People v. Howard-Walker

2017 COA 81, 446 P.3d 843

• Court: Colorado Court of Appeals
• Decided: June 15, 2017
• Docket: 14CA0562
• Status: Published

Opinion

COLORADO COURT OF APPEALS 2017COA81

Court of Appeals No. 14CA0562 El Paso County District Court No. 13CR3349 Honorable Thomas K. Kane, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kyree Davon Howard-Walker,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II Opinion by JUDGE BERGER Dailey and J. Jones, JJ., concur

Announced June 15, 2017

Cynthia H. Coffman, Attorney General, Matthew S. Holman, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, M. Shelby Deeney, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 A jury convicted defendant, Kyree Davon Howard-Walker, of

first degree burglary and conspiracy to commit first degree burglary.

He appeals, arguing that the trial court erred in (1) denying his

three challenges under Batson v. Kentucky, 476 U.S. 79 (1986), to

allegedly discriminatory peremptory strikes; (2) admitting allegedly

improper testimony from one of the investigating detectives; and (3)

failing to instruct the jury on the predicate crime of theft and failing

to define “intent.” He also claims that the prosecutor engaged in

misconduct and that that the cumulative effect of these errors

requires reversal.

¶2 We conclude that there were several trial errors, most

resulting from prosecutorial overreach and one instance of

prosecutorial misconduct. Howard-Walker’s counsel objected to

almost none of these errors and the standard of review for almost

all of them is thus plain error. None of these errors, considered by

themselves, requires reversal. Moreover, these errors did not

substantially prejudice Howard-Walker’s right to a fair trial and

thus do not require reversal under the cumulative error doctrine.

Therefore, we affirm the judgment.

1 I. Relevant Facts and Procedural History

¶3 The victim, the owner of a marijuana business, left his home

one night to run errands and spend time with his girlfriend. When

he returned home the next day, he discovered an open garage door,

a window which had been broken, and his bedroom in disarray.

The contents of the unlocked safe in his bedroom (he had evidently

forgotten to lock the safe) — some $8000 in cash, several watches,

other pieces of jewelry, and a number of credit cards — were gone.

¶4 Video from a motion-activated surveillance camera showed two

men (whom the victim did not recognize) entering the victim’s

bedroom. Both of the men were wearing baseball caps and

sunglasses, and one — allegedly, Howard-Walker — was holding a

gun. The video showed the men searching the room, opening the

safe, and removing its contents. After viewing the video, the victim

reported the burglary to the police.

¶5 A police officer responded to the victim’s home. The officer

viewed the surveillance video and took a copy of the video as

evidence. Near the broken window, the officer discovered footprints

which the victim said did not belong to him. The officer measured

and took photographs of the footprints. Consistent with the police

2 department’s policy for “cold” burglaries, no crime scene

technicians were called to the scene.

¶6 After the officer left, the victim, who also owned a video-editing

business, edited the surveillance video and made a shorter, clearer,

“enhanced” version. He sent it to a number of media outlets and

offered a reward of $1000 for information about the perpetrators.

Some of the media outlets played the video on local television

stations and advertised the reward.

¶7 Howard-Walker’s girlfriend’s uncle supposedly recognized him

from a news broadcast and contacted the police. He told the police

that, although it was difficult to discern the faces of the two men

committing the burglary, he recognized the hat and sunglasses that

Howard-Walker was wearing in the video. He also provided the

police with a photograph of Howard-Walker wearing a similar hat

and sunglasses.

¶8 Based on the uncle’s tip, one of the investigating officers,

Detective Mark Garcia, contacted Howard-Walker’s probation

officer. He showed the probation officer several still photos derived

from the surveillance video and asked if he recognized Howard-

3 Walker. The probation officer said that he was “ninety-five percent

sure” that Howard-Walker was depicted in the photos.

¶9 The police arrested Howard-Walker, and Detective Garcia

interviewed him after advising him of his Miranda rights.

Howard-Walker consistently denied that he committed the burglary.

However, at one point near the end of the interview, Howard-Walker

asked the detective “what it would get him if he gave [Detective

Garcia] the name of the other person.” The detective responded

that if Howard-Walker identified the other burglar, he would apprise

the district attorney of Howard-Walker’s assistance, which would

“help him,” but promised no concessions. Howard-Walker later

refused to speak further with the police.

¶ 10 Detective Garcia then searched (under a warrant)

Howard-Walker’s apartment. He found none of the stolen items;

none of those items were ever recovered by the police. He also

showed Howard-Walker’s live-in girlfriend the still photographs

from the surveillance video and asked if she recognized the person

in the photos. According to the detective, the girlfriend initially told

him that she was “eighty percent” certain that one of the men in the

photos was Howard-Walker. At trial, the girlfriend denied making,

4 and then recanted, that statement, claiming that Detective Garcia

had intimidated her into identifying Howard-Walker.

¶ 11 Detective Garcia also compared the photographs of the

footprints found at the scene of the burglary with the shoes that

Howard-Walker was wearing at the time of his arrest, and

concluded (and testified) that the footprints matched the shoes.

¶ 12 The prosecution charged Howard-Walker with first degree

burglary, see § 18-4-202(1), C.R.S. 2016, and conspiracy to commit

first degree burglary, see § 18-2-201, C.R.S. 2016.

¶ 13 Howard-Walker’s defense at trial was that he did not commit

the burglary and that the witnesses had misidentified him from the

video and still photos. The jury convicted Howard-Walker as

charged, necessarily rejecting his misidentification defense. The

trial court sentenced him to thirteen years in the custody of the

Department of Corrections.

II. Batson Challenges

¶ 14 Howard-Walker contends that the trial court erred when it

denied his Batson challenges to the prosecutor’s peremptory strikes

excusing three prospective jurors — one who identified himself as

African-American, and two who identified themselves as Hispanic.

5 Specifically, he challenges the trial court’s rulings on the third

Batson step, asserting that the prosecutor’s stated “race-neutral”

reasons for removing the jurors were not worthy of belief.

A. Standard of Review

¶ 15 The United States and Colorado Constitutions prohibit

peremptory strikes to dismiss prospective jurors on the basis of

race, gender, or ethnicity. Batson, 476 U.S. at 85-87; People v.

Beauvais, 2017 CO 34, ¶ 20; People v. Lucero, 2014 COA 53. In

Batson, the Supreme Court prescribed a three-step process to

evaluate claims of purposeful discrimination in jury selection.

¶ 16 First, the person challenging a peremptory strike must make a

prima facie showing that the prosecutor used a peremptory strike to

exclude a prospective juror based on his or her race. Batson, 476

U.S. at 96; Beauvais, ¶ 21.1 A prima facie showing requires only

1 While Batson v. Kentucky, 476 U.S. 79 (1986), refers only to race as an impermissible discriminatory factor, its progeny also includes gender and ethnicity within Batson’s proscription. See, e.g., People v. Lucero, 2014 COA 53. Whereas “African-American” typically describes a person’s race, the term “Hispanic” is used sometimes to describe a person’s race and other times to describe a person’s ethnicity. Because it is equally impermissible to discriminate based on race and ethnicity, we apply those cases discussing race to the challenges of the two jurors who identified themselves as Hispanic. See, e.g., Hernandez v. New York, 500 U.S. 352, 355 (1991).

