23CA1124 Peo v Underwood 10-23-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1124 El Paso County District Court No. 21CR3392 Honorable Marcus S. Henson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Derek Wayne Underwood,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE YUN Freyre and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 23, 2025
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Emma Berry, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Derek Wayne Underwood appeals the judgment of conviction
entered after a jury found him guilty of second degree assault with
a deadly weapon. He contends that the trial court (1) abused its
discretion by denying his challenge for cause against a juror who
expressed a bias in favor of law enforcement; (2) plainly erred by
allowing a police officer to testify about statements the victim made;
and (3) plainly erred by allowing the prosecutor to make improper
statements during closing argument. He also contends that the
cumulative effect of these errors mandates reversal. We affirm the
judgment.
I. Background
¶2 In 2021, Underwood and the victim were coworkers at a
pottery shop in Manitou Springs. After learning that Underwood
did not have a place to live, the victim offered to let him stay in the
walk-in closet of his studio apartment, and Underwood accepted.
One evening, shortly after the victim returned home from work, he
and Underwood got into an argument. The argument escalated into
a physical altercation, during which Underwood cut the victim’s
1 hand with a chef’s knife. The victim fled the apartment and asked
someone to call the police.
¶3 The victim told responding police officers that Underwood had
stabbed him in the hand after he told Underwood to calm down.
Later, while being treated at the hospital, the victim told an officer
that Underwood had started the argument that led to the stabbing
because Underwood was annoyed that the victim wanted him to
return a borrowed cell phone.
¶4 When officers entered the victim’s apartment, they found
Underwood packing a bag and “in a hurry to get out of there.” In a
later police interview, Underwood told an officer that the victim
came home from work and “seemed upset” and “freak[ed] out” over
a woman named Amy who “doesn’t like him.” Underwood said he
tried to calm the victim down, but the victim responded with a
“condescending tone.” When Underwood told the victim not to
speak to him that way, the victim came toward Underwood with his
fists balled and his chest puffed out before grabbing a large piece of
“slag,” a byproduct of smelting ore. Underwood claimed that the
2 victim swung a bottle of laundry detergent at him and threw things
at him before leaving the apartment to call the police.
¶5 Underwood denied knowing how the victim’s hand was cut but
suggested that perhaps the slag caused the injury because it was
sharp. But when a police officer searched the victim’s apartment,
he did not find any slag; instead, he found a chef’s knife hidden in
the toilet’s tank. The officer did, however, find a bottle of laundry
detergent with blood on the handle.
¶6 As Underwood was escorted to booking after the interview, he
remarked that he wished he had killed the victim and muttered that
“dead men tell no tales.”
¶7 The People charged Underwood with first degree assault,
second degree assault — serious bodily injury, and felony
menacing. At trial, Underwood, through defense counsel, admitted
to stabbing the victim with a chef’s knife but claimed that he did so
in self-defense after being attacked by the victim, who was much
larger and “militarily trained.”
¶8 The jury rejected Underwood’s theory of self-defense and found
him guilty of second degree assault with a deadly weapon as a
lesser included offense of first degree assault. However, the jury
3 determined that Underwood did not cause serious bodily injury to
the victim, and it acquitted Underwood of the first degree assault,
second degree assault — serious bodily injury, and menacing
charges.
II. Denial of Challenge for Cause
¶9 Underwood first contends that the trial court reversibly erred
by denying his challenge for cause against Juror S. We are not
persuaded.
A. Additional Background
¶ 10 During voir dire, the prosecutor and Juror S had the following
exchange:
[THE PROSECUTOR]: [I]t sounds like you know some people that have worked in law enforcement. And so my question is, would you judge a law enforcement officer that testifies any differently than you would anyone else that testifies? Because you’re the judge of credibility. So would you judge their credibility like you would anyone else?
[JUROR S]: Yes, I would say I would. I would judge and listen to someone on law enforcement and have — because of their position, they would be more credible than maybe someone outside the law.
[THE PROSECUTOR]: . . . . So you do have an expectation that they would be more honest,
4 but you would still judge their credibility just as you would anyone else?
[JUROR S]: Yes.
[THE PROSECUTOR]: And that expectation is based on your other relationships and how you view those individuals?
[THE PROSECUTOR]: But would you just assume that they would be as credible as your friends?
