COLORADO COURT OF APPEALS 2017COA128
Court of Appeals No. 14CA1795 El Paso County District Court No. 13CR4158 Honorable Barney Iuppa, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Marcus Lee Robinson,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE BERGER Harris, J., concurs Furman, J., specially concurs
Announced October 19, 2017
Cynthia H. Coffman, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Lynn Noesner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 During opening statement in this criminal prosecution
charging defendant, Marcus Lee Robinson, with multiple counts of
sexual assault, attempted sexual assault, and unlawful sexual
contact, the prosecutor told the jury:
You’re going to hear that [one of the victims, A.M.,] is white. And she’s actually pretty pasty. She’s pasty white. And you obviously have seen Mr. Robinson is dark. He is an African American of dark complexion. [The other victim, E.G.,] looks over and she can see a dark penis going into a white body. That’s how graphic she could see [sic].
¶2 Defense counsel did not object, and the trial court did not
interrupt the proceedings to either admonish the prosecutor or
instruct the jury to disregard the prosecutor’s statements.
¶3 Viewed objectively, the prosecutor’s statements could have
been reasonably understood by the jury as an appeal to racial
prejudice that raises a substantial question whether Robinson
received a trial free from the taint of racial prejudice. 1 Only by
1 In deciding this case we assume both that the prosecutor acted in good faith and that the prosecutor does not harbor any racial animus. We recognize that it is possible that the last, unintelligible, sentence of the quoted portion of the prosecutor’s opening statement was an ineffective attempt to explain why she was making what otherwise were inappropriate racially based statements. The prosecutor’s subjective intent is irrelevant. We
1 reversing Robinson’s convictions can we ensure that racial
prejudice plays no part in the adjudication of this case.
Accordingly, we reverse Robinson’s convictions and remand for a
new trial. Because they are likely to arise on retrial, we also
address Robinson’s other contentions of prosecutorial misconduct.2
I. Relevant Facts and Procedural History
¶4 A.M. and her roommate hosted a party at their apartment.
A.M. drank a lot of alcohol and eventually passed out on a couch.
E.G. also attended the party and she became ill after the alcohol
she drank reacted with her prescription medication. E.G. fell sleep
on the same couch on which A.M. had passed out.
¶5 Robinson, who was in an intimate relationship with A.M.’s
roommate, arrived at the apartment late in the night, when the
view the prosecutor’s words objectively, and analyze whether such words, regardless of the intent, are inconsistent with Robinson’s right to a fair trial, free from racially charged words and concepts. Wend v. People, 235 P.3d 1089, 1099 (Colo. 2010) (holding that improper statements made by a prosecutor, regardless of intent, can affect the jury’s impartiality, thus corrupting the fundamental fairness of the trial). 2 In view of our disposition, we do not address Robinson’s assertion
that the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), §§ 18-1.3-1001 to -1012, C.R.S. 2017, under which he was sentenced, is unconstitutional, or that the mittimus incorrectly reflects the crimes of which he was convicted.
2 party was winding down. E.G. testified that Robinson woke her by
straddling her head and putting his exposed penis in her face. She
told him to go away and he did, at least for a time. E.G. wakened
again to see Robinson rubbing A.M.’s thighs and breasts (A.M.
remained asleep or unconscious) and again told him to go away.
She was awakened a third time when, she testified, she saw
Robinson vaginally penetrating the still sleeping or unconscious
A.M. E.G. told the jury that she yelled at Robinson and he left the
apartment. E.G. called 911 to report the sexual assault and
medical personnel were dispatched to attend to A.M., who
ultimately was revived.
¶6 After Robinson left, he sent A.M.’s roommate a text message,
admitted at trial, that said, “That girl was curse n out me I must did
something if dig dumthg ribg I’m sorry so lft don’t knie I’m s [sic].”
Robinson explained to the police that “he knew he was in the wrong
for trying to have sex with [A.M.]” because he was in a relationship
with her roommate.
¶7 While Robinson admitted to the police that he asked A.M. to
have sex with him, he denied any sexual contact with her, claiming
3 that he left her alone after she repeatedly declined his requests.
Robinson also denied any sexual contact with E.G.
