Lewis

understood that the victim presented a potential danger and that he

was prepared to take defensive action. According to Lewis, when

the victim attacked him by strangling him, Lewis carried out his

warning. Specifically, Lewis killed the victim with the knife he had

9 already picked up and kept close by, anticipating that he may need

to use it in defense. While this evidence may well have supported a

self-defense instruction (which the court gave), it didn’t reflect an

“unanticipated” loss of self-control that would support a heat of

passion instruction. See id.

¶ 22 Accordingly, we perceive no error in the court’s decision

declining to provide a heat of passion instruction.

C. Use of Force Against Intruders

¶ 23 Lewis contends that the court erred by failing to instruct the

jury on the defense of use of force against intruders under section

18-1-704.5(2), C.R.S. 2024. Lewis argues that, because he

requested and received this instruction during his first trial, the

court should have also instructed the jury on the defense at his

second trial, even absent his request. We perceive no error.

1. Standard of Review and Applicable Law

¶ 24 As indicated, we review jury instructions de novo to determine

whether the instructions as a whole accurately informed the jury of

the governing law. Theus-Roberts, ¶ 18. However, a “court’s

general duty to instruct does not extend to crafting theory of the

case instructions when defense counsel fails to do so.” People v.

10 Wade, 2024 COA 13, ¶ 11. The court needs to instruct the jury on

an affirmative defense “only if some evidence presented at trial

supports it and the defendant requests it.” People v. Lee, 30 P.3d

686, 689 (Colo. App. 2000) (emphasis added); see also People v.

Speer, 255 P.3d 1115, 1119 (Colo. 2011) (“[A] trial court is obliged

to instruct the jury on a requested affirmative defense if there is any

credible evidence . . . supporting it.”) (emphasis added).

¶ 25 Lewis cites no authority, and we’ve located none, for the

proposition that his counsel’s request during his first trial for an

instruction on the defense of use of force against intruders was

adequate to preserve the issue for appellate review of his second

trial. We’re tasked with reviewing the evidence in this trial, not the

evidence introduced at Lewis’s first trial, to determine whether the

court should have given the instruction that Lewis now claims was

required. Accordingly, we review for plain error. See Wade, ¶ 12.

¶ 26 Under section 18-1-704.5(2), an occupant of a dwelling is

justified in using any degree of physical force, including deadly

physical force, against an intruder if (1) the intruder unlawfully

enters the occupant’s dwelling; (2) the occupant reasonably believes

that the intruder has committed, is committing, or intends to

11 commit a crime in the dwelling (in addition to the unlawful entry);

and (3) the occupant reasonably believes that the intruder might

use physical force, however slight, against any occupant of the

dwelling. See People v. Wood, 230 P.3d 1223, 1225 (Colo. App.

2009), aff’d, 255 P.3d 1136 (Colo. 2011). This statute is commonly

known as the “make-my-day” statute. Id.

2. Analysis

¶ 27 For two reasons, we perceive no error, plain or otherwise.

¶ 28 First, defense counsel’s decision to refrain from requesting an

instruction on the make-my-day defense appears to have been a

tactical one. See Wade, ¶ 16 (“When the defense makes a tactical

decision not to submit an alternative defense instruction, a trial

court’s failure to sua sponte offer the instruction does not

constitute error, much less plain error.”); cf. Arko v. People, 183

P.3d 555, 558 (Colo. 2008) (“[T]he decision to request a lesser

offense instruction is strategic and tactical in nature, and is

therefore reserved for defense counsel.”). Lewis’s counsel asserted a

self-defense theory at trial and didn’t make any argument relating

to the make-my-day statute. We note that one of Lewis’s attorneys

also defended him during his first trial. And as indicated, at Lewis’s

12 first trial, defense counsel requested and received a make-my-day

instruction, which the jury rejected. So Lewis’s counsel knew that

Lewis could assert a make-my-day defense, albeit a tenuous one as

shown by the jury’s verdict in the first trial.

¶ 29 Second, even if counsel’s decision wasn’t tactical, the evidence

didn’t suggest that the victim entered White’s home unlawfully, as

required by the first element of the make-my-day statute. See § 18-

1-704.5(2). Even when viewing the evidence in the light most

favorable to giving the instruction, see Silva, 987 P.2d at 914, Lewis

himself testified that the victim lived at White’s home. White

similarly testified that the victim had lived in her home for “a couple

of years.” Thus, the victim wasn’t an intruder for purposes of the

make-my-day statute.

¶ 30 We aren’t persuaded otherwise by Lewis’s assertion that White

demanded that the victim “just leave” during their argument. Lewis

cites no authority indicating that one resident’s demand for another

resident to leave their shared home during an argument renders the

latter an intruder for purposes of the make-my-day statute when

that resident later reenters the home.

13 D. Judicial Notice of Strangulation

¶ 31 Lewis contends that the court erred by refusing to take judicial

notice that strangulation constitutes second degree assault and by

failing to give a corresponding instruction to the jury. We conclude

that Lewis invited the error, if any.

¶ 32 On the fifth day of trial, Lewis’s counsel said that she

anticipated asking the court “to take judicial notice of second-

degree assault as an act of strangulation” to apprise the jury that

strangulation “is an illegal act in Colorado” that is considered

second degree assault. See § 18-3-203(1)(i), C.R.S. 2024 (A person

commits second degree assault if, “[w]ith the intent to cause bodily

injury, he or she applies sufficient pressure to impede or restrict the

breathing or circulation of the blood of another person by applying

such pressure to the neck or by blocking the nose or mouth of the

other person and thereby causes bodily injury.”).

¶ 33 Lewis’s counsel explained that her request hinged on whether

the prosecution intended to argue that strangulation doesn’t rise to

an assault that warrants “potentially lethal self-defense,” saying,

“[I]f the [prosecution] doesn’t plan to argue that strangulation is not

14 a serious assault that someone could and should defend themselves

against, then I don’t think we need to take judicial notice of that.”

The court reserved ruling on Lewis’s counsel’s request, stating that

judicial notice regarding strangulation wasn’t “pertinent or relevant

at this point.”

¶ 34 Lewis’s counsel never renewed her request for judicial notice,

the prosecution never argued that strangulation doesn’t constitute

a serious assault that might warrant self-defense, and the court

never took judicial notice that strangulation constitutes second

degree assault or instructed the jury on this point.

