22CA2280 Peo v Wertin 05-15-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA2280 Arapahoe County District Court No. 21CR1729 Honorable Ryan J. Stuart, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kevin Lee Wertin,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE BERGER* J. Jones and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 15, 2025
Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Casey J. Mulligan, Alternate Defense Counsel, Boulder, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Kevin Lee Wertin, appeals the judgment of
conviction entered on a jury verdict finding him guilty of attempted
first degree murder, conspiracy to commit first degree murder, first
degree assault, conspiracy to commit first degree assault, and the
lesser nonincluded offense of disorderly conduct.
¶2 Wertin contends that the district court erred by denying (1) his
request to instruct the jury on the affirmative defenses of
self-defense and defense of others and (2) his motion to suppress
statements that he made to the police during an interrogation. He
also contends that the cumulative effect of these errors deprived
him of a fair trial.
¶3 We address and reject each of these contentions and therefore
affirm the judgment of conviction.
I. Facts and Procedural History
¶4 On July 31, 2021, Emily Strunk called 911 to report that she
had shot someone in the head at her apartment. Upon arriving at
the scene, officers found Strunk outside with “a couple pairs of
brass knuckles” and “one 9mm round of ammunition” in her
pockets. Inside the apartment, officers discovered the
victim — later identified as Strunk’s neighbor and former romantic
1 partner — lying on the floor struggling to breathe and found a gun
on the counter in the bathroom.
¶5 Surveillance footage from Strunk’s apartment complex,
recorded just before the shooting, showed the victim leaving his
adjacent apartment while Wertin entered the hallway from Strunk’s
unit and intercepted the victim as he walked by. Wertin, who was
holding what appeared to be a pair of brass knuckles, followed the
victim to a stairwell where the two had a brief exchange before the
victim turned around with Wertin and followed him back into
Strunk’s apartment. The video further depicts Wertin fighting with
the victim in Strunk’s doorway. Wertin appeared to pull the victim
into Strunk’s apartment while the victim resisted. The two men
struggled on the floor just inside the door of Strunk’s apartment,
while Strunk stood over the two men, pointing a gun at the victim’s
head. Strunk then fired the gun, shooting the victim in the head.
¶6 After the police arrived, the victim was rushed to the hospital
for emergency surgery to remove bullet fragments from his skull.
The victim ultimately survived, with grave disabilities.
2 ¶7 Wertin was not at the apartment when the police responded to
Strunk’s 911 call, but Strunk told the police that he was present at
the time of the shooting.
¶8 Wertin was arrested and charged with the crimes of which he
was later convicted. During a custodial interrogation with two
investigators, Wertin claimed that the victim was “terrorizing”
Strunk and Wertin in the lead-up to the incident. He also said that,
at the time he was seen fighting with the victim in the apartment
complex’s surveillance footage, he only used physical force to “keep
[the victim] from breaking in.” However, several text and voice
messages sent between Wertin and Strunk in the days leading up to
the shooting revealed that the two were angry with the victim and
had discussed killing him.
¶9 After a three-day trial, the jury found Wertin guilty of
attempted first degree murder, conspiracy to commit first degree
murder, first degree assault, conspiracy to commit first degree
assault, and the lesser nonincluded offense of disorderly conduct.
The district court sentenced Wertin to forty years in the custody of
the Department of Corrections.
3 II. Affirmative Defenses
¶ 10 Wertin first contends that the district court erred by rejecting
his tendered jury instruction on the affirmative defenses of
self-defense and defense of others and, as a result, allowed the
prosecution to convict him based on a standard of proof lower than
what the law requires. We disagree.
A. Preservation and Standard of Review
¶ 11 Although Wertin initially argued in this court that he
preserved this contention at trial, the People argue, Wertin concedes
in his reply brief, and we agree that he did not.
