22CA2251 Peo v Nichols 11-26-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA2251 Garfield County District Court No. 21CR201 Honorable John F. Neiley, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Padrikea Deangelo Nichols,
Defendant-Appellant.
JUDGMENT AND ORDER AFFIRMED
Division III Opinion by JUDGE DUNN Lipinsky and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 26, 2025
Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 For shooting his ex-wife’s husband, a jury convicted Padrikea
Deangelo Nichols of first degree assault. Nichols appeals his
conviction, arguing that the district court reversibly erred by
(1) denying his motion to suppress statements he made the night
before the shooting; (2) admitting other act evidence under CRE
404(b); (3) admitting video exhibits showing him in jail attire;
(4) allowing a detective to give expert testimony about cell-site
location data; and (5) allowing the prosecutor to commit misconduct
in closing argument. Nichols also argues that the cumulative effect
of these errors requires reversal. Because we disagree, we affirm
the judgment of conviction.
¶2 Nichols also challenges the restitution order, claiming that the
district court plainly erred by accepting defense counsel’s waiver of
his presence at the restitution hearing. We again disagree and
affirm the restitution order.
I. Background
¶3 The night before the shooting, Nichols met his ex-wife for
drinks. While they were out, her then husband, the victim, called
Nichols’s ex-wife and threatened her and Nichols. Nichols grabbed
the phone and started arguing with the victim.
1 ¶4 Someone called 911 about a possible domestic disturbance
and two officers responded just after midnight. Officer Drew
Oesterle first spoke with Nichols and was later joined by Officer
Alicia Hampton. Officer Oesterle’s body camera recorded the
roughly four-minute interaction — during which Nichols described
the threats the victim had made to him and his ex-wife. Nichols
added that if he saw the victim, he would “fuck him up,” that
Nichols was the wrong dude to mess with, and people should not
cross him. Nichols also said he had “a legal right to carry arms and
. . . will fire” in self-defense. After requesting and reviewing his
identification, the officers cleared Nichols and said he could go.
While walking away, Officer Hampton heard Nichols say something
like “pop, pop, pop ’em.”
¶5 The next evening, Nichols was on the phone with his daughter,
who lived with his ex-wife and the victim. Nichols overheard the
couple arguing and the victim threatening Nichols’s ex-wife.
Nichols then drove to the victim’s house. After a brief
confrontation, Nichols shot the victim three times, seriously
injuring him. Nichols then sped away. The confrontation and
shooting were captured on security video.
2 ¶6 The prosecution charged Nichols with attempted first degree
murder and first degree assault. At trial, Nichols asserted self-
defense. The jury acquitted Nichols of attempted murder but found
him guilty of assault. The district court sentenced Nichols to
twenty-four years in prison and ordered restitution.
II. Motion to Suppress
¶7 Nichols contends that the district court erred by denying his
motion to suppress his statements to officers the night before the
shooting. Nichols says the statements were the product of a
custodial interrogation in violation of Miranda v. Arizona, 384 U.S.
436 (1966). We aren’t persuaded.
A. Legal Principles and Standard of Review
¶8 To protect the Fifth Amendment privilege against self-
incrimination, officers must provide certain warnings before they
question someone who is in custody. Id. at 444; see People v.
Eugene, 2024 CO 59, ¶ 14. If they do not, any resulting statements
are inadmissible. Effland v. People, 240 P.3d 868, 873 (Colo. 2010).
¶9 A person is in custody for Miranda purposes when formally
arrested, or “if, under the totality of the circumstances, a
reasonable person in the suspect’s position would have felt that
3 [his] freedom of action had been curtailed to a degree associated
with formal arrest.” Eugene, ¶ 15 (citation omitted). This standard
requires a greater restriction on freedom than that necessary for a
Fourth Amendment seizure. See People v. Davis, 2019 CO 84, ¶ 21.
¶ 10 To determine whether an individual was in custody, we
consider, among other factors, (1) the time, place, and purpose of
the encounter; (2) the persons present during the encounter; (3) the
words spoken to the individual; (4) the officers’ tone of voice and
demeanor; (5) the length and mood of the encounter; (6) whether
officers placed any limitation of movement or other form of restraint
on the individual; (7) the officers’ response to any questions the
individual asked; (8) whether the officers gave directions to the
individual; and (9) the individual’s response to such directions.
Eugene, ¶ 15.
¶ 11 Whether a person is in custody for Miranda purposes is a
mixed question of law and fact. People v. Bohler, 2024 CO 18, ¶ 17.
