23CA0176 Peo v Toler-Anderson 04-02-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0176 El Paso County District Court No. 21CR3424 Honorable David A. Gilbert, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Paris Toler-Anderson,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE YUN Grove and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 2, 2026
Philip J. Weiser, Attorney General, Sonia Raichur Russo, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Leah Scaduto, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Paris Toler-Anderson appeals the judgment of conviction
entered after a jury found him guilty of second degree murder and
illegal discharge of a firearm. He contends that (1) the district court
erred by admitting other act evidence in violation of CRE 404(b);
(2) the prosecution committed misconduct; and (3) the cumulative
effect of these errors deprived him of a fair trial. We disagree with
these contentions and affirm the judgment.
I. Background
¶2 Toler-Anderson was residing at Community Alternatives of El
Paso County (CAE), a community corrections facility, when he
began a romantic relationship with the victim. After he ended the
relationship and reconciled with his previous girlfriend (his
children’s mother), the victim began threatening him and his family.
¶3 According to Toler-Anderson, the victim stalked both him and
his girlfriend, brought armed men to his girlfriend’s residence,
attempted to run his girlfriend off the road, and threatened to have
him shot. The victim also threatened to cause “trouble” for him at
CAE by reporting that she had been forging pay stubs for him when
he was not employed.
1 ¶4 On June 4, 2021, the victim texted Toler-Anderson, “I left your
case manager the message” and “Bitch you’re going to jail tonight.”
The next day, she texted him, “I’m not done with you yet[,] watch
what I do next,” and “I’m a take it out on your baby mama so you
gonna have to kill me bitch.”
¶5 On June 16, 2021, Toler-Anderson drove Jahlique Dorsey to a
gun store, where Dorsey purchased a handgun and a box of Fiocchi
brand .40 caliber ammunition.
¶6 Shortly after midnight that night, the victim and her friend,
Christopher Campbell, were parked outside a bar. The victim’s
goddaughter, Teiasha Stewart, was a passenger in another car
parked alongside them. Toler-Anderson drove up, exited his
vehicle, and approached the victim’s driver’s side door. According
to Campbell and Stewart, Toler-Anderson then pulled out a gun and
shot the victim before running back to his car. Campbell, who was
also armed, fired several shots at Toler-Anderson as he fled.
¶7 Officers recovered two sets of spent shell casings: one set was
located next to the driver’s side of the victim’s Jeep and the other
was found near a side street. The casings near the side street
matched Campbell’s gun, while those next to the Jeep were Fiocchi
2 brand .40 caliber ammunition — the same type that Dorsey had
purchased.
¶8 The People charged Toler-Anderson with first degree murder
and illegal discharge of a firearm, later adding two habitual criminal
counts. At trial, Toler-Anderson asserted that he acted in self-
defense. His theory was that the victim lured him to the bar so that
Campbell could ambush him, with Stewart and the unnamed driver
of her car there as backup. When Toler-Anderson approached the
victim to try to convince her to leave him and his family alone, she
opened the Jeep’s door to give Campbell a clear shot. Upon seeing
Campbell’s gun, Toler-Anderson reacted first, firing as he ran away
and hitting the victim.
¶9 The jury convicted Toler-Anderson of the lesser included
offense of second degree murder and illegal discharge of a firearm.
The district court found that the prosecution had proved the
habitual criminal counts, and it sentenced Toler-Anderson to
seventy-two years in the custody of the Department of Corrections.
¶ 10 Toler-Anderson now appeals.
3 II. Other Act Evidence
¶ 11 Toler-Anderson contends that the district court erred by
(1) admitting evidence concerning CAE without providing a
contemporaneous limiting instruction each time such evidence was
introduced and (2) admitting evidence that the victim was allegedly
forging pay stubs for him to submit to CAE. We disagree.
A. Governing Law and Standard of Review
¶ 12 Under CRE 404(b), evidence of other crimes, wrongs, or acts is
not admissible to prove a person’s bad character to show that the
person acted in conformity with that character on a particular
occasion. But evidence of other crimes, wrongs, or acts may be
admissible for another purpose, such as proving motive. CRE
404(b)(2).
¶ 13 Intrinsic acts — those that (1) directly prove the charged
offenses or (2) occurred contemporaneously with the charged
offenses and facilitated their commission — are not “other” acts
and, therefore, fall outside the scope of CRE 404(b). Rojas v.
People, 2022 CO 8, ¶ 52. In contrast, extrinsic acts that suggest a
bad character (and thus a propensity to commit the charged
offense) are admissible only as allowed by CRE 404(b) and after
4 applying the analysis set forth in People v. Spoto, 795 P.2d 1314,
1318 (Colo. 1990). Rojas, ¶ 52.
