The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY August 23, 2018
2018COA122
No. 16CA1801 People v. Allgier — Evidence — Relevancy and its Limits — Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time; Crimes — Possession of Weapons by Previous Offenders
In this case, a division of the court of appeals rejects a plain
error assertion based on CRE 403 and upholds the trial court’s
admission of firearms that were the instrumentality of the crime
(POWPO), although photographs of them had already been
introduced. COLORADO COURT OF APPEALS 2018COA122
Court of Appeals No. 16CA1801 El Paso County District Court No. 15CR6162 Honorable Richard Hall, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Cameron Douglas Allgier,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division III Opinion by JUDGE WEBB Fox, J., concurs Nieto*, J., specially concurs
Announced August 23, 2018
Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Anne Parker, Alternate Defense Counsel, Denver, 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. 2017. ¶1 A jury convicted Cameron Douglas Allgier of possession of a
weapon by a previous offender (POWPO). He seeks a new trial on
four grounds:
the trial court plainly erred in admitting into evidence the
three firearms that were the basis for the POWPO charge, in
addition to photographs of them;
the trial court erred in admitting hearsay statements of a
witness, which improperly bolstered that witness’s testimony;
the trial court plainly erred in allowing the prosecutor to
mischaracterize the evidence and the law during closing
argument; and
the cumulative effect of these errors was prejudicial.
The possible prejudice from admitting firearms into evidence has
not been addressed in Colorado.
¶2 We affirm.
I. Background
¶3 During a burglary, several firearms were stolen. M.S., a
suspect in the burglary, told police that he had seen defendant — a
previous offender but not one of the burglars — in the back seat of
a vehicle next to a box containing some of the stolen firearms. M.S.
1 also said that the firearms might be found at an apartment in
Arvada associated with defendant. The police went to the
apartment, seized three of the stolen firearms, and arrested
defendant.
II. Any Error in Admitting the Firearms Was Not Plain
¶4 During the prosecution’s case, a police officer identified two
photographs depicting the firearms seized from the apartment.
When the prosecutor offered these photographs, defense counsel
said, “no objection.” Then the prosecutor had the officer identify
each of the firearms, which the prosecutor separately offered into
evidence. Again, as each of the firearms was offered, defense
counsel said, “no objection.” No colloquy concerning any of these
exhibits occurred.
¶5 Now, defendant argues that because the firearms were unduly
prejudicial under CRE 403, the trial court plainly erred in admitting
them. We conclude that plain error did not occur.
A. Waiver
¶6 In the answer brief, the Attorney General argued that we
should not review this contention for plain error because defendant
waived it. The Attorney General relied on People v. Rediger, 2015
2 COA 26, ¶ 59 (Rediger I), aff’d in part and rev’d in part, 2018 CO 32
(Rediger II). There, defense counsel told the trial court that he had
read the jury instructions and was “satisfied.” Rediger I, ¶ 47. On
this basis, the division concluded that instructional error had been
waived. Id. at ¶ 64.
¶7 But the supreme court reversed in part, holding that counsel’s
colloquy with the court did not show either actual knowledge or
intentional relinquishment of the defendant’s right to have the jury
correctly instructed on the elements of the offense charged in the
indictment. Rediger II, ¶ 45. Because the supreme court’s decision
was announced after briefing had closed in this case, we requested
supplemental briefs on waiver.
¶8 Defendant did not file a supplemental brief.
¶9 The Attorney General’s supplemental brief seeks to distinguish
Rediger II as follows:
[T]he waiver issue here does not raise the concern regarding counsel’s possible lack of knowledge of the basis for making the relevant objection. Both Defendant and his counsel were clearly aware of the evidence that the prosecution was seeking to admit. Therefore, counsel’s statement that he had no objection to the admission of the guns into evidence cannot be attributable to a lack of knowledge
3 of the nature of the evidence or to an oversight. Unlike Rediger’s “general acquiescence” to the jury instructions as a whole, here Defendant stated his lack of objection to the admission of a very specific and obvious evidence.
But this attempted distinction assumes something that Rediger II
does not say — exactly what “known” means in evaluating whether
defense counsel intentionally relinquished a known right. ¶ 39.
Nor have we found such a definition in any Colorado case
considering waiver by counsel in the criminal context.
¶ 10 When the prosecution offers evidence and defense counsel
responds “no objection,” six explanations are possible.1
Defense counsel was uninformed of the legal basis for an
objection.
Defense counsel knew of the legal basis for an objection, but
did not recognize the factual basis for an objection.
Defense counsel knew of both, but failed to connect them.
Defense counsel was aware of both, but concluded that
preserving an objection would be meritless.
1 In identifying these possibilities, we acknowledge the “untenable burden” of “assessing counsel’s strategy[, which] does not fall within the purview of the trial court.” People v. Gross, 2012 CO 60M, ¶ 11.
4 Defense counsel was aware of both, but concluded that
admission of the evidence could be of strategic benefit to the
declining to object could sow the seeds for appellate reversal
under the plain error standard, in the event of a conviction.
¶ 11 Where subject to any of the first three explanations, “no
objection” will never constitute a waiver under Rediger II. The
fourth, fifth, or sixth explanations could get over this hurdle, but
often the record will not be adequately informative.