6 that the challenger “present evidence sufficient to raise an inference

that discrimination occurred.” Valdez v. People, 966 P.2d 587, 590

(Colo. 1998).

¶ 17 If the challenger meets his burden under step one of Batson,

the burden shifts to the prosecutor to articulate a non-

discriminatory reason for the strike. Id.

¶ 18 If the prosecutor does so, step three of Batson requires the

trial court, after giving the challenger an opportunity to rebut the

prosecutor’s reason for the strike, to determine if the prosecutor’s

reason is worthy of belief or is, instead, pretextual. Id. If the trial

court finds, based on a preponderance of the evidence, that the

prosecutor’s reason is pretextual, the court must deny the

peremptory strike. Batson, 476 U.S. at 85-87. “[T]he ultimate

burden of persuasion regarding [discriminatory] motivation rests

with, and never shifts from, the [objecting party].” Beauvais, ¶ 24

(citation omitted). Accordingly, a trial court should sustain a

Batson objection only if “the striking party’s non-discriminatory

reasons are sufficiently incredible that the discriminatory

hypothesis better fits the evidence.” Id. (citation omitted).

7 ¶ 19 We review de novo whether the parties have met their

respective burdens under Batson steps one and two. Valdez, 966

P.2d at 590-91. We review the trial court’s Batson step three

determination of whether the prosecutor’s strike was motivated by

purposeful discrimination for clear error. People v. Robinson, 187

P.3d 1166, 1174 (Colo. App. 2008); People v. Gabler, 958 P.2d 505,

507 (Colo. App. 1997). We give considerable deference to a trial

court’s Batson step three findings because “[o]nly the trial court can

assess non-verbal cues, such as hesitation, voice inflection, and

facial expressions, that are not recorded on a transcript.” People v.

Wilson, 2015 CO 54M, ¶ 18. Given this deferential standard,

reversal of a trial court’s factual determination that the strike was

not motivated by discriminatory animus is justified only under

“exceptional circumstances.” Beauvais, ¶ 22 (quoting Snyder v.

Louisiana, 552 U.S. 472, 477 (2008)).

B. Analysis of the Peremptory Strikes

¶ 20 We address each of the peremptory strikes in turn.

1. Female Hispanic Juror

¶ 21 The prosecutor exercised a peremptory strike against a female

juror who identified herself as Hispanic on her jury questionnaire.

8 This met Howard-Walker’s minimal step one Batson burden. In

response to Howard-Walker’s challenge, the prosecutor said that

the juror had “apparently filled out her jury questionnaire.”

Because the significance of the juror having filled out the

questionnaire (as all of the other prospective jurors had done) is

unclear, we presume that the prosecutor’s statement as reflected in

the record resulted from a transcription error. The prosecutor also

claimed that she had “seemed jumpy” during voir dire, and

contended that the prospective juror “didn’t want to be here.”

¶ 22 The trial court did not review the juror’s questionnaire, but, in

denying the Batson challenge, said it “trust[ed]” the prosecutor’s

characterization of what was said in the questionnaire. The court

further explained that it had observed the female juror during voir

dire and that she “seemed disinterested.”

¶ 23 We first reject Howard-Walker’s argument that the trial court’s

decision not to review the female juror’s questionnaire amounted to

a summary denial of his Batson challenge and reflected the court’s

failure to weigh the evidence.

¶ 24 One important tool that a trial court uses to determine

whether the objecting party proved that the striking party exercised

9 its peremptory challenges with “discriminatory animus” is “an

assessment of the striking party’s credibility and the plausibility of

its non-discriminatory explanations.” Id. at ¶ 23. Having observed

the demeanor of the prospective juror (and, for that matter, the

prosecutor), the trial court was entitled to credit the prosecutor’s

assessment that the juror “did not want to be here.” See id. at ¶ 25;

Wilson, ¶ 14. And, though the prosecutor did not question the juror

prior to exercising his strike against her, which might raise an

inference of purposeful discrimination, Gabler, 958 P.2d at 508, the

trial court agreed that the juror had seemed “disinterested.” A

prospective juror’s disinterest in the proceedings is a legitimate,

non-discriminatory reason for exercising a peremptory strike. See,

e.g., Beauvais, ¶ 9 (use of peremptory strikes against two jurors

who had not been directly questioned because both jurors “looked

disinterested” did not violate Batson). Howard-Walker did not then

and does not now attempt to refute the trial court’s assessment of

the juror’s level of interest in the proceedings.

¶ 25 We reject Howard-Walker’s argument that the trial court

committed legal error in considering that the female Hispanic juror

was not of the same race as Howard-Walker. Though we agree that

10 Batson does not require that the excluded juror share the same

racial identity as the defendant, Valdez, 966 P.2d at 589, our

reading of the record does not support Howard-Walker’s argument.

While the trial court noted that it perceived the female juror as “a

person of color[,] . . . [a]lbeit not the same ethnicity as the

defendant,” it rested its denial of the Batson challenge on the juror’s

lack of interest in the proceedings, not on any comparison of the

races of the juror and Howard-Walker.

¶ 26 Thus, we conclude that the trial court’s Batson step three

findings with respect to the female Hispanic juror are supported by

the record.

2. African-American Male Juror

¶ 27 After the prosecutor exercised four of the prosecution’s six

peremptory strikes, he accepted the jury as then constituted, which

defense counsel characterized as “completely white.”

Howard-Walker continued exercising his peremptory strikes, which

resulted in a male juror who identified himself as African-American

joining the panel. Despite having previously accepted the jury, the

prosecutor then exercised one of its remaining peremptory strikes

against that juror.

11 ¶ 28 In response to Howard-Walker’s Batson challenge, the

prosecutor explained that the prospective juror “seemed

anti-prosecution” because, in response to voir dire questions, he

said that police officers often misidentify suspects and he indicated

on his jury questionnaire that he had had a “particularly bad

experience” with law enforcement. Howard-Walker attempted to

rebut this explanation by noting that some unchallenged white

jurors had expressed similar opinions about police misidentification

and also reported negative experiences with the police.

¶ 29 The trial court denied the Batson challenge, saying that “this

isn’t a pattern yet” and because, based on its own observations, the

juror apparently believed that law enforcement officers often make

mistakes.

¶ 30 Howard-Walker asserts that the prosecutor’s retention of a

white juror who had discussed his negative views of police officers

at some length and its retention of other white jurors who had

expressed that the police sometimes make mistakes in identifying

suspects demonstrated that the prosecutor’s reasons for the strike

was pretexual. “A prosecutor’s disparate treatment of prospective

12 jurors, who, but for their race, have similar and allegedly

objectionable experiences, is pretextual.” Gabler, 958 P.2d at 508.