¶ 14 For other act evidence to be admissible under CRE 404(b), the
district court “must first determine, by a preponderance of the
evidence, that the other act happened and that the defendant
committed the act.” People v. Vasquez, 2022 COA 100, ¶ 74 (citing
People v. Garner, 806 P.2d 366, 373 (Colo. 1991)). The court’s
findings may be implicit. Id. The court must then find that (1) the
evidence relates to a material fact; (2) the evidence is logically
relevant to that material fact, meaning it tends to make the
existence of the material fact more or less probable; (3) the logical
relevance of the evidence is independent of the prohibited inference
that the defendant has a bad character and committed the crime
charged because he acted in conformity with his bad character; and
(4) the probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice. Spoto, 795 P.2d at
1318. And finally, if the other act evidence is admitted, “the court
must also, upon request, contemporaneously instruct the jurors of
the limited purpose for which the evidence may be considered.”
Rojas, ¶ 27 (citing CRE 105).
5 ¶ 15 A district court has broad discretion to decide whether to
admit other act evidence. Perez v. People, 2015 CO 45, ¶ 22. We
will not disturb the court’s decision absent a showing that it was
manifestly arbitrary, unreasonable, or unfair, or was based on a
misapprehension or misapplication of the law. Gonzales v. People,
2020 CO 71, ¶ 25. “In deference to the trial court’s discretion, we
must assume the maximum probative value and the minimum
unfair prejudice to be given the evidence.” Yusem v. People,
210 P.3d 458, 467 (Colo. 2009).
¶ 16 We review preserved errors in the admission of evidence under
the harmless error standard. People v. Ambrose, 2021 COA 62,
¶ 53; see also Yusem, 210 P.3d at 469 n.16 (“Erroneous admission
of CRE 404(b) evidence is not error of constitutional dimension.”). A
nonconstitutional error is harmless unless there is a reasonable
probability that it contributed to the defendant’s conviction by
substantially influencing the verdict or impairing the fairness of the
trial. People v. Harris, 2015 COA 53, ¶ 26 (citing People v. Casias,
2012 COA 117, ¶ 62).
¶ 17 We review unpreserved errors for plain error. Hagos v. People,
2012 CO 63, ¶ 14. An error is plain when it is obvious and
6 substantial. Id. An obvious error is one that “contravene[s] a clear
statutory command, a well-settled legal principle, or established
Colorado case law,” People v. Crabtree, 2024 CO 40M, ¶ 42, and
that a judge should be able to avoid without the benefit of an
objection, People v. Conyac, 2014 COA 8M, ¶ 54. “An error is
‘substantial’ enough to warrant reversal if it ‘so undermine[d] the
fundamental fairness of the trial itself as to cast serious doubt on
the reliability of the judgment of conviction.’” People v. Perez, 2024
COA 94, ¶ 26 (quoting Cardman v. People, 2019 CO 73, ¶ 19).
B. Additional Background
¶ 18 Before trial, the prosecution filed a notice of intent to
introduce other act evidence under CRE 404(b). The prosecution
intended to present testimony from the owner of a beauty salon that
Toler-Anderson, after accepting a job offer, “stopped working there
after a few days” but “nevertheless continued to demand pay stubs”
for submission to CAE. The salon owner was expected to testify
that, after she refused to create fake pay stubs for Toler-Anderson,
the victim began making them for him. But after Toler-Anderson
ended his relationship with the victim, the victim “started
threatening to expose this fraudulent scheme to [his] case manager
7 at CAE.” The prosecution also sought to introduce the victim’s text
messages threatening to get Toler-Anderson in trouble at CAE and
Toler-Anderson’s statements in a videotaped interview with a
detective describing how the victim was causing problems for him
there. The prosecution argued that this evidence was relevant to
explain one of Toler-Anderson’s potential motives for killing the
victim. Overruling the defense’s objection, the district court found
the evidence admissible under CRE 404(b) and Spoto.
¶ 19 In his opening statement, the prosecutor previewed the other
act evidence, explaining what CAE was and how the victim had
threatened to report Toler-Anderson to his case manager about the
fake pay stubs she had created for him.
¶ 20 But the salon owner, who was scheduled to fly in from another
state to testify on August 4, 2022, did not board her flight. When
the prosecutor informed the court and defense counsel that the
salon owner would not testify, defense counsel renewed his
objection to any reference to CAE, arguing that Toler-Anderson’s
commitment to community corrections was no longer relevant. The
prosecutor responded that he would present other evidence — apart
from the salon owner’s testimony — showing that the victim was
8 threatening to cause problems for Toler-Anderson at CAE. The
court again overruled the defense’s objection.
¶ 21 The prosecution then played for the jury Toler-Anderson’s
videotaped interview, in which he said the victim called CAE and got
him in trouble by leaving “bad messages” claiming he did not have a
job. He admitted that the victim was making his pay stubs but
insisted that he really was working at the salon. Although defense
counsel again renewed the objection to any “mention of CAE,” he
did not request a limiting instruction before the video was played.
¶ 22 The jury next heard testimony about CAE from Toler-
Anderson’s case manager, who explained that he became concerned
about Toler-Anderson’s “pay stub for his job” because it was
missing “a few things . . . that typical W-4 employers have, you
know, your FICA deductions, Medicaid, state, federal withholdings.”