¶ 12 Because the arguments that Wertin made at trial in support of
his tendered self-defense and defense of others jury instruction are
materially different from those he now offers on appeal, he did not
preserve this claim of error. As a result, we will reverse only if the
unpreserved instructional error constitutes plain error. See Hagos
v. People, 2012 CO 63, ¶ 14; People v. Sa’ra, 117 P.3d 51, 54 (Colo.
App. 2004) (“Defendant objected to the escape instruction at trial on
grounds different from those he now complains of on appeal.
Therefore, we review his contention for plain error.”).
4 ¶ 13 Plain error is an error that is both obvious and substantial.
Hagos, ¶ 14. An error is obvious if the act or omission challenged
on appeal contravenes a clear statutory command, a well-settled
legal principle, or Colorado case law. People v. Walker, 2022 COA
15, ¶ 68. An error is substantial if it so undermines the
fundamental fairness of the trial as to cast serious doubt on the
reliability of the conviction. Id. at ¶ 28.
B. Applicable Law
¶ 14 “Taken together, the Fifth Amendment Due Process Clause
and the Sixth Amendment guarantee of a trial by jury” preclude a
defendant from being convicted unless a jury finds the defendant
“guilty of having committed every element of the crime with which
he has been charged.” Sanchez v. People, 2014 CO 29, ¶ 13.
¶ 15 Affirmative defenses generally “seek to justify, excuse, or
mitigate the commission of the [charged] offense.” People v. Mullins,
209 P.3d 1147, 1149 (Colo. App. 2008). If the evidence presented
at trial properly raises the issue of an affirmative defense, the
affirmative defense “effectively becomes an additional element of the
charged offense, and the trial court must instruct the jury that the
prosecution bears the burden of proving beyond a reasonable doubt
5 that the affirmative defense is inapplicable.” Roberts v. People,
2017 CO 76, ¶ 22; see id. at ¶ 18 (trial courts have a duty to
instruct the jury on all matters of law applicable to the case). When
the jury is instructed on an affirmative defense, “the prosecution
must disprove beyond a reasonable doubt at least one of the
conditions of the affirmative defense.” People v. Harrison, 2020 CO
57, ¶ 34.
¶ 16 A defendant asserting the affirmative defense of self-defense
“admits that his use of force satisfies the elements of the charged
offense” but then contends that “the otherwise unlawful use of
physical force was justified because it was reasonably necessary to
defend himself or another from the victim’s use or imminent use of
force.” People v. Tardif, 2017 COA 136, ¶ 37; see § 18-1-704,
C.R.S. 2024. “[B]ecause self-defense justifies the use of physical
force, it can be an affirmative defense only to crimes of physical
force.” Tardif, ¶ 37. Accordingly, self-defense is not an affirmative
defense to crimes of conspiracy, as none of the elements of the
crime require the use of physical force. Id. at ¶ 38.
¶ 17 Wertin was convicted of the crimes of attempted first degree
murder and first degree assault on a complicity theory. Under this
6 theory, a defendant “is legally accountable as principal for the
behavior of another constituting a criminal offense if, with the
intent to promote or facilitate the commission of the offense, he or
she aids, abets, advises, or encourages the other person in planning
or committing the offense.” § 18-1-603, C.R.S. 2024.
¶ 18 To convict a defendant on a theory of complicity, the
prosecution takes on the added burden of proving that “(1) the
principal committed the crime; (2) the complicitor knew that the
principal intended to commit the crime; and (3) the complicitor,
having the requisite knowledge, aided, abetted, or encouraged the
principal in the commission of the crime.” People v. Theus-Roberts,
2015 COA 32, ¶ 35.
C. The District Court Did Not Commit Plain Error When It Failed to Sua Sponte Instruct the Jury on Self-Defense as to Strunk’s Criminal Liability
¶ 19 Wertin contends that, (1) because there was evidence to
support an argument that Strunk used physical force against the
victim to defend herself or others, and (2) because Wertin was
prosecuted under the theory of complicity, he was entitled to an
affirmative defense instruction on self-defense or defense of others
in regard to Strunk’s use of physical force. He argues that, by not
7 giving such an instruction, the district court permitted the jury to
convict Wertin on a lower burden of proof than what the law
requires. We reject this argument.
