22CA0038 Peo v McDuffie 04-24-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0038 City and County of Denver District Court No. 19CR6072 Honorable Jennifer B. Torrington, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Elliott O. McDuffie,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division III Opinion by JUDGE DUNN Tow and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 24, 2025
Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney General, 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, Elliott O. McDuffie, appeals the judgment of
conviction entered on jury verdicts finding him guilty of two
manslaughter counts. We affirm.
I. Background
¶2 Early one morning, McDuffie returned home after working a
night shift. As he walked to his apartment, he saw his neighbors,
Jamarian McGhee and Destiny McGhee, standing nearby.1 The
neighbors’ apartment windows had recently been shot with a BB
gun. When McDuffie approached, Destiny told Jamarian that
McDuffie was the person who had shot their apartment windows.
Jamarian then approached McDuffie to confront him about the
windows.
¶3 Jamarian and McDuffie dispute what happened next.
According to Jamarian, he calmly walked up to McDuffie and asked
about the windows. Before Jamarian could finish his question,
however, McDuffie pulled out a gun and shot him. In contrast,
McDuffie reported that Jamarian approached him angrily and
1 Because Jamarian and Destiny share the same last name, we
refer to them by their first names to avoid confusion, but we intend no disrespect.
1 began to threaten him. Jamarian also had one hand concealed in
his pocket. Between Jamarian’s threats and concealed hand,
McDuffie believed that Jamarian had a gun. Jamarian then jerked
his concealed hand from his pocket as if to pull out a weapon.
Fearing for his life, McDuffie drew his gun and shot Jamarian.
¶4 McDuffie fired eight shots in quick succession. Three shots
hit Jamarian; he survived. But one shot hit Destiny, killing her.
¶5 For shooting Jamarian, the prosecution charged McDuffie with
attempted first degree murder (after deliberation), attempted first
degree murder (extreme indifference), and first degree assault. And
for killing Destiny, the prosecution charged McDuffie with first
degree murder (after deliberation) and first degree murder (extreme
indifference).
¶6 At trial, McDuffie defended on the theory that he acted in self-
defense against Jamarian and, in doing so, inadvertently shot and
killed Destiny. The jury heard the competing versions of events
directly from Jamarian and McDuffie. It ultimately acquitted
McDuffie of all charges as to Jamarian and all but two lesser
included manslaughter counts as to Destiny. The court merged the
2 two manslaughter counts and sentenced McDuffie to six years in
prison.
¶7 On appeal, McDuffie contends that the trial court erred by
(1) declining to instruct the jury on transferred intent self-defense;
(2) instructing the jury on deadly force self-defense for Jamarian,
who did not die; and (3) denying his motion in limine, which sought
to prevent all parties and witnesses from referring to Jamarian and
Destiny as “victims” at trial. McDuffie also argues that these errors
cumulatively deprived him of a fair trial. We address each
contention in turn and conclude that no reversible error occurred.
II. Transferred Intent Self-Defense Instruction
¶8 McDuffie contends that the trial court erred by refusing to
instruct the jury “on the doctrine of transferred intent self-defense.”
A. Additional Background
¶9 Portions of the jury instruction conference are not in the
record, but as best we can tell, the parties agreed to four self-
defense instructions with respect to all the charged and lesser
included offenses: (1) deadly force self-defense as an affirmative
defense; (2) deadly force self-defense as an element-negating
3 traverse; (3) ordinary force self-defense as an affirmative defense;
and (4) ordinary force self-defense as an element-negating traverse.2
¶ 10 In addition to these instructions, McDuffie asked the court to
instruct the jury on transferred intent self-defense. To that end,
McDuffie proposed the following instruction:
A person’s right to act in self-defense is a natural, essential, and inalienable right protected by the Colorado Constitution.
The defendant was legally authorized to use physical force upon another person without first retreating if: He used that physical force in order to defend himself from what he reasonably believed to be the use or imminent use of unlawful physical force by another person and/or others who he reasonably believed to be acting in concert with that person, and he used a degree of force which he reasonably believed to be necessary for that purpose. The prosecution has the burden to prove, beyond a reasonable doubt, that the defendant’s conduct was not legally authorized by this defense.