¶8 As to A.M., Robinson was charged with two counts of sexual
assault (victim helpless); two counts of sexual assault (victim
incapable); and two counts of unlawful sexual contact (victim
helpless). As to E.G., Robinson was charged with one count of
attempted sexual assault (victim incapable); one count of attempted
sexual assault (victim helpless); and one count of attempted
unlawful sexual contact (victim helpless).
¶9 At trial, the nurse who examined A.M. testified that she had
no injuries to her internal or external genitalia. A DNA expert also
testified that the trace amount of male DNA found on A.M.’s
external genitalia was too small of a sample to be matched to any
individual, including Robinson.
¶ 10 The jury acquitted Robinson of all of the charges related to
E.G. It acquitted Robinson of the completed crimes of sexual
assault against A.M., thus rejecting, at least in part, E.G.’s
testimony, but convicted him of two counts of unlawful sexual
contact and two counts of the lesser included offense of attempted
4 sexual assault. The trial court sentenced Robinson under the Sex
Offender Lifetime Supervision Act to four years to life imprisonment.
II. Analysis of the Prosecutor’s Raced-Based Statements During Opening Statement
¶ 11 Robinson argues that the prosecutor’s description of “a dark
penis going into a white body” during opening statement
constituted prosecutorial misconduct amounting to plain error,
requiring reversal of his convictions. We agree.
¶ 12 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. If we
conclude that the conduct was improper, we then determine
whether it warrants reversal according to the proper standard of
review. Id.
A. The Prosecutor’s Opening Statement Was Flagrantly, Glaringly, and Tremendously Improper
¶ 13 “A prosecutor has the responsibility of a minister of justice
and not simply that of an advocate.” Colo. RPC 3.8 cmt. 1. More
than eighty years ago, the United States Supreme Court explained
that a prosecutor’s interest in a criminal prosecution “is not that
5 [she] shall win a case, but that justice shall be done.” Berger v.
United States, 295 U.S. 78, 88 (1935).
¶ 14 In executing her substantial powers, a prosecutor must refrain
from improper methods calculated to produce a wrongful
conviction. Harris v. People, 888 P.2d 259, 263 (Colo. 1995). This
constraint protects a defendant’s right to be tried by a fair and
impartial jury “empaneled to determine the issues solely on the
basis of the evidence introduced at trial rather than on the basis of
bias or prejudice for or against a party.” Id. at 264; see U.S. Const.
amend. VI; Colo. Const. art. II, § 16.
¶ 15 Prosecutorial remarks that evoke any kind of bias or prejudice
are always improper; “such argument clearly trespasses the bounds
of reasonable inference or fair comment on the evidence.” Harris,
888 P.2d at 265 (quoting ABA Standards for Criminal Justice:
Prosecution Function and Defense Function § 3-5.8 cmt. (3d ed.
1993)); see also People v. Dunlap, 975 P.2d 723, 758 (Colo. 1999).
¶ 16 A prosecutor’s appeal to racial stereotypes or racial bias to
achieve a conviction is especially deplorable and gravely violates a
defendant’s right to due process of law. Harris, 888 P.2d at 264;
see U.S. Const. amends. V, VI, XIV, § 1; Colo. Const. art. II, §§ 16,
6 25; see also Batson v. Kentucky, 476 U.S. 79 (1986); Miller v. North
Carolina, 583 F.2d 701, 703 (4th Cir. 1978); State v. Monday, 257
P.3d 551, 556 (Wash. 2011).
¶ 17 The prosecutor did not articulate to the jury any conceivably
proper use of the race-based statements. Thus, irrespective of
whether a different record might justify such statements, this
record does not permit such a conclusion. Instead, viewed
objectively, the prosecutor’s opening statement, by its words and in
the context it was presented to the jury, was an appeal to racial
prejudice. Indeed, the prosecutor’s words invoked some of the most
damaging historical racial stereotypes — stereotypes that have
infected judicial proceedings in this country for generations. See,
e.g., Loving v. Virginia, 388 U.S. 1, 3, 7 (1967) (rejecting the trial
judge’s assertion that “Almighty God created the races white, black,
yellow, malay and red, and he placed them on separate continents .
. . [t]he fact that he separated the races shows that he did not
intend for the races to mix”).