¶ 31 The Colorado Supreme Court in Beauvais recently clarified the

required procedure for a Batson comparative juror analysis. While

“[t]wo potential jurors need not be identical in every respect,”

“[i]solated similarities do not automatically render two jurors

‘similarly situated’ for purposes of deciding a Batson challenge.”

Beauvais, ¶ 56. For example, “if an attorney strikes a female

potential juror because she is unemployed and lacks a college

degree, a male potential juror who is either unemployed or lacks a

college degree would not be similarly situated and not suitable for

comparison.” Id. at ¶ 57.

¶ 32 At least three white jurors who served on the jury expressed

views similar to the male African-American’s juror’s that police

sometimes make mistakes in identifying suspects. But none of

those jurors also expressed that they had had “a particularly bad

experience” with law enforcement. Moreover, the record

demonstrates that these jurors’ statements were more limited in

scope, while the African-American prospective juror’s statements

were broader and less deferential to the police, particularly in

13 regard to identification of a suspect in a photograph or video. For

instance, while one of the other jurors said that misidentification

sometimes happens, she also said that misidentification might

result from not getting “the best look” at the person. Another juror

similarly said that misidentification might occur due to any number

of circumstances, including the time of day and distance. Still

another asserted that misidentification could occur based on a

video or photograph if either of those mediums lacked clarity.

¶ 33 In contrast, the African-American juror opined that police

officers are no better at identifying a person in a photograph or

video than anyone else, and that misidentification may occur unless

the photograph or video was completely clear.

¶ 34 Having observed the prospective juror’s responses to questions

during voir dire, the trial court agreed with the prosecutor’s

assessment that the African-American juror seemed

“anti-prosecution,” an assessment that has record support.

Additionally, we note that the prosecutor exercised a peremptory

strike against a white juror who had similarly expressed that

“policemen are humans so they can make errors just like anybody

else.”

14 ¶ 35 Howard-Walker also asserts the prosecutor’s reasons for

exercising a peremptory strike against the prospective juror were

pretextual because, although the juror indicated on his jury

questionnaire that he had had a negative experience with law

enforcement, no strikes were exercised against white jurors who

had also indicated negative experiences with law enforcement on

their questionnaires. We reject this argument because there is no

indication in the record that the trial court relied on the juror’s

negative experience with law enforcement to deny Howard-Walker’s

Batson challenge. And, as we noted above, no other juror disclosed

both a negative experience with law enforcement and a belief that

police officers sometimes misidentify suspects; thus, no other juror

was similarly situated to the excused juror. Id. at ¶¶ 56-57.

¶ 36 We recognize that the trial court said, with respect to the

denial of Howard-Walker’s challenge of the strike against the

African-American juror, that “this isn’t a pattern yet.” Had the

court concluded that Howard-Walker had not proved purposeful

discrimination with respect to the juror because he had not

established a “pattern” of discrimination, that would have been

error. A pattern of strikes may “give rise to an inference of

15 discrimination,” but is not “a necessary predicate to a [Batson]

violation.” Batson, 476 U.S. at 95-97. But the court did not rest its

Batson step three determination on whether Howard-Walker had

proved a pattern. Rather, the court, with record support, concluded

that the juror believed that police officers frequently misidentified

suspects — a central issue in the case. Howard-Walker does not

dispute that the juror expressed that police officers may misidentify

suspects. Based on the juror’s responses to voir dire questions,

and with deference to the court’s superior opportunity to judge the

juror’s demeanor, we discern no clear error by the court in

concluding that the prosecutor’s race-neutral reasons for excusing

that juror were credible.

3. Male Hispanic Juror

¶ 37 After the African-American prospective juror was excused,

another male juror, who identified himself as Hispanic, joined the

panel. The prosecutor exercised his final peremptory strike against

the juror. In response to Howard-Walker’s Batson challenge, the

prosecutor explained that the juror had reported a bad experience

with law enforcement on his jury questionnaire, had faced a

criminal conviction on charges brought by the same district

16 attorney’s office, and had indicated in his responses to voir dire

questions that he had a negative view of law enforcement.

¶ 38 Howard-Walker attempted to rebut the prosecutor’s

race-neutral explanation for the strike, asserting that the

prosecutor’s peremptory strikes had shown a pattern of excusing

“minorities” and that white jurors who had disclosed similar

experiences and views regarding the police had not been stricken.

The trial court denied the Batson challenge, noting that the

prospective juror “was quite reluctant and critical of law

enforcement generally.”

¶ 39 While it is true that a white juror said on his jury

questionnaire that he had had a particularly bad experience with

the police, his answers to questions during voir dire revealed that

his experiences were significantly different from that of the

challenged male Hispanic juror. The white juror was a firefighter.

He said that he did not have “a high impression” of the police

because they often “butted heads” at work. He then clarified that

he only had a bad impression of state patrol officers (as opposed to

other police officers) during traffic stops, and that he could put his

17 negative perceptions aside. The state patrol was not involved in

Howard-Walker’s case.

¶ 40 The dismissed male Hispanic juror also said that he felt some

police officers are “bad apples” and that he felt his liberties were “on

the line” because, generally speaking, the police were becoming “a

little militia with a private army.” There was no rehabilitative

questioning either by the court or defense counsel that would

demonstrate that the juror could set aside his negative impressions

of the police.

¶ 41 As we did with respect to the female Hispanic juror, we reject

Howard-Walker’s argument that the trial court erred in considering

that the male Hispanic juror was not of the same race as

Howard-Walker. Though the court noted that the male Hispanic

juror and Howard-Walker’s ethnicities were not the same, it

nevertheless denied the Batson challenge based on the juror’s

criticisms of law enforcement.

¶ 42 For these reasons, we conclude that the trial court’s step three

Batson findings are supported by the record, and we reject

Howard-Walker’s claims to the contrary.

18 III. Allegedly Improper Police Testimony2

¶ 43 Howard-Walker next argues that the admission of several

portions of Detective Garcia’s testimony constituted reversible error.

¶ 44 We review a trial court’s evidentiary rulings for an abuse of

discretion. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). “[W]e

review nonconstitutional trial errors that were preserved by

objection for harmless error.” Hagos v. People, 2012 CO 63, ¶ 12.

Under this standard, we reverse only if the error “substantially

influenced the verdict or affected the fairness of the trial

proceedings.” Id. (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo.

1986)).

2 We observe that the defendant’s selection of small portions of two long days of trial testimony has an effect on the reader that is quite different than the effect when reading the entire trial transcript. When read in its entirety, the trial transcript portrays an engaged trial court. None of the testimony objected to for the first time on appeal was set off by any particular circumstances from the rest of the non-objected testimony. It is very easy for an appellate court to read a cold transcript and conclude that certain unobjected testimony should not have been admitted. The trial court might well come to the same conclusion if the court had the luxury of reading a transcript. But that luxury is not available to the trial court and that is one good reason why the standard for plain error is so high.

