Adams County District Court No. 09CR2052 Honorable Francis C. Wasserman, Judge
The opinion of the court was delivered by: Chief Judge Davidson
Vogt*, J. concurs Rothenberg*, J., dissents
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2011.
¶1 Defendant, Jeremy Rashon Estes, appeals from the judgment entered on jury verdicts finding him guilty of felony menacing and assault in the third degree. We address, among other issues, the prosecutor's use in closing argument of an improper explanation of the presumption of innocence previously disapproved in People v. McBride, 228 P.3d 216, 223 (Colo. App. 2009),and People v. Villa, 240 P.3d 343, 356 (Colo. App. 2009).We affirm.
¶2 The prosecution presented the following evidence: A seven-year-old boy told his father that, while he had been riding his bicycle, a neighbor, Luciano Briones, hit him on the back as he rode by. Around midnight that night, defendant (the boy's cousin) went to Briones's home and banged repeatedly on the front door. Briones, who does not speak English, accompanied by his wife and two daughters, ages thirteen and six, came to the door. Defendant screamed at Briones and asked why he had hit his cousin. According to the thirteen-year-old's testimony, defendant was "angry and seemed kind of drunk."
¶3 With the thirteen-year-old translating, Briones apologized, explaining that it had been an accident. As defendant began to walk away, Briones's brother, Jose, who, with two coworkers, was coming home from work, pulled his van into the driveway. While Jose and his coworkers were still seated in the van, defendant changed course and headed back to Briones's front yard, claiming that Jose had tried to hit him with the van door. Jose got out of the van and stood between defendant and the fence in front of the property to stop defendant from entering. While insisting that he be allowed on the property, defendant punched Jose in the face. Briones pulled at defendant's shirt to get him to stop hitting Jose. Defendant stepped back, pulled out a gun, and pointed it at everyone present.
¶4 At Briones's direction, his daughter went inside and called 911. Defendant ran away, and, after a foot chase, the police found him in a neighbor's yard. He was charged with two counts of menacing and one count of third degree assault. A jury found him guilty of all charges. Defendant appeals.
II. Trial Court's Comments During Voir Dire
¶5 Initially, although we find no prejudicial error, we agree in part with defendant's objections, made for the first time on appeal, to the comments made by the trial court during voir dire.
A. What the Trial Court Said
¶6 Explaining to potential jurors the "difference between not guilty and innocent," the court said:
This defendant did something. I'm going to tell you that right now, he did something. We didn't just walk out to the bus stop this morning and find [defendant] sitting there waiting for a bus and say: Guess what . . . this is your lucky day.
Okay? Obviously, he did something.
But ladies and gentlemen . . . [y]our job is not to decide if the defendant did something.
Your job is to decide whether the prosecution's evidence in this case proves beyond a reasonable doubt to your satisfaction that the defendant committed the offenses he's charged with. So even if he did something else, you heard me read the charges that he threatened somebody with a gun and that he assaulted somebody . . . if the prosecution proves that at the same time he was speeding, he's not charged with speeding, you can't find him guilty of speeding . . . .
¶7 To explain that some acts, although completely legal, may lead to indictment or arrest, the court then offered a hypothetical in which a woman fills up her car at a gas station, pays at the pump with a credit card, and does not take a receipt. When the person at the next pump drives away without paying for gas, the sales clerk mistakenly reports the woman's license plate number to the police. She is unable to produce a receipt when stopped by the police, and thus ultimately ends up in court as a criminal defendant. The court thus reiterated that some act performed by defendant had led to his arrest and indictment, but that act may not have been illegal.
B. The Explanation Was Confusing
¶8 Apparently, the trial court used this explanation in criminal jury trials as a matter of course, and, although not resulting in reversal, these identical comments have been disapproved in several unpublished opinions of this court. See, e.g., People v. BonillaBarrera, (Colo. App. No. 09CA0462, Mar. 1, 2012) (not published pursuant to C.A.R. 35(f)) ("We do not condone the trial court's statement that defendant 'did something.'"); People v. Williams, (Colo. App. No. 09CA0906, Jan. 12, 2012) (not published pursuant to C.A.R. 35(f)) (similar); People v. Cruz-Avila, (Colo. App. No. 09CA1957, Dec. 8, 2011) (not published pursuant to C.A.R. 35(f)) (similar); People v. Harris, (Colo. App. No. 09CA1626, Nov.3, 2011) (not published pursuant to C.A.R. 35(f))(similar); People v. Edwards, (Colo. App. No. 08CA1764, Aug. 12, 2010) (not published pursuant to C.A.R. 35(f)) (similar).
¶9 Defendant raises the same concern here, arguing that these statements improperly suggested to the jury that an unlawful act had been performed and that defendant justifiably was suspected of committing it. He also points out that by stating, "[W]e didn't just walk out to the bus stop this morning . . ." (emphasis added), the court placed itself in the same position as the prosecutor, suggesting that it approved of defendant's arrest and charges, thus violating defendant's right to an impartial judge.