¶ 35 We review a ruling granting or denying a request for judicial

notice for an abuse of discretion. See People v. Marsh, 396 P.3d 1,

20-21 (Colo. App. 2011), aff’d, 2017 CO 10M.

¶ 36 Colorado’s self-defense statute provides that “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.” § 18-1-704(1), C.R.S.

15 2024. The statute goes on to describe when deadly physical force

may be used in self-defense, stating that “[d]eadly physical force

may be used only if a person reasonably believes a lesser degree of

force is inadequate,” and the “actor has reasonable ground to

believe, and does believe, that he or another person is in imminent

danger of being killed or of receiving great bodily injury.” § 18-1-

704(2)(a).

¶ 37 Under CRE 201(a), a court may take judicial notice of

“adjudicative facts.” “[A]djudicative facts” are “generally the facts of

the particular case, as distinguished from, among others, facts with

relevance to legal reasoning and the lawmaking process.” Doyle v.

People, 2015 CO 10, ¶ 9.

¶ 38 “The doctrine of invited error prevents a party from

complaining on appeal of an error that he or she has invited or

injected into the case; the party must abide the consequences of his

or her acts.” People v. Rediger, 2018 CO 32, ¶ 34. The doctrine

applies to errors in trial strategy but not to errors that result from

oversight. Id.

16 3. Analysis

¶ 39 We first conclude that Lewis invited any error that may have

resulted from the court’s failure to take judicial notice that

strangulation constitutes second degree assault. Lewis’s counsel

made clear that her request for judicial notice was contingent on

the prosecution arguing that strangulation isn’t a serious assault

that can justify self-defense. Because the contingency underlying

Lewis’s counsel’s request never occurred, the court in essence

agreed with Lewis’s counsel that judicial notice wasn’t necessary.

Thus, Lewis invited any error in the court’s decision. See Rediger,

¶ 34.

¶ 40 Even if we assume that Lewis’s counsel’s contingent request

was the result of oversight rather than trial strategy, her request for

judicial notice that strangulation constitutes second degree assault

wasn’t a judicially noticeable “adjudicative fact[]” under CRE 201(a).

Rather, it constituted a request that the court take judicial notice of

the law. Because requests for judicial notice apply only to

adjudicative facts, the court didn’t abuse its discretion by reserving

ruling on Lewis’s counsel’s contingent request for judicial notice.

See Doyle, ¶ 9.

17 E. Hands as Deadly Weapons

¶ 41 Lewis contends that the court erred by refusing to instruct the

jury that hands can constitute deadly weapons. We aren’t

persuaded.

¶ 42 Lewis’s counsel requested that the court provide a definition of

“deadly weapon” in the jury instructions and that it specifically

mention that hands can constitute deadly weapons. Lewis’s

counsel said he wanted to “educat[e] the jury” that “hands can be

deadly weapons in Colorado.”

¶ 43 The court denied Lewis’s counsel’s request, noting that the

jury instructions on self-defense didn’t contain the term “deadly

weapon.” The court said it had “no problem,” however, with Lewis’s

counsel arguing in closing that hands can constitute deadly

weapons.

¶ 44 As noted, we review a trial court’s decision to deny a request

for a jury instruction for an abuse of discretion. Singley, ¶ 40.

¶ 45 A trial court may properly reject a requested instruction that

would inject “an extraneous element” into the jury’s deliberations

18 and likely confuse the jury. People v. Lybarger, 700 P.2d 910, 916

(Colo. 1985); see also People v. Lucero, 985 P.2d 87, 92 (Colo. App.

1999) (instructions that are either irrelevant, misleading, or

confusing to the jury must be avoided).

¶ 46 The court’s jury instructions didn’t contain the term “deadly

weapon.” And while we recognize that hands and other body parts

can constitute deadly weapons, see People v. Saleh, 45 P.3d 1272,

1275 (Colo. 2002), we perceive no abuse of discretion in the court’s

decision declining to provide a definition for a term that didn’t

appear in the jury instructions. Doing so would have injected “an

extraneous element” into the jury’s deliberations and could have led

to jury confusion. Lybarger, 700 P.2d at 916.

¶ 47 We also disagree with Lewis’s suggestion that the division’s

holding in Toler should be read as requiring the court to define

hands as “deadly weapons” whenever hands are used to cause

death or serious injury. See People v. Toler, 981 P.2d 1096, 1099

(Colo. App. 1998), aff’d, 9 P.3d 341 (Colo. 2000). In Toler, after

reversing the defendant’s conviction on a separate issue, the

division noted that “the supreme court has recognized that fists can

19 be deadly weapons if, in the manner they are used or intended to be

used, they are capable of producing death or serious bodily injury.”

Id. The division then said that the trial court should instruct the

jury “accordingly” on remand if the defendant “so requests.” Id.

But Toler is unclear regarding whether the instructions in that case

contained the term “deadly weapon.”3 Regardless, we don’t

interpret Toler as requiring the court to instruct the jury that hands

can constitute “deadly weapons” where, as here, none of the

instructions used that term.

F. Self-Defense in Response to Burglary or Assault

¶ 48 Lewis contends that the court erred by failing to instruct the

jury that a person is authorized to use deadly physical force against

another in response to certain burglaries and assaults. We

disagree.

3 The division in People v. Toler, 981 P.2d 1096 (Colo. App. 1998),

aff’d, 9 P.3d 341 (Colo. 2000), relied on People v. Ross, 831 P.2d 1310, 1311 (Colo. 1992), which involved a defendant who was charged with “second degree assault on the elderly with a deadly weapon.” (Emphasis added.) By contrast, Lewis’s charges that went to the jury didn’t turn on whether he used a deadly weapon.

20 1. Additional Background

¶ 49 As already discussed, Lewis and White both testified that the

victim lived at White’s home. Lewis’s counsel didn’t argue that the

victim was a burglar.

¶ 50 The court instructed the jury that Lewis was authorized to use

deadly physical force against the victim

to defend himself from what he reasonably believed to be the use or imminent use of unlawful physical force by the victim, and . . . he reasonably believed a lesser degree of force was inadequate, and . . . he had a reasonable ground to believe, and did believe, that he or another person was in imminent danger of being killed or receiving great bodily injury.

