22CA0491 Peo v Toney 10-17-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0491 Ouray County District Court No. 19CR15 Honorable D. Cory Jackson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Randy Alan Toney,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE JOHNSON Fox and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 17, 2024
Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Randy Alan Toney (Toney), appeals the judgment of
conviction entered on jury verdicts finding him guilty of four counts
of stalking.
¶2 On appeal, Toney contends that (1) the district court erred by
declining to give his tendered jury instruction; (2) the district court
violated his constitutional rights to be present and to have counsel
at a critical stage of the proceedings; and (3) the prosecutor
committed misconduct in her opening statement and closing
argument. We reject all his contentions and, therefore, affirm his
judgment of conviction.
I. Background
¶3 Toney and the victim, R.E., worked together and dated in high
school but had lost touch until they reconnected through Facebook
in 2016. After reconnecting, they communicated sporadically by
phone and through Facebook from 2016-2019. R.E. eventually
restricted Toney’s access to her Facebook profile after her friends
suggested that Toney was kind of “obsessed” with her and he “was
taking everything [she posted] as a direct message to him.”
¶4 In 2019, R.E. moved to Ouray, Colorado. In February 2019,
Toney texted R.E. that he was driving from Kansas to visit her. At
1 trial, R.E. stated that, while she had not asked him to come, she
told him she “thought it would be healing for him to come up here
and see the stars from up in the mountains.” When Toney arrived,
he and R.E. went to an overlook where they talked for a while. The
next day, she went to his hotel room and he tried, but she did not
allow him, to kiss her. Toney returned to Kansas.
¶5 Over the next few months, Toney began repeatedly calling and
texting her, saying things of a sexual nature and demanding to
know where she was. She told him to stop and eventually blocked
him from her phone. He then began sending her letters and
packages in the mail. She only responded to one of Toney’s letters,
returning a $500 money order that he had mailed to her.
¶6 After continued, unwelcome contact and an uninvited visit to
her home, R.E. reported Toney’s actions to the police. Toney was
arrested and charged with four counts of stalking.1 Toney waived
his right to counsel and represented himself with advisory counsel.
1 Toney was charged with one count of stalking under section 18-3-
602(1)(a), C.R.S. 2024 (credible threat and conduct), two counts of stalking under section 18-3-602(1)(b) (credible threat and repeated communication), and one count of stalking under section 18-3- 602(1)(c) (emotional distress).
2 ¶7 At trial, R.E. described Toney’s continued and repeated
pattern of threatening communications. Toney testified in his
defense, providing an account of their long relationship, including
messages and communications between them, to support that he
had no way of knowing his contact and presence was unwanted by
her.
¶8 The jury found Toney guilty as charged. The district court
sentenced Toney to two years in community corrections.
II. Jury Instructions
¶9 Toney contends that the district court reversibly erred by not
providing his tendered instruction telling jurors that they should
vote their conscience. We disagree.
A. Standard of Review and Applicable Law
¶ 10 We review de novo whether the instructions accurately
informed the jury of the governing law. Riley v. People, 266 P.3d
1089, 1092 (Colo. 2011). But a district court “has substantial
discretion to formulate instructions if they are correct statements of
the law and adequately cover the issues presented.” People v.
Garcia, 2021 COA 80, ¶ 9, aff’d, 2023 CO 30. Therefore, we review
for abuse of discretion a district court’s decision “to give, or not to
3 give, a particular jury instruction.” Id. A district court abuses its
discretion if “its decision was manifestly arbitrary, unreasonable, or
unfair, or was based on an erroneous understanding of the law.”
Id.
¶ 11 A district court may refuse to give a jury instruction when the
contents of the proposed instruction “are embodied in other
instructions given by [the court].” Riley, 266 P.3d at 1093. “We
consider all of the instructions given by the trial court together to
determine whether they properly informed the jury.” Id.; see also
People v. Trujillo, 83 P.3d 642, 645-46 (Colo. 2004); Lybarger v.