¶ 12 As to the first and second explanations, in some cases defense
counsel might embellish “no objection” with words indicating
awareness of the legal or factual basis for an objection. See People
v. Tee, 2018 COA 84, ¶ 37 (“Opposite to what occurred in Rediger II,
here the dialogue between defense counsel and the trial court over
this issue went far beyond a ‘rote statement that [counsel] is not
objecting . . . .’” (quoting United States v. Zubia-Torres, 550 F.3d
1202, 1207 (10th Cir. 2008))); see also People v. Kessler, 2018 COA
60, ¶ 35 (The court declined to apply Rediger II where “defense
counsel took the position that the tests were admissible and that
5 the only question was the weight to be given them.”). But here,
counsel said only “no objection” when each firearm was offered.
¶ 13 As to the third explanation, even absent such a statement, our
supreme court presumes counsel has some level of legal acumen.
See Stackhouse v. People, 2015 CO 48, ¶ 16 (“‘[W]e presume that
attorneys know the applicable rules of procedure,’ and we thus ‘can
infer from the failure to comply with the procedural requirements
that the attorney made a decision not to exercise the right at
issue.’”) (citation omitted). As well, the record may compel the
conclusion that counsel must have been aware of the factual basis
for an objection. See id. at ¶ 16 (“Allowing a defense attorney who
stands silent during a known closure to then seek invalidation of an
adverse verdict on that basis would encourage
gamesmanship . . . .”).
¶ 14 So, is the courtroom closure in Stackhouse, which was found
to have been waived based only on defense counsel’s failure to
object, different from a routine evidentiary question? Although
Rediger II did not cite Stackhouse, we conclude that the answer is
yes, for three reasons.
6 ¶ 15 First, an unwarranted courtroom closure is structural error,
while improper admission of evidence is trial error. Compare
Stackhouse, ¶ 7 (“Such a violation is structural error that requires
automatic reversal without individualized prejudice analysis.”), with
People v. Summitt, 132 P.3d 320, 327 (Colo. 2006) (subjecting
“evidentiary trial error” to “harmless error analysis”). The
magnitude of the error supports the presumption in Stackhouse
that counsel must have known of the proper legal procedure. ¶ 16.
¶ 16 Second, and because of the structural error dimension, a
complete courtroom closure, as in Stackhouse, rarely occurs. In
contrast, the offer of physical evidence that represents the fruit or
instrumentality of the crime, sometimes referred to as the “corpus
delicti” — such as the firearms in this case, or drugs or stolen
property in other cases — is routine, even if cumulative of other
evidence or testimony. See State v. Smith, 181 So. 3d 111, 116 (La.
Ct. App. 2015) (“Fruits and physical evidence of a crime as well as
weapons used to commit a crime are relevant to show the
commission of such crime and are therefore generally admissible at
trial.”). The infrequency of complete courtroom closures supports
7 the presumption in Stackhouse that counsel could not have
overlooked what was happening.
¶ 17 Third, a courtroom closure requires specific findings, even
absent any objection by the parties. See People v. Hassen, 2015 CO
49, ¶ 9 (“[T]rial courts are obligated to take every reasonable
measure to accommodate public attendance at criminal trials” and
“must make findings adequate to support the closure.” (first quoting
Presley v. Georgia, 558 U.S. 209, 215 (2010) (per curiam); then
quoting Waller v. Georgia, 467 U.S. 39, 45 (2015))). But the trial
court need not make findings before admitting fruit or
instrumentality evidence. And the absence of any specific findings
when the prosecutor offered the firearms into evidence could have
lulled defense counsel into making a rote “no objection” response.
¶ 18 These three observations show that the waiver analysis in
Stackhouse involved a two-step process — the legal requirement of a
public trial, subject to very limited exceptions, and a courtroom
closure. But the waiver analysis in Rediger II involved a three-step
process — the legal requirement that the elemental instruction
track the charged offense, the elemental instruction that did not
satisfy this requirement, and defense counsel’s actual recognition of
8 the deficiency in the instruction. Still, declining to follow Rediger II
here based on Stackhouse does not end the inquiry. So, we take up
the fourth, fifth, and sixth explanations for why counsel might have
foregone an objection.
¶ 19 As to the fourth explanation — choosing not to make a
meritless objection — “counsel’s failure to argue the issues in
summation or to object to the patent omission in the charge implies
that the issues in question were not thought worth contesting; and
to reverse on this ground would enhance the opportunities for
‘sandbagging’ the district judge.” United States v. Whiting, 28 F.3d
1296, 1309-10 (1st Cir. 1994). To be sure, “[t]he sixth amendment
right to effective assistance of counsel does not require counsel to
raise every objection without regard to its merits.” Palmes v.
Wainwright, 725 F.2d 1511, 1523 (11th Cir. 1984). Still, the record
would rarely explain that counsel — despite actual recognition —
chose not to raise an objection because it was meritless.
¶ 20 An appellate court could infer such a conscious choice only by
examining the evidence and concluding that any objection would
not have had any obvious purpose. Because at that point the
waiver inquiry would be the converse of the plain error inquiry
9 mandated by Rediger II, ¶ 48 (“An error is plain if it is obvious . . .
.”), we discern no judicial economy in undertaking it.
¶ 21 Turning to the fifth explanation, the record could support the
inference of a strategic calculation to benefit the defense based on
defense counsel’s later use of the evidence. See United States v.