¶ 18 To be sure, in limited instances the race of the defendant, the
victim, or a witness may be relevant to the issues presented. “An
unembellished reference to evidence of race simply as a factor
7 bolstering an eyewitness identification of a culprit, for example,
poses no threat to purity of the trial.” United States v. Doe, 903
F.2d 16, 25 (D.C. Cir. 1990). “The line of demarcation is crossed,
however, when the argument shifts its emphasis from evidence to
emotion.” Id. This principle is especially pronounced when, as
here, a prosecutor’s argument objectively appeals to racial prejudice
in the context of a sexual crime, “for few forms of prejudice are so
virulent.” Miller, 583 F.2d at 707.
¶ 19 The Attorney General points out that on direct examination,
E.G. testified that she was able to see A.M. in the dimly lit room
because of A.M.’s light complexion. But E.G. never testified that
Robinson’s darker complexion aided her ability to see what was
happening. To the contrary, the only time that E.G. testified about
Robinson’s skin tone was in direct response to the prosecutor’s
questions about Robinson’s race and complexion:
PROSECUTOR: How could you see that [A.M. was naked from the waist down]?
E.G.: Because it was a dark room and [A.M.] -- I hate to say it, but she’s really, really white. So I could see that she was naked from the waist down.
Q: What was going on at that point?
8 A: He was inside of her. He was having sex with her.
Q: How do you know he was inside of her?
A: Because I could see it. I could see it from my angle. He was in the process of having sex with her. And then he realized that I woke up. And he looks over to me as he’s penetrating her[.]
....
Q: You said he was penetrating her. How was Mr. Robinson dressed at this point?
A: Um, at this point by the third incident he was actually -- he was naked from the waist down. That I do remember. I can’t remember if he was wearing a shirt or not. But he was naked from the waist down because he had to run and get pants.
Q: What race is Mr. Robinson?
A: He’s African American.
Q: And how would you describe his complexion?
A: It’s dark.
Q: Could you see his penis?
A: Like if I had to draw a picture of it, no. But the fact that I saw him from the waist down and he was naked from the waist down and when he took off, I could see his butt clearly.
Q: And is he dark complected at that location on his body as well?
9 A: Yes.
(Emphasis added.)
¶ 20 The prosecutor drew no connection between this examination
(or her opening statement) and any proper purpose for the use of
the raced-based statements. Instead, the quoted colloquy regarding
the defendant’s race and skin tone was entirely gratuitous given
that the defendant was in the courtroom during the trial. Never did
the prosecutor explain why Robinson and A.M.’s different skin
tones aided E.G.’s visual perception or were otherwise a proper
consideration.
¶ 21 State v. Blanks, 479 N.W.2d 601 (Iowa Ct. App. 1991), is
instructive. There, the defendant (who, like Robinson, was African-
American) was charged with multiple crimes stemming from a
violent argument he had with his white girlfriend. During
arguments to the jury, the prosecutor referred to Gorillas in the Mist
(Universal Pictures 1988), a movie about the behavior of gorillas.
Id. at 602. The prosecutor later asserted that he was merely trying
to suggest that humans, unlike gorillas, must be subject to a rule of
law. Id.
10 ¶ 22 The Iowa Court of Appeals concluded that the prosecutor’s
reference to the movie, in which a “young white woman stands
alone against . . . black African hunters . . . [who] violently murder
her,” improperly injected racial overtones into the trial. Id. at 604-
05. The court held that despite the prosecutor’s “good faith
intentions and what he claims to be an innocent remark, there is
the prejudicial possibility that from the jury’s standpoint an attempt
was made to compare the behavior of the defendant with that of
apes and gorillas.” Id. at 605. It concluded that it was the effect,
not the intent, of the prosecutor’s comments that unfairly
prejudiced the defendant. Id.
¶ 23 In our view, Robinson’s prosecutor’s statements were
comparable to the prosecutor’s conduct in Blanks. In the context of
a sexual assault case, the prosecutor’s graphic description of “a
dark penis going into a white body” posed an unacceptable risk of
poisoning the jury based on racial prejudice.
