April 9, 2015
The People of the State of Colorado, Plaintiff-Appellee,
Ramon Anthony Ortega, Defendant-Appellant
Paso County District Court No. 11CR2128. Honorable William B.
H. Coffman, Attorney General, Nicole D. Wiggins, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.
K. Wilson, Colorado State Public Defender, Audrey E. Bianco,
Deputy State Public Defender, Denver, Colorado, for
and Richman, JJ., concur.
[¶1] Everyone agrees that the Fifth
Amendment prohibits compelling a defendant's testimony,
but does not preclude evidence of the defendant's
physical characteristics. Still, where a trial court orders a
defendant to speak solely for voice identification by the
jury, does the procedure involve improper testimonial or
proper physical evidence? And even if the identification
involves only physical evidence, is the procedure
impermissibly suggestive because the jury hears only the
defendant's voice? These questions are unresolved in
[¶2] A jury convicted Ramon Anthony Ortega
of distributing less than five pounds of marijuana. He
appeals on two grounds. First, by forcing him to provide a
live voice exemplar to the jury, the trial court violated his
constitutional rights against self-incrimination and to due
process, and also admitted unfairly prejudicial evidence
contrary to CRE 403. Second, by playing to the jury's
concern about crime in the community during closing argument,
the prosecutor committed misconduct. Because we conclude that
the voice identification procedure was proper and the
prosecutor's comments were harmless error, we affirm.
The Voice Identification Procedure Was Proper
[¶3] This case began at a public park, where
an undercover police officer, who was wearing a wire, bought
marijuana from a man. After the officer asked whether anyone
sold cocaine at the park, the man replied: " Actually,
they were here earlier but they were drunk." The officer
then met with a detective, who had observed the transaction
and recorded their conversation from her undercover car
nearby, and described the man. The detective believed that
the man was Ortega and produced Ortega's photograph. The
officer agreed that the person in the photograph matched the
[¶4] Weeks later, Ortega was arrested. He
did not testify but defended on the basis of
misidentification and offered alibi evidence.
[¶5] At trial, the prosecutor moved to have
Ortega read either a " generic" statement or a
statement that was audible from the detective's recording
of the drug buy -- portions of which were garbled -- to
" allow the jury the opportunity to match up the
defendant's way of speaking with the person speaking on
that recording." Defense counsel objected, arguing that
the statement was " communicative in nature,"
" tantamount to a one-on-one show up
identification," and " far outweighed by any
probative value [sic]." The court overruled the
objection, concluding that the statement was not "
forced incrimination in violation of the Fifth
Amendment," and the " unfair danger of unfair
prejudice [wa]s minimal." It did not address the
one-on-one confrontation issue.
[¶6] Even so, the court offered to "
explain [to the jury that it was] ordering Mr. Ortega to say
th[e] sentence." But because defense counsel did not
want to " draw undue attention to an implication that
he d[id] not want to do it or he [wa]s fighting against doing
it," the court agreed to only ask the People if they had
any other witnesses. At the end of the prosecution's
case, Ortega stayed at defense counsel's table and read
the statement, " Actually, they were here earlier but
they were drunk." Earlier, the entire recording had been
played for the jury.
Preservation and Standard of Review
[¶7] Ortega preserved this issue by arguing
that the procedure violated the right against
self-incrimination, the right to due process, and CRE 403.
Although the Attorney General argues that defense counsel did
not preserve the due process argument, we conclude that her
comparison " to a one-on-one show up
identification" sufficiently " alert[ed] the trial
court to the particular issue." People v.
Cordova, 293 P.3d 114, 120 (Colo.App. 2011).
[¶8] We " defer to the trial
court's findings of historical fact," People v.
Rabes, 258 P.3d 937, 940 (Colo.App. 2010), but review de
novo Ortega's contention that the court " violated
his privilege against self-incrimination," People v.
McBride, 228 P.3d 216, 227 (Colo.App. 2009). Relying on
People v. Davis, 312 P.3d 193, 201 (Colo.App. 2010),
aff'd, 310 P.3d 58, 2013 CO 57, the Attorney
General urges us to review the Fifth Amendment claim for an
abuse of discretion. But because Davis, id. at 198,
involved a prosecutor's references during
cross-examination and closing arguments to defendant's
post-arrest silence, we are not persuaded to depart from the
general rule that " where constitutional rights are
concerned," law application " is a matter for de
novo appellate review," People v. Matheny, 46
P.3d 453, 462 (Colo. 2002). This is especially so where, as
here, the facts are undisputed. People v. Valdez,
969 P.2d 208, 211 (Colo. 1998) (" When the controlling
facts are undisputed, the legal effect of those facts
constitutes a question of law which is subject to de
novo review." ).