¶ 51 Lewis’s counsel didn’t request that the instruction mention

that deadly physical force may be used in response to a burglary or

certain assaults.

¶ 52 Because this claim is unpreserved, our review is limited to

plain error. See Miller, 113 P.3d at 749-50. An erroneous jury

instruction doesn’t normally constitute plain error where the issue

isn’t contested at trial. Id. at 750.

21 ¶ 53 As relevant here, section 18-1-704(2) authorizes a person to

use deadly physical force against another if the person reasonably

believes that a lesser degree of force is inadequate and at least one

of the following circumstances exists:

(a) the person has reasonable ground to believe, and does

believe, that he or another person is in imminent

danger of being killed or of receiving great bodily

injury;

(b) the other person is using or reasonably appears about

to use physical force against an occupant of a dwelling

or business establishment while committing or

attempting to commit burglary; or

(c) the other person is committing or reasonably appears

about to commit, as relevant here, first or second

degree assault.

¶ 54 As indicated, the court only instructed the jury that deadly

physical force could be used under the circumstances outlined in

section 18-1-704(2)(a), and Lewis’s counsel didn’t request

instructions regarding using deadly physical force in response to

22 either burglary under subsection (2)(b) or first or second degree

assault under subsection (2)(c). See Wade, ¶ 11 (“A court’s general

duty to instruct does not extend to crafting theory of the case

instructions when defense counsel fails to do so.”).

¶ 55 But even if we were address the merits of Lewis’s argument,

we perceive no basis for reversal. As to burglary under subsection

(2)(b), Lewis and White both testified that the victim lived at White’s

home, allowing him to lawfully enter the residence. Thus, for the

same reason that the evidence didn’t support an instruction under

the make-my-day statute, the evidence didn’t support a deadly force

instruction under subsection (2)(b), even when viewing the evidence

in the light most favorable to giving the instruction. See Silva, 987

P.2d at 914; see also § 18-4-203(1), C.R.S. 2024 (A person commits

second degree burglary “if the person knowingly breaks an entrance

into, enters unlawfully in, or remains unlawfully after a lawful or

unlawful entry in” a building.).

¶ 56 As for assault under subsection (2)(c), we conclude that any

error in omitting the instructional language wasn’t obvious and

substantial, for two reasons. First, while some evidence may have

indicated that Lewis used deadly force in response to an assault by

23 the victim, Lewis’s consistent theory of defense at trial was that he

reasonably believed that the victim would kill him if he didn’t

respond with deadly force in self-defense. In closing argument, for

example, Lewis’s counsel repeated variations of the phrase, “How do

I save my life?” when describing Lewis’s thought process while being

strangled. Lewis’s counsel also reiterated that Lewis wielded the

knife to “protect himself before he died” and that Lewis held a

“reasonable fear of dying,” defending himself as he was “about to

die.” In opening statement, too, Lewis’s counsel explained that

Lewis believed, “If I don’t do something, I’ll die,” and that the victim

forced him “to take very extreme measures to save his own life.”

And as mentioned above, Lewis testified that he feared for his life.

¶ 57 Because Lewis’s theory of defense wasn’t that the victim

merely assaulted him, this issue wasn’t contested by the parties.

See Miller, 113 P.3d at 750. And given that Lewis’s counsel’s

arguments focused on the possibility that Lewis might die rather

than suffer an assault, we perceive no reasonable possibility that

the court’s omission of instructional language that tracked

subsection (2)(c) contributed to his conviction. See, e.g., Hoggard v.

People, 2020 CO 54, ¶ 19 (finding no reasonable possibility that

24 instructional error regarding intent contributed to defendant’s

conviction where defendant argued only about identity).

¶ 58 Second, the logic of Lewis’s argument would require that,

whenever a defendant is entitled to an instruction under subsection

(2)(a) concerning whether they reasonably believed that they were in

imminent danger of being killed by, or receiving great bodily injury

from, another person, the court must also give an instruction with

the requested assault language under subsection (2)(c). Lewis

points us to no authority from the supreme court or this court

construing the self-defense statute in this manner.

G. Great Bodily Injury

¶ 59 Lewis contends that the court erred by failing to give the jury

an instruction defining “great bodily injury,” a term used in the

instruction identifying when a person is authorized to use deadly

physical force in self-defense. Lewis argues that, although the

court defined “serious bodily injury,” the difference between the two

terms likely confused the jury. We perceive no plain error.

1. Additional Facts

¶ 60 The court instructed the jury on the use of deadly physical

force, generally tracking section 18-1-704(2)(a), including its use of

25 “great bodily injury.” The court also instructed the jury on the use

of lesser “physical force” in self-defense, consistent with section 18-

1-704(1). The court’s instruction said that the use of lesser

“physical force” in self-defense is a defense to both first and second

degree murder. Consistent with the statutory language, the court’s

instruction on the use of lesser “physical force” didn’t use the term

“great bodily injury.”

¶ 61 In addition, the court defined “serious bodily injury” for the

jury 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.

¶ 62 The court, however, didn’t give the jury an instruction defining

¶ 63 Lewis’s counsel didn’t raise this argument in the district court,

limiting our review to plain error. See Miller, 113 P.3d at 749-50.

26 ¶ 64 As discussed, section 18-1-704(2)(a) authorizes a person to

use deadly physical force in self-defense when they reasonably

believe a lesser degree of force is inadequate, and the person “has

reasonable ground to believe, and does believe, that he or another

person is in imminent danger of being killed or of receiving great

bodily injury.”4 (Emphasis added.) Similarly, as relevant here, a

person is justified in using lesser “physical force” upon another to

defend against what the person “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).

¶ 65 Even assuming that the court erred by failing to define “great

bodily injury,” we discern no plain error.

¶ 66 The jury found Lewis guilty of second degree murder. Thus, at

least as it pertains to second degree murder, the jury rejected both

of Lewis’s self-defense theories: (1) that he was justified in using

4 A division of this court has concluded that “great” and “serious”

bodily injury are synonymous. People v. Reed, 695 P.2d 806, 808 (Colo. App. 1984).