¶ 24 This nation is burdened with a tragic history of punishing
black men for sexual crimes against white women much more
severely than white men who committed the same crimes. See
Jeffrey J. Pokorak, Rape as a Badge of Slavery: The Legal History of,
11 and Remedies for, Prosecutorial Race-of-Victim Charging Disparities,
7 Nev. L.J. 1, 25 (2006). The prosecutor’s statements echoed a time
when judges instructed juries that “they should presume no White
woman in Alabama would consent to sex with a Black.” Id. at 25
n.128; see also Pumphrey v. State, 47 So. 156, 158 (Ala. 1908)
(holding that in determining whether an assault was made with
intent to rape, the jury may consider that the woman assaulted was
white and that the accused was black, a now defunct rule applied
as recently as 1953 in McQuirter v. State, 63 So. 2d 388, 390 (Ala.
Ct. App. 1953)).
¶ 25 Against this sobering historical backdrop, we conclude that
the prosecutor’s conduct was not only improper, but “flagrantly,
glaringly, [and] tremendously improper.” Domingo-Gomez v. People,
125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d
673, 676 (Colo. App. 1997)).
B. Reversal is Required
¶ 26 The more difficult question in this case is whether the
prosecutor’s statements and questions require reversal. Because
Robinson did not object, we review only for plain error. Reversal is
required if the misconduct was obvious and “so undermined the
12 fundamental fairness of the trial itself as to cast serious doubt on
the reliability of the judgment of conviction.” Wilson v. People, 743
P.2d 415, 420 (Colo. 1987).
¶ 27 We first conclude that the impropriety of the statements, given
their lack of context that arguably might, under very unusual
circumstances, have justified such race-based statements, was
obvious. Hagos v. People, 2012 CO 63, ¶ 18. Except under
extremely rare circumstances, such racially based statements are,
and have been for years, totally off-limits in all courts in the United
States. See generally Debra T. Landis, Annotation, Prosecutor’s
Appeal in Criminal Case to Racial, National, or Religious Prejudice as
Ground for Mistrial, New Trial, Reversal, or Vacation of Sentence —
Modern Cases, 70 A.L.R. 4th 664 (1989) (collecting and analyzing
cases determining whether racial statements made by a prosecutor
require reversal). The only remaining question is whether the
statements cast serious doubt on the reliability of Robinson’s
convictions.
¶ 28 We agree with the Attorney General that several circumstances
may have mitigated the impact of the prosecutor’s statements.
First, “[a] passing reference in opening statements . . . may not be
13 prejudicial in the context of a lengthy trial,” People v. Rios, 2014
COA 90, ¶ 35, and here the prosecutor’s statements were brief and
not repeated (although, as noted above, the prosecutor’s direct
examination of E.G. also addressed race). But Robinson’s trial was
not lengthy: excluding voir dire of the prospective jurors and
deliberations, it lasted less than two days.
¶ 29 Second, courts recognize that a failure to object may
demonstrate defense counsel’s belief that the statement was not
overly damaging. People v. Rodriguez, 794 P.2d 965, 972 (Colo.
1990).
¶ 30 Third, we acknowledge that the trial court instructed the jury
“not to allow bias or prejudice, including gender bias, or any kind of
prejudice based upon gender” to influence its decisions, and “[w]e
presume that the jury followed the court’s instructions, absent
evidence to the contrary.” People v. Garcia, 2012 COA 79, ¶ 20.
But other than the standard instruction on bias or prejudice (which
focused on gender discrimination rather than racial discrimination),
the trial court never admonished the prosecutor or instructed the
jury to disregard the offending statements.
14 ¶ 31 Fourth, the fact that the jury acquitted Robinson of all of the
charges related to E.G. and the most serious charges related to
A.M. suggests that it could fairly and properly weigh and evaluate
the evidence without considering extraneous factors. People v.
Braley, 879 P.2d 410, 414-15 (Colo. App. 1993). But this does not
foreclose the possibility that racial animus nevertheless played a
role in the jury’s decision finding Robinson guilty of other serious
sex crimes, particularly when the evidence of guilt in this case was
not overwhelming. See People v. Estes, 2012 COA 41, ¶¶ 39, 42
(holding that prosecutorial misconduct in closing argument did not
warrant reversal because, among other things, overwhelming
evidence supported the guilty verdict).