¶ 20 As noted above, Wertin concedes in his reply brief that plain
error review applies to his claim that the court erred by not
instructing the jury that Strunk (not Wertin) was entitled to a
self-defense or defense of others affirmative defense instruction.
¶ 21 This concession permits us to sidestep the perhaps difficult
issues that would have been presented had this claimed error been
preserved. In other words, even if we assume, without deciding,
that the court had erred in failing to give, sua sponte, an affirmative
defense instruction as to Strunk’s shooting of the victim, it did not
commit plain error by failing to do so.
¶ 22 A division of this court has rejected the proposition that a
defendant charged with conspiracy is entitled to a self-defense
instruction. Tardif, ¶ 38. Wertin concedes in his reply brief that
“the affirmative defenses of self-defense and defense of others are
inapplicable to the offense of conspiracy.”
¶ 23 But the complicity theory of criminal liability is materially
different than the theory of criminal conspiracy. Wertin’s argument
8 is essentially as follows: To convict on a complicity theory, the jury
must find that the principal committed the offense of which the
defendant is accused of being complicit. Theus-Roberts, ¶ 35. If the
government does not disprove an affirmative defense as to which
the principal actor is entitled, such as self-defense, the principal
arguably has not committed the offense, and an essential element of
complicity liability is negated.
¶ 24 But Wertin does not cite, nor are we aware of, any authority
that requires a self-defense instruction as to the actions of the
principal, not the complicitor. The absence of any authoritative
case law, a statute governing the situation, or generally accepted
legal principles clearly applying to this situation is fatal to finding
obviousness and thus plain error. See Walker, ¶ 68.
¶ 25 Not only is there no authority that would support a finding of
obviousness, but the only published Colorado case on point, People
v. McCoy, 944 P.2d 584 (Colo. App. 1996), also at least suggests
that no such affirmative defense instruction is necessary or
appropriate. In McCoy, the division said, “Under the circumstances
here, it is no defense to the crime charged under a complicity theory
9 or to the crime of conspiracy that the person with whom the
defendant acted is legally not responsible for the crime.” Id. at 588.
¶ 26 Admittedly, as Wertin contends, the facts of McCoy are
distinguishable from those presented in this case. And the McCoy
division did not suggest when its rule would not apply. But, viewed
through the lens of plain error review, McCoy provides no support
for a finding of plain error here. If anything, McCoy casts
substantial doubt on whether a trial court’s failure to give a
self-defense instruction as to the principal’s conduct constitutes
error, much less plain error.
¶ 27 Accordingly, we conclude that the district court did not
commit plain error by failing to sua sponte instruct the jury that
Strunk’s criminal liability was subject to a self-defense or defense of
others instruction.
¶ 28 Wertin’s related argument that he was entitled to a theory of
defense instruction that encapsulated his affirmative defense of
self-defense is equally unavailing. See People v. Garcia, 28 P.3d
340, 347 (Colo. 2001). Once again, the grounds he offered for the
instruction at trial are materially different from those he argues
here.
10 ¶ 29 In essence, Wertin claims that the district court erred by not
providing a theory of the case instruction that his attorney did not
request. However, because Wertin’s theory of defense at trial was
different than that argued on appeal, the district court did not err
by failing to sua sponte give the jury a theory of defense instruction
not requested by his counsel. See Hansen v. State Farm Mut. Auto.
Ins. Co., 957 P.2d 1380, 1384 (Colo. 1998) (the court’s general duty
to instruct the jury does not require it to craft theory of the case
instructions that are not supported by competent evidence in the
record and are not requested by defense counsel).
III. Suppression of Evidence
¶ 30 Wertin next contends that the district court erred by denying
his motion to suppress certain statements that he made to the
police during a custodial interrogation after he allegedly invoked his
right to counsel. We disagree.