He testified that he called the number Toler-Anderson had provided
for his employer at the beauty salon — which was actually the
victim’s number — and spoke to the victim, who said she would “get
it fixed.” Before the jury heard this testimony, the court read the
following limiting instruction:
9 Ladies and gentlemen, the evidence you’re about to hear concerning the Community Alternatives facility, sometimes called CAE, is being presented only to allow the jury to consider the plaintiff’s claim of motive in this case. You may not consider this evidence for any other reason.
¶ 23 Finally, a detective testified about the victim’s text messages to
Toler-Anderson, including her texts that she had “left [his] case
manager the message” and that he was “going to jail.” Defense
counsel did not request, and the court did not read, a limiting
instruction before the jury heard this evidence.
¶ 24 At the close of evidence, the court repeated its limiting
instruction regarding the CAE evidence. This instruction was also
included in the written instructions provided to the jury for
deliberations.
¶ 25 In closing argument, the prosecutor argued that the victim
had been threatening Toler-Anderson and causing problems for him
at CAE:
You saw those text messages. She was texting him that she was contacting his Case Manager at CAE. . . .
She threatened that he would go to jail, and you heard that that was a possibility if he got
10 word that the defendant wasn’t actually working, and that his pay stubs were fake.
And when you watch that interview with the defendant he says that is what was going on. That [the victim] was making pay stubs for him. So he knew, he knew she had the goods on him. He knew she could be the means to cause him to lose his freedom.
C. Limiting Instruction Concerning CAE
¶ 26 Although Toler-Anderson does not contest on appeal the
admissibility of evidence related to CAE, he contends that the
district court erred by failing to give a contemporaneous limiting
instruction each time the jury heard this evidence. Specifically, the
court read a limiting instruction before the testimony of Toler-
Anderson’s case manager, and again at the close of evidence,
instructing the jury that it could consider evidence “concerning the
Community Alternatives facility, sometimes called CAE,” only with
respect to motive, and not for any other reason. But the court did
not read the limiting instruction before the introduction of (1) Toler-
Anderson’s video interview or (2) his text messages from the victim,
both of which referenced CAE.
¶ 27 Because defense counsel did not ask the court to give a
limiting instruction before the video or text messages were
11 introduced, we review this assertion for plain error. See People v.
Griffin, 224 P.3d 292, 298 (Colo. App. 2009) (“Because [the
defendant] did not request a limiting instruction, we apply the plain
error standard of review.”). We conclude that any error in this
context was not obvious because, “absent a special statutory
requirement, the supreme court has consistently held that trial
courts have no duty to give limiting instructions sua sponte.” Id.
Rather, the onus is on the parties to request a limiting instruction.
See Rojas, ¶ 27 (“If a court determines the evidence is admissible
[under Spoto], the court must also, upon request,
contemporaneously instruct the jurors of the limited purpose for
which the evidence may be considered.” (emphasis added));
CRE 105 (“When evidence which is admissible . . . for one purpose
but not admissible . . . for another purpose is admitted, the court,
upon request, shall restrict the evidence to its proper scope and
instruct the jury accordingly.” (emphasis added)).
¶ 28 We further conclude that the absence of a limiting instruction
before the introduction of the video and text message evidence did
not so undermine the fundamental fairness of the trial itself as to
cast serious doubt on the reliability of the conviction. The limiting
12 instruction given before the case manager’s testimony and, more
importantly, at the close of evidence cured any potential prejudice.
See People v. Cousins, 181 P.3d 365, 373 (Colo. App. 2007) (where
the court’s “closing charge contained a proper limiting
instruction . . . , the failure to give a limiting instruction before [a
witness] testified was harmless”); People v. Marion, 941 P.2d 287,
293-94 (Colo. App. 1996) (holding that the failure to give a limiting
instruction before CRE 404(b) evidence was introduced did not
require reversal because a limiting instruction was included in the
final jury instructions).
¶ 29 We thus conclude that the court’s failure to give a limiting
instruction before the video and text message evidence did not
constitute plain error.
D. Pay Stubs
¶ 30 Toler-Anderson contends that the district court erred by
admitting evidence about his pay stubs because (1) the evidence
presented at trial was insufficient to establish by a preponderance
of the evidence that the pay stubs were forged; (2) the potential for
unfair prejudice substantially outweighed the probative value of the
evidence; and (3) the limiting instruction about evidence concerning
13 CAE did not specifically address the pay stubs. We address each
contention in turn.
1. Preponderance of the Evidence
¶ 31 Toler-Anderson argues that, without the salon owner’s
testimony, the evidence was insufficient to establish by a
preponderance of the evidence that his pay stubs “were forged.”
The People counter that the issue is instead whether the evidence
was sufficient to show that Toler-Anderson “was motivated to kill
[the victim] because he was concerned about the pay[]stubs she
created for him.” We agree with the People.
¶ 32 In his video interview, Toler-Anderson said that the victim
“made [his] pay stubs” from the beauty salon. He explained that he
“really was working there,” but the salon owner was “so busy, she
couldn’t do it, so [the victim] ended up having to do it.” He also
said that the victim had “called up there [to CAE]” to report that he
was lying about having a job in an effort to get him thrown in jail.