2 Concerning the crimes charged for Destiny, self-defense was an
affirmative defense only to first degree murder (after deliberation) and second degree murder, meaning that the prosecution had the burden to disprove the defense. As to the remaining charges for Destiny, self-defense was an element-negating traverse that the prosecution didn’t need to disprove. See Pearson v. People, 2022 CO 4, ¶¶ 17-19 (explaining the differences between an affirmative defense and a traverse).
4 Transferred intent self defense: The doctrine of self-defense is available to insulate one from criminal responsibility for charges where his act, justifiably in self-defense against another person, inadvertently results in the injury or death of an innocent bystander. For example: If A aims at his attacker B in proper self-defense, but hits C instead, he is not generally guilty of murder or assault of C. Once again, he is only as guilty as to C as he would have been had his aim been accurate enough to have hit B.
¶ 11 Citing his constitutional right to present a defense, and
pointing to People v. Koper, 2018 COA 137, which recognized
transferred intent self-defense, McDuffie argued that the court was
required to give the transferred intent instruction because it went
“to the core of” his defense theory. The prosecution countered that
Koper required self-defense instructions “where a third party is
killed as a result of intent to kill” a different person. Thus, the
prosecution argued that the standard self-defense instructions were
sufficient and that a separate transferred intent instruction based
on Koper wasn’t necessary. The court agreed with the prosecution
and rejected McDuffie’s proposed transferred intent instruction.
¶ 12 Defense counsel then asked the court to let him explain
transferred intent to the jury during closing argument — that is, to
5 specifically relay the “A intending to shoot B but hit C” example
taken from Koper and described in his rejected instruction. The
prosecution did not object. The court agreed to allow defense
counsel to present that “hypothetical” to the jury so long as it “[did]
not include any reference to the case law that underlies it.”
¶ 13 During closing argument, defense counsel thoroughly
explained to the jury the concept of transferred intent self-defense
and, more specifically, how McDuffie’s use of self-defense against
Jamarian transferred to and justified his conduct as to Destiny.
B. Applicable Law and Standard of Review
¶ 14 Transferred intent self-defense is a legal fiction. See Koper,
¶¶ 11-13. Under that concept, “the doctrine of self-defense is
available to insulate one from criminal responsibility where his act,
justifiably in self-defense, inadvertently results in the injury of an
innocent bystander.” Id. at ¶ 13 (citation omitted).3
3 The People don’t question People v. Koper, 2018 COA 137, or ask
us to revisit whether transferred intent self-defense applies, so we don’t consider that issue. Yet our supreme court has plainly disapproved of the doctrine of transferred intent in first degree murder “bad-aim” cases. People v. Jackson, 2020 CO 75, ¶¶ 2, 16- 22. Whether and to what extent that view extends to transferred intent self-defense is an open question.
6 ¶ 15 We review a trial court’s decision whether to give a particular
jury instruction for an abuse of discretion. People v. Trujillo, 2025
COA 22, ¶ 24. A court abuses its discretion when its ruling is
manifestly arbitrary, unreasonable, or unfair, or when it misapplies
the law. Id.
¶ 16 But we review de novo whether the jury instructions, as a
whole, accurately informed the jury of the law. Id.
C. The Court Didn’t Reversibly Err by Rejecting McDuffie’s Transferred Intent Instruction
¶ 17 McDuffie says that, by rejecting his proposed transferred
intent self-defense instruction, the trial court “effectively deprived”
him of “the benefit of the traverse to the charges” related to
Destiny.4 We disagree for a few reasons.
4 As the People point out — and McDuffie doesn’t appear to
contest — he argues only that the trial court erred by failing to give his transferred intent instruction as a traverse, not that it erred by failing to tender the instruction as an affirmative defense. Thus, we only address whether the court erred by refusing McDuffie’s instruction as a traverse.