19 ¶ 45 When a defendant fails to object to the admission of evidence

at trial, we will not reverse in the absence of plain error. People v.

Vecellio, 2012 COA 40, ¶ 54. “Under the plain error standard, the

defendant bears the burden to establish that an error occurred, and

that at the time the error arose, it was so clear cut and so obvious

that a trial judge should have been able to avoid it without benefit

of objection.” People v. Conyac, 2014 COA 8M, ¶ 54. Reversal is

required if the error was so grave that it “undermined the

fundamental fairness of the trial itself” so as to “cast serious doubt

on the reliability of the conviction.” Id.

B. Testimony that the Handgun in the Surveillance Video Was “Real”

¶ 46 The prosecutor did not qualify Detective Garcia as an expert

witness. Therefore, his opinion testimony was limited to his

rationally based perceptions that were helpful to the jury in

understanding the testimony or determining a fact in issue. CRE

701; Venalonzo v. People, 2017 CO 9, ¶ 18.

¶ 47 After the surveillance video was played for the jury, which, as

noted above, showed one of the perpetrators holding what appeared

to be a handgun, the prosecutor asked Detective Garcia, “How can

20 you tell that’s a real handgun?” Detective Garcia answered, without

objection by Howard-Walker, as follows:

Well, one of the things that would make it real is a size of the barrel. It’s a large barrel. Air soft guns [sic] their muzzles have a red tip and small barrel for the little air soft pellet to come out. This is an open barrel. That’s a large barrel for a large projectile to exit the weapon.

¶ 48 Howard-Walker argues that this was improper expert

testimony offered in the guise of lay opinion. We agree, but also

conclude that, under the circumstances, this testimony did not

constitute plain error.

¶ 49 CRE 701 governs admissibility of lay testimony. It provides

that

[i]f the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

(Emphasis added.)

¶ 50 In a series of cases decided after Howard-Walker’s trial, the

Colorado Supreme Court clarified the standard that distinguishes

21 lay testimony from expert testimony. Marsh v. People, 2017 CO

10M; Venalonzo, ¶¶ 17-25; People v. Ramos, 2017 CO 6.

If the witness provides testimony that could be expected to be based on an ordinary person’s experiences or knowledge, then the witness is offering lay testimony. If, on the other hand, the witness provides testimony that could not be offered without specialized experiences, knowledge, or training, then the witness is offering expert testimony.

Venalonzo, ¶ 2.

¶ 51 As the Venalonzo court itself recognized, the line between lay

and expert testimony may be difficult to discern. Id. at ¶ 24. This

is particularly the case when the witness is a police officer.

Stewart, 55 P.3d at 123. While police officers may offer testimony

based on their perceptions and experiences, officer lay testimony is

objectionable when it requires the application of or reliance on

specialized skills or training. Venalonzo, ¶ 19.

¶ 52 In Stewart, in analysis that was not displaced by Venalonzo,

the supreme court held that while it was appropriate for an officer

to give lay testimony about his observations of an accident scene,

his testimony crossed the expert line when he essentially

reconstructed the accident by deducing matters such as the

22 vehicle’s direction, position, and speed. 55 P.3d at 124. Similarly,

in People v. Veren, 140 P.3d 131, 139-40 (Colo. App. 2005), cited

favorably by Venalonzo, a division of this court concluded that while

an ordinary citizen might know that Sudafed contains an ingredient

that can be used to manufacture methamphetamine, the lay

witness officer’s testimony that he suspected the defendant was

manufacturing based on the amount of Sudafed in his possession

constituted expert testimony because an ordinary citizen would

probably not know how much Sudafed would be required for that

purpose. And in Ramos, ¶ 9, decided together with Venalonzo, the

supreme court held that an ordinary citizen could not be expected

to differentiate between “blood cast-off” and “blood transfer.”

¶ 53 Applying Venalonzo, we strongly doubt that ordinary citizens

can determine whether a gun depicted in a video was real or fake.

See also People v. Romero, 2017 CO 37, ¶ 15. To do so requires

expertise beyond the ken of the ordinary citizen, and such

testimony constituted expert testimony under CRE 702.

¶ 54 While this evidence was improperly admitted as lay opinion

evidence, admitting it was not plain error, for two reasons. First,

the latest supreme court formulation of the distinction between lay

23 and expert testimony was not decided until more than a year after

Howard-Walker’s trial.

¶ 55 More importantly, no Colorado case has directly addressed the

distinction between lay and expert testimony with respect to

whether a gun depicted in a video is real or fake. “Ordinarily, for an

error to be obvious, the action challenged on appeal must

contravene a clear statutory command, a well-settled legal principle,

or Colorado case law.” People v. Manyik, 2016 COA 42, ¶ 36. It

necessarily follows that any error in the admission of this brief

testimony was not obvious and thus was not plain error.

C. The Detective’s Testimony that the Perpetrator Would Have Used the Gun if He Had Encountered the Homeowner

¶ 56 The prosecutor asked Detective Garcia, “How is that particular

handgun being used during the burglary?” Detective Garcia

answered that “[the gun] was being used in a manner that if

someone was to walk in on the individuals during the burglary or

be confronted by the police, they were ready to engage.”

Howard-Walker objected on the basis that peering into the mind of

the perpetrator regarding an event that never occurred was nothing

more than speculation, but the trial court overruled the objection.

24 ¶ 57 Detective Garcia continued, saying:

[The gun] is being openly displayed with the hand and the finger on the trigger ready to be utilized. Individuals going through the room with the gun out in a manner to me the way I see it is as a threatening manner whether to engage if a homeowner or engage by officers that that person is ready [sic]. If he did not intend it, I don’t believe the weapon would be presented in that manner, scanning the room as he is doing so as in the video.

¶ 58 Howard-Walker argues that this testimony was inadmissible

because Detective Garcia had no personal knowledge about what

the person in the video would have done with the gun had he

encountered the homeowner and thus he was improperly

speculating. We agree.

¶ 59 “A lay witness may state an opinion about another person’s

motivation or intent only if the witness had sufficient opportunity to

observe the person and to draw a rational conclusion about the

person’s state of mind.” People v. Jones, 907 P.2d 667, 669 (Colo.

App. 1995). An opinion not based on personal knowledge is

speculative and therefore inadmissible. Id. Detective Garcia was

not present during the burglary. And while he did view the video, it

is at least questionable how the video could inform a person’s

25 rational conclusion about what the perpetrator would have done

had he encountered the homeowner or the police.

¶ 60 Moreover, even if Detective Garcia had an adequate foundation

for this testimony, it likely should have been excluded both under

principles of relevancy and under CRE 403. What might have

happened was not an element of the offense; the relevant element of

the offense was the use of a deadly weapon in the course of the

burglary, which (if the gun was real) the video amply displayed. It

was immaterial whether the perpetrator might have committed an

additional crime had he encountered the homeowner or the police.