¶ 32 We observe that when the jury acquitted Robinson of all of the
alleged completed sex offenses against A.M., the jury necessarily
rejected the most damaging portions of E.G.’s testimony — that she
observed Robinson penetrating A.M. We do not know why the jury
then convicted Robinson of attempted, not completed, sex offenses
against A.M. This disconnect does not provide comfort that the
jury’s verdict was completely free of racial bias.
15 ¶ 33 Notwithstanding the mitigating factors presented by the
Attorney General, we conclude that the prosecutor’s conduct
requires reversal for four reasons.
¶ 34 First, earlier this year, the United States Supreme Court again
instructed the lower courts that we must treat errors implicating
racial discrimination “with added precaution.” Pena-Rodriguez v.
Colorado, 580 U.S. ___, ___, 137 S. Ct. 855, 869 (2017). “[R]acial
bias implicates unique historical, constitutional, and institutional
concerns.” Id. at ___, 137 S. Ct. at 868 (emphasis added).
¶ 35 Second, we are mindful that racial bias operates on multiple
levels. The juror’s statements in Pena-Rodriquez typify overt racial
prejudice. But racial prejudice can be much more subtle and
equally prejudicial. See, e.g., State v. Kirk, 339 P.3d 1213, 1216
(Idaho Ct. App. 2014) (“An invocation of race by a prosecutor, even
if subtle and oblique, may be violative of due process or equal
protection.”); State v. Cabrera, 700 N.W.2d 469, 475 (Minn. 2005)
(“Bias often surfaces indirectly or inadvertently and can be difficult
to detect. . . . Affirming this conviction would undermine our strong
commitment to rooting out bias, no matter how subtle, indirect, or
veiled.”).
16 ¶ 36 Third, we also recognize, as have numerous scientists and
academics, that principles of primacy may cause statements and
arguments made early in a trial to have a disproportionately
influential weight. See, e.g., L. Timothy Perrin, From O.J. to
McVeigh: The Use of Argument in the Opening Statement, 48 Emory
L.J. 107, 124 (1999); see also John B. Mitchell, Why Should the
Prosecutor Get the Last Word?, 27 Am. J. Crim. L. 139, 157-58
(2000) (discussing primacy studies in the trial context, including
one that concluded that some eighty percent of jurors make up
their minds on civil liability after opening statement).
¶ 37 Finally, in view of the unique concerns attendant to a
prosecutor’s appeal to racial prejudice, we agree with the
Washington Supreme Court’s conclusion that a comment such as
the one at issue here “fundamentally undermines the principle of
equal justice and is so repugnant to the concept of an impartial trial
its very existence demands that appellate courts set appropriate
standards to deter such conduct.” Monday, 257 P.3d at 557-58.3
3 While it may be tempting to characterize this type of prosecutorial misconduct as structural error, we resist the temptation, partly because no court has found that even blatantly racially biased statements constitute structural error, but also because we simply
17 ¶ 38 Although under the circumstances presented we cannot know
with certainty what impact, if any, the prosecutor’s conduct
actually had on the jury, see Pena-Rodriguez, 580 U.S. at ___, 137
S. Ct. at 866; People v. Juarez, 271 P.3d 537, 544 (Colo. App. 2011);
see also CRE 606(b), the risk that Robinson did not receive a fair
trial by unbiased jurors simply is too great to ignore. It is the
responsibility of courts “to purge racial prejudice from the
administration of justice.” Pena-Rodriguez, 580 U.S. at ___, 137 S.
Ct. at 867. Only by reversing Robinson’s convictions and giving
him a new trial without racial taint can we discharge this
responsibility.
III. Evidence Regarding Robinson’s Infidelity
¶ 39 To provide guidance on retrial, Kaufman v. People, 202 P.3d
542, 546 (Colo. 2009), we briefly address Robinson’s argument that
the prosecutor engaged in misconduct when she implied that
Robinson was unfaithful to his girlfriend.
cannot discern where the line would be drawn between such structural error and other improper and prejudicial prosecutorial statements.
18 ¶ 40 As noted above, at the time of the alleged sexual assaults,
Robinson was in an intimate relationship with A.M.’s roommate.
Robinson was also living with still another woman at that time.