[JUROR S]: I feel I try to judge everybody by what they say and what they do. But someone in the position of law enforcement or attorney or whatever, I look up to those people because that’s what they’re doing.
Defense counsel did not ask Juror S any follow-up questions about
how he judges the credibility of members of law enforcement.
¶ 11 Defense counsel challenged Juror S for cause, arguing that he
was biased due to his statements about law enforcement. The trial
court denied the challenge, noting that Juror S
indicated he could judge law enforcement credibility like everyone else, even though he has friends in law enforcement. . . . [W]hile he indicated he looks up to those people, neither side really clarified whether or not those people really meant his friends that are in law enforcement or just law enforcement at large. But either way, the Court finds that there was an insufficient basis for me to determine that
5 he was going to be biased or otherwise unable to be impartial and fair in assessing the credibility. His statements, obviously, to the contrary, suggest otherwise.
¶ 12 The defense exhausted all of its peremptory challenges on
other prospective jurors, and Juror S served on the jury.
B. Standard of Review and Applicable Law
¶ 13 We review a trial court’s ruling on a challenge for cause for an
abuse of discretion. People v. Maestas, 2014 COA 139M, ¶ 11. A
court abuses its discretion when its ruling is manifestly arbitrary,
unreasonable, or unfair, or it misconstrues or misapplies the law.
Id. This standard recognizes that the trial judge is in the best
position to assess a potential juror’s credibility, demeanor, and
sincerity, including statements that may appear to be inconsistent
or contradictory. People v. Sandoval, 733 P.2d 319, 321 (Colo.
1987).
¶ 14 An impartial jury is fundamental to a defendant’s
constitutional right to a fair trial. See Colo. Const. art. II, § 16.
“While jurors often express concern or indicate preconceived beliefs
during voir dire, such concerns and beliefs do not automatically
disqualify them from service.” People v. Marciano, 2014 COA
6 92M-2, ¶ 8. However, when a juror “evinc[es] enmity or bias toward
the defendant or the state,” the trial court must sustain a challenge
for cause unless “the court is satisfied, from the examination of the
juror or from other evidence, that [the juror] will render an impartial
verdict according to the law and the evidence submitted to the jury
at the trial.” § 16-10-103(1)(j), C.R.S. 2025; see Crim. P. 24(b)(1)(X);
People v. Clemens, 2017 CO 89, ¶ 15. “The ultimate test to be
applied in determining whether a juror should be dismissed for
cause is whether it appears that the juror would render a fair and
impartial verdict based on the evidence presented at trial and the
instructions given by the court.” People v. Vigil, 718 P.2d 496, 500
(Colo. 1986).
¶ 15 We review any error in the denial of a challenge for cause
under an “outcome-determinative analysis.” People v. Novotny,
2014 CO 18, ¶ 27. Thus, a defendant must show prejudice to
obtain reversal. Id. at ¶ 30 (Hood, J., concurring in part and
dissenting in part). But if a juror who is biased against the
defendant serves on the deliberating jury, the error is structural
7 and reversal is required. Clark v. People, 2024 CO 55, ¶ 35;
People v. Abu-Nantambu-El, 2019 CO 106, ¶ 29.
C. Discussion
¶ 16 Underwood asserts that Juror S expressed a bias in favor of
law enforcement and, therefore, that the court abused its discretion
by denying his challenge for cause. We disagree.
¶ 17 The facts in this case are similar to those in People v. Garrison,
2012 COA 132M, ¶¶ 45-57. There, the prospective juror said that
“his father was a deputy sheriff, his mother was appointed ‘special
deputy for traffic and investigation’ at an airport, and he had
‘numerous friends’ who worked in law enforcement.” Id. at ¶ 45.
He also said he generally believed law enforcement officers were
more credible than lay witnesses. Id. Nevertheless, the prospective
juror said that he would be fair and impartial to the defendant. Id.
at ¶ 54. In affirming the trial court’s denial of the challenge for
cause, the division found that the trial court was in a better
position to weigh and decide whether the prospective juror’s
conflicting testimony rendered him biased. Id. at ¶ 56.