¶ 61 Even so, we conclude on this record that any error was

harmless. If the jury believed that the gun would have been used

had the perpetrators encountered the homeowner or the police, that

belief could have prejudiced the jurors against Howard-Walker. But

the jury could have drawn this inference for itself (still another

reason why the testimony should not have been admitted); the fact

that Detective Garcia testified about such an immaterial (but easily

drawn) inference did not, in our view, “substantially influence[] the

verdict or affect[] the fairness of the trial proceedings.” Hagos, ¶ 12

(quoting Tevlin, 715 P.2d at 342).

26 D. The Detective’s Identification of Howard-Walker in the Video

¶ 62 Detective Garcia testified, without objection, that he was “one

hundred percent” certain that he recognized Howard-Walker as one

of the perpetrators in the video.

¶ 63 Howard-Walker argues that because Detective Garcia testified

that his “time and experience on the Police Department” helped him

to make this identification, his identification of Howard-Walker was

improper expert testimony. He also argues that the identification

invaded the province of the jury and was substantially more

prejudicial than probative. Following precedents from the supreme

court and other divisions of this court, we reject these arguments.

¶ 64 A lay witness may testify regarding the identity of a person

depicted in a surveillance photograph (or, for that matter, a video),

“if there is some basis for concluding that the witness is more likely

to correctly identify the defendant from the [video] than is the jury.”

Robinson v. People, 927 P.2d 381, 382 (Colo. 1996). That is the

case here.

¶ 65 Though Garcia’s contact with Howard-Walker came after he

had seen the video (a fact that is not relevant under Robinson), he

nevertheless was in a better position than the jury to identify

27 Howard-Walker as one of the perpetrators in the video because he

had had close, face-to-face contact with him during the police

interview. What’s more, while Howard-Walker was clean-shaven

during the trial, he, like the perpetrator in the video, had facial hair

during the police interview, making Detective Garcia’s testimony

that much more helpful to the jury. Any allegation (which is not

made explicitly by Howard-Walker) that Detective Garcia’s

perception was somehow tainted by the fact that he only met

Howard-Walker after viewing the video goes to the weight of his

testimony, not its admissibility. No specialized knowledge is

required to recognize an individual in a video.

¶ 66 This evidence was obviously probative of a material fact —

indeed, the critical fact at issue. Merely because Detective Garcia’s

testimony may have been detrimental to Howard-Walker did not

render that testimony unfairly prejudicial. Kelly v.

Haralampopoulos by Haralampopoulos, 2014 CO 46, ¶ 47. And it

did not “invade the province of the jury,” Davis v. People, 2013 CO

57, ¶ 27, a contention that was rejected dispositively by Robinson.

Accordingly, we discern no error, much less plain error, in the

admission of this testimony.

28 E. The Detective’s Testimony Regarding Probable Cause

¶ 67 The prosecutor asked Detective Garcia to describe his

investigation. In a lengthy, narrative response, the detective

testified that he wrote the search warrant for Howard-Walker’s

apartment, had it reviewed by his supervisor, and “once [the

supervisor] said there was probable cause, took the warrant to [a

judge] for review.” Though Howard-Walker did not object to this

testimony, he nevertheless argues on appeal that the trial court

should have stepped in, sua sponte, and prohibited the testimony.

¶ 68 When probable cause to search or arrest is not at issue, “it is

improper to present to the jury evidence about obtaining an arrest

or search warrant.” People v. Mullins, 104 P.3d 299, 301 (Colo.

App. 2004). This is so because whether the police believed and a

judge found that there was probable cause to arrest a defendant is,

under most circumstances, irrelevant to determining whether the

prosecution proved the commission of a crime beyond a reasonable

doubt. Id.; see CRE 401. We agree with Howard-Walker that

probable cause was not at issue in this case and this evidence

should not have been admitted.

29 ¶ 69 Under some circumstances, police officers may testify about

why they took certain investigative steps, even when this testimony

“touches upon prohibited subjects.” People v. Penn, 2016 CO 32,

¶ 32. For instance, in Casias v. People, 160 Colo. 152, 162, 415

P.2d 344, 349 (1966), superseded by statute on other grounds as

stated in People v. Ceja, 904 P.2d 1308 (Colo. 1995), the supreme

court held it was not error for a detective to testify that he arrested

the defendant on the “strength of the warrant” because that

testimony was relevant to the prosecutor’s explanation of the

circumstances of the arrest. But in this case, Detective Garcia did

not need to describe the search and arrest warrants process to

explain the investigation; thus, his testimony on those matters

¶ 70 However, because under some circumstances testimony

regarding probable cause is admissible, and because Detective

Garcia’s reference to probable cause was fleeting, we cannot

conclude that the error was obvious. Therefore, there was no plain

error. People v. Renfro, 117 P.3d 43, 48 (Colo. App. 2004).

30 F. Testimony Regarding the Girlfriend’s Reaction to Identifying Howard-Walker

¶ 71 Detective Garcia testified that when he interviewed

Howard-Walker’s girlfriend, she said that she was “eighty percent”

certain that she recognized Howard-Walker in the stills of the

surveillance video. He further testified that she “was getting

emotional” and “really began crying,” observations that were

perfectly appropriate for a lay witness to express. CRE 701; People

v. Hulsing, 825 P.2d 1027, 1032 (Colo. App. 1991). But then the

prosecutor asked Detective Garcia why he thought the girlfriend

was “getting emotional,” an inquiry into the girlfriend’s state of

mind that the detective was neither competent to undertake or to

give testimony about. He answered that it was because “[s]he

recognized her boyfriend in the photos.” As with almost all of the

testimony relied on for reversal, Howard-Walker did not object.

¶ 72 Howard-Walker asserts that this testimony was improper

because Detective Garcia had no personal knowledge, as required

by CRE 602, to know what the girlfriend was thinking when she

started “getting emotional” and was crying. We conclude that the

31 admission of this evidence was erroneous, but did not constitute

plain error.

¶ 73 Questions regarding the girlfriend’s initial identification of

Howard-Walker from the surveillance video, and the reliability of

that identification, were fully explored during the trial, and the jury

had extensive information to make its judgment on that issue.

Moreover, the jury was just as able as the officer to decide why the

girlfriend was crying (again, another reason why this evidence

should not have been admitted). Given this, we cannot conclude

that the brief testimony by the officer in this respect was obviously

improper or “undermine[d] the fundamental fairness of the trial.”

Conyac, ¶ 54.

G. The Detective’s Testimony Regarding Howard-Walker’s Statement About Possibly Identifying the Other Perpetrator

¶ 74 Detective Garcia testified that when he interviewed

Howard-Walker about the burglary, Howard-Walker asked him,

“[w]hat would it get me if I told you the name of the other person [in

the video]?” The prosecutor asked the detective what he thought

that statement meant, and he answered, without objection, “[t]hat

32 [Howard-Walker] was involved and knows who the other person was

that committed the burglary.”

