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ADVANCE SHEET HEADNOTE December 9, 2019
2019 CO 102
No. 17SC823, People v. Robinson—Criminal Trials—Opening Statements— Prosecutorial Misconduct—Evidence.
This case requires the supreme court to decide whether a court of appeals
division erred in concluding that a prosecutor’s race-based comments in her
opening statement constituted reversible plain error. The supreme court
concludes that the prosecutor’s comments on the contrasting skin tones of the
defendant and the victim were improper because any probative value that these
comments might have had was substantially outweighed by the danger of unfair
prejudice to the defendant. The court further concludes, however, that, on the
facts presented here, the prosecutor’s comments did not rise to the level of
reversible plain error because even if obvious (an issue that the court need not
decide), the error did not so undermine the fundamental fairness of the
defendant’s trial as to cast serious doubt on the reliability of his judgment of
conviction. Accordingly, the supreme court reverses the division’s judgment and
remands for further proceedings consistent with this opinion. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203
Supreme Court Case No. 17SC823 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 14CA1795
Petitioner:
The People of the State of Colorado,
v.
Respondent:
Marcus Lee Robinson.
Judgment Reversed en banc December 9, 2019
Attorneys for Petitioner: Daniel May, District Attorney, Fourth Judicial District Doyle Baker, Senior Deputy District Attorney, Fourth Judicial District Jennifer Darby, Deputy District Attorney, Fourth Judicial District Colorado Springs, Colorado
Attorneys for Respondent: Megan A. Ring, Colorado State Public Defender Lynn Noesner, Deputy State Public Defender Denver, Colorado
JUSTICE GABRIEL delivered the Opinion of the Court. ¶1 This case requires us to decide whether a court of appeals division erred in
concluding that a prosecutor’s race-based comments in her opening statement
constituted reversible plain error.1 We conclude that the prosecutor’s comments
on the contrasting skin tones of defendant Marcus Lee Robinson and the victim
were improper because any probative value that these comments might have had
was substantially outweighed by the danger of unfair prejudice to Robinson. We
further conclude, however, that, on the facts presented here, the prosecutor’s
comments did not rise to the level of reversible plain error because even if obvious
(an issue that we need not decide), the error did not so undermine the fundamental
fairness of Robinson’s trial as to cast serious doubt on the reliability of his
judgment of conviction.
¶2 Accordingly, we reverse the division’s judgment and remand for further
proceedings consistent with this opinion.
1 We granted certiorari to review the following issue: Whether the court of appeals erred in concluding that the prosecutor in a sexual assault trial committed plain error when she commented in opening statement on a race-based fact (the contrasting skin tones of the accused and the alleged victim) that was relevant to both an element of the crime charged and a material fact in dispute.
2 I. Facts and Procedural History
¶3 A.M. and her roommate hosted a gathering for some co-workers in their
apartment. A.M. drank heavily and eventually passed out on a couch. E.G., one
of the guests at the party, fell ill after the alcohol that she drank reacted with a new
medication that she was taking, and she fell asleep at the other end of the same
couch on which A.M. had passed out.
¶4 Robinson arrived at the apartment later in the evening, when things were
winding down. According to E.G., she woke to Robinson standing over her with
his exposed penis in her face. She told him to get away from her, and he did. E.G.
fell back asleep but subsequently woke to some motion on the couch. She then
saw Robinson touching a still-unconscious A.M.’s breasts and leg. E.G. yelled at
Robinson to leave A.M. alone and to get off of her, and he left the room. E.G. fell
asleep again, but she claims to have been awakened a third time, this time by a
“sexual motion, like a grinding.” She allegedly saw Robinson vaginally
penetrating the still-incapacitated A.M. E.G. screamed at Robinson, and after he
left the apartment, she called 911 to report the sexual assault. Medical personnel
arrived and attended to A.M., whom they found unconscious and with her
leggings and underwear around her ankles. Ultimately, the medical personnel
were able to rouse and treat her.
3 ¶5 Robinson was arrested, and he admitted to the police that his initial
intentions were to try to get A.M. to have sex with him. He, however, denied any
sexual contact with her, claiming that she had said “no” several times and that he
understood that “when you hear too many nos, that means no.” Robinson also
denied any sexual contact with E.G.