¶ 33 In closing argument, the prosecutor reminded the jury of
Toler-Anderson’s admission that the victim was making his pay
stubs. The prosecutor argued that, based on the case manager’s
testimony, there was indeed “a possibility” that Toler-Anderson
14 could have gone to jail if it was discovered that he “wasn’t actually
working, and that his pay stubs were fake.” Accordingly, the
prosecutor argued, Toler-Anderson “knew [the victim] had the goods
on him.”
¶ 34 Contrary to Toler-Anderson’s position, this was not an
argument that Toler-Anderson in fact did not have a job. Rather, it
was an argument that he had a motive to harm the victim because
he believed she was causing trouble for him at CAE over the pay
stubs. The relevant, undisputed facts were that the victim was
creating his pay stubs and that she told him she had contacted CAE
to report him for lying about having a job (even though the case
manager testified that she never actually made such a report).
Whether Toler-Anderson “really was working” at the salon, as he
claimed, was not the point of the prosecutor’s argument.
¶ 35 We are not persuaded otherwise by Toler-Anderson’s focus on
the prosecutor’s statement that Toler-Anderson “knew [the victim]
had the goods on him.” Rather than suggesting that Toler-
Anderson did not in fact have a job, we understand this argument
as indicating that Toler-Anderson knew the victim could get him in
trouble if she chose. Further, because the victim did not have
15 authority to prepare pay stubs for Toler-Anderson’s job at the salon,
CAE could have considered the pay stubs she created as “forged” or
“fake” regardless of whether he actually worked there.
¶ 36 We therefore conclude that the evidence was sufficient to
establish by a preponderance of the evidence that Toler-Anderson
was concerned about the pay stubs the victim created for him and
that this concern was relevant to his motive to harm her.
2. CRE 403
¶ 37 Next, Toler-Anderson argues that the probative value of the
pay stub evidence was substantially outweighed by the danger of
unfair prejudice. See Spoto, 795 P.2d at 1318; CRE 403. He
specifically relies on Yusem, 210 P.3d at 468, to argue that the pay
stub evidence had “negligible” probative value because the victim’s
stalking and harassment of Toler-Anderson and his family already
provided a motive for him to harm her.
¶ 38 Yusem, however, is distinguishable. In that case, the supreme
court held that, where the defendant was charged with felony
menacing for “pulling a gun against the driver of a van who [the
defendant] thought was threatening to run him down,” the district
court erred by admitting “evidence of a prior act where [the
16 defendant], a deputy sheriff, yelled at and caused an apartment
manager to feel intimidated while [the defendant] was off-duty but
wearing his service weapon.” Id. at 460. As relevant here, the court
held that the prosecution “had ample evidence to prove [the
defendant’s] mental state and motive” because the defendant
“testified that he pulled his gun and yelled at the driver of the van
in an attempt to get the van driver to back up.” Id. at 468.
Accordingly, the prior act evidence was “not needed to prove the
listed purposes of state of mind and motive.” Id.
¶ 39 Toler-Anderson’s reliance on Yusem’s statement that “prior act
evidence offers minimal probative value to prove the listed
purposes” when those “purposes . . . could be proved by alternative
methods” is misplaced. Id. Yusem does not stand for the
proposition that evidence of one motive to harm the victim (such as
the victim’s threats to cause trouble for him at CAE) loses probative
value simply because there is also evidence of a separate,
independent motive (her threats to his family). Both motives are
relevant for the jury’s consideration, as Toler-Anderson could have
had multiple reasons for committing the crime.
17 ¶ 40 While Toler-Anderson contends that the pay stub evidence was
prejudicial because it may have allowed the jury to infer that he was
willing to lie, we must assume the maximum probative value and
minimum unfair prejudice. Id. at 467. Moreover, the risk of unfair
prejudice was low because the other acts at issue (submitting pay
stubs created by someone other than his employer, and possibly
lying about having a job) were relatively mundane when compared
to the actions with which he was charged (first degree murder). See
People v. Dean, 2012 COA 106, ¶ 46 (probative value of other act
evidence was not substantially outweighed by the danger of unfair
prejudice because, among other reasons, the testimony “conveyed
relatively mundane information when compared with the graphic
evidence otherwise admitted at trial”), aff’d on other grounds, 2016
CO 14.
¶ 41 We thus conclude that the probative value of the pay stub
evidence was not substantially outweighed by the danger of unfair
prejudice.
3. Limiting Instruction Concerning Pay Stubs
¶ 42 Finally, Toler-Anderson argues that the district court erred by
not specifically referencing the pay stubs in its limiting instruction
18 about evidence “concerning . . . CAE.” In the absence of a specific
reference to the pay stubs, he argues, “[t]he jury was never told it
could not use the allegation that Mr. Toler-Anderson forged his
pay[]stubs to make a propensity inference that he likely acted in
accordance with that bad character by murdering [the victim].”