¶ 75 Howard-Walker argues that this testimony was improper

because it constituted an impermissible opinion on his guilt. A

witness may not testify that he believes that the defendant

committed the crime at issue. Penn, ¶ 31.

¶ 76 But the officer did not testify that Howard-Walker was guilty;

he only testified what he thought Howard-Walker’s statement

meant. The inference that may be drawn from Howard-Walker’s

statement is obvious to any reasonably intelligent person, so even if

the officer’s testimony was improper, it did not undermine the

fundamental fairness of the trial. Conyac, ¶ 54.

H. Testimony About Whether Howard-Walker was Being Truthful

¶ 77 The prosecutor asked Detective Garcia whether he felt that

Howard-Walker was “forthcoming” or “truthful” during the police

interview. Detective Garcia answered “no” to both questions.

Howard-Walker did not object to this testimony.

¶ 78 It is improper to ask one witness to opine on the truthfulness

of another. Liggett v. People, 135 P.3d 725, 733 (Colo. 2006).

Though a detective may testify about his assessment of an

33 interviewee’s credibility when that testimony is offered to provide

context for the detective’s interrogation tactics and investigative

decisions, Davis, ¶ 17, Detective Garcia’s testimony was not offered

for those purposes and was therefore improper.

¶ 79 But that error does not rise to the level of plain error. As in

Liggett, 135 P.3d at 734, there was ample evidence before the jury

to support Howard-Walker’s convictions without relying on

Detective Garcia’s improper testimony. Multiple witnesses

identified Howard-Walker as one of the men in the video,

Howard-Walker’s shoes were consistent with the footprints found

near the broken window of the victim’s home, and the jury was

entitled to determine that Howard-Walker’s offer to give up the

name of the other suspect meant that he was involved in the crime.

Thus, Howard-Walker has not shown that that testimony

undermined the fundamental fairness of the trial. Id. at 734-35;

IV. Prosecutorial Misconduct

¶ 80 Howard-Walker next asserts that the prosecutor engaged in

three instances of reversible misconduct.

34 ¶ 81 We engage in a two-step analysis to review claims of

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine whether the prosecutor’s conduct

was improper based on the totality of the circumstances. Id.

Second, we decide whether any misconduct warrants reversal

according to the proper standard of review. Id.

¶ 82 Because Howard-Walker did not object to any of the

prosecutor’s statements, we review for plain error. Id. at 1097.

A. Confronting the Girlfriend About Perjury

¶ 83 The girlfriend testified that she did not remember telling

Detective Garcia that she had recognized Howard-Walker in the

video. She and the prosecutor then engaged in the following

colloquy:

Q. All right. Now, you understand that today you have been sworn in under oath, right?

A. Right.

Q. And you understand how perjury works, right?

Q. You realize you have been sworn to tell the truth, the whole truth, and nothing but the truth?

35 A. Yes, I do.

Q. And you understand that perjury is not telling the truth in court?

Q. And so it’s your testimony today that you did not identify anyone from that videotape?

A. Right, no.

¶ 84 “A prosecutor’s statement or question indicating his belief that

a witness committed perjury is improper.” People v. Romero, 2015

COA 7, ¶ 37. But even if the prosecutor stepped over the

permissible line in repeatedly suggesting that the girlfriend was

committing perjury, because the prosecutor did not threaten,

coerce, or otherwise “drive[] [her] ‘off the stand,’” any such

misconduct was not reversible. Id. (quoting Webb v. Texas, 409

U.S. 95, 95-98 (1972)).

¶ 85 As in Romero, ¶ 40, the prosecutor’s statements were brief and

did not silence the witness or alter the girlfriend’s testimony; she

continued to answer the prosecutor’s questions, and, at least at

first, continued to assert that she had never identified

Howard-Walker in the video stills. The girlfriend later, in response

to a different line of questioning, changed her testimony by saying

36 that she had told Detective Garcia that she had recognized

Howard-Walker. But even then, she asserted that she only did so

because Detective Garcia had allegedly pressured or intimidated

her. Thus, as in Romero, ¶ 40, the girlfriend’s testimony “was

virtually the same before and after the prosecutor’s references to

perjury.” Under these circumstances, any error did not amount to

B. Prosecutor’s Comment on the Girlfriend’s Truthfulness

¶ 86 In closing argument, the prosecutor said that the girlfriend

“was not forthcoming,” “was not being honest,” and was “not a

credible witness.”

¶ 87 A prosecutor is permitted to comment on the evidence,

including the reasons why the jury should believe or not believe a

particular witness, as long as the prosecutor does not go so far as

to call that witness a “liar.” Domingo-Gomez v. People, 125 P.3d

1043, 1050 (Colo. 2005). Indeed, drawing reasonable inferences

from the evidence regarding the credibility of witnesses is one of the

fundamental purposes of closing argument. Id. at 1048-50. These

statements did exactly that and were not improper.

37 ¶ 88 As the prosecutor pointed out in closing argument, the

girlfriend’s testimony conflicted with that of Detective Garcia.

Indeed, the girlfriend gave inconsistent testimony at trial — at first

she claimed that she had never told Detective Garcia that she had

identified Howard-Walker in the video stills, and then, after some

probing, said that she had in fact identified Howard-Walker. The

prosecutor fairly characterized this testimony as confusing and “all

over the place.” Like in Domingo-Gomez, id. at 1051, the evidence

supported a reasonable inference that the girlfriend’s testimony was

false, and thus the prosecutor’s comments were proper.

C. Reference to Howard-Walker’s Decision Not to Testify

¶ 89 The Fifth Amendment forbids comment by the prosecution on

the accused’s decision not to testify. Griffin v. California, 380 U.S.

609, 615 (1965). An impermissible comment is one that “in

context, was calculated or intended to direct the attention of the

jury to the defendant’s neglect or failure to exercise his right to

testify in his own behalf.” Martinez v. People, 162 Colo. 195, 200,

425 P.2d 299, 302 (1967).

¶ 90 We agree that the prosecutor stepped over the line when he

told the jury in closing argument that the only person who knew the

38 location of the fruits of the burglary was Howard-Walker and “he

won’t [testify].” We view this statement as a reference to Howard-

Walker’s decision not to testify. U.S. Const. amend. V; Colo. Const.

art. II, § 18; People v. Todd, 189 Colo. 117, 121, 538 P.2d 433, 436

(1975).

¶ 91 Had Howard-Walker objected to this testimony, and had it

been admitted over objection, we would review for constitutional

harmless error, but no objection was made and thus we review for

plain error. People v. Miller, 113 P.3d 743, 749 (Colo. 2005). Under

this standard, only prosecutorial misconduct which is “flagrantly,

glaringly, or tremendously improper” warrants reversal.