A. Relevant Facts
¶ 31 Wertin was arrested and interrogated by the police. At the
beginning of the interrogation, an officer advised Wertin of his
rights under Miranda v. Arizona, 384 U.S. 436 (1966). Roughly
11 halfway through the lengthy interrogation, the following exchange
took place:
INVESTIGATOR: Alright. So we’ve (laugh), we’ve just made a big jump, from you guys are . . . .
WERTIN: That’s all I’m gonna say —
INVESTIGATOR: Well, hear me out . . . we’ve made this jump, from, you’re in the hallway —
WERTIN: That’s all I’m gonna say.
INVESTIGATOR: To, she shoots him.
WERTIN: That’s fine . . . I want a lawyer, ‘cause (sniff) . . . I didn’t expect all that to happen, I thought it would just be a fight, that situation, that’s a huge . . . from or something like that, man.
INVESTIGATOR: Kevin, when you went outside, did you know [the victim] was out there?
WERTIN: Huh-uh.
The interrogation continued for another forty-five minutes. The
entire interrogation was audio- and video-recorded.
¶ 32 Wertin moved to suppress all statements he made to the police
after he allegedly asserted his right to counsel. At a hearing on
Wertin’s motion, the investigators who interrogated Wertin testified
12 that they did not hear his request for counsel during the
interrogation. The district court credited the investigators’
testimony and specifically found that “law enforcement, in fact, did
not hear the statement.”
¶ 33 In further support of its order denying the motion to suppress,
the court said, “[G]iven that it was such a quiet request for a
lawyer . . . and that Mr. Wertin kept asking — kept answering
questions after, . . . that request for an attorney was not an
unequivocal request on the part of Mr. Wertin.” The court
explained that “a request for an attorney has to be loud enough for
law enforcement to hear” and that Wertin’s whispered and
mumbled request did not meet that standard.
¶ 34 In light of the district court’s ruling, the prosecution
introduced the entire recording of Wertin’s interrogation at trial,
including his statements after his claimed invocation of the right to
counsel.
B. Applicable Law and Standard of Review
¶ 35 The Supreme Court’s holding in Miranda established that “an
accused has the right under the Fifth Amendment to the United
States Constitution to have an attorney present during custodial
13 interrogation.” People v. Kutlak, 2016 CO 1, ¶ 14 (citing Miranda,
384 U.S. at 444, 469-73). While the accused must be informed of
this right before law enforcement initiates custodial questioning,
see Miranda, 384 U.S. at 467-68, police officers are free to question
the accused if the accused knowingly and voluntarily waives his
right to counsel after receiving the required Miranda warnings.
Kutlak, ¶ 14 (citing Davis v. United States, 512 U.S. 452, 458
(1994)).
¶ 36 In Edwards v. Arizona, the Supreme Court further held that if
an accused invokes his right to have counsel present during
custodial interrogation, he “is not subject to further interrogation by
the authorities until counsel has been made available to him,
unless the accused himself initiates further communication,
exchanges, or conversations with the police.” 451 U.S. 477, 484-85
(1981); see Kutlak, ¶ 14. The applicability of the Edwards rule,
however, “hinges on whether the accused actually invoked his right
to counsel, which is an objective inquiry.” Kutlak, ¶ 15.
¶ 37 At a minimum, the invocation of the Miranda right to counsel
requires “some statement that can reasonably be construed to be
an expression of a desire for the assistance of an attorney.” Davis,
14 512 U.S. at 459 (quoting McNeil v. Wisconsin, 501 U.S. 171, 178
(1991)). In determining that the accused sufficiently invoked his
right to counsel, the court must find that the accused
“unambiguously request[ed] counsel,” meaning “he . . . articulate[d]
his desire to have counsel present sufficiently clearly that a
reasonable police officer in the circumstances would understand
the statement to be a request for an attorney.” Id.; see Kutlak, ¶ 24.