¶6 The People subsequently charged Robinson with multiple counts arising
from the foregoing incidents. 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). People v. Robinson,
2017 COA 128M, ¶ 8, __ P.3d __. 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). Id.
¶7 The case proceeded to trial, and during voir dire, defense counsel, who was
apparently sensitive to the underlying racial issues in this case (Robinson is
African American, and A.M. is white), inquired of the prospective jurors whether
there was anything about the difference in the parties’ races that made anyone
uncomfortable. No one indicated any concern. Counsel then asked several of the
prospective jurors whether they would be comfortable bringing any improper
discussion of race in the jury room to the attention of the court. These jurors said
4 that they would, and one of them noted that he understood that he could not allow
racial considerations to influence him improperly.
¶8 Thereafter, during the prosecutor’s opening statement, she described certain
testimony that the jury purportedly would hear, stating:
You’re going to hear that [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. [E.G.] looks over and she can see a dark penis going into a white body. That’s how graphic she could see [sic].
Defense counsel did not object to these comments, and the trial court did not
intervene sua sponte.
¶9 Later that day, E.G. took the stand and testified regarding her
above-described allegations, including that when the medical personnel arrived,
they found A.M. unconscious and with her leggings and underwear around her
ankles (the prosecutor also introduced into evidence a photograph showing the
condition in which the medical personnel had found A.M.). As pertinent here,
after E.G. noted that A.M. was naked from the waist down, the prosecutor asked
E.G. how she could see that in the dark room. E.G. responded, “[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.” The prosecutor then asked E.G. what was going on at that point,
and E.G. responded, “He was inside of her. He was having sex with her.”
Notwithstanding the fact that the prosecutor had thus presented evidence of
5 penetration without any reference to Robinson’s race, the prosecutor proceeded to
ask E.G. about Robinson’s race and complexion. In response, E.G. described
Robinson’s complexion as “dark” and noted that he, too, was naked from the waist
down and that she could see his butt clearly. The prosecutor then asked whether
Robinson was “dark complected [sic]” at that location of his body as well, and E.G.
answered, “Yes.” In contrast to what the prosecutor suggested during her opening
statement, however, E.G. did not testify to seeing “a dark penis going into a white
body.”
¶10 The following day, the sexual assault nurse examiner who had examined
A.M. after the alleged assault testified that she found no injuries to A.M.’s
genitalia, although she stated that this did not mean that A.M. was not sexually
assaulted. In addition, a DNA analyst who had examined samples taken from
A.M., Robinson, and the scene of the alleged assault testified that the test that she
performed on the couch cushion did not detect any seminal fluid and that the
amount of male DNA found on A.M.’s external genitalia was too small to allow
her to draw any conclusions.
¶11 The jury ultimately acquitted Robinson of all of the charges related to E.G.
and of all of the sexual assault counts against A.M., which included all of the
counts that required proof of penetration. The jury convicted Robinson, however,
of two counts of the lesser included offense of attempted sexual assault and two
6 counts of unlawful sexual contact as to A.M. The trial court sentenced Robinson
under the Sex Offender Lifetime Supervision Act to an indeterminate term of four
years to life in the Department of Corrections, followed by ten years to life on
parole.
¶12 Robinson appealed, arguing, as pertinent here, that the prosecutor
committed misconduct amounting to plain error when she made the above-quoted
race-based comments during her opening statement. Robinson, ¶ 11. In a
published opinion, the division agreed and unanimously reversed Robinson’s
convictions, with Judge Furman specially concurring. Id. at ¶¶ 47–68.
¶13 The division began by determining that the prosecutor’s conduct was highly
improper. Id. at ¶¶ 13–25. In reaching this conclusion, the division observed that
the prosecutor “did not articulate to the jury any conceivably proper use of the
race-based statements” that she had made in her opening statement. Id. at ¶ 17.
The division further noted that E.G. never testified that Robinson’s darker
complexion allowed her to see the assault. Id. at ¶ 19. Rather, the only time that
E.G. testified about Robinson’s skin tone was in direct response to the prosecutor’s
questions about his race and complexion. Id. The division thus concluded that the
prosecutor’s comments were improper. Id. at ¶ 25.