27 “deadly physical force” and (2) that he was justified in using lesser

“physical force.” By rejecting his lesser “physical force” theory, we

know that the jury also necessarily determined that Lewis wasn’t

justified under the circumstances in using deadly physical force on

the victim. And because the court’s instruction explaining the use

of lesser “physical force” didn’t mention the undefined term “great

bodily injury,” consistent with section 18-1-704(1), we perceive no

reasonable possibility that the court’s failure to define “great bodily

injury” contributed to Lewis’s conviction. See Hoggard, ¶ 19.

¶ 67 Moreover, as we’ve discussed, Lewis’s theory of defense didn’t

rely on the degree or severity of bodily injury that he believed the

victim might inflict on him. Instead, Lewis repeatedly argued that

he reasonably believed that the victim would kill him by

strangulation. For this additional reason, we perceive no

reasonable possibility that the court’s failure to define “great bodily

injury” contributed to Lewis’s conviction. See id.

H. Deadly and Nondeadly Physical Force

¶ 68 Lewis contends that the court erred by instructing the jury

that one of the elements of second degree murder is that the

“defendant’s conduct was not legally authorized by the affirmative

28 defenses in Instruction No. 14 [explaining the use of deadly physical

force] and Instruction No. 15 [explaining the use of physical force].”

(Emphasis added.) He argues that the jury needed to find that only

one of these affirmative defenses applied, not both. We perceive no

error, plain or otherwise.

¶ 69 Both the “deadly physical force” instruction (Instruction No.

14) and the lesser “physical force” instruction (Instruction No. 15)

said that the prosecution “must disprove, beyond a reasonable

doubt, at least one of the above numbered conditions” to prove that

Lewis’s conduct “was not legally authorized by this defense.” In

both instances, the “above numbered conditions” identified the

elements of the affirmative defense.

¶ 70 During closing argument, the prosecutor told the jury that it

needed to consider whether the People had disproved both theories

of self-defense — the “deadly physical force” defense in Instruction

No. 14 and the lesser “physical force” defense in Instruction No. 15.

¶ 71 Lewis’s counsel didn’t raise this argument in the district court,

again limiting our review to plain error. See Miller, 113 P.3d at 749-

29 50. We consider all of the instructions the court gave together to

determine whether they accurately informed the jury of the law.

Theus-Roberts, ¶ 18.

¶ 72 Viewing the elemental instruction for second degree murder in

combination with the instructions explaining the affirmative

defenses involving deadly physical force and physical force, we

conclude that these instructions accurately informed the jury that it

needed to find that only one — not both — of the affirmative

defenses applied to find Lewis not guilty.

¶ 73 Stated another way, the instructions together accurately

informed the jury that the prosecution had to disprove both

affirmative defenses beyond a reasonable doubt. Instruction No. 14

explained that the prosecution must disprove, beyond a reasonable

doubt, at least one of the elements of the affirmative defense

involving “deadly physical force” to establish that Lewis’s conduct

“was not legally authorized by this defense.” Instruction No. 15

said the same thing regarding the separate affirmative defense

involving the use of lesser “physical force.” As a result, when

reviewing the instructions as a whole, the jury would have

30 understood that the prosecution bore the burden to disprove at

least one element of both affirmative defenses before the jury could

convict Lewis of second degree murder. The prosecutor confirmed

as much during closing argument.

¶ 74 Accordingly, we perceive no error in the court’s jury

instructions that require reversal.

III. Improper Expert Testimony

¶ 75 Lewis next contends that the court plainly erred by admitting

a crime scene investigator’s expert testimony under the guise of lay

testimony. We perceive no plain error.

A. Additional Background

¶ 76 The investigator testified that he uncovered trace evidence of

blood in White’s van by using a chemical formula called “Bluestar,”

which contains the chemical “Luminol.” The investigator explained

that the chemicals react with blood, causing a “luminescence” or a

“glow.” The investigator also testified regarding blood “castoff,”

saying that when a “hand or weapon is flown through the air, blood

is projected off of that object in a linear format across the ceiling or

the wall or the floor, depending on which direction that castoff is

going.”

31 ¶ 77 According to the investigator, using Bluestar, he identified

traces of blood in White’s house and the van used to transport the

victim’s body. The investigator testified on direct examination that

he found blood in three locations in the house: the landing, the

stairs between the landing and the kitchen, and the doorknob of the

kitchen door. On cross-examination, the investigator testified that

at least three places in the kitchen also showed signs of suspected

blood.

¶ 78 Lewis testified that his altercation with the victim began on the

landing next to the door leading to the back patio; that it continued

on the stairs between the landing and the kitchen; and that he and

the victim eventually ended up in the kitchen, where he stabbed the

victim. Lewis described the entire area as a “small space.” Lewis

testified that he later “pulled” the victim’s body outside to the back

patio and that there was blood where Lewis “dragged him.”

B. Standard of Review and Applicable Law

¶ 79 We review a trial court’s evidentiary decisions for an abuse of

discretion. Venalonzo v. People, 2017 CO 9, ¶ 15. Lewis

acknowledges that his counsel didn’t object to the investigator’s

32 alleged expert testimony, limiting our review to plain error. See

Hagos, ¶ 18.

¶ 80 Colorado Rule of Evidence 701 governs the admission of

testimony by lay witnesses. It provides as follows:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of [CRE] 702.

CRE 701.

¶ 81 Law enforcement officers regularly, and appropriately, testify

under CRE 701 based on their perceptions and experiences. People

v. Stewart, 55 P.3d 107, 123 (Colo. 2002). An officer’s testimony

becomes objectionable, however, when “what is essentially expert

testimony is improperly admitted under the guise of lay opinions.”

Id. “[T]he critical factor in distinguishing between lay and expert

testimony is the basis for the witness’s opinion.” Venalonzo, ¶ 22.

That is, we “must consider whether the testimony could be based

33 on an ordinary person’s experience or knowledge.” People v.

Murphy, 2021 CO 22, ¶ 21.