Domingo-Gomez, 125 P.3d at 1053.

¶ 92 While we do not condone the prosecutor’s comment, we

nevertheless conclude that the comment did not amount to plain

error, for two reasons.

¶ 93 First, the comment was a single, minimal reference. See

People v. Travis, 192 Colo. 169, 171, 558 P.2d 579, 580-81 (1976);

People v. Gilkey, 181 Colo. 103, 106, 507 P.2d 855, 857 (1973);

People v. Petschow, 119 P.3d 495, 505-06 (Colo. App. 2004).

39 ¶ 94 Second, the jury was correctly instructed, several times, that

Howard-Walker had an absolute right not to testify and that no

adverse inference from his exercise of that right was permissible.

People v. Garcia, 2012 COA 79, ¶ 20 (we presume that the jury

followed the court’s instructions, absent evidence to the contrary)

(citing Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1088 (Colo.

2011)); see also State v. Escalante-Orozco, 386 P.3d 798, 826 (Ariz.

2017). There is no suggestion in the record that the jury did not

heed this instruction.

¶ 95 We therefore conclude that the prosecutor’s statement was not

“flagrantly, glaringly, or tremendously improper,” Domingo-Gomez,

125 P.3d at 1053, and did not fundamentally undermine the

fairness of the trial, Conyac, ¶ 54.

V. Adequacy of the Jury Instructions

¶ 96 Howard-Walker next argues that the trial court erred when it

failed to instruct the jury on the predicate crime of theft, and when

it failed to define the word “intent.” The parties agree and we

concur that the jury instructions were deficient because they failed

to instruct on the elements of theft, but we nevertheless conclude

that the error was not reversible.

40 ¶ 97 “We review jury instructions de novo to determine whether

[they] as a whole accurately informed the jury of the governing law.”

People v. Ridgeway, 2013 COA 17, ¶ 12 (citation omitted). When,

as in this case, no objection is made to the jury instructions, we

reverse only for plain error. Id. at ¶ 9. As noted, “[p]lain error

occurs when, after a review of the entire record, the appellate court

can say with fair assurance that the error so undermined the

fundamental fairness of the trial as to cast serious doubt on the

reliability of the judgment of conviction.” Bogdanov v. People, 941

P.2d 247, 255 (Colo.), amended, 955 P.2d 997 (Colo. 1997).

¶ 98 The United States and Colorado Constitutions require the

prosecution to prove every element of the charged offense beyond a

reasonable doubt. Griego v. People, 19 P.3d 1, 7 (Colo. 2001); see

U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend. VI; U.S. Const.

amend. XIV, § 1; Colo. Const. art. II, § 16; Colo. Const. art. II, § 23;

Colo. Const. art. II, § 25. “To preserve this constitutional right, a

trial court must properly instruct the jury on every element of a

crime.” Ridgeway, ¶ 12.

A. The Elements of Burglary and the Predicate Crime of Theft

¶ 99 The elements of burglary with a deadly weapon are as follows:

41  the defendant;

 knowingly entered unlawfully, or remained unlawfully

after a lawful or unlawful entry;

 in a building or occupied structure;

 with intent to commit therein a crime, other than

trespass;

 against another person or property; and

 the defendant used a deadly weapon or possessed and

threatened the use of a deadly weapon in effecting the

burglary.

§ 18-4-202(1).

¶ 100 The trial court must instruct on both the elements of burglary,

as well as the elements of the underlying crime (in this case, theft).

People v. Palmer, 87 P.3d 137, 140 (Colo. App. 2003).

Howard-Walker did not object to the instruction; indeed, his

counsel approved it.3 When the elemental instructional error

3 Because Howard-Walker’s counsel affirmatively approved the jury instructions, there is an argument that Howard-Walker waived any instructional error. See United States v. Olano, 507 U.S. 725, 733 (1993); People v. Rediger, 2015 COA 26, ¶ 64 (cert. granted Feb. 16, 2016). The Attorney General does not argue that Howard-Walker waived the instructional error. Because we conclude for other

42 relates to an element that is not contested at trial, the failure to

instruct is not plain error. People v. Cowden, 735 P.2d 199, 202

(Colo. 1987).

¶ 101 In Cowden, the defendant was charged with six counts of

felony theft. Id. at 200. The trial court failed to instruct the jury

that it must find that the value of the stolen property was between

$200 and $10,000, one of the elements of the theft charge. Id. at

201. The supreme court held that, at least as to five of the theft

counts, because the prosecution presented uncontested evidence

that the value of the allegedly stolen items was more than $200, the

deficiency in the instructions did not require reversal.

¶ 102 Similarly, in People v. Fichtner, 869 P.2d 539, 541

(Colo. 1994), the supreme court held that the trial court’s failure to

define “serious bodily injury” in the jury instruction on menacing

with a deadly weapon, although erroneous, was not plain error. In

that case, the prosecution presented uncontested evidence that the

defendant had threatened the victim with an axe handle. Id. His

defense was that he was only using the axe handle to defend his

reasons that the deficient instructions do not require reversal, we do not address whether Howard-Walker waived the error.

43 property; he never contested the victim’s assertion that she had

feared that she was in imminent danger of suffering serious bodily

injury. Id. at 544. Accordingly, the court concluded that because

whether the defendant had placed the victim in fear of imminent

serious bodily injury was not at issue in the case, the trial court’s

instructional error did not constitute plain error. Id.

¶ 103 We agree with both parties that the trial court failed to

properly instruct the jury on the elements of burglary. The jury was

instructed to find Howard-Walker guilty if it found that he entered

the victim’s home “with intent to commit therein a crime, other than

trespass,” but the instructions did not identify the underlying crime

or define its elements. Howard-Walker argues that this deficiency

meant that the jury could have convicted him for his intent to

commit any crime, without unanimously agreeing that he intended

to commit any particular crime. We reject this argument.

¶ 104 The complaint and information alleged that Howard-Walker

broke into the victim’s home and committed theft. The jury viewed

the surveillance video, which depicted a person (whom several

witnesses identified as Howard-Walker) stealing the contents of the

victim’s safe. Howard-Walker never argued that the crime captured

44 by the surveillance video was any crime other than theft, nor did he

assert that a crime did not occur; his only defense was that he did

not commit the crime. Under these facts, we cannot discern what

underlying crime could have been committed, other than theft.

¶ 105 Moreover, during both opening statement and closing

argument the prosecutor asserted that Howard-Walker broke into

the victim’s home with the intent to commit theft. The record

demonstrates that the specification of the underlying crime was not

a controverted element of the burglary offense; therefore, the court’s

failure to instruct the jury on theft was not plain error. Cowden,

735 P.2d at 203.

B. Intent

¶ 106 For similar reasons, we reject Howard-Walker’s argument that

the court’s failure to define the word “intent” was plain error.