¶ 18 Like the juror in Garrison, Juror S indicated he would be fair
and impartial. Indeed, when he was asked, “So you do have an
8 expectation that [members of law enforcement] would be more
honest, but you would still judge their credibility just as you would
anyone else?” Juror S responded, unequivocally, “Yes.” And he
made it clear that he “would judge and listen to someone on law
enforcement,” indicating that he would not automatically believe a
police officer and would instead “try to judge everybody by what
they say and what they do.” See id. at ¶ 55; People v. Richardson,
58 P.3d 1039, 1043 (Colo. App. 2002).
¶ 19 Moreover, Juror S had remained silent when the trial court
asked the entire jury panel if anybody (1) could not follow the
court’s legal instructions; (2) could not set aside “sympathy or
prejudice or bias”; or (3) had anything else “that might impact your
ability to be fair and impartial if you’re selected to serve as a juror
in this case.” See Vigil, 718 P.2d at 500. Notably, Juror S had
previously volunteered an answer to a question posed to the entire
panel, so the court could have “fairly attributed [his] silence to [his]
willingness to follow the law as instructed by the court as opposed
to a fear of speaking up.” Clemens, ¶ 22.
¶ 20 Therefore, like the division in Garrison, ¶ 57, we conclude that
the trial court here was in the best position to determine whether
9 Juror S “would render a fair and impartial verdict based on the
evidence and the jury instructions.” Accordingly, we discern no
abuse of discretion in the court’s ruling.
¶ 21 We are not persuaded otherwise by Underwood’s reliance on
People v. Prator, 833 P.2d 819, 821 (Colo. App. 1992), aff’d,
856 P.2d 837 (Colo. 1993). In Prator, a prospective juror’s eldest
son was a law enforcement officer. Id. Her husband and father-in-
law were also former police officers. Id. When asked if she could
remain unbiased, she replied, “I would like to believe I could do
that.” Id. However, upon further questioning, the prospective juror
conceded that she “really” had a doubt in her mind as to whether
she could set aside her personal feelings when she listened to the
testimony. Id. She said that she thought she would “‘end up’ being
biased.” Id. A division of this court concluded that it was error for
the trial court to deny the defense counsel’s challenge for cause
because the prospective juror could not be impartial. Id.
¶ 22 Unlike the juror in Prator, Juror S never expressed any
concerns about being biased for either party, and he said that he
would judge the credibility of members of law enforcement just as
he would anyone else. Thus, “voir dire indicated only that he held
10 law enforcement officers in ‘high regard,’” Garrison, ¶ 56, not that
he “evinc[ed] enmity or bias toward the defendant or the state,”
§ 16-10-103(1)(j).
III. Admission of Victim’s Statements
¶ 23 Underwood next contends that the trial court plainly erred by
allowing a police officer to testify about statements the victim made
while being treated at the hospital. We disagree.
¶ 24 The prosecutor called the victim as the first witness. At the
beginning of his testimony, the victim said that he has “a hard time
thinking” as a result of “[s]evere brain damage” caused by “[s]wine
flu hypoxia.” He further explained that he “lost a lot of memory of
what happened” on the day of the stabbing, stating that “a lot of
stuff got erased when they gave [him] 100 micrograms of Fentanyl
in the ambulance.”
¶ 25 So when the prosecutor asked whether he was “making phone
calls or trying to contact Mr. Underwood during the day” of the
stabbing, the victim answered that he could not remember.
Likewise, when questioned about how the argument with
Underwood started, what the argument was about, how the
11 argument escalated into a physical altercation, and when he picked
up the laundry detergent bottle, the victim repeatedly answered that
he could not recall.
¶ 26 At the conclusion of the victim’s testimony, neither the
prosecutor nor defense counsel requested that the trial court
continue his subpoena or require him to stay near the courthouse.
The court excused the victim, though it did not explicitly release
him from his subpoena.
¶ 27 Later that same morning, the prosecutor called a police officer
who had accompanied the victim to the hospital on the day of the
stabbing. The officer testified that, at the hospital, he had “tried to
ask [the victim] about the events that occurred to obtain a full
statement of what happened.” When the prosecutor asked if he
could recall what the victim had told him, the officer said:
Vaguely, I remember some specific statements. He specifically stated that he was stabbed in the hand. He did state that, I believe, he had [Underwood] staying with him for a time. And over the course of that time, [Underwood] . . . had borrowed his phone and he was trying to get hold of [Underwood] using his work phone, calling his own phone because [Underwood] had his phone. And, apparently, this had aggravated [Underwood], which started the argument in the first place when they got back
12 to the apartment. And then once they were at the apartment, he said that . . . they got in an argument and [Underwood] turned off the lights. And then . . . he had a laundry detergent bottle and he got stabbed in the hand. It was pretty jumbled, I would say. He jumped from point to point in his story. It wasn’t clear all the way through.