C. Analysis

¶ 82 As a threshold matter, we note that Lewis’s argument assumes

that the prosecution needed to formally offer, and the court needed

formally to accept, the investigator as an expert before he provided

expert testimony. (Lewis doesn’t argue that the investigator lacked

qualifications to testify as an expert based on his knowledge, skill,

experience, training, or education, see CRE 702.) But our supreme

court recently held that “the lack of a formal offer and acceptance of

[an] expert does not necessarily render the expert’s testimony

inadmissible,” provided that the expert’s testimony meets the

requirements of CRE 702 and People v. Shreck, 22 P.3d 68 (Colo.

2001). People v. Martinez, 2024 CO 69, ¶ 39.

¶ 83 Even if Martinez wasn’t dispositive, and even if we assume that

the investigator’s testimony constituted improper expert testimony

under the guise of lay testimony, we nonetheless discern no plain

error. The investigator testified regarding the locations where he

found blood using Bluestar, including the van, the house’s landing,

the stairs between the landing and the kitchen, the doorknob of the

34 kitchen door, and three places in the kitchen itself. But Lewis

didn’t dispute where his altercation with the victim took place or

where the victim bled. Lewis testified that the altercation occurred

in a small area — on the landing, the stairs leading to the kitchen,

and the kitchen itself. He also testified that he dragged the victim’s

body from the kitchen to the back patio, which would have required

pulling the body down the stairs leading away from the kitchen,

over the landing, and through the door leading outside. Lewis also

admitted that he transported the victim’s body in White’s van.

¶ 84 Given that Lewis’s testimony was consistent with the locations

where the investigator found blood, we can’t conclude that the

admission of the investigator’s testimony so undermined the

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

reliability of Lewis’s conviction. See, e.g., People v. Rhodus, 2012

COA 127, ¶ 39 (finding no plain error in admission of officer’s

expert testimony where other evidence “would have permitted the

jury to reach the same conclusion”); cf. Stewart, 55 P.3d at 124

(officer’s expert testimony admitted under the guise of lay opinion

testimony was harmless where other evidence corroborated that

testimony).

35 IV. Prosecutorial Misconduct

¶ 85 Lewis next contends that four instances of prosecutorial

misconduct require reversal. We aren’t persuaded.

A. Standard of Review and Applicable Law

¶ 86 Lewis concedes that his claims of prosecutorial misconduct

are unpreserved, limiting our review to plain error. See People v.

Nardine, 2016 COA 85, ¶ 63. Similar to the jury instruction

context, reversal under this high standard requires that the

prosecutorial misconduct be “obvious and substantial and so

undermine the fundamental fairness of the trial as to cast serious

doubt on the reliability of the judgment of conviction.” Id. “Only

prosecutorial misconduct that is ‘flagrantly, glaringly, or

tremendously improper’ warrants reversal under the plain error

test.” People v. Duncan, 2023 COA 122, ¶ 33 (quoting Hagos, ¶ 14).

¶ 87 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 prosecutor’s conduct

was improper based on the totality of the circumstances. Id.

Second, we decide whether any improper conduct in this case

warrants reversal under the proper standard of review. Id.

36 ¶ 88 Three of Lewis’s contentions of prosecutorial misconduct

involve the prosecutor’s closing argument. When evaluating a

prosecutorial misconduct claim relating to closing argument, we

look to the “context of the argument as a whole and in light of the

evidence before the jury.” People v. Geisendorfer, 991 P.2d 308, 312

(Colo. App. 1999). A prosecutor is entitled to “employ rhetorical

devices and engage in oratorical embellishment and metaphorical

nuance,” People v. Gladney, 250 P.3d 762, 769 (Colo. App. 2010)

(citation omitted), and enjoys “considerable latitude in replying to

opposing counsel’s arguments,” People v. Conyac, 2014 COA 8M,

¶ 133. Because arguments delivered in “the heat of trial are not

always perfectly scripted, reviewing courts accord prosecutors the

benefit of the doubt when their remarks are ambiguous or simply

inartful.” People v. Samson, 2012 COA 167, ¶ 30. “Prosecutorial

misconduct in closing argument rarely constitutes plain error.”

People v. Smalley, 2015 COA 140, ¶ 37.

B. Post-Miranda Silence

¶ 89 Lewis contends that the prosecutor improperly used his post-

Miranda silence as evidence of guilt when cross-examining him and

when delivering closing argument. Specifically, Lewis asserts that

37 the prosecutor improperly pointed out that his trial testimony about

the victim’s box cutter contradicted his prior statements.

¶ 90 Shortly after the victim’s death, Lewis made a voluntary pre-

Miranda statement to police but didn’t mention being involved in

the victim’s death or that the victim wielded a box cutter. A few

days later, however, the police’s investigation pointed to Lewis, and

officers attempted to speak with him a second time. After police

gave Lewis a Miranda warning, Lewis declined to make any

statements and requested a lawyer. While in jail and awaiting trial,

Lewis told a fellow inmate that the victim “went missing” after he

“lunged” at Lewis but didn’t mention that the victim brandished a

box cutter.

¶ 91 At trial, Lewis’s version of the events shifted. He testified on

direct examination that he noticed the victim holding a box cutter

near the beginning of their altercation. On cross-examination, the

prosecutor asked Lewis about his conversation with the inmate,

asking whether he “left out the part about [the] box cutter”? Lewis

responded, “Yeah. He started asking too many questions, acting

like the police.” The prosecutor later returned to the box cutter

38 again, asking Lewis, “Today this version is that you saw a box

cutter, right?” Lewis responded, “That’s what I told the jury.” The

prosecutor also asked Lewis whether this was the “first time

anybody’s heard” that the victim “came at you with a knife.”

¶ 92 During closing argument, the prosecutor pointed out that

Lewis’s trial testimony differed from his prior statements. The

prosecutor argued that “nobody until the defendant [got] on the

stand has ever heard” of the victim wielding a box cutter. He also

asked the jurors to “[c]onsider the fact that the near death fantastic

story that you heard today [wa]s the first time in six years that that

story’s been told,” and he asked rhetorically, “Why . . . for the first

time are we hearing about a box cutter and some sort of a standoff

with the knives?”

¶ 93 Lewis’s argument fails under Wend’s first step. Lewis

voluntarily testified about the box cutter and spoke to a fellow

inmate about his altercation with the victim. The prosecutor was

therefore permitted to cross-examine Lewis about the box cutter

and explore any inconsistencies or omissions between Lewis’s

testimony and his prior statements. See People v. Rogers, 68 P.3d

39 486, 492 (Colo. App. 2002) (“A defendant cannot have it both ways.

