Peo v. Norment

• Court: Colorado Court of Appeals
• Decided: September 12, 2024
• Docket: 22CA1331
• Status: Unknown

Opinion

22CA1331 Peo v Norment 09-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1331

Arapahoe County District Court No. 21CR478

Honorable Elizabeth Weishaupl

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Romaun Oshea Norment,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V

Opinion by JUDGE FREYRE

Grove and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced September 12, 2024

Phillip J. Weiser, Attorney General; Sonia Raichur Russo, Assistant Attorney

General, Denver, Colorado for Plaintiff-Appellee

Jeffrey C. Parsons, Alternate Defense Counsel, Broomfield, Colorado, for

Defendant-Appellant

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¶ 1 Defendant, Romaun Oshea Norment, appeals the judgment of

conviction entered on a jury verdict finding him guilty of first degree

assault. We affirm.

I. Background

¶ 2 Norment and the victim, Jaxon Hood, passed each other as

Norment exited, and Hood entered, a cannabis dispensary. Hood’s

friend, who had driven him to the dispensary, heard Hood refer to

another man who was leaving the dispensary: “[L]ook at this [n

word]. He’s a homosexual.” Norment, who was behind the man

leaving the dispensary, said to Hood, “You are too.”

¶ 3 As Norment got into his car, he told Hood’s friend, “Hey, your

homey should watch what he says to people” and “[d]oes your friend

want to get shot today?”

¶ 4 Norment drove out of the parking lot, but returned as Hood

and his friend were leaving the lot.

¶ 5 According to Hood’s friend, Norment turned his car around to

drive in the same direction as Hood and his friend. The two cars

ultimately stopped at an intersection and Hood got out, walked to

Norment’s vehicle, kicked the mirror, and told Norment to get out of

his car. Norment then shot Hood.

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¶ 6 At his jury trial, Norment did not testify, but counsel argued

that the shooting was justified by self-defense. The jury received an

instruction describing the elements of the affirmative defense of

self-defense. And the jury received a theory of defense instruction,

which said, “[Mr. Norment] only fired his gun in response to being

surprised and attacked by Mr. Hood. Mr. Norment tried to remove

himself from the situation by turning right and away from the car

Mr. Hood was in.” The instruction further said that it was

Norment’s theory of the case that “Mr. Hood wanted to confront

[him] and cause him injury. Mr. Norment fired his weapon to get

Mr. Hood to back off from his attack.”

¶ 7 The jury acquitted Norment of attempted first degree murder

but convicted him of first degree assault with a deadly weapon

causing serious bodily injury.

II. Discussion

¶ 8 Norment asserts that reversal is required because the

prosecutor committed misconduct during closing arguments. He

contends that, on two occasions, the prosecutor improperly inferred

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his guilt by commenting on his constitutional right to silence.

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And he contends that the prosecutor misstated the law of self-

defense. We discern no basis for reversal.

A. Preservation and Standard of Review

¶ 9 The parties agree that Norment contemporaneously objected to

the prosecutorial comments he complains of on appeal. Whether a

prosecutor’s statements constitute misconduct is generally a matter

left to the trial court’s discretion. Domingo-Gomez v. People, 125

P.3d 1043, 1049 (Colo. 2005). Thus, we review claims of

prosecutorial misconduct for an abuse of discretion. People v.

Carter, 2015 COA 24M-2, ¶ 63. In doing so, we determine whether

the conduct was improper under the totality of the circumstances

and whether reversal is warranted under the appropriate standard.

Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

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Norment characterizes the comments as “repeated” but cites to

only two instances of allegedly improper commentary on his right to

remain silent.

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B. Allegedly Improper Comments on Silence

1. Pertinent Facts

¶ 10 In closing argument, the prosecutor argued that “[t]his [wa]s

not a case of self-defense,” noting that after the shooting, Norment

“didn’t stick around to help Jaxon Hood, who now has the potential

to bleed out in the middle of the road. He doesn’t stick around. We

don’t hear from him in February. We don’t hear from him in

March.”

¶ 11 Defense counsel objected, arguing at a bench conference that

the prosecution “can’t say they didn’t hear from him” because

“that’s a comment on remaining silent.” The court asked, “What

would you like me to do?” Defense counsel responded that the

court “need[ed] to say that it’s inappropriate for [the prosecutor] to

comment on” a defendant’s right to remain silent.

¶ 12 The prosecutor argued that he was “allowed to comment on

pre-arrest silence,” and the period he had referred to was the period

before Norment’s arrest. The court instructed the prosecutor to

“move on and not make any more comments with regards to if he

said anything or didn’t say anything at any time.”

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¶ 13 The court then instructed the jury that the “[d]efendant in a

criminal case always has the right to remain silent.”

¶ 14 Later, in rebuttal closing, the prosecution — albeit a different

prosecutor — returned to the subject of Norment’s actions before

and after the shooting:

He is stalking the victim. He is chasing the

victim. Then he fires that weapon, and then

he flees. He doesn’t look out the window to see

if the victim is going to be okay. He doesn’t

ask. He doesn’t do anything to try to help this

guy that he just shot, and he doesn’t say

anything to anybody. He doesn’t say, “Hey,

law enforcement, I just did this extremely . . .

reasonable thing.”

¶ 15 Defense counsel again objected on the basis that the

prosecutor “just said that Mr. Norment didn’t talk to the police . . . .

The [c]ourt has got to admonish him that’s wrong.”