¶ 41 During direct examination of one of the investigating officers,
the prosecutor proved that Robinson sent a text message apology to
A.M.’s roommate after the alleged sexual assaults. The prosecutor
then attempted to ask the officer about Robinson’s relationship with
the woman with whom he lived. She asked, “Did you later learn
from [the woman] that she thought it was ―.” Before any answer
was given, Robinson objected, and the trial court sustained his
objection.
¶ 42 During closing, Robinson argued that his text message apology
was merely an admission that had acted improperly (but not
criminally) when he attempted to have consensual sex with A.M. at
a time when he was supposed to be with A.M.’s roommate.
¶ 43 In rebuttal closing, the prosecutor argued: “Vague,
speculative, imaginary. Mr. Robinson’s apologizing for trying to
cheat on [the roommate]. That is why is he apologizing? You heard
he lives with another woman.” Robinson objected, and the trial
court overruled his objection. The prosecutor went on to say,
19 He shares an apartment with [the woman]. He drives [her] car. And he’s coming over to [A.M.’s roommate’s] house at a quarter to 4:00 in the morning? He is not worried about what [her roommate] is thinking. He is [doing] exactly what he told you he was doing, getting some ass. And I am apologizing for using the crass words, but those were his words, not mine.
¶ 44 Robinson asserts that the prosecutor’s statements insinuated
that he was in an intimate relationship with and cheating on the
woman he lived with, and that this insinuation was irrelevant and
unfairly prejudicial.
¶ 45 The prosecutor never stated that Robinson was in an intimate
relationship with the woman he lived with because Robinson’s
timely objection prevented her from doing so. As for the reasons for
Robinson’s apology, “[p]rosecutors may comment on the evidence
admitted at trial and the reasonable inferences that can be drawn
therefrom.” People v. McMinn, 2013 COA 94, ¶ 61. The
prosecutor’s argument that Robinson’s text message to A.M.’s
roommate was an apology for sexually assaulting A.M., not merely
for requesting sex from A.M., was a fair response to Robinson’s
characterization of the text message apology. People v. Richardson,
58 P.3d 1039, 1046-47 (Colo. App. 2002).
20 ¶ 46 However, we agree that the nature of Robinson’s relationship
with the woman with whom he lived, and whether he might have
been unfaithful to her, was irrelevant. The woman had nothing
whatsoever to do with the charges in this case. The trial court
apparently recognized this because it sustained an objection to
such evidence during the testimony portion of the trial. The
prosecutor should not have insinuated that Robinson was being
unfaithful to the woman, especially after the trial court sustained
the objection. On retrial, the trial court, upon proper objection,
should limit testimony and argument to that logically related to
Robinson’s apology.
IV. Conclusion
¶ 47 The judgment of conviction is reversed, and the case is
remanded for a new trial.
JUDGE HARRIS concurs.
JUDGE FURMAN specially concurs.
21 JUDGE FURMAN, specially concurring.
¶ 48 Racial prejudice has no place in our criminal justice system.
Racial evidence or argument might have a place in proper context,
though. The question in this case is when can parties introduce
evidence or argument related to race without inviting racial
prejudice. I agree with the majority that the judgment should be
reversed and the case remanded with directions. I write separately,
however, because it is my hope that should the supreme court
review this case, it will give guidance on when, if ever, it is proper
for evidence or argument related to race to be presented to the jury.
¶ 49 Both sides seem to agree that some circumstances, such as
identification, evidence of race might be relevant and serve a
legitimate purpose. The prosecution contends that such a purpose
was present in this case, while Robinson contends that “there was
no need or legitimate reason for the prosecution to highlight Mr.
Robinson’s race.” I agree with Robinson.
I. Racial Evidence or Argument Can Be Prejudicial
¶ 50 Among the most vital precepts of American law are equal
protection and due process. Evidence or argument that improperly
injects race into a trial risks denying a defendant both. As Justice
22 Sotomayor recently noted, such evidence or argument is “an affront
to the Constitution’s guarantee of equal protection of the laws. And
by threatening to cultivate bias in the jury, it equally offends the
defendant’s right to an impartial jury.” Calhoun v. United States,
568 U.S. 1206, 1206 (2013) (Sotomayor, J., respecting denial of
certiorari).