¶ 28 Defense counsel did not object to this testimony or attempt to
recall the victim for further questioning about these statements.
¶ 29 We review the court’s evidentiary rulings for an abuse of
discretion. Campbell v. People, 2019 CO 66, ¶ 21. And we review
de novo whether a defendant’s confrontation rights have been
violated. People v. Miranda, 2014 COA 102, ¶ 26, abrogated on
other grounds by, Rojas v. People, 2022 CO 8, ¶ 44. But because
Underwood did not preserve his evidentiary or confrontation
challenges at trial, we will reverse only if the trial court’s admission
of the victim’s statements amounted to plain error. See People v.
Arzabala, 2012 COA 99, ¶ 83.
¶ 30 An error is plain if it is both obvious and substantial.
People v. Miller, 113 P.3d 743, 750 (Colo. 2005). An error is obvious
if it contravenes a clear statutory command, a well-settled legal
13 principle, or Colorado case law. People v. Pollard, 2013 COA 31M,
¶ 40. An error is substantial if it so undermines the fundamental
fairness of the proceeding itself as to cast serious doubt on the
reliability of the judgment of conviction. Hoggard v. People, 2020
CO 54, ¶ 13.
¶ 31 Hearsay is a statement made by someone other than the
declarant that is offered in evidence to prove the truth of the matter
asserted. CRE 801(c). Hearsay is inadmissible unless an exception
applies. CRE 802.
¶ 32 Section 16-10-201(1), C.R.S. 2025, provides that, in a criminal
trial, a witness’s prior inconsistent statement “may be shown by
any otherwise competent evidence” if the proponent satisfies two
foundational requirements. See People v. Komar, 2015 COA 171M,
¶ 52. First, the witness must either (1) have been given an
opportunity to explain or deny the statement while testifying or
(2) still be available to give further testimony. § 16-10-201(1)(a).
And second, the previous inconsistent statement must “purport[] to
relate to a matter within the witness’s own knowledge.”
§ 16-10-201(1)(b). If these requirements are satisfied, the prior
14 inconsistent statement is admissible not only for impeachment, but
also as substantive evidence. Id.; Komar, ¶ 52.
¶ 33 Under the Confrontation Clause, testimonial out-of-court
statements are not admissible in a criminal trial unless the
declarant is unavailable and the defendant previously had an
opportunity to cross-examine the declarant. Crawford v.
Washington, 541 U.S. 36, 53-54 (2004). “Where a witness testifies
at trial and is therefore subject to cross-examination, admission of
the witness’s prior out-of-court statements does not violate a
defendant’s Confrontation Clause rights.” People v. Acosta, 2014
COA 82, ¶ 82. Even if the declarant does not remember making the
statements, as long as the declarant is present and available to
testify at trial, the defendant’s confrontation rights are not violated.
People v. Argomaniz-Ramirez, 102 P.3d 1015, 1017-18 (Colo. 2004).
¶ 34 Underwood does not dispute that the victim’s hospital
statements were inconsistent with his testimony at trial1 and
1 In Davis v. People, 2013 CO 57, ¶ 7 n.2, the supreme court noted
that “[a] witness’s actual or feigned memory loss is tantamount to denial,” which can justify admission of a prior inconsistent statement under section 16-10-201(1), C.R.S. 2025.
15 related to matters within his personal knowledge. See § 16-10-
201(1). Instead, Underwood contends that the trial court plainly
erred by admitting the statements because (1) the foundational
requirements of section 16-10-201(1)(a) were not satisfied as the
victim was not given an opportunity to explain or deny the
statements while testifying and was no longer available to give
further testimony once the court excused him and (2) admitting the
statements after the victim was excused violated Underwood’s
confrontation rights as he could not cross-examine the victim about
the statements. We disagree.