People, 807 P.2d 570, 582 (Colo. 1991) (“The propriety of a
particular jury instruction should be viewed in the context of the
total instructions.”).
B. Analysis
¶ 12 Toney’s requested instruction said, “A verdict must be
unanimous but it is not required that a verdict is reached, and
[jurors] may vote their conscience.” Although the district court
acknowledged Toney’s point, it did not want to deviate from the
pattern jury instructions, indicating that if the jury later
4 demonstrated disagreement, the court could further instruct the
jury at that time.
¶ 13 We reject, for three reasons, Toney’s contention that the
district court abused its discretion when it declined to give his
tendered instruction.
¶ 14 First, Toney’s instruction was akin to a modified-Allen
instruction, which is “a supplemental jury instruction designed to
encourage, but not coerce, a deadlocked jury into reaching a
unanimous verdict.” Fain v. People, 2014 CO 69, ¶ 2; see also Allen
v. People, 660 P.2d 896 (Colo. 1983). In such an instance, the jury
is instructed that “each juror should decide the case for himself or
herself” and “they should not surrender their honest convictions
solely because of others’ opinions or to return a verdict.” Fain, ¶ 2.
¶ 15 Typically, modified-Allen instructions are given to a potentially
deadlocked jury after initial deliberations. Id. Toney has not cited,
nor are we aware of, any case law that requires the district court to
instruct jurors to vote their individual conscience before a jury
begins deliberations. And even when there is a potential deadlock,
the district court has discretion whether to give a modified-Allen
5 instruction given the circumstances. Id. at ¶ 4; see Gibbons v.
People, 2014 CO 67, ¶ 1; see also COLJI-Crim. E:18 (2023).
¶ 16 Indeed, the district court here considered the potential later
need for a modified-Allen instruction. The district court stated it
will “become abundantly clear if the jury gets to a point where . . .
they disagree.” It continued, “And there are additional instructions
if necessary that the jury can be instructed with about how to
resolve that situation. So I don’t think that would deviate from the
pattern instructions on unanimity . . . .”
¶ 17 Second, Toney’s requested instruction was already
encompassed in other instructions given to the jury. Specifically,
the court instructed the jury that for each count, “if you find from
the evidence the prosecution has failed to prove any one or more of
the crimes beyond a reasonable doubt, you should find the
defendant not guilty of that crime.” Although Toney’s words did not
mirror the instruction, it included his requested concept. Riley,
266 P.3d at 1092-93.
¶ 18 Third and finally, if given before any deliberations had
occurred, the instruction could potentially have confused the jury
by hinting at a jury’s inherent power of jury nullification. “Jury
6 nullification is a jury’s ‘knowing and deliberate rejection of the
evidence or refusal to apply the law because the result dictated by
law is contrary to [each] juror’s sense of justice, morality, or
fairness.’” People v. Scott, 2021 COA 71, ¶ 13 (quoting People v.
Waller, 2016 COA 115, ¶ 57). It “occurs when a jury acquits a
defendant even though the members of the jury believe the
defendant is guilty.” Id.; see also People v. Munsey, 232 P.3d 113,
119 (Colo. App. 2009) (In pursuit of a unanimous verdict, a district
court “may not give an instruction that expressly or impliedly
coerces the jury to reach a verdict regardless of whether that would
require a juror to ‘surrender [his or her] conscientious convictions
to secure an agreement.’” (quoting Lowe v. People, 488 P.2d 559,
561-62 (Colo. 1971))).
¶ 19 A defendant has no right to jury nullification, see Dorsey v.
People, 2023 CO 51, ¶ 30; Waller, ¶ 59, and courts should avoid
encouraging or promoting it, see Scott, ¶¶ 11-21. Toney’s proposed
language that jurors “may vote their conscience” suggested to the
jury that, in deciding his case, it could focus on other issues
besides the governing law and evidence presented at trial. See id. at
¶ 16.