If he talks, what he says or omits is to be judged on its merits or

demerits.” (quoting United States v. Goldman, 563 F.2d 501, 503

(1st Cir. 1977))). Similarly, because Lewis chose to testify, the

prosecutor was allowed to impeach his credibility, just like that of

“any other witness,” People v. Dore, 997 P.2d 1214, 1219 (Colo.

App. 1999), and comment in closing argument on “how well and in

what manner [the] witness measures up to the tests of credibility,”

People v. Constant, 645 P.2d 843, 845-46 (Colo. 1982).

¶ 94 Contrary to Lewis’s contention, we don’t read any of the

prosecutor’s statements as an improper comment on Lewis’s post-

Miranda silence. Nothing in the prosecutor’s statements or

questions zeroed in on Lewis’s choice to remain silent when police

attempted to question him a second time. To the extent any of the

prosecution’s statements could have been interpreted as a vague

reference to Lewis’s post-Miranda silence, such statements provide

no basis for reversal. See People v. Ray, 109 P.3d 996, 1003 (Colo.

App. 2004) (“A prosecutor’s ambiguous remarks not directly

referring to a defendant’s decision not to testify do not implicate the

defendant’s constitutional rights and are not grounds for reversal.”).

40 C. Misstatement of Self-Defense Law

¶ 95 Lewis contends that the prosecutor misstated the law on self-

defense by recommending that the jury consider the offense

elements in a particular order, with the self-defense element being

considered last. Lewis argues that the prosecutor’s

recommendation incorrectly suggested that self-defense is a

“separate legal inquiry” from the other offense elements.

¶ 96 In closing argument, the prosecutor recommended that the

jury consider the offense elements in a particular order, saying,

Your number one job in this case; first, is to determine that. Okay. Determine if first- degree murder was kill [sic]. Why is that your first job? Because then you have to look at, well, if he committed first-degree murder, then you have job number 2, I got to say whether or not this was justified murder. Was he justified under the principles of self-defense in killing [the victim]?

My recommendation to you is to deal with that first. Decide on the elements. Do we have a killing and what level do we have, do we have a reckless manslaughter or do we have a first- degree murder? Because all three of them — once you make that decision, all three of them then have to be viewed in the lens of, well, was it justified, right. And that’s what we’re

41 looking at when we move forward to physical force.

¶ 97 We don’t agree with Lewis that the prosecutor’s

recommendation constituted a misstatement of the law. Lewis cites

no authority, and we’ve located none, prohibiting either (1) the jury

from considering the offense elements in any order it chooses or (2)

the parties from recommending a particular order in closing

arguments. Moreover, the court correctly instructed the jury that

the prosecution had to prove all the elements of second degree

murder beyond a reasonable doubt, including that Lewis’s conduct

wasn’t legally authorized by either theory of self-defense.

D. Misrepresentation of “Reasonable Doubt”

¶ 98 Lewis contends that the prosecutor misstated the law by

inaccurately describing the concept of reasonable doubt during

closing argument, saying a doubt isn’t reasonable if a juror “can’t

put [their] finger on” it or if a juror can’t articulate the doubt “out

loud in the jury room.” We agree that the prosecutor misstated the

law but perceive no plain error.

42 1. Additional Background

¶ 99 During closing, the prosecutor highlighted the court’s jury

instruction that explained the concept of reasonable doubt, saying

“[I]t tells you right in the definition of reasonable doubt. It’s not

vague, it’s not speculative, and it’s not imaginary.” The prosecutor

elaborated: “[S]o if you’re sitting back in the jury room and you’re

deliberating and you say, gosh, I have a doubt but I just can’t put

my finger on what that doubt is, right. That’s a vague doubt.

That’s not reasonable doubt.”

¶ 100 The prosecutor then turned to the part of the court’s jury

instruction that stated a reasonable doubt is one that “would cause

reasonable people to hesitate to act in matters of importance to

themselves.” The prosecutor explained that part of the instruction

by saying it’s “[a] doubt you can put your finger on. A doubt that

you can say out loud in that jury room, this is what is making me

have a reasonable doubt.”

¶ 101 We agree with Lewis that the prosecutor misstated the law by

suggesting that a reasonable doubt is one that a juror must be able

to articulate “out loud” or “put [their] finger on.” A doubt need not

43 rise to an articulable one to constitute a reasonable doubt. See

People v. Sherman, 45 P.3d 774, 777-78 (Colo. App. 2001). We

further conclude that the court obviously erred by failing to correct

the prosecutor’s remark because Colorado case law at the time

clearly established that a prosecutor misstates the law by arguing

to the jury that a reasonable doubt must be articulable. See People

v. Hogan, 114 P.3d 42, 56 (Colo. App. 2004) (citing Sherman, 45

P.3d at 778); see also Thompson, ¶ 34 (an error is obvious if it

contravenes Colorado case law).

¶ 102 Nonetheless, the court’s error didn’t so undermine the

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

reliability of the judgment of conviction. See Nardine, ¶ 63. The

prosecutor’s misstatements were brief and immediately preceded by

accurate descriptions of reasonable doubt that tracked the pattern

jury instruction. See COLJI-Crim. E:03 (2021); cf. Duncan, ¶ 37

(prosecutor’s use of “what ifs” during closing argument wasn’t

improper, in part, because it was immediately preceded by language

that tracked the pattern jury instruction for reasonable doubt).

¶ 103 The court also instructed the jury (1) regarding the correct

definition of reasonable doubt and (2) that it must follow the rules

44 of law provided by the court, even if an attorney comments on the

rules. See Hogan, 114 P.3d at 56. Absent evidence to the contrary,

we presume that the jury followed the court’s instruction. People v.

Garcia, 2012 COA 79, ¶ 20. Finally, the lack of an objection by

Lewis’s counsel suggests that the live argument, despite its

appearance in a cold record, wasn’t overly damaging. See Domingo-

Gomez v. People, 125 P.3d 1043, 1054 (Colo. 2005).