¶ 16 Among other things, the prosecutor responded that “[i]t is

absolutely proper under the law to comment on pre-arrest silence,

to the extent that’s even what I’m doing.” But, the prosecutor said,

“I’m not even talking about that. I’m talking about the failure to

make a report, and it’s directly in response to [defense counsel’s]

closing argument.”

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¶ 17 The court noted that the prosecutor arguing the rebuttal

closing wasn’t present for the bench conference the “first time I

went through this with your co-counsel,” and the court told the

prosecutor to “move on” from the topic he had been discussing.

The court then sustained defense counsel’s objection and instructed

the jury that “a criminal defendant always has the right to remain

silent,” the prosecution had the burden to prove beyond a

reasonable doubt “each and every element of the charge,” and

“[s]tatements, comments, colloquy, and argument of the attorneys

in front of you are not evidence.”

2. Analysis

¶ 18 Norment contends that the prosecutor’s comments constituted

misconduct and require reversal because they inferred his guilt by

reference to the exercise of his Fifth Amendment right to remain

silent. We disagree.

¶ 19 A prosecutor may properly comment on a defendant’s pre-

arrest conduct without running afoul of the Fifth Amendment if

such conduct occurs, as was undisputedly the case here, in a

noncustodial setting. People v. Coke, 2020 CO 28, ¶ 7 (stating that,

where a defendant is not in custody, there is no “conceivable basis

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by which the Fifth Amendment privilege against self-incrimination

could have attached,” and therefore, a defendant has no Fifth

Amendment privilege to assert); People v. Thomas, 2014 COA 64, ¶¶

25-26 (stating that “Fifth Amendment protections do not apply to

conduct that occurs in a noncustodial setting” and concluding that

admission of silence did not violate defendant’s constitutional right

against self-incrimination because such silence did not occur

during a custodial interrogation); People v. Richardson, 58 P.3d

1039, 1046 (Colo. App. 2002) (same). Thus, contrary to Norment’s

claim on appeal, the prosecutor’s comments did not improperly

comment on the exercise of his constitutional right to silence.

¶ 20 Likewise, to the extent Norment relies on cases standing for

the proposition that it is improper for a prosecutor to comment on a

defendant’s failure to testify at trial, we cannot conclude that

happened here. The prosecutor’s comments were directed to

Norment’s actions immediately following the shooting; they did not

focus on Norment’s decision not to testify at trial.

¶ 21 Moreover, the trial court sustained Norment’s objection to the

prosecutor’s rebuttal closing comment and twice instructed the jury

that a defendant in a criminal case “always has the right to remain

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silent,” implying that the prosecution had improperly referenced

such silence, thereby remedying any error that might have

occurred. (Emphasis added.) See Robert J. Martineau et al.,

Appellate Practice and Procedure 101 (2d ed. 2005) (“[T]he cases are

legion in holding that if an appellant objects and the objection is

sustained but he does not move for a curative instruction or request

a mistrial, he has received what he asked for and cannot be heard

to complain on appeal.”). The court also instructed the jury that

the prosecution had the burden to prove each element of a crime,

and that statements, comments, colloquy, and argument are not

evidence. Absent contrary evidence, we presume the jury

understood and followed the court’s instructions. Leonardo v.

People, 728 P.2d 1252, 1255 (Colo. 1986); see also People v. Pernell,

2014 COA 157, ¶ 44 (“A jury is presumed to have followed a

curative instruction to disregard testimony or statements. A

curative instruction is adequate unless ‘the improper testimony or

statements are so prejudicial that, but for the exposure, the jury

might not have found the defendant guilty.’”) (citation omitted).

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C. Commentary on the Law of Self-Defense

¶ 22 In rebuttal closing, the prosecutor told the jurors, “[I]f you

provoke someone, you’re not entitled to self-defense under the law,”

directing their attention to element three of the instruction on self-

defense and telling them, “[j]ust read the jury instructions.”

Defense counsel objected, stating, “That’s a misstatement of the

law. I would ask them to read the jury instructions.” After the

prosecutor said, “That’s what I just asked, Your Honor,” the court

instructed the jury as follows: “Ladies and gentlemen of the jury,

you have the facts before you, and I have instructed you on the law.

Statements, arguments, and colloquy of [c]ounsel are not evidence.

You will apply the facts as you find them to the law as I have

instructed you.”

¶ 23 Norment now complains that the trial court failed to “direct

the jury that the prosecutor’s [statement was] incorrect” because

provocation undermines self-defense only where, with intent to

cause bodily injury or death to another person, a person provokes

the use of unlawful force by that other person. The prosecutor’s

much broader statement failed to capture that important nuance.

True, it is improper for a prosecutor to misstate the law, and the

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prosecutor’s statement omitted this aspect of the provocation

component of self-defense. But the prosecutor directed the jury to

“read the jury instructions” and more specifically directed the jury

to element three of the self-defense instruction (which was the

correct statement of provocation). Similarly, the court gave the

functional equivalent of what defense counsel requested — namely,

that the jury “read the jury instructions.” It told the jury to apply

the law as instructed by the court. And the jury was correctly

instructed on provocation. Absent a contrary showing, we presume

that the jury followed the court’s instruction. People v. Dominguez-

Castor, 2020 COA 1, ¶ 91. Accordingly, notwithstanding the

prosecutor’s misstatement, we conclude that reversal is not

required because we perceive no risk that the misstatement

substantially influenced the verdict or impaired the fairness of the

trial. See Hagos v. People, 2012 CO 63, ¶ 12.

III. Disposition

¶ 24 The judgment is affirmed.

JUDGE GROVE and JUDGE LUM concur.