¶ 43 Because defense counsel did not ask the court to specifically
refer to the pay stubs in its limiting instruction, or to give a
separate limiting instruction regarding the pay stubs, we review this
assertion for plain error. See Griffin, 224 P.3d at 298. Any error
here was not obvious because the court’s limiting instruction about
evidence “concerning . . . CAE” (or, as it was phrased in the final
jury instructions, “regarding . . . CAE”) could reasonably have been
understood to encompass evidence about the pay stubs Toler-
Anderson submitted to CAE, including the victim’s threats to get
him in trouble at CAE over problems with the pay stubs.
¶ 44 Accordingly, we discern no reversible error regarding the
admission of other act evidence.
III. Prosecutorial Misconduct
¶ 45 Toler-Anderson contends that the prosecutors committed
misconduct by (1) calling a witness to testify when they reasonably
19 should have known the witness would invoke his Fifth Amendment
right against self-incrimination; (2) denigrating the defense;
(3) encouraging the jury to base its verdict on sympathy for the
victim; (4) misstating the evidence; and (5) expressing personal
opinions. His first two contentions are preserved; the other three
are unpreserved. After setting forth the governing law and standard
of review, we address each contention in turn.
¶ 46 We engage in a two-step analysis when reviewing claims of
prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010).
¶ 47 First, we determine whether the conduct was improper based
on the totality of the circumstances. Id. We consider the context of
the argument as a whole and view it in light of the evidence before
the jury. People v. Samson, 2012 COA 167, ¶ 30. “A prosecutor
has wide latitude to make arguments based on facts in evidence
and reasonable inferences drawn from those facts.” People v.
Strock, 252 P.3d 1148, 1153 (Colo. App. 2010), overruled on other
grounds by, People v. Kennedy, 2025 CO 63. The prosecutor may
also “employ rhetorical devices and engage in oratorical
20 embellishment.” Samson, ¶ 31. Because arguments delivered in
the heat of trial are not always perfectly scripted, we give the
prosecutor the benefit of the doubt when their remarks are
“ambiguous or simply inartful.” Id. at ¶ 30. But the prosecutor
may not misstate the evidence or the law. Id. at ¶ 32; People v.
Weinreich, 98 P.3d 920, 924 (Colo. App. 2004), aff’d, 119 P.3d 1073
(Colo. 2005).
¶ 48 Next, if we identify misconduct, then we determine whether it
warrants reversal under the applicable standard of review. Wend,
235 P.3d at 1096. We review preserved claims of prosecutorial
misconduct that do not “specifically and directly offend a
constitutional right” for harmless error, and we review unpreserved
claims of prosecutorial misconduct for plain error. People v. Licona-
Ortega, 2022 COA 27, ¶¶ 87-88. To constitute plain error, the
misconduct “must be flagrant or glaring or tremendously improper,
and it must so undermine the fundamental fairness of the trial as
to cast serious doubt on the reliability of the judgment of
conviction.” Id. at ¶ 88 (quoting Weinreich, 98 P.3d at 924).
“Prosecutorial misconduct in closing argument rarely constitutes
plain error.” Weinreich, 98 P.3d at 924.
21 B. Witness’s Invocation of Fifth Amendment Right
¶ 49 Toler-Anderson contends that the prosecutors committed
misconduct by calling as a witness Dorsey — the man Toler-
Anderson drove to the gun store the morning before the victim was
killed — when they reasonably should have known that Dorsey
would invoke his Fifth Amendment right against self-incrimination.
We are not persuaded.
1. Additional Background
¶ 50 The prosecution’s theory was that the gun Dorsey bought on
the morning of the murder was the one Toler-Anderson used to kill
the victim. Although the murder weapon was never recovered, the
shell casings found by the victim’s vehicle matched the ammunition
that Dorsey purchased that morning.
¶ 51 The prosecutors were aware that the Federal Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF) was investigating
Dorsey for gun trafficking and had sought a warrant in 2021. They
also knew that, when Dorsey purchased the gun, he completed a
sworn declaration stating that he was not acquiring the firearm for
another person and that his “State of Residence” was Colorado,
even though he actually lived in Texas. The bottom of the
22 questionnaire warned that falsifying answers was a federal felony
offense. Despite this, the prosecutors did not proactively advise
Dorsey of his Fifth Amendment right against self-incrimination,
inquire whether he intended to invoke that right, or recommend he
consult independent counsel.
¶ 52 At trial, Dorsey took the stand, testified briefly that an
unknown woman had driven him to the gun store, and then
invoked his Fifth Amendment right against self-incrimination. The
district court dismissed the jury, appointed counsel to advise
Dorsey, and asked the prosecutor if he had known that Dorsey was
going to invoke the Fifth Amendment. The prosecutor said he “had
no reason to believe that” Dorsey would invoke the right. He said
that he asked Dorsey “if he had any questions or concerns” about
testifying and that “it never came up.”
¶ 53 Defense counsel moved for a mistrial, arguing that — given the
ATF investigation and the prosecution’s theory that Dorsey
procured the murder weapon for Toler-Anderson — the prosecutors
knew they were placing Dorsey in criminal jeopardy by calling him
to the stand and should have anticipated he would invoke his Fifth
Amendment right. The court deferred ruling until Dorsey could
23 consult with counsel and the prosecution could decide whether to
offer him immunity.