¶ 35 First, even assuming that the victim was not “given an
opportunity to explain or deny” the hospital statements, it was not
obvious that he was no longer “available to give further testimony in
the trial” after the trial court excused him. § 16-10-201(1)(a); see
People v. Stewart, 568 P.2d 65, 67 (Colo. App. 1977) (even if a
witness is not given an opportunity to explain or deny a prior
statement, the witness’s prior inconsistent statement is still
admissible if the witness remains available to give further
testimony). The hospital statements were admitted the same
morning that the victim testified. Although the victim had been
16 excused, he had not been expressly released from his subpoena and
nothing in the record suggests he was unavailable. Critically,
defense counsel neither raised any concern regarding his
availability at that time nor attempted to recall him after the officer
testified about his hospital statements. See People v. Smith,
512 P.2d 269, 272 (Colo. 1973) (affirming admission of statements
under a previous version of the statute where “[t]here was no
showing that the statutory conditions to the admissibility of the
prior inconsistent hearsay statements had not been met”); see also
LePage v. People, 2014 CO 13, ¶ 15 (“According to the presumption
of regularity, appellate courts presume that the trial judge did not
commit error absent affirmative evidence otherwise.”). And
Underwood has not cited a Colorado case holding that excusing a
witness necessarily renders him unavailable, nor are we aware of
any. See Pollard, ¶ 40.
¶ 36 Second, it was not obvious that Underwood’s confrontation
rights were violated. The facts of this case appear to fit squarely
within Miranda, ¶ 2, in which a division of this court held that
the Confrontation Clause permits admission of testimonial hearsay after the declarant has testified and been released, provided that the
17 declarant testified concerning matters addressed in the declaration, the declarant was subject to cross-examination, and the defendant did not ask that the prosecution be required to recall the declarant for further cross-examination after the hearsay had been introduced.
¶ 37 These factors are met here:
• The victim testified that he did not remember trying to
call Underwood on the day of the stabbing, how the
argument began, what it was about, how it escalated into
a physical altercation, or when he picked up the laundry
detergent bottle. Thus, the victim “testified concerning
matters addressed in the” hospital statement, Miranda,
¶ 2 — namely, that the victim had been calling
Underwood trying to get his phone back and “this had
aggravated [Underwood], which started the argument in
the first place when they got back to the apartment.” See
People v. Thomas, 2014 COA 64, ¶ 20 (A witness’s
“testimony that she could not recall her prior statements
amounted to a denial that she had made them.”).
18 • The victim was subject to cross-examination, but defense
counsel chose not to ask him about his lack of memory
regarding the matters in the hospital statement.
• Defense counsel “did not ask that the prosecution be
required to recall the declarant for further cross-
examination after the hearsay had been introduced.”
Miranda, ¶ 2.
¶ 38 Nevertheless, Underwood attempts to distinguish this case
from Miranda. But “where an alleged error is unclear under present
law, the trial court does not commit plain error.” People v. Stroud,
2014 COA 58, ¶ 33; cf. Campbell v. People, 2020 CO 49, ¶ 41
(“While one could argue the similarities between this case and [a
previous case], we cannot say a judge would be expected to
recognize those similarities without the benefit of an objection.”).
¶ 39 Finally, and equally applicable to both the section
16-10-201(1)(a) and Confrontation Clause arguments, any error in
admitting the hospital statements was not substantial. Underwood
argues that “the hospital statements were the only evidence that
contradicted Underwood’s explanation” of how the argument
started, “and without them, no evidence suggested that Underwood
19 was the initial aggressor.” But as Underwood himself correctly
notes, Colorado case law “is clear that arguments and insults alone
do not make someone an initial aggressor.” See Castillo v. People,
2018 CO 62, ¶ 44. Thus, this case did not turn on who started the
argument or on whether the argument was over a cell phone or a
woman named Amy; it turned on who initiated the physical
altercation and whether Underwood used reasonable force to defend
himself in the apartment. Accordingly, we cannot conclude that the
admission of statements concerning who started the argument so
undermined the fundamental fairness of the trial as to cast serious
doubt on the reliability of the judgment of conviction. See Hoggard,
¶ 13.
¶ 40 Because any error was not obvious and was not substantial,
we do not discern a basis for reversal.