We defer to the district court’s factual findings when supported by
the record, although we may independently review police bodycam
video. Id. We review de novo the legal question whether those
facts, taken together, establish that the person was in custody. Id.
4 B. Nichols Wasn’t in Custody
¶ 12 Considering the nonexhaustive factors outlined above and
based on our own independent review of the bodycam video, we
conclude that, at the time Nichols made the challenged statements,
his freedom was not restrained to the degree associated with formal
arrest.
¶ 13 Though the encounter occurred just after midnight, the
officers contacted Nichols on a public and lighted sidewalk with
onlookers strolling past. See id. at ¶ 20 (finding questioning at
night to be neutral because of public location next to a street and
officers not arranging the time and place). And the purpose was to
investigate a possible domestic disturbance, not to “elicit
incriminating information” as Nichols characterizes it. Indeed, no
crime had been committed at that point.
¶ 14 Consistent with the investigatory nature of the encounter, the
officers’ tones were “calm and conversational,” Davis, ¶¶ 33-34,
with one officer saying, “It’s all good man. We’re just making sure.
Somebody was worried that you guys were arguing out there, so
we’re just checking on you to make sure everyone’s safe.” The
5 officers were not, as Nichols claims, “confrontational and
accusatory.”
¶ 15 While the officers were in uniform and armed, they never drew
their weapons, displayed force, or threatened Nichols. See People v.
Willoughby, 2023 CO 10, ¶ 34. Nor did they handcuff or physically
restrain Nichols. See Mumford v. People, 2012 CO 2, ¶ 17.
Unrestrained, Nichols moved about during the encounter and
smoked a cigarette. Willoughby, ¶ 36 (“No one who had their
freedom of movement restrained to the degree associated with a
formal arrest would reasonably feel like they could smoke a cigar,
let alone without asking for permission.”).
¶ 16 The entire interaction lasted just four minutes. See id. at ¶ 33
(noting that the shorter the encounter, the less likely that it is
custodial). And during that brief time, Nichols did most of the
talking, volunteering his version of the night’s events with little
questioning or prompting by the officers. See Niemeyer v. People,
2024 CO 58, ¶¶ 26-27, 30 (determining that open-ended
conversational questions and long-form narrative responses going
beyond the scope of the initial question weigh against custody).
6 ¶ 17 Other than Officer Oesterle’s request for identification and
statement to Nichols to wait until they cleared him, the officers did
not give Nichols any directions. A request for identification and a
brief detention don’t create custody for Miranda purposes. See
People v. Stephenson, 159 P.3d 617, 622 (Colo. 2007) (“[W]e have
never held that retaining a driver’s license . . . creates custody for
Miranda purposes.”); see also People v. Klinck, 259 P.3d 489, 495
(Colo. 2011) (concluding that the defendant was not in custody
where the police asked for the defendant’s identification, had him
wait while they spoke with the victim, and then questioned the
defendant).
¶ 18 Because Nichols wasn’t in custody, we conclude that the
district court properly denied Nichols’s motion to suppress his
statements to the officers.
III. Other Act Evidence
¶ 19 Over Nichols’s objection, the district court allowed Officer
Hampton to testify that she overheard Nichols say something like
“pop, pop, pop ’em” the night before the shooting. Nichols contends
that the statement was extrinsic other act evidence and the court
erred by admitting it under Rule 404(b). We disagree.
7 A. Legal Principles and Standard of Review
¶ 20 Evidence of other crimes or acts is not admissible “to prove a
person’s character in order to show that on a particular occasion
the person acted in conformity with the character.” CRE 404(b)(1).
But such evidence is admissible for nonpropensity purposes. Rojas
v. People, 2022 CO 8, ¶ 28; CRE 404(b)(2).
¶ 21 To evaluate whether other act evidence triggers Rule 404(b), a
court “must first determine if the evidence is intrinsic or extrinsic to
the charged offense.” Rojas, ¶ 52. If the acts are intrinsic, meaning
they either (1) directly prove the charged offense or (2) occurred
contemporaneously with it and facilitated its commission, then Rule
404(b) doesn’t apply. Id. at ¶ 44. The admissibility of intrinsic
evidence is governed by the general evidentiary rules of relevance
and prejudice. See id. at ¶ 52.
¶ 22 But if the other act evidence suggests bad character and is
extrinsic to the charged offense, Rule 404(b) applies. To be
admissible under Rule 404(b), such evidence must be (1) logically
relevant (2) to a material fact (3) independent of the prohibited
inference of the defendant’s bad character, and (4) the probative
8 value of the evidence must not be substantially outweighed by the
risk of unfair prejudice. See id. at ¶ 27.