E. Request that the Jury “Hold” Lewis “Accountable”

¶ 104 Lewis contends that the prosecutor committed misconduct at

the conclusion of his opening statement by improperly pressuring

the jury to “hold [Lewis] accountable” for the victim’s murder. Just

before making this statement, the prosecutor summarized the

evidence that he anticipated the jury would hear regarding Lewis’s

words and conduct towards the victim.

¶ 105 We agree with Lewis that a prosecutor’s statement asking the

jury to “send a message” to the community or exhorting the jury to

“do its job” is generally improper. See, e.g., United States v. Young,

470 U.S. 1, 18 (1985); People v. Gallegos, 260 P.3d 15, 28 (Colo.

App. 2010). But the prosecutor here said no such thing. Instead,

the prosecutor summarized the evidence against Lewis that he

45 anticipated the jury would hear, summing it up by asking the jury

to “hold” Lewis “accountable.” Based on this broader context, and

after reviewing the prosecutor’s opening statement as a whole, we

conclude that the prosecutor’s statement wasn’t improper. See,

e.g., People v. Tran, 2020 COA 99, ¶ 68 (“[T]he prosecutor’s

argument that the jury ‘need[ed] to hold [Tran] accountable’ was not

improper because the prosecutor made this comment immediately

after arguing that the evidence established Tran’s guilt.”).

¶ 106 We aren’t persuaded otherwise by Lewis’s argument that the

division in People v. Carian, 2017 COA 106, warned prosecutors

against asking jurors to hold defendants accountable. The Carian

division held that the prosecutor in that case argued improperly

that the jury should hold the defendant “accountable” for

“squandering” and “wasting” the valuable public resources of the

probation department. Id. at ¶¶ 57-61. The division explained that

the prosecutor’s comments were unrelated to the defendant’s

charges and diverted the jury’s attention from deciding the charges

based on the evidence before it. Id. at ¶ 57. Contrary to Lewis’s

argument, the division’s analysis didn’t turn on the phrase “hold

[the defendant] accountable.” Id.

46 ¶ 107 Accordingly, we reject Lewis’s contentions that the prosecutor

committed reversible misconduct.

V. Grand Jury Materials

¶ 108 Lewis contends that the court and prosecution failed to

preserve grand jury materials necessary for him to raise an equal

protection challenge to the grand jury’s selection. He also asserts,

in the alternative, that we should remand for the court either to

disclose the prospective grand jurors’ questionnaires and the

undisclosed portions of the grand jury transcript or to make

findings justifying its decision to withhold those materials. We

aren’t persuaded.

¶ 109 Before his first trial, Lewis’s counsel requested the disclosure

of various grand jury materials so that they could test the legality

and fairness of the grand jury proceedings that resulted in Lewis’s

indictment. The court denied that request.

¶ 110 On appeal, the division in Lewis I determined that the court

applied the wrong legal standards when denying Lewis’s request for

disclosure. Lewis I, slip op. at ¶¶ 57-74. The division instructed

the court on remand to (1) disclose to Lewis the master jury list; (2)

47 either disclose the grand juror questionaries or make specific

findings that nondisclosure is necessary to protect the grand jury

process or the grand jurors’ security; and (3) applying the same

balancing test, either disclose the transcript of the grand jury

proceedings or make findings that nondisclosure is necessary to

protect the proceedings or the grand jurors. Id. at ¶¶ 58, 66, 74.

¶ 111 On remand, the court held several pretrial hearings to address

Lewis’s counsel’s request for disclosure. The court summarized the

actions it took in response to Lewis’s counsel’s request and the

Lewis I division’s remand instructions:

• The court provided Lewis’s counsel with the master grand

jury list identifying the names of the seventy-five

prospective grand jurors; the information provided

identified those who were selected as grand jurors and

alternates, as well as those who were excused from

consideration.

• The court provided information on the eleven potential

jurors with Hispanic surnames, stating seven were

excused by the chief judge, two served, and two weren’t

48 selected. The seven excused by the chief judge said they

didn’t want to serve.

• The court disclosed information regarding the prospective

grand jurors’ ages, genders, and occupations. The court

didn’t, however, disclose the prospective grand jurors’

home addresses.

• The court provided Lewis with a redacted grand juror

questionnaire used during the selection process.

• The court released the portions of the grand jury

transcript involving the questioning of the prospective

grand jurors, which totaled eighty-six pages of the 123-

page transcript.

¶ 112 The court explained that, although information about the

prospective grand jurors’ race wasn’t collected, the transcript

revealed that the chief judge who presided over the selection

process said he wanted to achieve a “blend of people from Adams

and Broomfield” counties and a “balance of gender and rac[e].” The

court then said that the “only other” statement about race in the

transcript came from the assistant district attorney, who said that

“diversity is a value,” and diversity of “background, experience,

49 beliefs, race, . . . [and] residences” all contribute to the grand jury’s

ability to hear evidence and determine whether a crime was likely

committed.

¶ 113 In explaining how it balanced Lewis’s need for the grand jury

materials against the competing interests of the prospective grand

jurors’ privacy and safety, the court made the following findings:

• “[T]here w[ere] concerns about witnesses being contacted

and concerns about specific witness intimidation in this

case.” As a result, the court ordered that only Lewis’s

counsel have access to the grand jury information.

• Six years had passed since the jurors were selected.

Based on the jurors’ privacy interests, it was

inappropriate for investigators from either side to

attempt to “individually contact” or “try to round up” the

prospective grand jurors to ask them questions about

their race.

• The court harbored concerns that an investigator from

either side might form “personal opinion[s]” regarding

whether a prospective grand juror was “one race or

50 mixed race” if they were allowed to contact individual

jurors.

¶ 114 We review a district court’s decision regarding the disclosure

of grand jury materials for an abuse of discretion. See People v.

Dist. Ct., 610 P.2d 490, 493 (Colo. 1980).

¶ 115 As the Lewis I division explained, Colorado rejects the idea

that grand jury proceedings must be “kept secret ‘for secrecy’s

sake.’” Lewis I, slip op. at ¶ 60 (quoting Parlapiano v. Dist. Ct., 491

P.2d 965, 968 (Colo. 1971)). Instead, the “maintenance of the wall

of secrecy around grand jury testimony should be grounded upon

sound reason.” Parlapiano, 491 P.2d at 968. At the same time, a

court may “preserve the confidentiality” of grand jurors’ identifying

information when reasonably necessary to protect the grand jury

process or the grand jurors’ security. § 13-74-103, C.R.S. 2024.