¶ 38 To make this determination, the Colorado Supreme Court
directs trial courts to consider the totality of the circumstances,
including such factors as (1) the words spoken by the interrogating
officer; (2) the words used by the accused in referring to counsel;
(3) the officer’s response to the accused’s reference to counsel;
(4) the speech patterns of the accused; (5) the demeanor and tone of
the interrogating officer; (6) the accused’s behavior during
interrogation; and (7) the accused’s youth, criminal history,
background, nervousness or distress, and feelings of intimidation or
powerlessness. Kutlak, ¶ 24. Critically, “unless the suspect’s
statement is an unambiguous and unequivocal request for counsel,
the officers have no obligation to stop questioning him.” Id. at ¶ 17.
15 ¶ 39 A district court’s ruling on a motion to suppress evidence
presents a mixed question of fact and law. People v. Kessler, 2018
COA 60, ¶ 16. We defer to the district court’s factual findings if
they are supported by competent evidence in the record, but we
review the legal effect of those facts de novo. Perez v. People, 231
P.3d 957, 960 (Colo. 2010).
C. The District Court Did Not Err by Denying Wertin’s Motion to Suppress
¶ 40 Wertin contends that the “totality of circumstances show that
[he] invoked his right to counsel,” and as a result, the district court
erred by admitting the statements he made after he invoked his
right to counsel.
¶ 41 Because a district court’s ruling on a motion to suppress
evidence presents a mixed question of fact and law, on review, we
defer to the district court’s factual findings if they are supported by
competent evidence in the record. Perez, 231 P.3d at 960. The
district court made explicit findings that the two investigators who
interrogated Wertin “in fact, did not hear the statement.” “[G]iven
that it was such a quiet request for a lawyer,” the district court
16 concluded that Wertin’s “request for an attorney was not an
unequivocal request on the part of Mr. Wertin.”
¶ 42 While the district court did not explicitly ground its ruling in
the objective standard and factors articulated by the Supreme
Court and Colorado case law, the court implicitly applied the law
set down by those courts, when it found that Wertin’s “quiet” and
mumbled request for counsel was not an unequivocal request for
¶ 43 The district court’s factual finding that the investigators “in
fact, did not hear” Wertin’s invocation for counsel is supported by
the record and we must defer to that finding. See People v.
Minjarez, 81 P.3d 348, 353 (Colo. 2003) (“[W]e will defer to a trial
court’s findings of historical fact and credibility findings so long as
they are supported by competent evidence in the record.”).
¶ 44 While Wertin’s statement, “I want a lawyer,” facially appears to
be a request for counsel, even facially clear statements must be
articulated “sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be a request for
an attorney.” Davis, 512 U.S. at 459. As the district court observed
and our independent review of the recording confirms, Wertin
17 repeatedly mumbled his words, and many of his statements —
including the claimed invocation of the right to counsel — are
barely discernible, even after multiple viewings (much less in real
time).
¶ 45 Based on our own evaluation of the recording as well as the
district court’s factual findings, we conclude that the district court
did not err when it ruled that Wertin did not sufficiently invoke his
right to counsel. Thus, the district court properly denied Wertin’s
motion to suppress.
IV. Cumulative Error
¶ 46 Wertin contends that the district court committed multiple
errors, entitling him to reversal based on the cumulative error
doctrine.
¶ 47 “For reversal to occur based on cumulative error, a reviewing
court must identify multiple errors that collectively prejudice the
substantial rights of the defendant, even if any single error does
not. Stated simply, cumulative error involves cumulative
prejudice.” Howard-Walker v. People, 2019 CO 69, ¶ 25 (citation
omitted).
18 ¶ 48 We have implicitly assumed one error but found it not
obvious. Cumulative error requires multiple errors, so even if there
was a single error, it was insufficient to implicate the cumulative
error doctrine. Therefore, there was no cumulative error.
V. Disposition
¶ 49 The judgment of conviction is affirmed.
JUDGE J. JONES and JUDGE YUN concur.