¶ 23 We review a district court’s evidentiary rulings, including the
admission of other act evidence, for an abuse of discretion. People
v. Lancaster, 2022 COA 82, ¶ 37.
B. The Other Act Evidence Was Admissible
¶ 24 Nichols agrees that the statement is related to a material fact
and is logically relevant. But he says the court should not have
admitted it because the statement’s logical relevance is not
independent of the prohibited propensity inference and any
probative value is outweighed by unfair prejudice.1
¶ 25 We disagree with Nichols that the statement is not logically
relevant to a material fact.2 A jury could reasonably consider the
statement as circumstantial evidence that Nichols intended to shoot
1 Because the statement neither directly proved the charges, nor
occurred contemporaneously with and facilitated Nichols’s alleged crime, we disagree with the People that the statement was intrinsic evidence. See Rojas v. People, 2022 CO 8, ¶ 52.
2 To the extent Nichols argues that the prosecution did not
articulate a precise evidential hypothesis for the admissibility of the statement independent of the prohibited propensity inference, we disagree. The prosecution argued that the statement demonstrated Nichols’s motive and intent to shoot the victim.
9 the victim. That logical relevance is independent of the inference
that Nichols acted in conformity with a bad character. To the
extent the statement could support a propensity inference, Rule
404(b) does not demand the absence of any possible propensity
inference. See People v. McBride, 228 P.3d 216, 227 (Colo. App.
2009).
¶ 26 We also disagree with Nichols that the statement was unfairly
prejudicial. Because intent can rarely be proved by direct evidence,
the statement had substantial probative value to prove that Nichols
intended to shoot the victim. And any prejudice flowing from the
probative value of the statement is not unfair. See People v. Dist.
Ct., 785 P.2d 141, 147 (Colo. 1990) (evidence is not “unfairly
prejudicial simply because it damages the defendant’s case”).
Indeed, the statement — “pop, pop, pop ’em’” — is not particularly
inflammatory and was not likely to “unduly inflame the passions of
the jury” as it considered the charges. People v. Cross, 2023 COA
24, ¶ 26.
¶ 27 Thus, the court did not abuse its discretion by admitting the
statement under Rule 404(b).
10 IV. Video Evidence
¶ 28 Nichols next argues that the district court erred by admitting
three redacted video clips that, to varying degrees, show him
handcuffed and either wearing jail attire or being fitted for jail
attire. He maintains that the evidence undermined his due process
rights and his presumption of innocence. We disagree.
¶ 29 The parties dispute whether Nichols preserved his objection
with respect to one video clip, as the parties stipulated to its
admission. Because the evidence was properly admitted, we
needn’t resolve this dispute.
¶ 30 “The presumption of innocence, although not articulated in
the Constitution, is a basic component of a fair trial under our
system of criminal justice.” Perez v. People, 2013 CO 22, ¶ 16
(quoting Estelle v. Williams, 425 U.S. 501, 503 (1976)). When a
defendant is required to appear before the jury in visible restraints
or prison clothes, this presumption is directly undermined because
it is a “constant reminder of the accused’s condition” that “may
affect a juror’s judgment.” Estelle 425 at 504-05. That risk “is not
present when the jury is shown a video depicting the defendant in a
11 prison uniform,” however, because “[m]ost jurors would not be
surprised by the fact that a defendant was handcuffed and wearing
jail clothing while in jail prior to trial.” People v. Thames, 2019 COA
124, ¶ 49 (citation omitted).
¶ 31 We review a district court’s ruling on the admissibility of
evidence for an abuse of discretion. People v. Schnorenberg, 2025
CO 43, ¶ 16. To the extent Nichols alleges a constitutional
violation, we review that allegation de novo. People v. Cuevas, 2024
COA 84, ¶ 21.
B. The Video Clips Were Properly Admitted
¶ 32 Nichols argues that his “presumption of innocence did not
remain intact” because the video clips “served as a constant
reminder of his incarceration” during the trial.
¶ 33 A review of the video clips shows otherwise. The three
redacted video clips total approximately twenty-four minutes of a
multiday trial. And of those twenty-four minutes, Nichols is seen
handcuffed and wearing jail attire (or being fitted for jail attire) for
less than three minutes. Even then, Nichols is covered by a jacket
much of the time. Thus, the three video clips briefly showing
Nichols in prison attire and handcuffs during a lengthy trial with
12 dozens of witnesses and exhibits hardly acted as a “constant
reminder” of Nichols’s temporary custody. See Thames, ¶ 50
(rejecting argument that a video slightly over an hour long showing
the defendant in prison attire was a constant reminder of the
defendant’s condition that violated the presumption of innocence);
cf. Estelle, 425 U.S. at 504-05 (holding that the defendant’s right to
a fair trial was violated when he was compelled to wear identifiable
prison clothing during his trial, which was a “constant reminder of
the accused’s condition” that may have affected the jury’s
judgment).