7 1. The Instructions Conveyed the Concept of Transferred Intent Self-Defense
¶ 18 For one, the instructions as a whole accurately conveyed the
concept of transferred intent self-defense. The deadly force self-
defense traverse instruction stated:
A person is justified in using deadly physical force upon another person without first retreating 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 if he reasonably believes a lesser degree of force is inadequate, and he has a reasonable ground to believe, and does believe, that he is in imminent danger of being killed or of receiving great bodily harm.
The ordinary force self-defense traverse instruction similarly
provided:
A person is justified in using physical force upon another person without first retreating 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.
¶ 19 Despite these instructions, McDuffie maintains that by
informing the jury that he was entitled to defend himself against
“another person” when “that other person” was using or about to
8 use unlawful force, the traverse instructions didn’t allow the jury to
conclude that his use of self-defense against Jamarian also applied
to Destiny.5
¶ 20 But McDuffie’s argument ignores the remainder of the traverse
instructions. The traverse instructions specified that “[t]he evidence
in his case has raised the question of self-defense with respect to”
first degree murder (extreme indifference), manslaughter, and
criminally negligent homicide — offenses that only concerned
Destiny. The traverse instructions then stated that, with respect to
these offenses, “a person does not act with extreme indifference,
recklessness, or criminal negligence if his conduct is legally justified
as set forth above” — that is, if McDuffie’s use of force against
Jamarian was justified.
¶ 21 Thus, read together, these instructions correctly and
completely explained transferred intent self-defense as it applied to
Destiny: if McDuffie’s use of self-defense against Jamarian was
justified, then his conduct toward Destiny was not extremely
5 The self-defense portion of McDuffie’s proposed transferred intent
instruction included similar references to “another person” and “that person” that he now takes issue with.
9 indifferent, reckless, or criminally negligent. See People v. Bryant,
2018 COA 53, ¶ 85 (“If the instructions, taken as a whole, properly
instructed the jury on the governing law, there is no error.”).
2. No Separate Transferred Intent Self-Defense Instruction Was Required
¶ 22 We are equally unpersuaded by McDuffie’s contention that
Koper requires a separate instruction on transferred intent self-
defense. While Koper adopted the concept of transferred intent self-
defense, Koper, ¶ 15, it held only that the defendant’s transferred
intent self-defense theory warranted a self-defense instruction, see
id. at ¶ 23 (concluding that “the trial court erred in rejecting
defendant’s jury instructions on self-defense as an affirmative
defense”). Koper didn’t say that the trial court must give a separate
transferred intent self-defense instruction. See id. at ¶¶ 4-28.
That’s so even though the defendant in Koper asserted transferred
intent self-defense as an affirmative defense, id. at ¶¶ 5-6, which
requires a separate instruction, see People v. Marks, 2015 COA 173,
¶ 54.
¶ 23 Pressing on, McDuffie claims that without an express
transferred intent instruction, the other instructions were
10 “confusing,” “contradictory,” and “internally inconsistent.” He says
the jury must’ve understood and followed the “plain language” of
the instructions to find that McDuffie was only authorized to use
self-defense against Jamarian. This appears to be a rehash of
McDuffie’s “that other person” argument that we rejected above. To
the extent this argument is different, McDuffie doesn’t explain how
the instructions were confusing, contradictory, or inconsistent.
And he directs us to nothing in the record that suggests the jury
misunderstood that if McDuffie’s use of self-defense against
Jamarian was justified, then his conduct as to Destiny was not
extremely indifferent, reckless, or criminally negligent. Indeed, the
jury asked two questions during deliberations, and neither involved
the traverse instructions or McDuffie’s use of self-defense.