IV. Prosecutorial Misconduct
¶ 41 Underwood contends the prosecutor committed misconduct
during closing argument by (1) telling the jury that the law does not
require that a person use force to be an initial aggressor;
(2) “sarcastically comment[ing] on [the victim’s] physical
characteristics”; (3) “opin[ing] on Underwood’s character in relation
20 to [the victim’s] social life and mental abilities”; and (4) asking the
jury to find justice for the victim. We conclude that no plain error
occurred.
A. Applicable Law and Standard of Review
¶ 42 We engage in a two-step analysis when reviewing claims of
prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010).
¶ 43 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). The prosecutor may
also “employ rhetorical devices and engage in oratorical
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 his 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.
21 Weinreich, 98 P.3d 920, 924 (Colo. App. 2004), aff’d, 119 P.3d 1073
(Colo. 2005), and the prosecutor “may not use arguments
calculated to inflame the passions and prejudices of the jury,”
People v. Nardine, 2016 COA 85, ¶ 35.
¶ 44 Second, if we identify misconduct, then we determine whether
it warrants reversal under the applicable standard of review. Wend,
235 P.3d at 1096. Underwood did not object to any of the alleged
improper statements, so we review his unpreserved claims of
prosecutorial misconduct for plain error. See People v.
Licona-Ortega, 2022 COA 27, ¶ 86. To meet this standard, the
conduct must be “flagrantly, glaringly, or tremendously improper”
and “so undermine[] the fundamental fairness of the trial itself as to
cast serious doubt on the reliability of the jury’s verdict.”
Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005)
(quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)).
22 “Prosecutorial misconduct in closing argument rarely constitutes
plain error.” Weinreich, 98 P.3d at 924.
B. Initial Aggressor
¶ 45 During his closing argument, defense counsel told the jury
that
[the victim] testified, saying I grabbed the laundry detergent bottle because I was feeling harassed. I’ll tell you why he was feeling harassed. He was feeling harassed because of the argument that they were having about Amy. . . . He wasn’t being physically harassed, he wasn’t being harassed at all. [Underwood] was just telling [the victim] something he did not want to hear and that’s what caused [the victim] to grab the laundry detergent bottle and start the fight.
The prosecutor responded to this argument during his rebuttal
closing:
This wasn’t self-defense. It was a heated argument. Most fights start as a heated argument. It doesn’t mean you can’t be the initial aggressor. Look at the self-defense instruction that you have. Does it require that an initial aggressor uses force? Do you see that in there? Would that make sense if the law requires that? I mean, to what point does [the victim] have the right to say, hey, get off me? There’s no way he made contact, there is no evidence, . . . there is no bruising on [Underwood] to support that he was beat repeatedly with a laundry detergent bottle. I
23 think he got hit with soap. He had soap on him. That was the aggression that [the victim] had, going to throw some soap on you. That’s fair. I’m going to take this knife and cut your hand. Does that seem like a reasonable amount of force to you? Bringing a knife to a soap fight? This was not self-defense.
¶ 46 Underwood contends that the prosecutor’s rebuttal closing
“suggested to the jury . . . that Underwood could be the initial
aggressor without using or threatening physical force.” See Castillo,
¶ 44. But the prosecutor’s statement that the self-defense jury
instruction did not “require that an initial aggressor uses force” was
a correct statement of law. The Colorado Supreme Court has
defined an “initial aggressor” as “the person who ‘initiated the
physical conflict by using or threatening the imminent use of
unlawful physical force.’” Id. at ¶ 43 (emphasis added) (citation
omitted).
¶ 47 Viewing the prosecutor’s remark in context with the rest of his
statements, the prosecutor was not suggesting that mere argument
could make someone an initial aggressor. Instead, it appears that
the prosecutor was arguing either that Underwood’s physical
conduct during the argument constituted a threat of the imminent
use of physical force, see id. at ¶ 44 (“[A] physically threatening
24 action would make someone an initial aggressor.”), or that
Underwood was the initial aggressor when he cut the victim’s hand
because the victim’s act of “throw[ing] some soap on” Underwood
did not make the victim the initial aggressor.
¶ 48 Given these reasonable interpretations of the prosecutor’s
statement, we decline to assume that he was attempting to suggest
that Underwood became the initial aggressor through mere
argument. Making this assumption, as Underwood asks us to do,
would be contrary to the requirement that we give the prosecutor
the benefit of the doubt when his remarks are “ambiguous or
simply inartful.” Samson, ¶ 30. Accordingly, we conclude that the
statement was not improper.