¶ 34 For these reasons, we conclude that the video clips did not
violate Nichols’s constitutional rights to due process or the
presumption of innocence. The court therefore did not abuse its
discretion by admitting the videos at trial.
V. Expert Testimony
¶ 35 Over Nichols’s objection, the district court allowed a former
detective to offer expert testimony about cell-site location data,
finding that the testimony fell within the scope of the expert’s
endorsement, which broadly included homicide and violent crime
investigations. The detective then testified about his review of
13 Nichols’s cell phone location data and how it contradicted Nichols’s
story of where he was just before the shooting.
¶ 36 Nichols raises various objections to the detective’s testimony.
¶ 37 But we needn’t decide whether the court erred by allowing the
testimony because any error was harmless. See Krustinger v.
People, 219 P.3d 1054, 1062-63 (Colo. 2009) (reviewing preserved
objection to expert testimony for harmless error). After all, Nichols
admitted to shooting the victim but claimed he acted in self-
defense. The central dispute at trial was not where Nichols said he
was before the shooting. Rather, it was whether Nichols lawfully
defended himself from what he reasonably believed to be the use or
imminent use of unlawful physical force. See § 18-1-704, C.R.S.
2025 (outlining elements of self-defense). The detective’s cell-site
location data testimony shed no light on Nichols’s intent or the self-
defense claim. And even if it raised some question about Nichols’s
credibility, because the shooting was captured on video, the jury
could independently assess the actions of Nichols and the victim
without regard to their prior actions. Put simply, Nichols’s location
before the shooting was irrelevant.
14 ¶ 38 Because the admission of the testimony did not substantially
influence the verdict or affect the trial’s fairness, any error in
allowing it was harmless.
VI. Prosecutorial Misconduct
¶ 39 Nichols next contends that the prosecutor made multiple
improper comments during closing argument. We see no
misconduct.
¶ 40 We apply a two-step analysis to claims of prosecutorial
misconduct. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).
We first determine “whether the prosecutor’s questionable conduct
was improper based on the totality of the circumstances.” Id. If it
was improper, we then determine whether the misconduct warrants
reversal. Id.
¶ 41 Because Nichols didn’t object to any of the prosecutor’s
statements, we will reverse only if any misconduct was plain error.
See People v. Licona-Ortega, 2022 COA 27, ¶ 88. To constitute plain
error, any prosecutorial misconduct must be obvious and “must be
flagrant or glaring or tremendously improper, and it must so
undermine the fundamental fairness of the trial as to cast serious
15 doubt on the reliability of the judgment of conviction.” Id. (citation
omitted).
B. Misstatement of Facts
¶ 42 Nichols argues that the prosecutor misstated the evidence in
the following comments made during closing:
• “[W]hy didn’t [Nichols] go check on [his ex-wife]? He
wasn’t concerned for her safety.”
• “The only evidence of anyone threatening to kill anyone
during [the phone] conversation is [Nichols] threatening
to kill [the victim].”
• “[The victim] never had a gun.”
• “[Nichols’s ex-wife] testified that [the victim’s] hands were
open, palms forward. And that’s what the video shows,
too.”
¶ 43 Read in context, all these comments are tied directly to the
record or reasonable inferences from the record. It’s undisputed
that Nichols dropped his ex-wife off at her house and only texted
her — but did not return to the house — after the victim had
threatened her. The references to Nichols’s threats and the victim’s
gun ownership were limited to specific conversations. And the video
16 of the shooting showed that the victim did not have a gun.3 That
the prosecutor highlighted certain facts and didn’t address others
that could lead to a different conclusion does not make the
argument improper. See Domingo-Gomez v. People, 125 P.3d 1043,
1048 (Colo. 2005) (explaining that during closing argument, counsel
may “point to different pieces of evidence and explain their
significance within the case”).
C. Arguments Calculated to Inflame the Jurors’ Passions
¶ 44 The prosecutor argued, “There was no reasonable belief that
firing a nine-millimeter handgun five times was necessary under
these circumstances. . . . We don’t even do that in war, shoot a
person that’s already wounded on the ground. That’s not self-
defense.” (Emphasis added.)