¶10 We agree in part. The court should have avoided any suggestion that defendant "did something." Although it explained that defendant may have done nothing illegal, its prior statements were confusing and could have suggested to prospective jurors that the court believed the suspicion against defendant, and thus, the charges leveled by the prosecution were warranted. This confusion was compounded by the court's use of "we," which improperly aligned the court with the prosecution, implying that it found the evidence against defendant sufficient to justify his standing trial. See People v. Coria, 937 P.2d 386, 391 (Colo. 1997) (trial judge has wide discretion in conducting trial, but "must exercise restraint over his or her conduct and statements to maintain an impartial forum").
¶11 We understand that, by these comments, the court was attempting to dispel any assumption potential jurors might hold that defendant would not have been arrested and brought to trial if he had not done something illegal. Nonetheless, any suggestion that defendant had done something to result in his standing trial risked inviting the jurors to assume that defendant had a bad character or to discard the possibility that he may have been arrested and charged through mistake or inadvertence.
C. No Substantial Prejudice
¶12 However, we do not agree with defendant's contentions that the comments either lessened the prosecution's burden of proof or refuted the presumption of innocence. See People v. Martinez, 224 P.3d 1026, 1030 (Colo. App. 2009) ("[C]asual remarks by the trial court . . . do not constitute reversible error unless they reflect adversely upon the defendant or upon the issue of his or her guilt or innocence."), aff'd, 244 P.3d 135 (Colo. 2010). Taken in context, these comments explained how a person might end up in court despite having done nothing illegal. Moreover, the risk of prejudice here was mitigated by the court's written jury instructions and other statements correctly explaining the applicable burdens and presumptions, and we presume that the jury followed the court's instructions. See People v. Lucas, 232 P.3d 155, 163 (Colo. App. 2009). Thus, although we disapprove the court's explanation as confusing, it does not constitute reversible error.
III. No Evidentiary Error
¶13 We review a trial court's evidentiary rulings for an abuse of discretion. People v. Welsh, 80 P.3d 296, 304 (Colo. 2003).
¶14 The gun defendant pointed at Briones and his family was never found. A police officer who investigated the case testified, over defendant's objection, that when the police search for a missing gun, they find it in less than ten percent of cases. At trial, defendant unsuccessfully challenged the admission of this testimony as irrelevant. We perceive no abuse of discretion.
¶15 "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." CRE 401; see People v. Jimenez, 217 P.3d 841, 866 (Colo. App. 2008) (the question is whether "there is a logical relation between the proffered testimony and the factual issues involved in the case") (quoting People v. Ramirez, 155 P.3d 371, 379 (Colo. 2007)).
¶16 In her opening statement, defense counsel told the jury, "[T]he evidence that you will hear in this case will not show that [defendant] ever had a gun." And, while cross-examining the police officer, she asked, "[N]o gun was ever found, is that right?" The officer replied, "That's correct."
¶17 On redirect, the prosecutor asked, "In your experience as an officer, what's the percentage of cases that you have in which a weapon is searched for, looked for, and that that gun is actually found . . . ?" After the court overruled defendant's objection, the officer answered, "[W]e find the gun or somebody has turned it in, probably below 10 percent."
¶18 Defendant argues that although evidence showing that he had possessed a gun was relevant, whether police typically recover weapons for which they search was not. We disagree. In his cross-examination, defendant implied that the failure to recover a gun decreased the probability that he had possessed one at all. Thus, evidence that the police rarely recover a missing gun in cases in which one is reported was offered properly to rebut this inference. See People v. Dunlap, 124 P.3d 780, 799 (Colo. App. 2004) ("When the defense opens the door to a topic, the prosecution has a right to explain or rebut any adverse inferences that might have resulted from the questions.").
IV. Three Allegations of Prosecutorial Misconduct
¶19 Defendant raises three allegations of prosecutorial misconduct. He did not object to any of the statements that he now challenges on appeal. Therefore, we review each of his contentions for plain error. People v. Hogan, 114 P.3d 42, 56 (Colo. App. 2004); see Crim. P. 52(b). Plain error is error that is "obvious and substantial," and "so undermine[s] the fundamental fairness of the trial itself . . . as to cast serious doubt on the reliability of the judgment of conviction." People v. Miller, 113 P.3d 743, 750 (Colo. 2005) (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo. 2003)). Prosecutorial misconduct rarely constitutes plain error. See McBride, 228 P.3d at 221; People v. Walters, 148 P.3d 331, 335 (Colo. App. 2006) (citing People v. Constant, 645 P.2d 843, 847 (Colo. 1982)).
¶20 We disagree with defendant's contentions that the prosecutor's comment during opening statement concerning defendant's statement to the police, and the comment during closing argument concerning self-defense constituted error. And although we agree with defendant that the statement concerning the presumption of innocence amounted to error that was obvious and substantial, we cannot say that our confidence in the reliability of the verdict is ...