C. The Victim’s Characteristics
¶ 49 During closing argument, defense counsel argued that
Underwood was
scared of [the victim] given the size difference and given what he knows about [the victim]. [The victim] had talked about how he had went to military school. [Underwood] had this belief that he had gone to military school and had military training. And so not only was there the size discrepancy, but there was this skill level and combat discrepancy to where [Underwood] has the belief that [the victim]
25 has combat training and would be able to cause even more damage than somebody who just is merely the [sic] size.
The prosecutor directly responded to this argument:
[The victim] is a large man with military training, right? I mean, he’s probably a tier one special operations ninja. And when you look at Mr. Underwood, despite the fact that he was getting repeatedly hit by this giant with ninja training, he has no marks, zero. He says I’m covered in soap. Does that story make sense? Is that plausible?
....
Let’s take a look at [the victim’s] size. Does he look like a giant, lethal force? He has no upper body. Look at those shoulders. He’s tall and he’s fat. It’s not a nice way to put it. He is not a huge menacing character. You heard from him, he walks around scared. He’s been beat up numerous times. His experience in military school, he got beat up.
¶ 50 Underwood contends that “[t]hese statements served no
purpose other than to inflame the passions of the jury” and that
“[t]he prosecutor could have described evidence of [the victim’s]
physical . . . characteristics without resorting to sarcastic, mocking
comments that appealed to the jurors’ sympathy.” But the
prosecutor’s remarks directly responded to defense counsel’s
argument that Underwood reasonably feared the victim due to the
26 victim’s size and military training. The “prosecutor is afforded
considerable latitude in replying to an argument by defense
counsel,” People v. Lovato, 2014 COA 113, ¶ 63 (quoting People v.
Perea, 126 P.3d 241, 247 (Colo. App. 2005)), and he is allowed to
“employ rhetorical devices and engage in oratorical embellishment,”
Samson, ¶ 31. We conclude that the prosecutor’s statements were
“no more than . . . oratorical embellishment and w[ere] not unfairly
prejudicial.” People v. Allee, 77 P.3d 831, 837 (Colo. App. 2003).
Thus, they were not improper.
D. The Dynamic Between Underwood and the Victim
¶ 51 During his rebuttal closing, the prosecutor told the jury that
the victim
makes friends with people that work [with him]. Take Mr. Underwood, for example, a guy that’s kind of living on the streets, kind of street smart. For [the victim], it’s an opportunity to have a friend. You can come stay with me. He’s that lonely. Type of person like Mr. Underwood, been around the block once, sees the opportunity, can get up from living on the streets. This guy is not smart, he is not going to be hard to manipulate, control, push around a little bit. Sure, he’s tall, he weighs more. Maybe if he sits on you or hits you with soap.
27 ¶ 52 Underwood argues that these statements were (1) not based
on evidence presented at trial”; (2) irrelevant; and (3) intended to
“capitalize[] on society’s predisposition against the unhoused (like
Underwood) as opportunistic and manipulative, and on sympathy
for the lonely and friendless.” We disagree.
¶ 53 First, the prosecutor did not improperly comment on facts not
in evidence. It was undisputed that Underwood was living on the
streets before the victim invited him to stay at the victim’s
apartment. And the prosecutor had “wide latitude to make
arguments based on facts in evidence and reasonable inferences
drawn from those facts.” Strock, 252 P.3d at 1153 (emphasis
added). Given Underwood’s experience living on the streets, it is
reasonable to infer that he had some “street smarts.” And given
that the victim invited Underwood to stay in his studio apartment
for free, it is reasonable to infer that the victim was lonely. Thus,
the statements were based on evidence presented at trial.
¶ 54 Second, the statements were relevant. Underwood’s theory at
trial was that the victim was the aggressor and that Underwood,
being smaller and meeker, had to stab the victim to defend himself.
Therefore, the social dynamic between the two men was relevant to
28 self-defense — the central issue at trial — and the prosecutor’s
statements were relevant to that dynamic.