¶ 107 The culpable mental state “intent” is an element both of

burglary and conspiracy to commit burglary. §§ 18-2-201, 18-4-

202. As such, it must have been “established with the same

certainty as any other material element of the crime[s].” Palmer v.

People, 964 P.2d 524, 527 (Colo. 1998). Thus, to convict a

defendant of burglary and conspiracy to commit burglary, the jury

45 must conclude beyond a reasonable doubt that the defendant’s

“conscious objective [was] to cause the specific result proscribed by

the statute[s] defining the offense[s].” § 18-1-501(5), C.R.S. 2016.

Because the word “intent” carries a “technical or particular

meaning,” its definition must be presented to the jury. Griego, 19

P.3d at 7 (citation omitted).

¶ 108 In this case, the trial court’s failure to provide the definition of

“intent” to the jury was error. But Howard-Walker did not challenge

whether the evidence showed that the person in the video acted

“with intent.” When a person is seen on a surveillance video seizing

items that do not belong to him, it is not a leap of faith to infer that

he intended to take the victim’s property. Indeed, Howard-Walker’s

only defense was that it was not he, but some other person, who

was depicted taking the victim’s property in the video. He never

argued or suggested that the person depicted in the video did not

intend to dispossess the lawful owner of the seized property. Under

these circumstances, the trial court’s failure to define the culpable

mental state did not constitute plain error. Fichtner, 869 P.2d at

544.

46 VI. Cumulative Error

¶ 109 Finally, Howard-Walker argues that the cumulative effect of

the trial court’s errors and prosecutorial misconduct violated his

right to a fair trial. Although we have identified several evidentiary

errors (none of which, considered by themselves, requires reversal),

one instance of prosecutorial misconduct, and two instructional

errors, we ultimately conclude that these errors, viewed

cumulatively, did not substantially prejudice Howard-Walker’s right

to a fair trial. People v. Munsey, 232 P.3d 113, 124 (Colo. App.

2009).

¶ 110 As an initial matter, we note that we have identified both one

preserved error (reviewed for harmless error) and several

unpreserved errors (reviewed for plain error). The preserved error

was the detective’s testimony about what Howard-Walker would

have done had he encountered the homeowner (or anyone else)

during the burglary. The unpreserved errors were the deficient jury

instructions; portions of the detective’s testimony (that the gun was

real, that a judge had determined that there was probable cause to

search Howard-Walker’s apartment, why the girlfriend cried during

the police interview, and whether Howard-Walker was being

47 “truthful” during the police interview); and one instance of

prosecutorial misconduct.

¶ 111 In view of our finding both preserved and unpreserved errors,

we follow the Tenth Circuit’s protocol in United States v. Caraway,

534 F.3d 1290, 1302 (10th Cir. 2008), to determine whether there

was cumulative error warranting reversal. There, the Tenth Circuit

held as follows:

First, the preserved errors should be considered as a group under harmless-error review. If, cumulatively, they are not harmless, reversal is required. If, however, they are cumulatively harmless, the court should consider whether those preserved errors, when considered in conjunction with the unpreserved errors, are sufficient to overcome the hurdles necessary to establish plain error. In other words, the prejudice from the unpreserved error is examined in light of any preserved error that may have occurred.

Id. Because we have identified only one preserved error, and have

determined that the error was harmless, we proceed to the next

step to determine whether the combined effect of all of the errors

constituted plain error.

¶ 112 To resolve whether there was cumulative error, we must

determine whether “[n]umerous formal irregularities . . . in the

48 aggregate show the absence of a fair trial.” Munsey, 232 P.3d at

124 (quoting Oaks v. People, 150 Colo. 64, 66-67, 371 P.2d 443,

446 (1962)).

¶ 113 Few Colorado cases provide meaningful guidance as to when

multiple errors rise to the level of reversible cumulative error. See,

e.g., People v. Roy, 723 P.2d 1345 (Colo. 1986); People v. Scheidt,

182 Colo. 374, 385, 513 P.2d 446, 452 (1973); People v. Reynolds,

194 Colo. 543, 575 P.2d 1286 (Colo. 1978); Oaks, 150 Colo. at 66-

67, 371 P.2d at 446.

¶ 114 Some guidance is provided by federal cases. A court evaluates

whether the total effect of errors warrants reversal based on a

number of non-exclusive factors, including: the nature and number

of the errors committed; their interrelationship, if any, and

combined effect; how the district court dealt with the errors as they

arose (including the efficacy of any remedial efforts); the strength of

the government’s case; and the length of the trial. United States v.

Baker, 432 F.3d 1189, 1223 (11th Cir. 2005), abrogated in part and

on other grounds as recognized by United States v. Charlestain, 662

F. App’x 691, 692 (11th Cir. 2016).

49 ¶ 115 In Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011), the

Ninth Circuit recognized that habeas corpus relief may be granted

when the otherwise harmless errors “amplify each other in relation

to a key contested issue in the case.” The court determined that

because the defendant’s claimed errors did not have a “synergistic

effect,” the combined effect of which might “infect the trial with

unfairness,” he was not entitled to habeas corpus relief. Id.

¶ 116 In this case, even the most serious error — the improper

comment on Howard-Walker’s exercise of his right against

self-incrimination — was fleeting, and the less serious errors bore

little relation to each other. Whether the gun in the video was “real”

was unrelated to the critical issue in the case, which was whether

Howard-Walker was one of the perpetrators of the burglary. The

same is true of the erroneous jury instructions and Detective

Garcia’s testimony about how Howard-Walker might have used the

gun had he encountered the homeowner or the police.

¶ 117 Detective Garcia’s testimony about probable cause, that he did

not believe Howard-Walker was being “truthful” during the police

interview, and that the girlfriend was upset because she had

recognized Howard-Walker in the video stills may have tended to

50 undermine Howard-Walker’s misidentification defense. But each of

these references was brief. Howard-Walker’s failure to object to any

of these errors is one indication that, in context, his trial counsel

did not consider the now-objected-to testimony to be seriously

prejudicial to Howard-Walker. People v. Rodriguez, 794 P.2d 965,

972 (Colo. 1990) (“The lack of an objection may demonstrate

defense counsel’s belief that the live argument, despite its

appearance in a cold record, was not overly damaging.”) (citation

omitted).

¶ 118 Even when considered cumulatively, these errors were

relatively small events scattered over the course of a two-day trial,

during which substantial evidence was presented — including

Howard-Walker’s question to Detective Garcia about what it would

get him if he gave up the name of the other perpetrator — from

which the jury reasonably could have concluded that

Howard-Walker was the man with the gun. See Miller, 113 P.3d at

751 (Colo. 2005) (finding no plain error in light of overwhelming

evidence of the defendant’s guilt).

¶ 119 Because Howard-Walker received a fair trial in spite of the

identified errors, we conclude that a new trial is not warranted.

51 VII. Conclusion

¶ 120 The judgment of conviction is affirmed.

JUDGE DAILEY and JUDGE J. JONES concur.