¶ 45 Nichols argues that the emphasized portion of the argument
was improper and calculated to inflame the jurors’ passions. But
the argument was tethered to the video evidence showing Nichols
3 While the prosecutor’s statement that the victim’s hands were
open with palms forward may have been somewhat inaccurate, it was hardly a flagrant or glaring misstatement. And, at any rate, the jury had the video and could independently assess whether the victim’s hands were raised or down.
17 shooting the victim while the victim was on the ground. Though the
language may be dramatic, it is not improper to “engage in
oratorical embellishment.” People v. Samson, 2012 COA 167, ¶ 31.
And the statement did not invite the jury to decide the case on
anything other than the evidence.
VII. Cumulative Error
¶ 46 Nichols asserts that, collectively, the district court’s errors
violated his right to a fair trial, entitling him to a new one. See
Howard-Walker v. People, 2019 CO 69, ¶ 24. But cumulative error
requires multiple errors resulting in cumulative prejudice. Id. at
¶ 25. Because we disagree that the district court committed
multiple errors, cumulative error doesn’t apply.
VIII. The Restitution Hearing
¶ 47 Defense counsel objected in writing to the prosecution’s
requested restitution and asked for an evidentiary hearing. The
objection twice stated that Nichols “requests that he be excused
from such a hearing.” And though the prosecution filed a writ for
Nichols to appear at the restitution hearing, it later moved to vacate
it because Nichols had “waived his appearance” for the hearing.
The court then vacated the writ.
18 ¶ 48 At the restitution hearing, the court said that Nichols’s
“personal appearance or WebEx appearance was waived by
agreement of the parties.” Defense counsel did not object and,
instead, represented Nichols at the hearing.
¶ 49 Nichols now contends that the restitution order should be
vacated because he wasn’t present at the hearing and “there is no
evidence Nichols voluntarily, knowingly, and intelligently waived his
right to be present.”
¶ 50 To be sure, a defendant has the right to be present at all
critical stages of a criminal proceeding, which includes restitution
hearings. People v. Martinez Rubier, 2024 COA 67, ¶ 61. But the
right is not absolute; a defendant may waive his right to be present.
People v. Janis, 2018 CO 89, ¶ 17.
¶ 51 Because defense counsel did not object to proceeding without
Nichols present, we review for plain error. People v. Hernandez,
2019 COA 111, ¶ 29. An error is plain in the restitution context
when it is obvious, meaning that it casts serious doubt on the
reliability of the restitution award. Id. at ¶ 30.
¶ 52 Under these circumstances, we are unconvinced that any error
was plain. Because defense counsel represented in writing that
19 Nichols asked to be excused from the hearing, did not object when
the prosecutor moved to vacate the writ, and did not object when
the court said that Nichols had waived his appearance, we are
skeptical that the district court obviously erred by proceeding
without Nichols present.
¶ 53 But even assuming the court should have inquired further,
Nichols doesn’t explain how his absence from the restitution
hearing “so undermined the fundamental fairness of the [hearing]
itself so as to cast serious doubt on the reliability” of the outcome.
Hagos v. People, 2012 CO 63, ¶ 14 (citation omitted). Indeed,
Nichols doesn’t say how his presence would have affected the
hearing or what testimony he could have added that might have
affected the restitution order. We therefore can’t conclude that any
error in proceeding without Nichols was substantial enough to be
plain. Cf. Hernandez, ¶ 24 (“[I]f particular facts show that the
defendant’s presence would be useless or only slightly beneficial,
proceeding in the defendant’s absence will be harmless beyond a
reasonable doubt.”).
¶ 54 We are unpersuaded that Hernandez requires a different
result. In that case, defense counsel planned “to writ” the
20 defendant to the restitution hearing but “didn’t do that.” Id. at ¶ 4.
Defense counsel did not represent that the defendant asked to be
excused or did not want to be present. Even so, defense counsel
asked to waive the defendant’s presence and proceed without the
defendant. Id.
¶ 55 That’s very different from what happened here. Defense
counsel did not forget to obtain a writ for Nichols’s appearance at
the restitution hearing. Rather, before the restitution hearing,
defense counsel represented that Nichols asked to be excused.
Despite several later opportunities to demand Nichols’s presence,
defense counsel never suggested that Nichols’s position had
changed and that he wanted to be present.
¶ 56 Because we cannot conclude that the district court plainly
erred by proceeding with the restitution hearing without Nichols
present, we affirm the restitution order.
IX. Disposition
¶ 57 The judgment of conviction and restitution order are affirmed.
JUDGE LIPINSKY and JUDGE KUHN concur.