¶14 Having so determined, the division proceeded to “the more difficult
question” of whether the error required reversal and concluded that it did. Id. at
7 ¶¶ 26–38. As pertinent here, the division deemed the error obvious because,
except in “extremely rare circumstances,” racially based statements are known to
be “totally off-limits” in all courts in the United States. Id. at ¶ 27. The division
further determined that this obvious error cast serious doubt on the reliability of
Robinson’s convictions because (1) the Supreme Court has made clear that errors
involving racial discrimination must be treated with added precaution, given that
racial bias implicates unique historical, constitutional, and institutional concerns;
(2) racial bias can be overt or more subtle, but overt and subtle biases are equally
prejudicial; (3) statements made early in a trial may carry disproportionate weight
with the jury; and (4) comments that appeal to racial prejudice fundamentally
undermine the principle of equal justice and therefore demand that an appellate
court set appropriate standards to deter such conduct. Id. at ¶¶ 34–37. The
division concluded, “Only by reversing Robinson’s convictions and giving him a
new trial without racial taint can we discharge this responsibility.” Id. at ¶ 38.
¶15 Judge Furman specially concurred. Id. at ¶¶ 48–68 (Furman, J., specially
concurring). He agreed that Robinson’s convictions should be reversed but wrote
separately to ask this court to provide guidance on when, if ever, it is proper for
evidence or argument related to race to be presented to a jury. Id. at ¶ 48. Judge
Furman discussed the equal protection and due process concerns attendant any
time racial considerations come into play in a criminal proceeding, but he
8 recognized that in some cases, racial evidence or argument may be relevant (e.g.,
when race is pertinent to proof of the perpetrator’s identity or of a defendant’s
motive for committing a particular type of hate crime). Id. at ¶¶ 51–52, 61.
¶16 The People petitioned this court to review the division’s opinion, and we
granted that petition.
II. Analysis
¶17 We begin by setting forth the appropriate analytical framework for a
prosecutorial misconduct claim and the applicable standard of review. Applying
this analytical framework, we consider whether the prosecutor’s race-based
comments were improper, and we conclude that they were because any probative
value that they might have had was substantially outweighed by the danger of
unfair prejudice to Robinson. Finally, we assess whether this error, which was
unpreserved, was plain, and we conclude, on the facts before us, that even if the
error could be deemed obvious (a matter that we need not decide), the error did
not substantially undermine the fundamental fairness of the trial so as to cast
serious doubt on the reliability of Robinson’s judgment of conviction.
A. Analytical Framework and Standard of Review
¶18 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 must
determine whether the prosecutor’s conduct was improper “based on the totality
9 of the circumstances.” Id. If we conclude that the conduct was improper, then we
must decide whether such actions warrant reversal according to the proper
standard of review. Id. Each step is analytically independent of the other. Id.
Thus, we may conclude that a prosecutor’s conduct was improper but nonetheless
uphold the trial court’s judgment because, for example, the error was harmless.
Id.
¶19 When, as here, a defendant did not object at trial to the asserted misconduct,
the plain error standard of review applies. People v. Miller, 113 P.3d 743, 745 (Colo.
2005). Plain error addresses error that was obvious and substantial and that so
undermined the fundamental fairness of the trial itself as to cast serious doubt on
the reliability of the judgment of conviction. Id. at 750. In the context of plain error
review of prosecutorial misconduct, we will only reverse when the misconduct
was “flagrantly, glaringly, or 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)); cf. People v. Constant, 645 P.2d 843, 847 (Colo. 1982) (noting that
prosecutorial misconduct in closing argument rarely is so egregious as to
constitute plain error).
B. The Race-Based Statements Were Improper
¶20 A prosecutor’s interest in a criminal prosecution is not in winning a case,
but in ensuring that justice is done. Berger v. United States, 295 U.S. 78, 88 (1935).
10 Accordingly, a prosecutor must refrain from using improper methods calculated
to produce a wrongful conviction. Harris v. People, 888 P.2d 259, 263 (Colo. 1995).
In particular, a prosecutor may not use arguments “calculated to inflame the
passions or prejudice of the jury” or arguments that tend to influence jurors to
reach a verdict based on preexisting biases rather than on the facts in evidence and
the reasonable inferences to be drawn from those facts. People v. Dunlap, 975 P.2d
723, 758 (Colo. 1999).
¶21 Although all appeals to improper biases pose challenges to the trial process,
the Supreme Court has observed that an appeal to racial bias should be treated
with “added precaution” because “racial bias implicates unique historical,
constitutional, and institutional concerns.” Peña-Rodriguez v. Colorado, 137 S. Ct.
855, 868–69 (2017).