7 ¶ 20 Accordingly, we discern no abuse of discretion.
III. Right to be Present and Right to Counsel
¶ 21 Toney next contends that the district court violated his
constitutional rights to be present and to be represented by counsel
at the pretrial readiness conference. We disagree.
A. Additional Facts
¶ 22 At the pretrial readiness conference, the prosecutor and
Toney’s advisory counsel were present, but Toney was not. The
prosecutor had mistakenly sent a writ to a jail in which Toney was
not in custody.
¶ 23 The district court proceeded with the conference, noting, “Let’s
see if we can make just a little bit of progress” on some of the
“outstanding issues” before trial. The court confirmed that the
prosecutor had jury instructions prepared. Advisory counsel raised
a possible scheduling conflict with the trial and requested a
continuance, which the court denied because Toney was not
present. The trial proceeded on the scheduled date.
¶ 24 Before jury selection, the court indicated that jury instructions
would be discussed thoroughly later in the proceedings, there were
issues about a witness testifying on behalf of Toney and exhibits
8 proffered by the prosecution, and Toney raised questions about
whether he would testify.
¶ 25 After the presentation of evidence, Toney moved to dismiss the
charges “based on a violation of due process” because “the pretrial
readiness conference was held without [Toney]. And the dates that
were set for trial were changed without notice to him.” The court
asked for authority supporting Toney’s argument and what
prejudice he suffered due to his absence. After some back and forth
between Toney and the court, the court denied his request to
dismiss the charges, finding that Toney had not shown any
prejudice.
B. Standard of Review
¶ 26 We review de novo whether a defendant’s constitutional right
to be present at all critical stages of a prosecution has been
violated. People v. Janis, 2018 CO 89, ¶ 14; People v. Hernandez,
2019 COA 111, ¶ 10. We likewise review de novo whether a
defendant’s constitutional right to counsel has been violated.
People v. Bergerud, 223 P.3d 686, 693 (Colo. 2010).
9 C. Right to be Present
¶ 27 Toney contends that the pretrial readiness conference was a
critical stage of the prosecution for which his presence was
necessary to defend against the charges. We disagree.
¶ 28 A criminal defendant has a right to be present at all critical
stages of the prosecution. U.S. Const. amends. VI, XIV; Colo.
Const. art. II, § 16; People v. Guzman-Rincon, 2015 COA 166M,
¶ 31. A criminal defendant also has a right to the assistance of
counsel at each critical stage. People v. Wright, 2021 COA 106,
¶ 36. The purpose of these rights is to secure the defendant a full
and fair opportunity to be heard. See id. at ¶ 37; Guzman-Rincon,
¶ 31.
¶ 29 A critical stage of the prosecution occurs “whenever [the
defendant’s] presence has a reasonably substantial relation to the
fullness of [his] opportunity to defend against the charges.”
Guzman-Rincon, ¶ 31 (quoting People v. Payne, 2014 COA 81, ¶ 11).
This right to be present, however, is not absolute, as it is not
guaranteed “when presence [of the defendant] would be useless, or
the benefit but a shadow.” Luu v. People, 841 P.2d 271, 275 (Colo.
1992) (quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). If a
10 proceeding is a mere formality or for finalizing a ruling where
findings were made previously when the defendant was present, the
defendant has no such right to be present. Id.
¶ 30 Assuming without deciding that a pretrial readiness
conference generally is a critical stage of the criminal proceeding,
we discern on this record that the benefit of Toney’s presence at the
pretrial readiness conference in this case was “but a shadow.”2 Id.
(quoting Stincer, 482 U.S. at 745); see also People v. Isom, 140 P.3d
100, 104 (Colo. App. 2005) (“However, due process does not require
the defendant’s presence when it would be useless or only slightly
beneficial.”). We reach this conclusion for three reasons.