Smith, 531 F.3d 1261, 1267 (10th Cir. 2008) (finding waiver where
counsel not only represented that he had no objection to the
admission of certain evidence but also relied on the evidence);
People v. Bondsteel, 2015 COA 165, ¶ 130 (“We decline to review the
[DNA] match statements for plain error because . . . the record
creates a strong inference that defense counsel did not object to
these statements as a matter of strategy rather than due to
inadvertence.”) (cert. granted Oct. 31, 2016). But here, defense
counsel did not seek to obtain any benefits from the firearms. Nor,
for that matter, do we see how counsel could have done so.
¶ 22 Finally, as to the sixth explanation, the possibility that defense
counsel did not object “because [counsel] perceives some slightly
expanded chance to argue for ‘plain error’ later,” Henderson v.
United States, 568 U.S. 266, 276 (2013) (emphasis in original), is
most troublesome yet hardest to discern. True, “plain error review
10 provides a strategic hedge against potentially risky litigation
decisions, and encourages defense counsel not to object to
inadmissible evidence — at least at the margins.” United States v.
Smith, 459 F.3d 1276, 1302-03 (11th Cir. 2006) (Tjoflat, J.,
specially concurring). But despite extensive recognition by both
state and federal courts of the sandbagging problem, we have not
found a test for detecting it as a basis for finding a waiver.
¶ 23 Of course, an appellate court would be justifiably suspicious
of sandbagging if the objection was obviously meritorious,
admission of the evidence would clearly prejudice the defendant,
and defense counsel was experienced. But because “appellate
courts are poorly situated to discern litigation strategy,” id.,
drawing the sandbagging inference on direct appeal would be
speculative.2 And in any event, the “limited scope of [plain error]
review discourages a defense counsel from sandbagging a district
judge by holding in his pocket a legal argument.” United States v.
2“Only after a hearing in which evidence was offered could this Court have known why the appellant’s counsel failed to object. Perhaps counsel had a certain strategy in mind. Perhaps counsel was sandbagging the State. Perhaps counsel was seeking an advantage on direct appeal.” State v. Bolen, 632 S.E.2d 922, 930 (W. Va. 2006) (Maynard, J., dissenting).
11 Redrick, 841 F.3d 478, 481 (D.C. Cir. 2016). As well, in the heat of
battle, even the best lawyers simply make mistakes. See People v.
Weathers, 338 N.E.2d 880, 883 (Ill. 1975). For these reasons, we
cannot conclude that defense counsel said “no objection” — not
once but three times — to feather defendant’s appellate nest.
¶ 24 As the special concurrence ably points out, the waiver
question is by no means free of doubt. In the view of some courts,
“[t]hough a party’s failure to object usually results in a forfeiture
subject to plain-error review, when the ‘subject matter [is]
unmistakably on the table, and the defense’s silence is reasonably
understood only as signifying agreement that there was nothing
objectionable,’ the issue is waived on appeal.” United States v. Soto,
799 F.3d 68, 96 (1st Cir. 2015) (quoting United States v. Christi, 682
F.3d 138, 142 (1st Cir. 2012)).
¶ 25 But a closer look at some such cases shows that defense
counsel had earlier recognized the possible need for an objection.
See United States v. Comstock, 531 F.3d 667, 675 (8th Cir. 2008)
(“[T]his Court has ‘found pretrial objections waived when an
appellant’s counsel affirmatively stated “no objection” at trial to the
admission of evidence previously sought to be suppressed.’”
12 (quoting United States v. Gonzalez-Rodriguez, 239 F.3d 948, 951
(8th Cir. 2001))); United States v. Cunningham, 405 F.3d 497, 502
(7th Cir. 2005) (“Although Cunningham’s trial counsel initially
objected to admission of the pictures, he later explicitly withdrew
his objection and furthermore failed to make any additional
objections in the proceedings below to their admission.”). We
decline to take this path based on defense counsel’s voir dire
questions about prospective jurors’ attitudes toward firearms.
Asking such general questions would be prudent in any POWPO
case, rather than only in those cases where prejudice somehow
inheres in the particular firearms at issue.
¶ 26 Actual recognition seems to be what Rediger II requires to find
a waiver. And recognition is the third step that we posit separates
Rediger II from Stackhouse. We will assume defense counsel’s
general familiarity with the prejudice limitation in CRE 403 and
counsel’s awareness that if admitted, the firearms would be there
for the jurors to see. But the third step — actual recognition that
the firearms might create prejudice subject to CRE 403 scrutiny —
poses the inadvertence or intentional relinquishment dilemma. See
13 People v. Foster, 2013 COA 85, ¶ 38 (listing “several imponderables”
inherent in attempting to make such an assessment).
¶ 27 In the end, “[t]he line between waiver and forfeiture is often
blurry.” United States v. Garcia, 580 F.3d 528, 541 (7th Cir. 2009).
Because “[t]he distinction is not always easy to make,” and here
defense counsel declined to explain the decision not to object, “our
task is to use conjecture as to whether the defendant’s failure to
object was accidental or deliberate, and to do so, we evaluate the
record as a whole.” Id. at 541-42. Simply put, this record does not
foreclose the possibility that defense counsel overlooked the
possible prejudice from having the firearms present in the
courtroom.