¶ 54 The next morning, the prosecutor confirmed that Dorsey had
not changed his mind after consulting with counsel and that the
prosecution would not offer him immunity. Before the court
released Dorsey, both parties were permitted to question him. In
response to their questions, Dorsey said that the prosecutors never
advised him that his testimony could have “criminal implications”
or suggested he consult an attorney before agreeing to testify. He
also confirmed that he never told the prosecutors he planned to
invoke his Fifth Amendment right.
¶ 55 Defense counsel renewed his request for a mistrial, which the
district court denied. The court then offered to give a curative
instruction, but defense counsel said the instruction was not
“necessary . . . right now.” At the close of evidence, the court gave
the following instruction regarding Dorsey’s testimony:
A witness, Mr. Dorsey, invoked his rights under the 5th Amendment of the U.S. Constitution not to testify. Because his testimony could not be completed, the jury must disregard any testimony provided by Mr. Dorsey. Every person has the right to invoke their rights under the 5th Amendment
24 not to testify. The jury must not draw any negative inferences against the defendant in this case based on a witness’s decision not to testify.
2. Discussion
¶ 56 Generally, the prosecution may not call a witness to testify
when it knows the witness will invoke their right to remain silent.
People v. Newton, 940 P.2d 1065, 1067 (Colo. App. 1996)
(Newton I), aff’d in part, 966 P.2d 563 (Colo. 1998) (Newton II),
abrogated on other grounds by, Nicholls v. People, 2017 CO 71.
“The rationale for the rule is that, because of the high courtroom
drama and odium surrounding a claim of privilege, questioning of a
witness asserting [a Fifth Amendment protection against self-
incrimination] before the jury has the effect of prejudicing the
accused by creating an unfair inference of guilt.” Newton I,
940 P.2d at 1067.
¶ 57 To evaluate the harm associated with improperly calling a
witness who invokes the Fifth Amendment before the jury, we
consider the totality of the circumstances. Newton II, 966 P.2d at
570. This analysis includes considering (1) the prosecution’s intent
in calling the witness; (2) the number of questions the prosecutor
25 asked the witness; (3) the witness’s importance to the prosecution’s
case; (4) whether the prosecutor draws any inference in closing
argument from the witness’s refusal to answer the question; and
(5) whether the court gave a curative instruction. Id.
¶ 58 Critically, Toler-Anderson does not claim that the prosecutors
knew Dorsey would invoke his Fifth Amendment right. Rather, he
argues that, given Dorsey’s potential criminal liability, the
prosecutors (1) had “reason to believe” Dorsey would invoke his
right; and (2) committed misconduct by calling Dorsey without
proactively advising him of his Fifth Amendment right, directly
asking if he planned to invoke the right, or advising him to consult
independent counsel. (Emphasis added.)
¶ 59 For support, Toler-Anderson relies on ABA Criminal Justice
Standard 3-3.4 (4th ed. 2017), which provides that a prosecutor
“should advise a witness who is to be interviewed of his or her
rights against self-incrimination and the right to independent
counsel when the law so requires.” (Emphasis added.) But he does
not argue, and we have found no authority to suggest, that
Colorado law requires this advisement when a prosecutor has
reason to believe that a witness’s testimony may expose the witness
26 to criminal liability. Indeed, as another division of this court has
noted, “No Colorado Supreme Court case has explicitly adopted ABA
Standard [3-3.4] or held that prosecutors have such an obligation.”
People v. Paglione, 2014 COA 54, ¶ 24.
¶ 60 Further, even assuming that the prosecutors erred by calling
Dorsey without asking him if he planned to invoke the Fifth
Amendment or advising him to consult independent counsel, we
conclude that, under the totality of the circumstances, the error
does not require reversal. See Newton II, 966 P.2d at 570. The
prosecutors’ intent was to elicit testimony about Dorsey’s firearm
and ammunition purchases. Dorsey’s testimony was brief before
invoking his Fifth Amendment right. His testimony was not crucial
to the prosecution’s case, as other evidence, including Toler-
Anderson’s cell phone records and the gun store’s records and
surveillance video, established how Dorsey got to the store and
what he purchased. The prosecutors did not mention Dorsey’s
testimony again or attempt to draw any inferences from his
27 invocation of his right against self-incrimination. And finally, the
court gave a curative instruction.1
¶ 61 Accordingly, we discern no reversible error.
C. Denigrating the Defense
¶ 62 During closing argument, defense counsel urged the jury to
question whether the accounts of the two eyewitnesses, Stewart and
Campbell, were “completely made up.”
¶ 63 In rebuttal closing argument, the prosecutor told the jury:
Something [defense counsel] just said really rings true. Made up stories.
I’m struggling a little bit, because I am trying to figure out what to say to you. Because the story [defense counsel] just told you about the defendant Paris Toler-Anderson isn’t based on evidence. It is a made up story.