¶ 24 Finally, McDuffie argues his transferred intent instruction was
necessary because the court was required to “tailor instructions to
the particular circumstances” to “apprise the jury of the law of self-
defense from the standpoint of the defendant.” Idrogo v. People, 818
P.2d 752, 754 (Colo. 1991) (emphasis added). In Idrogo, the
defendant requested a self-defense instruction explaining that he
had no duty to retreat before using deadly force against his
11 assailant. Id. at 753-54. The supreme court held, among other
things, that the trial court erred by failing to explicitly instruct the
jury on the defendant’s no-retreat theory. Id. at 754-57. This
holding does not support the broad proposition that McDuffie was
entitled to the exact self-defense instruction of his choosing. After
all, a court doesn’t err by rejecting a defendant’s proposed
instruction — even if legally correct — when the other instructions
adequately advise the jury of the law. See People v. Darbe, 62 P.3d
1006, 1010 (Colo. App. 2002). As explained, the two traverse
instructions adequately informed the jury that if McDuffie’s use of
self-defense against Jamarian was justified, then his conduct
toward Destiny was not extremely indifferent, reckless, or criminally
negligent.6
3. Any Error Regarding the Self-Defense Instructions Was Harmless
¶ 25 Even if we assume the self-defense instructions could have
been clearer, any error was harmless because the court instructed
6 McDuffie doesn’t contend that the verdicts are inconsistent, and in
any event, consistent verdicts aren’t necessarily required. See People v. Frye, 898 P.2d 559, 571 (Colo. 1995).
12 the jury using McDuffie’s requested theory of the case instruction.
That instruction read:
The defense contends that [McDuffie] was lawfully defending himself against the imminent use of unlawful force by [Jamarian], when he fired his gun at [Jamarian], and inadvertently struck and killed [Destiny].
[McDuffie] drew his firearm and used it solely for the purpose of preventing an assault by [Jamarian].
In addition, McDuffie thoroughly walked the jury through the
doctrine of transferred intent self-defense and why he believed it
applied here. As defense counsel explained to the jury:
Though A intentionally injures B, A is not guilty of murder. Though he injured B, he may be guilty of no crime at all such as when he’s privileged to kill or injure B in self- defense.
Now, suppose A shoots B under these circumstances, right -- suppose that somebody is defending themselves legally, take that part for granted. They believe legally, reasonably, in all ways their conduct is perfectly acceptable to defend themselves to shoot at B, and then inadvertently, accidentally they miss and they kill and injure C, an innocent bystander.
. . . A person’s intent to defend themselves from a person also transfers to an unintended bystander. Once again, he’s only as guilty to C as he would have been had his aim been
13 accurate enough to hit B. In effect, A’s intent to shoot, intent to defend himself from B transfers to C.
. . . [McDuffie] never intended to shoot [Destiny]. He never pointed the gun at her. He never knew that she was there, which is why he’s not guilty of any of the crimes for [Destiny] as the named victim in this case.
That’s what happened. There was a situation where [McDuffie] had to defend himself from a threat. And that’s what he did and, unfortunately, [Destiny], who did not deserve to die, died. It’s terrible, it’s tragic, but she died because [McDuffie] was defending himself legally.
¶ 26 Because the court instructed the jury on self-defense and
McDuffie’s theory of defense, and because McDuffie explained his
transferred intent defense in closing argument, the failure to
separately instruct the jury on transferred intent self-defense didn’t
substantially influence the verdict or affect the fairness of
McDuffie’s trial. See Hagos v. People, 2012 CO 63, ¶ 12.
¶ 27 That alone makes this case different from the out-of-state
cases McDuffie relies on where, without a separate transferred
intent instruction, the jury had no ability to acquit the defendant
for crimes related to the bystander. See, e.g., State v. Greenfield,
847 S.E.2d 749, 753-57 (N.C. 2020) (concluding the jury could not
14 acquit without the defendant’s transferred intent self-defense
instruction because no self-defense instruction was given for
convicted charge and general instruction on transferred intent did
not inform the jury that self-defense could transfer); State v. Clifton,
290 N.E.2d 921, 922-23 (Ohio Ct. App. 1972) (concluding the jury
could not acquit without transferred intent instruction). Unlike
these cases, the jury here had an avenue to acquit McDuffie on the
charges related to Destiny, and it largely did so.