¶ 28 For these reasons, we decline the Attorney General’s invitation
to read Rediger II narrowly on a record no more favorable to the
prosecution than the record in that case. After all, in Rediger II
defense counsel told the court more than once that he was reading
the prosecutor’s tendered instructions. With respect for the views
expressed in the special concurrence, we leave to the supreme court
excluding from the heightened waiver scrutiny in Rediger II
evidentiary issues that lack constitutional significance as well as
14 reconciling any discrepancy between Rediger II and Stackhouse.
See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S.
477, 484 (1989) (“If a precedent of this Court has direct application
in a case, yet appears to rest on reasons rejected in some other line
of decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of overruling
its own decisions.”).
¶ 29 So, we reject waiver and take up plain error analysis.
B. Standard of Review and Law
¶ 30 Ordinarily, we review the district court’s evidentiary rulings for
an abuse of discretion. People v. Faussett, 2016 COA 94M, ¶ 33.
However, if defense counsel failed to object to the admission of
evidence, we reverse only if the admission of the evidence went
beyond an abuse of discretion and rose to the level of plain error.
Hagos v. People, 2012 CO 63, ¶ 14. An error is plain where it is
obvious and substantial, and casts serious doubt on “the basic
fairness of the trial itself” and “the reliability of the judgment of
conviction.” Wilson v. People, 743 P.2d 415, 419-20 (Colo. 1987).
¶ 31 “Because the balance required by CRE 403 favors admission, a
reviewing court must afford the evidence the maximum probative
15 value attributable by a reasonable fact finder and the minimum
unfair prejudice to be reasonably expected.” People v. Folsom, 2017
COA 146M, ¶ 33 (quoting People v. Elmarr, 2015 CO 53, ¶ 44).
“Consistent with this preference for admission, evidence is not
unfairly prejudicial merely because it damages the defendant’s
case.” People v. Valdez, 2017 COA 41, ¶ 37. And evidence is
unfairly prejudicial only if it has an “undue tendency to suggest a
decision on an improper basis, commonly but not necessarily an
emotional one, such as sympathy, hatred, contempt, retribution, or
horror.” People v. Dist. Court, 785 P.2d 141, 147 (Colo. 1990).
C. Analysis
¶ 32 Defendant argues that because “[s]howing someone a gun, a
[AR 15] style rifle for that matter, evokes a very different response
than a picture, or even showing them a scope or other item,”
admission of the firearms — in addition to the photographs — was
plain error. The three firearms were an AR 15 rifle,3 a 9mm high-
point assault rifle, and a 12-gauge shotgun.
3 “An ‘AR 15 is the civilian version of the military’s M4 carbine. Contrary to what most people believe AR doesn’t stand for assault rifle, rather it stands for the original manufacturer Armalite Rifle. AR 15 is semiautomatic and doesn’t meet Federal requirements to
16 ¶ 33 As to prejudice, defendant cites no legal authority, nor have we
found any in Colorado, holding that admission of firearms
connected to a crime is unduly prejudicial. Cf. People v. Watson,
650 P.2d 1340, 1343 (Colo. App. 1982) (“As for the revolvers, it has
been consistently held that weapons found during a search are
admissible as a part of the history of the arrest . . . .”). Defendant
does not suggest how the nature of these three firearms was
somehow particularly likely to evoke prejudice. Nor does he point
to any testimony concerning their capabilities that might have done
so.
¶ 34 Still, a closer look shows that at least one court has expressed
concern about juror attitudes about firearms:
Personal reactions to the ownership of guns vary greatly. Many individuals view guns with great abhorrence and fear. Still others may consider certain weapons as acceptable but others as “dangerous.” A third type may react solely to the fact that someone who has committed a crime has such weapons. Any or all of these individuals might believe that
be classified as an assault rifle.’” State v. Schroeder, No. 16-1786, 2018 WL 2230542, at *2 n.2 (Iowa Ct. App. May 16, 2018) (unpublished table decision) (quoting AR 15, Urban Dictionary, https://www.urbandictionary.com/define.php?term=AR%2015 (last visited Apr. 24, 2018)).
17 defendant was a dangerous individual . . . just because he owned guns.
State v. Rupe, 683 P.2d 571, 597 (Wash. 1984). Concern has also
arisen from the number of firearms involved:
Two dozen guns in a courtroom is undoubtedly an alarming sight. The prosecutor’s repeated assurances that the weapons were not loaded and that all were examined multiple times to verify that they were secure demonstrated an awareness that jurors would be apprehensive in the presence of this much weaponry.
United States v. Klebig, 600 F.3d 700, 715 (7th Cir. 2009).
¶ 35 Unlike in Klebig, here only three firearms were admitted. Still,
somewhat like in that case, the trial court wondered aloud what
should be done with those three firearms, after they had been
admitted:
The Court now directs that the weapons be taken somewhere and locked up. The Court doesn’t anticipate bringing them back and giving them to the jury to deliberate because the Court sees no evidentiary purpose to that.
Although some questions about attitudes toward firearms were
asked during voir dire, the responses from the seated jurors afford
little insight into all of their attitudes. So, recognizing at least some
18 possibility of prejudice, the balancing process must turn to
probative value.