1 Toler-Anderson argues that he was prejudiced by the district
court’s failure to “give the jury any [curative] instructions immediately following Dorsey’s invocation.” But the court and the parties did not know, at that point, whether Dorsey would change his mind after consulting with counsel or whether the prosecution would offer him immunity. When it became clear that Dorsey would not testify, defense counsel asked the court not to instruct the jury about the invocation. Thus, to the extent the court erred by not instructing the jury before the close of evidence, any error was invited by defense counsel. See People v. Rediger, 2018 CO 32, ¶ 34 (“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 . . . .”).
28 So I think what we are left with now is evidence of desperation. You heard it in [defense counsel’s] voice.
Defense counsel objected, and the court overruled the objection.
¶ 64 Then, after reviewing the evidence supporting a guilty verdict,
the prosecutor said:
We have . . . all the evidence to prove to you beyond a reasonable doubt that Paris Toler- Anderson committed Murder in the First Degree. We presented so much evidence, and [the police] did such a good job of putting together this case, that this is where we are. With a made up story.
Now I don’t want to insult your intelligence any more. Find him guilty of Murder in the First Degree.
¶ 65 Toler-Anderson argues that the prosecutor’s statements
impermissibly denigrated the defense. See People v. Collins,
250 P.3d 668, 678 (Colo. App. 2010) (A prosecutor may not “state or
imply that defense counsel has presented the defendant’s case in
bad faith or otherwise make remarks for the purpose of denigrating
defense counsel.”). From our review of the record, however, it
appears that the prosecutor’s remarks were not made to mock or
personally attack defense counsel, but rather to respond to Toler-
Anderson’s theory of the case and defense counsel’s suggestion that
29 the eyewitnesses fabricated their stories. See id. (prosecutor’s
rebuttal comment that defendant’s theory of reasonable doubt was
“absurd” did “nothing more than suggest to the jury that
defendant’s theory as to why the jury should find a reasonable
doubt was so unlikely as to strain credibility”); People v. Ramirez,
997 P.2d 1200, 1211 (Colo. App. 1999) (concluding that it was not
improper to characterize a defense argument as “blowing smoke”
when used to assert that the evidence supporting defendant’s
innocence lacked substance, rather than to suggest that opposing
counsel knew the defense was not meritorious), aff’d, 43 P.3d 611
(Colo. 2001).
¶ 66 Although the prosecutor’s reference to defense counsel’s tone
of voice was improper, it was a single reference that was not
repeated. Because this comment was “an isolated incident in an
otherwise proper closing argument,” we are convinced that the error
was harmless. People v. Clemons, 89 P.3d 479, 483 (Colo. App.
2003).
D. Encouraging Verdict Based on Sympathy for the Victim
¶ 67 During closing argument, the prosecutor emphasized the
“horror” and “trauma” experienced by the two eyewitnesses. He
30 specifically said that Campbell “could feel the vibrations [of the
bullets] coming through to him” as the victim “was dying on top of
him.” He also noted that, when the victim was shot, “[s]he had only
an instant to realize what her fate was.” Ultimately, he urged the
jury to convict Toler-Anderson:
Hold him accountable, ladies and gentlemen. Deliver justice for [the victim]. Deliver justice for the People of Colorado. Find him guilty beyond a reasonable doubt of Murder in the First Degree.
¶ 68 Toler-Anderson argues that these comments impermissibly
encouraged the jury to reach a verdict based on sympathy for the
victim. See Conyac, ¶ 147 (“Prosecutors may not pressure jurors by
suggesting that guilty verdicts are necessary to do justice for a
sympathetic victim.”). Specifically, he argues that the references to
the trauma of the eyewitnesses encouraged the jury to disregard the
evidence and “instead base its verdict on emotion” and that the
prosecutor’s comments about the victim’s dying thoughts “were
akin to ‘channeling,’ in which the prosecutor speaks in the first
person as the victim.” See People v. Douglas, 2012 COA 57, ¶ 66 (a
prosecutor may not “induce the jury to determine guilt on the basis
of passion or prejudice” (citation omitted)); People v. Manyik, 2016
31 COA 42, ¶ 27 (“The prosecutor’s technique of speaking to the jury
in the first person as though he were the victim” was misconduct.).
¶ 69 Contrary to Toler-Anderson’s argument, the prosecutor’s
comments were grounded in the evidence. His comment about
Campbell feeling the victim die is a fair inference from Campbell’s
testimony:
The next moment gunshots ring out. To my knowledge at that moment I’m thinking I’m hit, she’s hit. The next thing I know her body slumps over into my lap. I’m yelling, screaming her name. No response. At that point I’m thinking I’m hit, but at that point in time I really don’t care about me being hit, she’s not responding to me.
¶ 70 The prosecutor’s comment that the victim had only an instant
to realize her fate was not “channeling.” The prosecutor neither
spoke in the first person as the victim nor asked the jurors to put
themselves in the victim’s place. Cf. Manyik, ¶¶ 20-24 (improper
“channeling” occurred when the prosecutor “assumed the identity of
the victim” for “a substantial part of his opening statement”).
¶ 71 Finally, the prosecutor’s remarks about delivering justice for
the victim came only after a recitation of evidence supporting a
guilty verdict. Far from pressuring the jurors to convict out of
32 sympathy for the victim, the prosecutor urged the jurors to decide
the case based on the evidence.