4. The Court Wasn’t Required to Rework McDuffie’s Theory of the Case Instruction
¶ 28 For similar reasons, we reject McDuffie’s alternate argument
that the court should have incorporated the substance of his
proposed transferred intent instruction into his theory of the case
instruction. The jury received McDuffie’s requested theory of the
case instruction, which advised the jury that he “inadvertently
struck and killed [Destiny]” while lawfully defending himself against
Jamarian. That is, he got the instruction he asked for. On top of
that, as outlined already, the court properly instructed the jury on
self-defense and permitted McDuffie to thoroughly explain the
concept of transferred intent self-defense in closing argument.
15 ¶ 29 Because the court accepted McDuffie’s theory of the case
instruction and allowed him to fully explain his transferred intent
self-defense theory to the jury, the trial court didn’t err by not sua
sponte incorporating the substance of McDuffie’s rejected
transferred intent instruction into his theory of the case instruction.
See People v. Dore, 997 P.2d 1214, 1221-22 (Colo. App. 1999)
(concluding the trial court didn’t err by rejecting the defendant’s
theory of the case instruction because the instructions as a whole
and defense counsel’s closing argument adequately informed the
jury of the defendant’s theory of the case); see Nibert v. Geico Cas.
Co., 2017 COA 23, ¶ 9 (explaining that it’s “not error” for a court to
reject a party’s theory of the case instruction when, among other
things, “the court allows the party to otherwise argue its theory of
the case”).
¶ 30 We therefore conclude that the trial court didn’t reversibly err
by rejecting McDuffie’s transferred intent self-defense instruction.
III. Deadly Force Self-Defense Instruction
¶ 31 Next, McDuffie contends that the trial court erred by
instructing the jury on deadly force self-defense. More specifically,
he argues that because he didn’t use deadly force against Jamarian,
16 the court shouldn’t have instructed the jury on deadly force self-
defense as to Destiny, even though she died.
¶ 32 McDuffie didn’t object to the deadly force self-defense
instructions (indeed, he stipulated to them). We therefore review
only for plain error. See People v. Martinez, 2022 COA 111, ¶ 32,
aff’d, 2024 CO 48. To be plain, an error must be obvious, meaning
it contravenes a clear statutory command, a well-settled legal
principle, or Colorado case law. People v. Burdette, 2024 COA 38,
¶ 32.
¶ 33 We aren’t aware of any authority — and McDuffie points us to
none — concluding that a deadly force self-defense instruction
doesn’t apply when one victim dies (albeit inadvertently). Nor does
McDuffie explain how the trial court erred by instructing the jury on
deadly force self-defense for the charges related to Destiny, who did
die. Without any argument or legal authority explaining why deadly
force self-defense doesn’t apply when an unintended victim dies, we
conclude that the trial court didn’t plainly err by instructing the
jury on deadly force self-defense.7
7 For the offenses concerning Jamarian, who did not die, the court
gave two ordinary force self-defense instructions.
17 IV. Motion in Limine
¶ 34 McDuffie’s final claim is that the trial court erred by denying
his motion in limine, which sought to prevent all parties and
witnesses from referring to Jamarian and Destiny as “victims” at
trial.
¶ 35 Before trial, McDuffie filed a motion in limine requesting the
court to prohibit “all parties and trial participants” from referring to
Jamarian and Destiny as “victims” at trial. In it, McDuffie argued
that the term “victim” presupposed the commission of a crime, was
unfairly prejudicial under CRE 403, undermined his self-defense
claim, bolstered the prosecution’s theory, and violated his due
process and fair trial rights.
¶ 36 At the pretrial motions hearing, the prosecution objected,
arguing that it was “presupposing the commission of a crime by
bringing charges against [McDuffie]” and that Jamarian and
Destiny “were, in fact, victims of a crime by the definitions of the
Colorado Revised Statutes.” The prosecution added that it “will not
go around trying to inflame the passions of the jury by using the
18 word [“victim”] haphazardly . . . but it is a word that is perfectly
within our lexicon to use as part of our case.”