¶ 36 Directly contrary to defendant’s argument, “[r]eal evidence is
relevant and therefore admissible if it is connected in some manner
with either the accused, the victim, or the crime.” People v. Garcia,
784 P.2d 823, 826 (Colo. App. 1989). In other words, “[e]vidence
that defendant may have possessed an instrument which could
have been used in the commission of the crime is admissible,
provided a proper foundation is laid.” Id.; see also United States v.
Moreno, 933 F.2d 362, 375 (6th Cir. 1991) (“[T]he probative value of
the presence of the actual firearms in the courtroom was not
‘substantially outweighed by the danger of unfair prejudice’ . . . .”
(quoting Fed. R. Evid. 403)); United States v. Wiener, 534 F.2d 15,
18 (2d Cir. 1976) (“We hold that the gun was relevant to the issues
upon which Wiener was tried and that the court did not abuse its
discretion in holding that its probative weight was not overbalanced
by the inflammatory tendency of the gun as evidence.”) (collecting
cases).
¶ 37 These authorities have particular weight in this case because
the firearms were the instrumentality whereby defendant committed
19 POWPO. See State v. Solomon, 91 A.3d 523, 528 (Conn. App. Ct.
2014) (“[T]he revolver was relevant to show that the defendant
possessed the means to commit the crime of criminal possession of
a firearm,” and its admission “cannot be considered unduly
prejudicial . . . when offered for this limited purpose because mere
possession of the means to commit a crime, without more, does not
establish that the defendant had bad character or a propensity for
violence.”). Likewise, in Moreno, 933 F.2d at 375, “[t]he probative
value of the firearms is clear, since they are the basis for Count 13
of the indictment.” In contrast, the numerous firearms admitted in
Klebig were offered only to show that because the defendant owned
so many lawful firearms, his mistake defense to having purchased
an unlawful gun lacked credibility.
¶ 38 True, the three firearms were accurately described in the
photographs admitted into evidence. But defense counsel did not
propose any stipulation concerning the firearms, in lieu of their
admission. And even had counsel done so, “[t]he prosecution is
generally entitled to prove the elements of its case against a
defendant by evidence of its own choice.” People v. Morales, 2012
COA 2, ¶ 9.
20 ¶ 39 For these reasons, we discern no error, and therefore do not
proceed further along the plain error path, in admitting the firearms
as the instrumentality of the crime.
III. Admission of the Detective’s Testimony About Statements of M.S. Does Not Warrant Reversal
¶ 40 After M.S. testified as a prosecution witness, the prosecutor
called the detective who had interviewed him about the burglary,
Sergeant Vidmar. When the sergeant began to recount M.S.’s
statements during that interview, defense counsel objected based
on “[h]earsay, improper impeachment.” The trial court allowed the
sergeant to continue.
¶ 41 Later, defense counsel renewed the objection. After hearing
argument outside the jury’s presence, the court ruled that the
sergeant could testify as to whether M.S. had “changed his story”
and “if the interview led this witness to do something else, like drive
[the burglar] around to a location.” However, “just to have this
witness say that [the burglar] told him the same thing [the burglar]
told the jury yesterday, is just bolstering the testimony, which is
generally not allowed.”
21 ¶ 42 Defense counsel did not ask that the prior testimony be
stricken or request a cautionary instruction; nor, when the jury
returned, did the court give one sua sponte. Direct examination
resumed. The sergeant was asked only whether M.S. had changed
his story — the answer was “no” — and to explain how the interview
had led the officers to the apartment where the firearms were
seized, which he did, albeit briefly.
A. Standard of Review and Law
¶ 43 A trial court has substantial discretion in deciding questions
concerning the admissibility of evidence. People v. Elie, 148 P.3d
359, 362 (Colo. App. 2006). Where the issue is preserved, we
reverse a trial court’s evidentiary ruling only if the trial court
abused that discretion and the error is not harmless. Id. A trial
court abuses its discretion when its ruling is manifestly arbitrary,
unreasonable, or unfair, or when it is based on an erroneous
understanding or application of the law. People v. Jackson, 2018
COA 79, ¶ 37.
¶ 44 On the one hand, “out-of-court statements cannot be used to
bolster the trial testimony of witnesses.” People v. Johnson, 987
P.2d 855, 860 (Colo. App. 1998). On the other, “a witness’s prior
22 consistent statements are admissible under two distinct theories.”
People v. Clark, 2015 COA 44, ¶ 124. They may be admitted under
CRE 801(d)(1)(B) as substantive evidence or, as pertinent here, they
are sometimes admissible outside of the rule to rehabilitate a
witness’s credibility. People v. Eppens, 979 P.2d 14, 19-21 (Colo.
1999).
¶ 45 When a witness’s credibility has been attacked, how much of a
prior consistent statement is admissible turns on the scope of the
attack. Elie, 148 P.3d at 362. If the witness’s testimony is attacked
based on specific facts, only prior consistent statements regarding
those facts are admissible. People v. Miranda, 2014 COA 102, ¶ 16.
But where the attack is more general, the jury may hear all relevant
facts, including consistent and inconsistent statements. Id.
B. Analysis
¶ 46 Defendant argues that “[n]ot only were [the sergeant’s]
statements not admissible under the rules of evidence, but they
tended to improperly bolster the credibility of M.S.’s prior
testimony.”