¶22 Here, in her opening statement, the prosecutor noted the victim’s “pasty
white” skin tone, and she emphasized twice how Robinson is an African American
of “dark” complexion. The prosecutor then stated that the jury would hear
evidence that E.G. looked over and saw “a dark penis going into a white body,”
and she added, “That’s how graphic she could see.” Although the prosecutor’s
objective might have been to highlight a percipient witness’s ability to see what
the witness claimed to see, the prosecutor never directly explained the possible
11 relevance of these race-based statements to the jury, nor did E.G. ultimately testify
to the “graphic” image that the prosecutor painted for the jury.
¶23 Although the record here is insufficient to allow us to determine either what
prompted the prosecutor to make these statements (e.g., the record does not reveal
whether E.G. had made such statements prior to trial), or what the prosecutor
hoped to achieve by them, it is not difficult to discern that when a prosecutor
injects racial considerations into a trial, the risk of unfair prejudice rises
dramatically. Indeed, the fact that racial considerations were introduced here, in
the context of alleged sex crimes, made the risk of prejudice particularly acute,
given the history of racial prejudice in this country. See Miller v. North Carolina,
583 F.2d 701, 707 (4th Cir. 1978) (“Concern about fairness should be especially
acute where a prosecutor’s argument appeals to race prejudice in the context of a
sexual crime, for few forms of prejudice are so virulent.”). Although in limited
circumstances, the race of a defendant, victim, or witness may be relevant, when a
race-based argument “shifts its emphasis from evidence to emotion,” the
statement is improper. United States v. Doe, 903 F.2d 16, 25 (D.C. Cir. 1990). In our
view, even if the prosecutor’s statements here had some evidentiary basis (and the
record is insufficient to allow us to draw a conclusion in that regard), any
probative value of these statements was substantially outweighed by the risks of
12 unfair prejudice and the perception of an appeal to racial prejudice and
stereotypes.
¶24 For several reasons, we are not persuaded otherwise by the People’s
assertion that the prosecutor’s comments were proper because evidence of
penetration was relevant and material to the prosecution’s case in chief and that
the prosecutor’s statements merely explained how E.G. was able to observe the
penetration in a darkened room.
¶25 First, at no time did the prosecutor directly explain that the contrast in skin
tones between Robinson and A.M. was relevant to the issue of penetration, to how
E.G. was able to see the penetration, or to any other evidentiary consideration.
Nor did E.G.’s testimony suggest that it was. Indeed, E.G. said nothing in her
testimony about Robinson’s race or the darkness of his skin until the prosecutor
inquired directly about those attributes (and the prosecutor did not ask about
Robinson’s race until after E.G. had testified that she saw Robinson inside of A.M.,
thereby making racial considerations irrelevant to the issue of penetration at that
point).
¶26 Second, even if the prosecutor’s race-based comments were premised on
inferences drawn from E.G.’s anticipated testimony, the probative value of those
13 comments was speculative at best and was substantially outweighed by the
danger of unfair prejudice to Robinson.2
¶27 For these reasons, we conclude that the prosecutor’s race-based statements
were unnecessary and therefore were improper.
C. The Error Was Not Plain
¶28 Having concluded that the prosecutor’s race-based statements were
erroneous, we next must decide whether the error was plain, which, as the division
below observed, poses a more difficult question. Determining whether the error
here was plain requires us to decide whether the error was obvious and substantial
and whether it so undermined the fundamental fairness of Robinson’s trial so as
to cast serious doubt on the reliability of his judgment of conviction. People v.
Miller, 113 P.3d at 750. We address these issues in turn.
¶29 The question of whether the impropriety of the prosecutor’s conduct was
obvious presents a close question. On the one hand, an error is obvious when,
among other things, the challenged action contravenes a clear statutory command,
a well-settled legal principle, or Colorado case law. Scott v. People, 2017 CO 16,
2 We note that in a case in which racial considerations might be relevant and in which the relevance of such considerations is or is likely to be disputed, the better practice would be for the parties to bring the issue to the court’s attention before trial to avoid the unwarranted and potentially prejudicial injection of race into the case.