¶ 37 Denying McDuffie’s request, the trial court ruled as follows:
I’ll tell you what I think about it. I think it’s a trap for a mistrial. Victim is a natural word. Witnesses are going to use it. . . . I’m not going to set up a ruling so that the minute somebody says victim, which will surely happen, that there’s a mistrial motion. I won’t do it. People need to testify honestly without pressure. They can’t be sitting in the witness stand thinking, What is the list of words I can’t say today, and looking nervous about it. They’re entitled to testify, and I’m not going to cramp that.
....
You know, sometimes it is statutory. It’s not improper to call them victims. It doesn’t mean [the People] don’t have a burden to prove that they’re the victims of a crime in this case. I don’t expect the People are going to abuse it. If they do, I can call them up. But, no, we’re not banning words in this courtroom like that and putting everyone on edge about it and setting up mistrials. I expect everyone to be careful about it, but there’s no ban on the word victim in a murder trial.
¶ 38 During trial, several prosecution witnesses referred to
Jamarian or Destiny as “victim” during their testimony. The
prosecution occasionally asked questions using the word “victim.”
19 Defense counsel also used the word “victim” in a few questions.
The court asked one juror question that used the word “victim.”
During closing arguments, both the prosecution and defense
counsel used the word “victim” once.
¶ 39 McDuffie didn’t contemporaneously object to the use of the
word “victim” during trial, though he preserved his objection
through his pretrial motion in limine.
B. Standard of Review
¶ 40 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Strickler, 2022 COA 1, ¶ 21; see also Palizzi v.
City of Brighton, 228 P.3d 957, 962 (Colo. 2010) (reviewing a court’s
ruling on an evidentiary motion in limine for an abuse of
discretion). A court abuses its discretion when its ruling is
manifestly arbitrary, unreasonable, or unfair, or when it misapplies
the law. Strickler, ¶ 21.
¶ 41 To the extent McDuffie alleges a constitutional violation, we
review that allegation de novo. People v. Cuevas, 2024 COA 84,
¶ 21.
20 C. The Court Didn’t Abuse its Discretion by Allowing the Parties and Witnesses to Use the Word “Victim”
¶ 42 By allowing the prosecution and witnesses to refer to
Jamarian and Destiny as “victims” throughout trial, McDuffie says
the trial court violated his due process rights and his presumption
of innocence. In support, he advances several discrete arguments.
None are persuasive.
¶ 43 First, McDuffie points to Colorado’s criminal pattern jury
instructions, which include the general recommendation that
instructions “[a]void using . . . words which can be construed as
connoting prejudgment of the evidence (e.g., the term ‘victim,’ which
presupposes the commission of a crime).” COLJI-Crim. ch. A,
miscellaneous cmt. 2 (2024). But during the pretrial motions
hearing, defense counsel specifically clarified that McDuffie’s
request to prohibit the word “victim” was “not a jury instruction
issue” but rather “an issue related to in-trial references.” Nor does
the word “victim” appear anywhere in the jury instructions. So we
don’t see how the model jury instructions provide much guidance
on the trial court’s discretionary evidentiary ruling. See People v.
Salazar, 2023 COA 102, ¶ 22 (explaining that the model jury
21 instructions, while helpful for instructional issues, are ultimately
not binding on courts).
¶ 44 Second, McDuffie cites cases from other jurisdictions where
courts have concluded that it is improper to refer to the
complaining witness as a “victim” at trial. See, e.g., Jackson v.
State, 600 A.2d 21, 24 (Del. 1991); State v. Devey, 2006 UT App
219, ¶ 17. Colorado, however, has not prohibited the word “victim”
at trial. See People v. Dinapoli, 2015 COA 9, ¶¶ 29-35 (recognizing
that no Colorado case had yet addressed the issue and
acknowledging the split in authority among jurisdictions that have
addressed it). Thus, nothing prohibited the court from exercising
its broad discretion to decline McDuffie’s request.