¶ 72 The comments were not improper.
E. Misstating the Evidence
¶ 73 During his interview with the detective, Toler-Anderson
claimed that his cousin was in the car with him during the
shooting. The cousin, however, denied this and testified that he
had been at work that night. The cousin’s supervisor corroborated
this account by testifying that he recalled the cousin working that
night and that he had confirmed his recollection by reviewing the
cousin’s timecard. After this testimony, the prosecution belatedly
disclosed a photocopy of the timecard to the defense. The district
court found no prejudice from the late disclosure because the
defense knew the supervisor would testify that the cousin was at
work and the timecard was not introduced as an exhibit.
¶ 74 During closing argument, the prosecutor referenced the
cousin’s alibi, stating, “We have his time sheets.” Elsewhere in
closing, after discussing Toler-Anderson’s statements and the
eyewitnesses’ accounts, the prosecutor said, “[W]e know who did
this.”
33 ¶ 75 Toler-Anderson argues that, by claiming that the prosecution
had the cousin’s timecard and knew the identity of the perpetrator,
the prosecutor improperly suggested that the prosecution had
knowledge of facts beyond the evidence presented at trial. See
People v. Walters, 148 P.3d 331, 334 (Colo. App. 2006) (“[I]t is not
proper for a prosecutor to refer to facts not in evidence . . . . ”);
Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005) (it is
improper for a prosecutor to make “assertions of personal
knowledge”).
¶ 76 Although the prosecutor’s comment about the cousin’s
timecard may not have been perfectly scripted, in context, it
referred to the supervisor’s testimony that he reviewed the cousin’s
timecard, rather than to personal knowledge of facts outside the
record. Similarly, the prosecutor’s comment about knowing “who
did this” was acceptable oratorical embellishment; because it
followed a discussion of the evidence, the jury was unlikely to
understand it as an assertion of secret knowledge.
¶ 77 To the extent either comment was poorly scripted, neither was
so flagrantly or glaringly improper as to constitute plain error. See
Licona-Ortega, ¶¶ 87-88.
34 F. Expressing Personal Opinions
¶ 78 During opening statement, defense counsel highlighted
numerous inconsistencies in the eyewitnesses’ accounts, arguing
that they could not “be trusted.” Specifically, regarding Stewart,
defense counsel noted her shifting descriptions of her vehicle’s
position, her seating location, her vantage point, and the other
occupant in her car. The reason for the inconsistencies, defense
counsel argued, was that the eyewitnesses were “telling false
stories” to conceal “a setup that had gone wrong.”
¶ 79 In closing argument, the prosecutor argued that Stewart’s
emotional response supported the credibility of her testimony.
Specifically, the prosecutor said:
[Y]ou saw the body worn camera how overcome [Stewart] was by what she had just witnessed. How she could barely stand up, how she could barely speak she was crying so much. You saw how it affected her when she came and testified on the stand.
¶ 80 Toler-Anderson argues that the prosecutor’s comments were
an improper expression of his personal opinion about Stewart’s
credibility. See Wilson v. People, 743 P.2d 415, 418 (Colo. 1987)
(“[I]t is improper for counsel to express his or her personal belief in
35 the truth or falsity of testimony . . . .”). But read in context, the
prosecutor’s comments were a direct response to defense counsel’s
argument that Stewart was lying. Rather than expressing his
personal opinion, the prosecutor repeatedly drew the jurors’
attention to the evidence by emphasizing what they had seen during
the trial. Because “counsel may . . . draw reasonable inferences
from the evidence as to the credibility of witnesses,” id., the
prosecutor’s comments were not improper.
IV. Cumulative Error
¶ 81 Finally, Toler-Anderson argues that the cumulative effect of
the alleged errors warrants reversal. We disagree.
¶ 82 “The doctrine of cumulative error requires that numerous
errors be committed, not merely alleged.” Conyac, ¶ 152. Under
this doctrine, while an error may be harmless in isolation, reversal
is required when the cumulative effect of multiple errors or defects
substantially affects the fairness of the trial or undermines the
integrity of the factfinding process. Howard-Walker v. People, 2019
CO 69, ¶ 24.
¶ 83 We have identified only one error in this case. See People v.
Thames, 2019 COA 124, ¶ 69 (“[A] single error is insufficient to
36 reverse under the cumulative error standard.”). Additionally, in our
analysis of several of Toler-Anderson’s arguments, we reasoned that
even if there was any error, that error was not reversible under the
applicable standard of reversal. Cf. People v. Allgier, 2018 COA
122, ¶ 71 (“Whether plain errors can even be considered for
cumulative error purposes has not been resolved in Colorado.”). We
further conclude that even if one or more of these additional issues
represented an error, the errors, viewed together, did not render
Toler-Anderson’s trial unfair or affect the integrity of the factfinding
process. See Howard-Walker, ¶ 24.
V. Disposition
¶ 84 The judgment is affirmed.
JUDGE GROVE and JUDGE SCHOCK concur.