14 ¶ 16, 390 P.3d 832, 835. Here, the prosecutor’s repeated references to race arguably
violated a settled legal principle because courts have routinely found error when
a prosecutor has referred to the defendant’s race when race was not a legitimate
area of inquiry and when the prosecutor repeatedly emphasized the race of those
involved. See, e.g., State v. Rogan, 984 P.2d 1231, 1240 (Haw. 1999) (“In this case,
the deputy prosecutor’s reference to Rogan as a ‘black, military guy’ was clearly
inflammatory inasmuch as it raised the issue of and cast attention to Rogan’s race.
Because there was no dispute as to the identity of the perpetrator in this case,
Rogan’s race was not a legitimate area of inquiry inasmuch as race was irrelevant
to the determination of whether Rogan committed the acts charged.”); Carter v.
State, 241 P.3d 476, 480 (Wyo. 2010) (noting that the prosecutor’s repeated use of
the terms “white guy” and “black guy” met the first prong of the plain error
analysis).
¶30 On the other hand, “during opening statement, a prosecutor may refer to
evidence that subsequently will be adduced at trial and draw inferences from that
evidence.” People v. Estes, 2012 COA 41, ¶ 23, 296 P.3d 189, 194. Here, the
prosecutor’s race-based comments were made in the context of suggesting to the
jury what E.G. was apparently expected to say in her testimony. This testimony
was at least possibly relevant to two evidentiary points, namely, (1) whether
Robinson’s alleged assault on A.M. included penetration and (2) how E.G. was
15 able to see such penetration in a darkened room. In these circumstances, we can
discern a reasonable argument that the impropriety of the prosecutor’s comments
may not have been so obvious as to require the trial court to intervene sua sponte.
Indeed, such an argument has particular force here, where the comments were
made in opening statement and defense counsel did not object, notwithstanding
the fact that during voir dire, she had made clear that she was sensitive to the
issues of race presented in this case. See People v. Rodriguez, 794 P.2d 965, 972 (Colo.
1990) (noting that the lack of a defense objection to asserted prosecutorial
misconduct might indicate defense counsel’s belief that the live argument, despite
its appearance in a cold record, was not overly damaging).
¶31 We need not decide, however, whether the error at issue was obvious
because even assuming, for the sake of argument, that it was, on the facts of this
case, we cannot say that the error so undermined the fundamental fairness of
Robinson’s trial so as to cast serious doubt on the reliability of his judgment of
conviction. We reach this conclusion for several reasons.
¶32 First, the trial judge instructed the jurors that they were not to allow bias or
prejudice of any kind to influence their decisions in this case, and absent evidence
to the contrary, we presume that the jury followed this instruction. Bondsteel v.
People, 2019 CO 26, ¶ 62, 439 P.3d 847, 856.
16 ¶33 Second, we note that the jury acquitted Robinson of every charge to which
the improper statements were directed (i.e., every charge requiring proof of
penetration). This indicates that the jury rejected the pertinent portions of E.G.’s
testimony (and the prosecutor’s assertions), and it tends to show that the jurors
heeded the court’s instruction not to allow bias or prejudice to influence their
decisions. In addition, the fact that the jury acquitted Robinson of every charge to
which the improper statements were directed tends to show that the jury could
fairly and properly weigh and evaluate the evidence, notwithstanding the
prosecutor’s race-based comments. See People v. Braley, 879 P.2d 410, 414–15 (Colo.
App. 1993) (noting that the fact that the jury acquitted the defendant of the charges
for which allegedly improper evidence was offered indicates that the jury could
fairly and properly weigh that evidence).
¶34 Accordingly, we conclude that the prosecutor’s unnecessary and therefore
improper race-based comments did not rise to the level of plain error.
III. Conclusion
¶35 The prosecutor’s race-based comments in her opening statement were
improper because any probative value that they might have had was substantially
outweighed by the danger of unfair prejudice to Robinson. We caution parties in
future cases against injecting race into a case in which it is not a legitimate issue,
and we reiterate our view that in a case in which racial considerations might be
17 relevant and in which the relevance of such considerations is or is likely to be
disputed, the better practice would be for the parties to bring the issue to the
court’s attention before trial to avoid the unwarranted and potentially prejudicial
injection of race into the case. On the facts presented here, however, where, among
other things, Robinson was acquitted of every count to which the prosecutor’s
improper comments were directed, we cannot say that those comments so
undermined the fundamental fairness of Robinson’s trial as to cast serious doubt
on the reliability of his judgment of conviction.
¶36 Accordingly, we reverse the division’s judgment and remand this case for
further proceedings consistent with this opinion.