¶ 45 Third, McDuffie broadly asserts violations of his presumption
of innocence and, citing CRE 403, unfair prejudice. But
considering the handful of references to the word “victim” in the
context of the four-day trial with twenty witnesses, we cannot
conclude that the use of the word “victim” was unfairly prejudicial,
much less that it violated his presumption of innocence. See People
v. Gonzales, 2019 COA 30, ¶ 34 (noting that unfair prejudice refers
to an undue tendency to suggest a decision made on an improper
22 basis), aff’d, 2020 CO 71; see also People v. Pernell, 2014 COA 157,
¶¶ 69-74 (discerning no error or unfair prejudice from witnesses’
and the prosecutor’s use of the term “rape” to reference an alleged
sexual assault), aff’d, 2018 CO 13.
¶ 46 To illustrate, some witnesses (such as first responders and a
resident of the apartment complex where the parties lived) referred
to Jamarian and Destiny as “victims” because the witnesses didn’t
know their names. In those instances, the prosecution appeared to
try and encourage the witnesses to use Jamarian’s and Destiny’s
names instead of the word “victim.” While the prosecution did
occasionally ask questions using the word “victim,” such questions
were asked to elicit information from these witnesses about what
happened after the shooting occurred and over the course of the
police investigation and were not framed to evoke sympathy or
inflame the jury. Other times, the witnesses and prosecution used
the word “victim” generically and not in reference to Jamarian and
Destiny (for example, to explain how a doctor generally treats
gunshot wound victims). And during closing argument, the
prosecutor called Jamarian a “victim” once when summarizing
23 McDuffie’s testimony about the shooting. None of these instances
strike us as improperly inflammatory or unfairly prejudicial.
¶ 47 Still, even assuming the trial court abused its discretion by
allowing the references to Jamarian and Destiny as “victims,” we
will not reverse unless the court’s error “substantially influenced
the verdict or affected the fairness of the trial proceedings.” People
v. Snelling, 2022 COA 116M, ¶ 32 (citation omitted). The record
here demonstrates that the references to the word “victim” — used
relatively sparingly and scattered throughout the trial — neither
adversely influenced the jury’s verdict nor rendered the trial unfair.
That is, despite occasional references to Jamarian as a “victim,” the
jury acquitted McDuffie of all charges for Jamarian. It likewise
acquitted McDuffie of all but two lesser included charges for
Destiny. Thus, the verdicts show that the word “victim” did not
unduly sway or influence the jury. See People v. Quillen, 2023 COA
22M, ¶ 39 (remarking that a split verdict shows that the jurors
“parsed the evidence and were not unduly swayed by any improper
evidence”); Snelling, ¶ 40 (explaining that the jury’s split verdict
demonstrates that the improper testimony “did not substantially
influence the verdict”). The court also mitigated any harm by
24 properly instructing the jury orally and in writing on McDuffie’s
theory of self-defense, his presumed innocence, and the
prosecution’s burden of proof. Cf. Dinapoli, ¶ 32 (concluding that
references to complaining witness as a “victim” during trial did not
cause sufficient prejudice to constitute plain error because jury was
instructed on presumption of innocence and burden of proof); State
v. Robinson, 838 A.2d 243, 247-48 (Conn. App. Ct. 2004)
(concluding that any prejudicial effect resulting from trial court’s
use of the word “victim” in jury instructions was negated, and
therefore did not violate the defendant’s right to a fair trial, because
the jury was also instructed on the defendant’s presumption of
innocence).
¶ 48 All this said, we conclude that the trial court didn’t reversibly
err by allowing the parties and witnesses to refer to Jamarian and
Destiny as “victims” at trial.
V. Cumulative Error
¶ 49 Though we have assumed two possible errors, even viewed
collectively, the assumed errors did not “substantially affect[] the
fairness of the trial proceedings and the integrity of the fact-finding
process.” Howard-Walker v. People, 2019 CO 69, ¶ 24 (quoting
25 People v. Lucero, 615 P.2d 660, 666 (Colo. 1980)). We therefore
reject McDuffie’s cumulative error contention.
VI. Disposition
¶ 50 We affirm the judgment.
JUDGE TOW and JUDGE MEIRINK concur.