¶ 55 Third, given that the statements were based on the evidence
presented at trial and were relevant to the core issue, we are not
persuaded that the prosecutor was attempting to “capitalize[] on
society’s predisposition against the unhoused . . . and on sympathy
for the lonely and friendless.” See Samson, ¶ 30.
E. Justice for the Victim
¶ 56 The prosecutor concluded his rebuttal closing by telling the
jury that it
should and need[s] to find Mr. Underwood accountable for his actions. People like [the victim] deserve justice. Just because he is not able to articulate things nearly as well, he still has rights. We need to find him justice. Find Mr. Underwood guilty, hold him accountable.
¶ 57 The prosecutor’s statements about justice for the victim were
improper, and they were obviously so. See, e.g., People v. Marko,
2015 COA 139, ¶ 221, aff’d on other grounds, 2018 CO 97.
However, we conclude that they were not “flagrantly, glaringly, or
tremendously improper” and did not “so undermine[] the
fundamental fairness of the trial itself as to cast serious doubt on
29 the reliability of the jury’s verdict.” Domingo-Gomez, 125 P.3d at
1053 (quoting Avila, 944 P.2d at 676).
¶ 58 The statements “were ‘few in number, momentary in length,
and were a very small part of a rather prosaic summation.’” Id.
(quoting People v. Mason, 643 P.2d 745, 753 (Colo. 1982)). And
rather than “pressur[ing] jurors by suggesting that guilty verdicts
[were] necessary to do justice for a sympathetic victim,” People v.
McBride, 228 P.3d 216, 223 (Colo. App. 2009) (emphasis added), the
improper remarks were made in the context of asking the jury not
to acquit Underwood merely because of the victim’s difficulty
expressing himself on the stand. See Domingo-Gomez, 125 P.3d at
1053 (In determining if improper statements amount to plain error,
“[f]actors to consider include . . . the context in which the
statements were made.”). And the failure to object to the
statements “may ‘demonstrate defense counsel’s belief that the live
argument, despite its appearance in a cold record, was not overly
damaging.’” Strock, 252 P.3d at 1153 (quoting People v. Rodriguez,
794 P.2d 965, 972 (Colo. 1990)).
¶ 59 Moreover, the jury returned a split verdict. “While a split
verdict does not conclusively decide the harmlessness question, it is
30 ‘an indication that the jurors exercised some discretion in their
deliberations’ and that the error did not cause them to ‘blindly
convict the defendant.’” Washington v. People, 2024 CO 26, ¶ 35
(quoting Martin v. People, 738 P.2d 789, 795-96 (Colo. 1987)). The
jury returned a guilty verdict only for second degree assault with a
deadly weapon as a lesser included offense of first degree assault; it
acquitted Underwood of first degree assault, second degree
assault — serious bodily injury, and menacing. And in a special
interrogatory, the jury found that Underwood did not cause serious
bodily injury to the victim. Thus, it is evident that the jury’s verdict
was not motivated by sympathy toward the victim. The prosecutor’s
improper statements do not cast serious doubt on the reliability of
the jury’s verdict and, accordingly, do not amount to plain error.
See Domingo-Gomez, 125 P.3d at 1053.
V. Cumulative Error
¶ 60 Finally, Underwood contends that the cumulative effect of the
alleged errors at his trial mandates reversal. We are not persuaded.
¶ 61 “The doctrine of cumulative error requires that numerous
errors be committed, not merely alleged.” People v. Conyac, 2014
COA 8M, ¶ 152. Under this doctrine, while an error may be
31 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.
¶ 62 We have assumed, for the purpose of our plain error analysis,
that it was error for the trial court to allow a police officer to testify
about statements the victim made at the hospital, and we have
concluded that the prosecutor made improper statements about
doing justice for the victim.2 However, we concluded that these
errors, individually, did not constitute plain error.
¶ 63 For the same reasons we did not find that the admission of the
hospital statements and the prosecutor’s improper remarks were,
individually, substantial error, we now further conclude that the
cumulative effect of the two errors did not substantially impact the
2 We flatly reject Underwood’s assertion that our cumulative error
analysis should also consider prejudice caused from the trial court’s proper use of its discretion by declining to remove Juror S for cause.
32 fairness of the trial or undermine the integrity of the factfinding
process. See id.
VI. Disposition
¶ 64 The judgment is affirmed.
JUDGE FREYRE and JUDGE PAWAR concur.