¶ 47 But at trial, defense counsel generally attacked M.S.’s
credibility. For example, during opening statement counsel said,
23 “You will hear that [M.S.] has not always told the same version of
events when he talks about what happened . . . .” Then, in
cross-examining M.S., counsel elicited details about inconsistencies
among M.S.’s statements. Thus, the sergeant’s later testimony
about what M.S. had told him during the interview was “relevant
and admissible to give the jury a complete picture of [M.S.’s]
credibility.” Miranda, ¶ 20 (quoting People v. Banks, 2012 COA
157, ¶ 39).
¶ 48 Further, the trial court sustained defendant’s objection to the
sergeant’s more general statements about what M.S. had said
during the interview, limiting the testimony to “whether M.S.
“change[d] his story in any significant detail.” We discern no risk of
bolstering from this limited testimony.
¶ 49 And to the extent defendant now argues the trial court should
have given a curative instruction as to the initial statements, he did
not request one. See People v. Mersman, 148 P.3d 199, 203 (Colo.
App. 2006) (“[T]o receive a curative instruction, a defendant must
request it, and a trial court does not commit plain error if it does
not give a curative instruction sua sponte.”).
24 IV. The Prosecutor’s Statements in Closing Argument Do Not Constitute Plain Error Warranting Reversal
¶ 50 Defendant points to several statements by the prosecutor that
he argues either mischaracterized the evidence or misstated the
law. Defendant concedes that because trial counsel did not object
to these statements, we review only for plain error.
¶ 51 To warrant reversal under plain error, prosecutorial
misconduct must be flagrant or glaringly or tremendously improper
and so undermine “the fundamental fairness of the trial as to cast
serious doubt on the reliability of the judgment of conviction.”
People v. Strock, 252 P.3d 1148, 1152 (Colo. App. 2010) (citation
omitted). Prosecutorial misconduct in closing argument rarely
constitutes plain error. People v. Carter, 2015 COA 24M-2, ¶ 53.
¶ 52 We evaluate claims of improper argument in the context of the
argument as a whole and in light of the evidence before the jury.
People v. Samson, 2012 COA 167, ¶ 29. Prosecutors may employ
rhetorical devices and engage in oratorical embellishment and
metaphorical nuance. People v. Conyac, 2014 COA 8M, ¶ 132.
Prosecutors also have considerable latitude in replying to opposing
25 counsel’s arguments and in making arguments based on facts in
evidence and reasonable inferences that can be drawn from those
facts. Id. at ¶ 133. As well, “because arguments delivered in the
heat of trial are not always perfectly scripted, reviewing courts
accord prosecutors the benefit of doubt where remarks are
‘ambiguous,’ or simply ‘inartful.’” People v. McBride, 228 P.3d 216,
221 (Colo. App. 2009) (citations omitted).
¶ 53 Even so, prosecutors may not use closing argument to
misstate the evidence, assert a personal opinion, or insert claims
calculated to inflame the passions and prejudices of the jury.
Samson, ¶ 32. In other words, a prosecutor is “free to strike hard
blows, [but] ‘is not at liberty to strike foul ones.’” Wilson, 743 P.2d
at 418 (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).
1. Defendant’s Statements to Lieutenant Coates
¶ 54 Lieutenant Coates testified on direct examination that
defendant had told him during the interview that at the Fountain
Mesa Road house, M.S. asked defendant “if he would hold onto
some bags for him.” Defendant had explained that firearms “were
located inside green duffel bags” and “some of them were wrapped
26 up in a blanket.” M.S. did not give defendant the firearms at the
Fountain Mesa address; rather, M.S. met up with defendant later at
the Arvada street address.
¶ 55 During cross-examination, the lieutenant clarified that
defendant “never stated M.S. showed up with guns. He said that
[M.S.] showed up with green duffel bags.” And defendant had told
the lieutenant that he did not look into the bags or ask what was in
them.
¶ 56 During closing argument, the prosecutor said:
“We have [defendant] himself stating that M.S. shows up . . .
and says . . . [h]ere is the duffel bag and a blanket and a
bunch of heavy stuff there. Will you hold it for me.”
“[Defendant] testifies that later that evening at the Arvada
address M.S. shows up with those guns wrapped in a blanket.
And the bags, he takes them and he puts them into . . . [a]
room.”
¶ 57 Although defendant points to slight discrepancies between the
lieutenant’s testimony and the prosecutor’s closing argument, none
of them rises to the level of plain error. See People v. Arzabala,
2012 COA 99, ¶¶ 68-72 (no plain error if the misstatements did not
27 contribute to the defendant’s conviction and the jury heard
accurate testimony). Further, based on what defendant said had
occurred at both the Fountain Mesa and Arvada locations, the
prosecutor’s statements were reasonable evidentiary inferences.
2. Sergeant Racine’s Testimony
¶ 58 Sergeant Racine testified that during the search of the Arvada
apartment, “the two assault weapons were located in an unclosed
closet in the left-hand bedroom. And the shotgun was located in a
closet in the living room.”
¶ 59 During closing argument, the prosecutor said:
When they conduct the search they find assault rifles and the shotgun in the attic. Not locked up in a safe. Not even wrapped up in blankets or some duffle bags but exposed in the open. One of the bedrooms that [defendant] himself says he put them. But now they are open. And a shotgun in the living room.
¶ 60 While the reference to the attic was incorrect, the rest of the
statements were based on reasonable evidentiary inferences.