¶ 31 First, in recognizing Toney’s absence, the district court said
that it wanted to make “just a little bit of progress” on some issues,
but it “d[id not] want to go too much further without Mr. Toney
2 Cases identifying a critical stage of the prosecution include People
v. Wingfield, 2014 COA 173, ¶ 20 (competency hearing); People v. Cardenas, 2015 COA 94M, ¶ 24 (hearing on counsel’s motion to withdraw); and People v. Hernandez, 2019 COA 111, ¶ 27 (imposition of restitution). Cases holding that a proceeding is not a critical stage of the prosecution include People v. Wardell, 2020 COA 47, ¶ 12 (a Crim. P. 35(c) hearing); People v. Wright, 2021 COA 106, ¶ 45 (a court’s ex parte communications with the jury); and People v. Isom, 140 P.3d 100, 104 (Colo. App. 2005) (jury’s review of a videotape of the victim’s forensic interview).
11 here.” For example, although the court asked the prosecutor about
the jury instructions, none were discussed in depth; instead, the
court was simply confirming that the “filed instructions were still
the proposed” ones. And when advisory counsel informed the court
of a personal matter that might interfere with the morning of the
first day of trial, the district court said, “I can’t address changing
trial dates without Mr. Toney here . . . .” When the court concluded
the hearing, it said it “would discuss the trial in more detail” on the
morning of the trial.
¶ 32 Second, contrary to Toney’s contention, the court actually
addressed the issues he asserts he would have raised, had he
attended the pretrial conference, on the first day of trial, when
Toney was present. He contends that he would have requested to
bifurcate the charges and he would have opposed a continuance
because he “intended to exercise his right to a speedy resolution of
the case.” He relies on Key v. People, 865 P.2d 822 (Colo. 1994), to
support that the pretrial readiness conference was “critical” because
there existed “more than a ‘minimal risk’ that” his or counsel’s
absence “might impair [his] right to a fair trial.” Id. at 825 (quoting
Gilbert v. California, 388 U.S. 263, 267 (1967)).
12 ¶ 33 Here, though, there was minimal risk of the court violating
Toney’s rights because no substantive rulings were made at that
hearing. And the court noted in its ruling denying dismissal that
“the issues that I typically would address at a pretrial conference”
were “addressed on the morning of trial concerning issues like jury
selection and so forth.” And Key is factually distinguishable from
this case. Specifically, there existed in that case more than a
“minimal risk” of violating the defendant’s right to a fair trial
because two jurors had made statements indicating they were
motivated to arrive at a verdict that afternoon; thus, the defendant
and his counsel should have been present for that discussion. Id.
No such substantive matters were discussed or presented at the
hearing in this case.
¶ 34 Third and finally, Toney did not show prejudice. The court
stated that Toney “could have filed” his motion to bifurcate even
though “he wasn’t present at that hearing.” And the court indicated
that “the motions deadline had long passed,” and it “had issued
orders on that previously” so Toney was aware of those deadlines.
Even so, the court reasoned that “there’s also no indication that a
motion to bifurcate would be successful.”
13 ¶ 35 And even though it was rejected by the court, Toney tendered
his jury instruction. His right to exercise a “speedy” resolution of
the case was protected because the court was unwilling to entertain
a continuance without Toney’s presence, and the trial had been
previously scheduled within the speedy trial deadline.
¶ 36 Accordingly, even assuming the pretrial conference was a
“critical stage” of the proceedings, Toney’s right to be present was
not violated.
D. Right to Counsel
¶ 37 Toney next contends that “he was not only excluded from the
pretrial readiness conference, but since he was acting as his own
counsel, he was also not represented at the proceeding,” and
therefore his Sixth Amendment right to counsel was violated. We
decline to address this issue because we agree with the Attorney
General that Toney waived this contention.
¶ 38 The Sixth Amendment of the United States Constitution
guarantees a defendant the right to counsel. U.S. Const. amend.
VI; see also Argersinger v. Hamlin, 407 U.S. 25, 30 (1972); People v.