¶ 116 Section 13-71-115, C.R.S. 2024, governs the information that

the court must collect from prospective members of grand and petit

juries on juror questionnaires. Although the statute requires that

the questionnaire request many categories of information (including

name, sex, date of birth, age, residence, marital status, number and

51 ages of children, educational level, occupation, employment status,

spouse’s occupation, previous juror service, and present or past

involvement as a party or witness in a civil or criminal proceeding),

it doesn’t require that the questionnaire request information about

the prospective jurors’ race or ethnicity. See id. Upon completion

of jury selection, parties and counsel must return all copies of the

completed questionnaires to the court for immediate destruction.

§ 13-71-115(2). The court retains the original completed

questionnaires in a sealed envelope in the court’s file, but the

originals don’t constitute a public record. Id.

C. Whether the Court or Prosecution Was Required to Preserve Race Information Regarding the Grand Jury Venire

¶ 117 Lewis’s core contention is that the court and prosecution

should have preserved records regarding the racial makeup of the

grand jury venire so that he could pursue a later equal protection

challenge, if necessary.

¶ 118 We disagree for the reasons explained by the division in People

v. Toro-Ospina, 2023 COA 45, ¶¶ 31-37. The defendant in Toro-

Ospina raised an argument almost identical to Lewis’s: Knowing

potential jurors’ racial and ethnic information is “essential to the

52 invocation and assessment” of a defendant’s equal protection rights,

including the exercise of Batson challenges. Id. at ¶ 29. The

division agreed that the defendant’s argument raised an important

policy question for the legislative branch but noted that this court

doesn’t “sit as a policy-making body.” Id. at ¶ 37. Because the

General Assembly hadn’t required courts or prosecutors to collect

or retain information on potential jurors’ race or ethnicity, either in

section 13-71-115(1) or elsewhere, the division reasoned that it

couldn’t substitute its policy judgment for that of the General

Assembly. Id. As a result, the division perceived no abuse of

discretion in the court’s decision declining to ask potential jurors

about their race or ethnicity. Id.

¶ 119 For the same reasons, we discern no abuse of discretion by the

court or any misconduct by the prosecution. Section 13-71-115(1)

doesn’t require the court or prosecution to request, collect, or

maintain information regarding the race of the grand jury venire

members, and Lewis points us to no other authority imposing such

an obligation. Absent such a requirement, we can’t say that the

court abused its discretion or that the prosecution engaged in

misconduct.

53 D. Alternative Request for Remand for Specific Findings on Questionnaires and the Unredacted Transcript

¶ 120 We also reject Lewis’s alternative request that we remand for

the court to either (1) disclose the prospective grand jurors’

completed questionnaires and the undisclosed portions of the grand

jury transcript or (2) make further findings justifying its continued

withholding of those materials.

¶ 121 Based on our review of the record, we conclude that the court

carefully balanced the competing interests of Lewis’s need for the

grand jury materials against the prospective grand jurors’ privacy

and safety. See Lewis I, slip op. at ¶¶ 59-66 (describing balancing

test). The court went to great lengths to explain that it had

provided Lewis with the maximum amount of information possible

without disclosing sensitive information (like home addresses) that

could have enabled investigators or others to contact individual

prospective grand jurors. Given that the court found that “specific

witness intimidation” remained a concern, we can’t say it abused its

discretion by withholding information that might have revealed

where the prospective grand jurors lived. See § 13-74-103 (the

court may preserve the confidentiality of grand jurors’ identifying

54 information when reasonably necessary to protect the grand jury

process or the jurors’ security); see also People v. Rhea, 2014 COA

60, ¶ 58 (“[U]nder the abuse of discretion standard, the test is not

‘whether we would have reached a different result but, rather,

whether the trial court’s decision fell within a range of reasonable

options.’”) (citation omitted).

¶ 122 As to the transcript of the grand jury proceedings, the court

released the eighty-six pages dealing with “the questioning of

jurors.” Those pages included what the court described as the

“only” two instances where the issue of race was raised: (1) the chief

judge’s statement that he wanted to achieve a “balance” of gender

and race among the grand jurors; and (2) the assistant district

attorney’s statement that diversity, including racial diversity, is “a

value.”

¶ 123 The record reveals that, after receiving the partial transcript,

Lewis’s counsel requested and received a continuance of one of the

pretrial hearings so that counsel could “go over the Grand Jury

transcript.” Lewis’s counsel never requested additional transcript

pages, nor does Lewis explain on appeal why he needed those

portions that didn’t relate to the prospective jurors’ questioning.

55 See People v. Liggett, 2021 COA 51, ¶ 53 (we don’t address

undeveloped arguments), aff’d, 2023 CO 22.

¶ 124 Accordingly, we reject Lewis’s request that we remand the case

to the court for further proceedings related to the grand jury

materials.

VI. Cumulative Error

¶ 125 Finally, Lewis contends that the cumulative impact of the

court’s errors requires reversal.

¶ 126 “When reviewing for cumulative error, we ask whether

‘numerous formal irregularities, each of which in itself might be

deemed harmless, may in the aggregate show the absence of a fair

trial.’” People v. Vialpando, 2022 CO 28, ¶ 33 (quoting Howard-

Walker v. People, 2019 CO 69, ¶ 24). We must reverse if the

cumulative effect of multiple errors and defects substantially

affected the fairness of the trial proceedings and the integrity of the

factfinding process. Howard-Walker, ¶ 24. “The doctrine of

cumulative error requires that numerous errors be committed, not

merely alleged.” People v. Rivers, 727 P.2d 394, 401 (Colo. App.

1986).

56 ¶ 127 We have found one error in the prosecutor’s closing argument

and assumed three other possible errors for purposes of our plain

error analysis, finding each nonprejudicial. We conclude that these

errors, either alone or together, didn’t deprive Lewis of a fair trial.

See Vialpando, ¶¶ 40-46 (finding five errors viewed in the aggregate

didn’t constitute cumulative error that deprived the defendant of a

fair trial).

VII. Disposition

¶ 128 We affirm the judgment.

JUDGE J. JONES and JUDGE LIPINSKY concur.