Specifically, the sergeant testified that, as to the firearms, “you
could kind of make out there was barrels because there was an
attempt to like cover them up . . . [but] portions of the gun [were]
28 exposed.” And reference to an attic — instead of an open closet —
is not a material difference.
3. M.S. Testimony
¶ 61 Defendant points to the following statements by the prosecutor
as mischaracterizing M.S.’s testimony:
M.S. saw “at least five weapons” in the car, whereas he
testified that “at most there were five guns” (emphasis added);
M.S. gave police “two addresses” as possible locations for the
stolen firearms, whereas he “only provided the address at
Arvada apartment”;
M.S. saw the firearms in the car “the next day,” whereas he
testified he saw them “on September 24.”
¶ 62 But “divisions of this court have often overlooked minor
discrepancies between the evidence and closing argument.”
Bondsteel, ¶ 138; see also People v. Williams, 996 P.2d 237, 245
(Colo. App. 1999) (prosecutor’s statement that forty dollars was
found in the defendant’s pocket, while there was no testimony
establishing the exact amount, was not “so prejudicial when
considered in the context of the entire closing argument as to
constitute plain error”).
29 4. Knowing Possession of a Firearm
¶ 63 The trial court instructed the jury:
“POSSESSION” as used in these instructions, does not necessarily mean ownership, but does mean the actual, physical possession, or the immediate and knowing dominion or control over the object or the thing allegedly possessed. “Possession” need not be exclusive, provided that each possessor, should there be more than one, actually knew of the presence of the object, or thing possessed and exercised actual physical control or immediate, knowing dominion or control over it.
Defendant argues that, contrary to this instruction, the prosecutor
“made numerous erroneous statements regarding the knowing
possession of a firearm” that allowed the jury to convict him “if, at
any time, the jury could determine that [he] was in the Arvada
apartment at the same time of [sic] the guns.”
¶ 64 For example, the prosecutor told the jury:
“I don’t have to prove that he owned the gun. I don’t have to
prove that he possessed it exclusive of everyone else.
Everybody in the room with that shotgun, under this definition
for this crime is possessing that firearm.”
30 “Possession also need not be exclusive. Provided that each
possessor, should there be more, actually knew of the
presence of the object.”
“If he knew it was there, he is guilty.”
“If he walked into a room, he sees a shotgun in the closet, he
has a duty, as a convicted felon, to leave the room.”
¶ 65 True, “‘possession,’ as it is used in [POWPO], is the actual or
physical control of the firearm.” Beckett v. People, 800 P.2d 74, 82
(Colo. 1990) (quoting People v. Garcia, 197 Colo. 550, 554, 595 P.2d
228, 231 (1979)). Thus, some of the prosecutor’s statements — i.e.,
“If he knew it was there, he is guilty” — when read in isolation, do
not accurately state the law.
¶ 66 Still, a defendant need not have had exclusive control of the
firearm to be found guilty of possessing it. See People v.
Tramaglino, 791 P.2d 1171, 1172-73 (Colo. App. 1989) (evidence
was sufficient to support POWPO conviction where eyewitness
testified that she saw the gun in the defendant’s possession and
police officers later discovered the gun in his automobile); People v.
Rivera, 765 P.2d 624, 626-28 (Colo. App. 1988) (evidence was
sufficient to support the defendant’s POWPO conviction where he
31 accompanied his wife and assisted her with the purchase of a
revolver, which was within “arm’s reach” of defendant), rev’d on
other grounds, 792 P.2d 786 (Colo. 1990).
¶ 67 In this regard, the prosecutor also told the jury:
“Possession, as used in these instructions, does not
necessarily mean ownership, but does mean actual physical
possession or the immediate and knowing dominion or control
over an object or thing allegedly possessed.”
“[I]f [defendant] knew that those were firearms, and he was
where he could exercise control or dominion over them, he was
in possession.”
“It can’t be a hot potato.”
And the prosecutor mentioned the trial court’s instruction on
possession.
¶ 68 Given the prosecutor’s correct statements on possession and
the reference to the trial court’s instruction, we conclude that any
misstatements do not constitute plain error. See Strock, 252 P.3d
at 1154 (no plain error where misstatements were offset by the
prosecutor’s correct statements of law, the trial court’s correct
instructions, and counsel’s reference to the court’s instructions
32 during closing); see also People v. Kyle, 111 P.3d 491, 502 (Colo.
App. 2004) (“Even assuming the comment was improper, in light of
the trial court’s instructions and the other proper argument by the
prosecutor, we cannot say with fair assurance that any error so
undermined the fundamental fairness of the trial as to cast serious
doubt on the reliability of the judgment of conviction.”).
¶ 69 In any event, misstatements by the prosecutor were few in
number in an otherwise lengthy summation. See People v. Villa,
240 P.3d 343, 357 (Colo. App. 2009) (“We note that the number of
times the jury is confronted with a misstatement of law is relevant
in evaluating the nature and extent of the harm. . . . Furthermore,
the trial court’s instructions to the jury were clear . . . .”). And
when read in conjunction with the prosecutor’s other statements,
any error would not have been flagrant or glaring. See People v.
Weinreich, 98 P.3d 920, 924 (Colo. App. 2004) (“This argument,
taken in context, is not a misstatement of the law.”), aff’d, 119 P.3d
1073 (Colo. 2005).