Arguello, 772 P.2d 87, 92 (Colo. 1989). “The right to counsel exists
at every critical stage of a criminal proceeding.” Key, 865 P.2d at
14 825. As a corollary, the Sixth Amendment right to counsel likewise
includes the right to self-representation. Faretta v. California, 422
U.S. 806, 832 (1975); Arguello, 772 P.2d at 92; Colo. Const. art. II,
§ 16 (“In criminal prosecutions the accused shall have the right to
appear and defend in person . . . .”).
¶ 39 Because defendants who manage their own defense relinquish
“many of the traditional benefits associated with the right to
counsel,” Faretta, 422 U.S. at 835, the right to self-representation is
conditioned on the requirement that defendants demonstrate “an
intelligent understanding of the consequences of so doing,” Arguello,
772 P.2d at 92 (quoting People v. Moody, 630 P.2d 74, 77 (Colo.
1981)). Accordingly, before defendants may proceed pro se, they
must first waive their right to counsel. Id. at 93. A defendant’s
waiver of counsel is effective only if “(1) the defendant is competent
to waive the right and (2) the waiver is made voluntarily, knowingly,
and intelligently.” People v. Lavadie, 2021 CO 42, ¶ 26.
¶ 40 Toney does not raise on appeal that his waiver of counsel was
not voluntary, knowing, or intelligent. Thus, we conclude that he
waived any Sixth Amendment right to counsel at the pretrial
conference, and we do not review this contention any further.
15 People v. Rediger, 2018 CO 32, ¶ 40 (waiver is the “intentional
relinquishment of a known right or privilege” and “extinguishes
error, and therefore appellate review”).
IV. Prosecutorial Misconduct
¶ 41 Toney contends that the prosecutor engaged in misconduct
during opening statement and closing argument. We disagree.
¶ 42 We review an unpreserved claim of prosecutorial misconduct
for plain error. People v. Licona-Ortega, 2022 COA 27, ¶ 88. “To
constitute plain error, any prosecutorial misconduct must be
obvious and ‘must be flagrant or glaring or tremendously improper,
and it must so undermine the fundamental fairness of the trial as
to cast serious doubt on the reliability of the judgment of
conviction.’” Id. (quoting People v. Weinreich, 98 P.3d 920, 924
(Colo. App. 2004)).
¶ 43 We engage in a two-step analysis when reviewing prosecutorial
misconduct claims. Id. at ¶ 85. “First, we determine whether the
prosecutor’s conduct was improper based on the totality of the
circumstances.” Id. “Second, we decide whether the misconduct
warrants reversal under the applicable standard.” Id.
16 ¶ 44 A prosecutor has latitude to make arguments based on facts
in evidence and reasonable inferences drawn from those facts, as
well as to respond to the defendant’s arguments. People v. Maloy,
2020 COA 71, ¶ 61. We may consider “the language used, the
context of the statements, the strength of the evidence, whether the
prosecutor improperly appealed to the jurors’ sentiments, whether
the misconduct was repeated, and any other relevant factors” to
make our determination. People v. Liebler, 2022 COA 21, ¶ 51.
1. Opening Argument
¶ 45 In the opening statement, Toney takes issue with the
prosecutor directing the jury to “do its job” like law enforcement did
by investigating this case. The prosecutor made the following
remarks:
And you’ll hear testimony from law enforcement; they investigated this case, they spoke with [R.E.], they spoke with Mr. Turner, they spoke with — you know — everyone that was sort of involved in this case and [R.E.] kept all of the letters and all of the messages and everything.
And law enforcement; they did their job here. Okay. And that’s what I’m gonna be asking you to do, is do your job. When I get up here
17 after you see — you hear from [R.E.], you hear from Mr. Turner, you hear from law enforcement, you see the stack of letters and Facebook messages and everything, and use your common sense to find Mr. Toney guilty of stalking [R.E.]. Thank you.
(Emphasis added.)