¶ 51 The eradication of racial considerations from criminal
proceedings is one of the animating purposes of the Equal
Protection Clause of the Fourteenth Amendment. Miller v. North
Carolina, 583 F.2d 701, 707 (4th Cir. 1978). Our law demands that
people be punished for what they do, not who they are. Buck v.
Davis, 580 U.S. ___, ___, 137 S. Ct. 759, 778 (2017); Rose v.
Mitchell, 443 U.S. 545, 555 (1979) (“Discrimination on the basis of
race, odious in all aspects, is especially pernicious in the
administration of justice.”).
¶ 52 Regarding due process, the jury is a criminal defendant’s
fundamental “protection of life and liberty against race or color
prejudice.” McCleskey v. Kemp, 481 U.S. 279, 310 (1987) (quoting
Strauder v. West Virginia, 100 U.S. 303, 309 (1880)). The right to a
trial by a fair and impartial jury guaranteed by both the United
23 States Constitution and article II, sections 16 and 23, of the
Colorado Constitution implies a verdict free from the admission of
evidence or argument that arouses the prejudices of the jury.
Harris v. People, 888 P.2d 259, 263-64 (Colo. 1995).
¶ 53 Evidence or argument related to race might provoke prejudices
in the jury. Thus, a jury that has been misled by inadmissible
argument or evidence cannot be considered impartial. Id. at 264.
Regardless of whether the prosecutor’s appeal to prejudice was
subtle or unintended, we cannot ignore “that references to race not
intended to provoke prejudice may nevertheless do so.” Sheri Lynn
Johnson, Racial Imagery in Criminal Cases, 67 Tul. L. Rev. 1739,
1778 (1993).
¶ 54 But knowing the magnitude of the impact that evidence or
argument related to race could have on the jury is impossible. As
the United States Supreme Court recently explained, “the impact of
[race-related] evidence cannot be measured simply by how much air
time it received at trial or how many pages it occupies in the record.
Some toxins can be deadly in small doses.” Buck, 580 U.S. at ___,
137 S. Ct. at 777.
24 ¶ 55 In this case, the prosecutor’s remarks were particularly
troubling because they echoed our country’s history of prejudice
toward black men, particularly those accused of victimizing white
women. See Loving v. Virginia, 388 U.S. 1, 7 (1967) (noting the
State’s reliance on white supremacist doctrines to justify statutes
preventing interracial marriage); see also Miller, 583 F.2d at 708
(where the prosecutor argued that a white woman would never
consent to sexual relations with a black man).
¶ 56 The seemingly illogical verdict in this case is also troubling.
E.G.’s testimony represented a large portion of the evidence against
Robinson. Given that A.M. was unconscious at the time, E.G. was
the only eyewitness to Robinson’s acts against her and A.M. Yet,
the jury, by acquitting on the sexual assault charges and the
charges regarding E.G., apparently did not believe much of E.G.’s
testimony. It nonetheless found Robinson guilty of attempted
sexual assault (two counts) and unlawful sexual contact (two
counts) against A.M. This outcome begs the question — was this a
compromise verdict? And if so, was it poisoned by racial prejudice?
25 II. Racial Evidence or Argument Can Be Relevant
¶ 57 Even so, I understand the State’s position — evidence or
argument related to race is sometimes relevant, even necessary,
evidence. The State, quoting United States v. Doe, 903 F.2d 16, 25
(D.C. Cir. 1990), contends that “the impropriety of racially biased
comments only extends to ‘comments beyond the pale of legally
acceptable modes of proof,’” and that “[a]n unembellished reference
to evidence of race . . . poses no threat to purity of the trial.”
¶ 58 Giving the prosecutor the benefit of the doubt, Robinson’s skin
color, or rather the contrast between his and A.M.’s skin colors,
might have been relevant to bolster E.G.’s testimony. Perhaps this
explains why Robinson did not object and the district court judge
did not interrupt during opening statement. But, when E.G.
described how she was able to see that Robinson was penetrating
A.M., she made no mention of Robinson’s race, skin color, or any
contrast between them.
¶ 59 Then, for no proper purpose that I can identify, the prosecutor
directly asked E.G. about Robinson’s race and complexion. At that
point, any potential relevance of Robinson’s race had dissipated.