V. Cumulative Error
¶ 70 Lastly, defendant contends the aggregate impact of numerous
errors denied his right to a fair trial. But the doctrine of cumulative
33 error requires that numerous errors be committed, not merely
alleged. People v. Jones, 665 P.2d 127 (Colo. App. 1982), aff’d sub
nom. People v. Curtis, 681 P.2d 504 (Colo. 1984).
¶ 71 We have found only unpreserved errors that were not plain.
Whether plain errors can even be considered for cumulative error
purposes has not been resolved in Colorado. Compare United States
v. Nunez, 532 F.3d 645, 655 (7th Cir. 2008) (“When an appellant
alleges cumulative error, this Court will only consider plain errors
and errors which were preserved for appellate review.”), with United
States v. Delgado, 672 F.3d 320, 340 (5th Cir. 2012) (“[P]lain-error
analysis under [Fed. R. Crim. P.] 52(b) prohibits us from basing a
reversal on unpreserved errors that are not ‘plain’ under the second
prong of plain-error review.”).
¶ 72 Be that as it may, we cannot discern how any combination of
the possible but unpreserved errors in the prosecutor’s closing
argument — which were not plain — could have deprived defendant
of a fair trial. See Carter, ¶ 81.
VI. Conclusion
¶ 73 The judgment is affirmed.
JUDGE FOX concurs.
34 JUDGE NIETO specially concurs.
35 JUDGE NIETO, specially concurring.
¶ 74 Although I concur with the majority’s ultimate result, I would
conclude that defendant’s trial counsel waived any error regarding
the admission of the firearms into evidence, and would therefore
decline to review his contention.
¶ 75 Our supreme court has helpfully distinguished between waiver
and forfeiture in People v. Rediger, 2018 CO 32. Waiver requires
“intentional relinquishment of a known right,” id. at ¶ 39 (quoting
Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)), and
therefore does not involve errors resulting merely from oversight.
Moreover, such “intentional relinquishments” are not limited to
explicit acts, but may even include mere implications, if they clearly
manifest an intent to relinquish the issue. Id. at ¶ 42; see also
Horton v. Suthers, 43 P.3d 611, 619 (Colo. 2002) (collecting cases);
Hansen v. State Farm Mut. Auto. Ins. Co., 957 P.2d 1380, 1385
(Colo. 1998) (where defense failed to offer replacement jury
instruction after trial court rejected its first tendered instruction, it
waived issue). If a contention has been waived, appellate courts will
not review it even for plain error. Rediger, ¶ 34.
36 ¶ 76 By contrast, courts may still review an issue for plain error
when a litigant inadvertently relinquished it below through
apparent “oversight,” because in that case the issue was merely
“forfeited.” Id. at ¶¶ 37, 40. Thus appellate courts will not find
waiver where, for example, the record “bears no indication” that a
defendant was aware at trial of a potential problem with the jury
instructions. Id. at ¶¶ 37-38.
¶ 77 We are thus faced with the question of whether defendant
intentionally relinquished his right to appeal the issue of whether
the guns should have been shown to the jury, or instead merely
overlooked this possibility. In the context of the aforementioned
precedent, I would conclude that defendant waived the issue.
¶ 78 The record makes plain that defendant’s trial counsel was
pointedly confronted with the possibility that the guns would be
shown to the jury and expressly declined to register an objection.
This knowing and express acquiescence is not analogous to the
situation in Rediger, where the supreme court saw “no evidence,
Although Horton v. Suthers, 43 P.3d 611, 619 n.9 (Colo. 2002), noted that it should not be read as applying invited error to a mere “failure to object,” here defendant’s express statement of “no objection” to admitting the guns goes further than a mere “failure” and constitutes an “affirmative[] acquiesce[nce].” Id.
37 either express or implied” that the litigant’s counsel was even aware
of the potential problem. Id. at ¶ 42. Here, the firearms were
physically present before counsel and the appearance of the
weapons was obvious. In voir dire, counsel questioned several
prospective jurors concerning their attitudes about firearms,
showing that he was aware of the potential for prejudice. Therefore,
I would conclude that counsel was aware of the issue and waived
any CRE 403 objection he might have raised.
¶ 79 Because waiver is a harsh remedy, our supreme court has
further clarified that it is less likely to perceive waiver when the
abandoned issue involves constitutional rights. People v. Curtis,
681 P.2d 504, 514 (Colo. 1984) (courts do not presume waiver of
fundamental constitutional rights). Here, unlike in Curtis and
Rediger, there are no constitutional rights in issue. Rather, the
issue involves the admission of admittedly relevant evidence that
defendant might have argued was unfairly prejudicial under CRE
403. Therefore, the effect of a waiver here was of more modest
consequence.
¶ 80 Hansen, 957 P.2d at 1385, is more analogous to the situation
here. There, after the trial court rejected the defendant’s tendered
38 jury instruction, it offered the defendant a chance to redraft it. The
defendant declined to redraft the instruction, and our supreme
court held that this declination constituted invited error. Similarly,
here, defendant’s trial counsel was fully aware that the guns would
be shown to the jury, and nevertheless expressly declined to object.
¶ 81 Accordingly, I would hold that defendant waived his CRE 403
objection to admission of the firearms, and would decline to review
his contention.