¶ 46 Although it is a better practice to avoid telling the jury to “do
its job,” we reject that this constitutes misconduct under this
circumstance. Based on this record, Toney has not demonstrated
that the jury was “influenced to stray from its responsibility to be
fair and unbiased.” United States v. Young, 470 U.S. 1, 18 (1985).
¶ 47 Other jurisdictions have held imploring the jury to “do its job”
may be problematic if the comments are “linked to matters external
to the case or unconnected to the evidence” or where they are
“made in isolation, without reference to the evidence in the case.”
State v. Albino, 97 A.3d 478, 491 (Conn. 2014); see also Wilks v.
State, 49 P.3d 975, 987 (Wyo. 2002) (“Generally, an exhortation to
the jury to ‘do the right thing,’ to ‘do your job,’ or to ‘do your duty’ is
error if it impl[ies] that, in order to do so, it can only reach a certain
verdict, regardless of its duty to weigh the evidence and follow the
court’s instructions on the law.” (quoting Jackson v. State, 791 So.
18 2d 979, 1029 (Ala. Crim. App. 2000))); Young, 470 U.S. at 18
(imploring the jury to do its job by convicting the defendant has “no
place in the administration of criminal justice”).
¶ 48 But here, the prosecutor asked the jury to do its job in
connection with the evidence presented and gathered by
investigative personnel. Immediately following the “do your job”
statement, the prosecutor referenced the evidence she would
present to the jury, including victim, witness, and law enforcement
testimony, and letters and messages Toney sent R.E. Saying “do
your job” in this context was not inherently improper because the
argument highlighted only that the jury was to review evidence and
provide a result. See People v. Tran, 2020 COA 99, ¶ 68; see also
People v. Estes, 2012 COA 41, ¶¶ 39-42.
2. Closing Argument
¶ 49 During closing argument, Toney contends that the prosecutor
told the jury that Toney’s testimony did not “matter” by stating,
So again, I’m going to stand up here again after Mr. Toney gets to do his closing. And we’ll go through the facts again about what is important, what you need to focus on. And use your common sense. Okay. Everything that both [R.E.] and Mr. Toney testified about that happened in high school and couple visits
19 in between, okay. The only thing that matters about that is that they were in that — they knew each other back then. Okay. What Mr. Toney believed [R.E.] was the vibes she was putting out there or playing cat or mouse back then, and they were in this back-and-forth relationship since high school. That doesn’t matter here. Okay.
The main thing is that [R.E.] didn’t have a relationship with Mr. Toney. She told him that. They hadn’t talked. And he repeatedly makes these credible threats to her and contacts and comes over and does all these things. And it scared — seriously scared her. It scared the pants off of her, okay. That is why you should find Mr. Toney guilty of all four counts, because he did all four different, similar but different types of stalking. Thank you.
(Emphasis added.) Toney contends that the prosecutor’s
statements during closing argument misled the jurors and
misstated the law because she directed them not to consider
Toney’s subjective perceptions of the events leading up to his arrest.
¶ 50 But we do not read the prosecutor’s statement in that manner;
rather, the prosecutor juxtaposed their high school relationship
with the lack of a current relationship, asking the jury to focus on
the fact the parties did not have a current relationship for the
stalking charges. Cf. People v. Carter, 2015 COA 24M-2, ¶¶ 62, 72
20 (arguments that a defense is a “red herring” are not impermissible
so long as they are tied to the evidence); see also Wend v. People,
235 P.3d 1089, 1098 (Colo. 2010) (to determine whether reversal is
required, courts consider, among other things, the “strength of the
other evidence of guilt”); Harris v. People, 888 P.2d 259, 268 (Colo.
1995) (“[T]he sufficiency of the evidence presented at trial will be
considered on appeal when evaluating claims of prosecutorial
misconduct.”).
¶ 51 Thus, we discern no prosecutorial misconduct.
V. Conclusion
¶ 52 The judgment is affirmed.
JUDGE FOX and JUDGE SCHOCK concur.