This was not an identity case. A.M. knew Robinson, and Robinson
26 admitted being there. And, E.G. did not point to Robinson’s race as
aiding her ability to view the act of penetration in any way.
¶ 60 Instead, the prosecutor’s questioning simply drew attention to
a characteristic that the Constitution generally commands the jury
to ignore. McFarland v. Smith, 611 F.2d 414, 417 (2d Cir. 1979);
see also McCleskey, 481 U.S. at 309 n.30 (noting the numerous
cases in which the United States Supreme Court has sought to
eradicate racial prejudice from our criminal justice system). Thus,
as the majority concluded, the prosecutor’s injection of race into the
trial was improper in this case.
¶ 61 Still, I recognize that there are cases where racial evidence or
argument is relevant. As noted by both parties, race may be
relevant where the prosecution has to prove the identity of the
perpetrator. Race would likely also be relevant to prove motive for a
particular type of hate crime. Yet, in what cases and to what extent
evidence or argument related to race is admissible as a general rule
remains unclear.
III. Supreme Court Should Give Guidance
¶ 62 My primary concern is a fair trial for both sides. Fairness to a
defendant means that his or her rights are protected. Most notably
27 here, the rights to due process and equal protection of the law are
essential. Due process necessarily includes a fair and impartial
jury. Fairness to the prosecution and the people of the State of
Colorado, on the other hand, requires that we not unduly burden
the State by unnecessarily excluding relevant evidence.
¶ 63 Our rules of evidence and procedure are designed to keep the
trial fair. They prevent poisoning the jury with prejudicial,
irrelevant, or unreliable information. The rules also give both sides
adequate notice to prepare their cases effectively.
¶ 64 Still, evidence or argument related to race is different. In a
recent case, Justice Kennedy noted that “[a]ll forms of improper
bias pose challenges to the trial process. But there is a sound basis
to treat racial bias with added precaution.” Pena-Rodriguez v.
Colorado, 580 U.S. ___, ___, 137 S. Ct. 855, 869 (2017). I agree that
added precaution is necessary to prevent racial prejudice from
entering a trial.
¶ 65 Thus, the question is when can parties introduce racial
evidence or argument without inviting racial prejudice. I agree with
the Court of Appeal of Louisiana, Second Circuit, which stated that
racial evidence or argument is improper and calls for a mistrial if it
28 is “not material and relevant and might create prejudice against the
defendant in the mind of the jury.” State v. Walker, 221 So. 3d 951,
966 (La. Ct. App. 2017); see also La. Code Crim. Proc. Ann. art. 770
(2017). Based on my review of the record, because the prosecutor’s
questions regarding Robinson’s race had no relevance to a disputed
issue at trial and might create undue prejudice against him in the
mind of the jury, I agree with the majority that the case should be
reversed and remanded for a new trial.
¶ 66 But, to provide the added precaution to which Justice
Kennedy alluded, I believe that addressing evidence or argument
related to race pretrial would be more appropriate. Parties should
give notice of their intent to introduce evidence or argument related
to race and should have to overcome a presumption that such
evidence is irrelevant. A pretrial screening process would provide
parties with clear guidelines of what is relevant and appropriate and
help ensure that evidence or argument related to race is only used
for a proper and limited purpose. Plus, parties’ objections would be
preserved, and the trial court’s findings would be clearly recorded
for appellate review.
29 ¶ 67 True, a witness might unexpectedly introduce racial
evidence or comments during direct or cross-examination. Should
this happen, I suggest the parties be afforded an opportunity
outside the jury’s presence to have the trial court determine what, if
any, additional racial evidence might have a proper and limited
purpose.
¶ 68 Our supreme court has drawn clear lines for other kinds
of prejudicial evidence or argument. See, e.g., CRE 404(b); People v.
Spoto, 795 P.2d 1314, 1319 (Colo. 1990) (stating that prior bad acts
are presumptively inadmissible unless prosecutor articulates logical
relevance independent of the forbidden propensity inference); see
also Wilson v. People, 743 P.2d 415, 420 (Colo. 1987) (a prosecutor
calling the defendant and defense witnesses liars is plain error). It
is my hope that, should the supreme court review this case, it will
draw an equally clear line for racial evidence or argument in
criminal cases.