[¶9] Also, we defer to the trial court's
factual findings but review de novo whether the court
violated Ortega's right to due process by allowing an
impermissibly suggestive identification procedure.
See United States v. Thompson, 524 F.3d
1126, 1135 (10th Cir. 2008) (" We review de novo the
constitutionality of identification procedures, but we review
for clear error the factual basis for the district
court's decision." (internal quotation marks
omitted)); cf. Bernal v. People, 44 P.3d
184, 190 (Colo. 2002) (reviewing the " constitutionality
of pretrial identification procedures" as a mixed
question of law and fact).
[¶10] In contrast, " [a]bsent an abuse
of discretion, the trial court's [CRE 403] ruling will
not be disturbed on appeal." People v.
Rubanowitz, 688 P.2d 231, 245-46 (Colo. 1984). Thus,
" we will not overturn its ruling unless it is
manifestly arbitrary, unreasonable, or unfair."
People v. Melillo, 25 P.3d 769, 774 (Colo. 2001).
Right Against Self-Incrimination
[¶11] Ortega first contends the trial court
violated his Fifth Amendment right against self-incrimination
when it required him to read the excerpt from the transcript
of the drug buy. We reject this contention.
[¶12] " The privilege against
self-incrimination protects the accused only from providing
the state with evidence of a testimonial nature."
People v. Renfrow, 193 Colo. 131, 135, 564 P.2d 411,
414 (1977). But while " the privilege is a bar against
compelling 'communications' or
'testimony,'" it provides no protection when the
accused is " the source of real or physical
evidence." Schmerber v. California, 384 U.S.
757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); see
Sandoval v. People, 172 Colo. 383, 388, 473 P.2d
722, 724 (1970) (no protection against " a compulsion to
exhibit physical characteristics" ).
[¶13] To begin, Colorado cases cited by the
parties as being controlling do not involve the precise
question presented in this appeal -- whether the voice
exemplar provided by Ortega was testimonial or physical
[¶14] Based on Serratore v. People,
178 Colo. 341, 497 P.2d 1018 (1972), disapproved of
by People v. Ramirez, 199 Colo. 367, 609 P.2d
616 (1980), Ortega argues that even if the voice exemplar was
physical evidence, a trial court cannot force a defendant to
perform any act at odds with his defense solely for the
jury's benefit. In Serratore, the prosecutor
required the defendant to reach above a line that the
prosecutor had placed on a wall in the courtroom.
Id. at 345-46, 497 P.2d at 1021. This demonstration
showed that because the defendant was short, his explanation
for his fingerprint atop a cabinet was physically impossible
unless he had entered through a window above the cabinet --
the prosecutor's burglary theory. Id.
[¶15] The supreme court concluded that
because the defendant " was being asked to participate
in a contrived experiment or demonstration concerning his
physical abilities to perform a particular act," with
the purpose " to [c]ommunicate to the jury the
defendant's physical abilities to perform an act that the
prosecution believed him unable to perform," the
demonstration violated his right against self-incrimination.
Id. at 347, 497 P.2d at 1022. But unlike in
Serratore -- where the procedure forced the
defendant to demonstrate that his theory was implausible --
the voice identification procedure here only allowed the jury
to compare Ortega's voice to the recording and then
arrive at its own conclusion.
[¶16] The Attorney General relies on
People v. Thatcher, 638 P.2d 760 (Colo. 1981),
superseded by rule as stated in People v. Dist.
Court, 790 P.2d 332 (Colo. 1990), and People v.
Shackelford, 37 Colo.App. 317, 546 P.2d 964 (1976). But
these cases provide at most background.
[¶17] In Thatcher, the court
mentioned that a " defendant may be required to speak
for identification purposes, and such compelled speech does
not violate the constitutional privilege against
self-incrimination." 638 P.2d at 771. But the issue
before the court involved " the less dramatic procedure
of having the victim testify as to her prior voice
[¶18] In Shackelford, 37 Colo.App.
at 320, 546 P.2d at 967, the trial court required the
defendant to " repeat three sentences allegedly uttered
by the perpetrator of the offenses" at trial for a
witness's benefit. To be sure, the division's
analysis contrasting demonstrative evidence with testimonial
communications is informative. Id. at 320-21, 546
P.2d at 967-68. But as Ortega points out, the procedure in
Shackelford did not solely " demonstrate to the
jury that it was [the defendant's] voice heard on the
recording, and therefore that he was guilty of the offense
[¶19] The Attorney General also cites
Colorado cases upholding in-court identification procedures
compelling defendants to reveal physical attributes to the
jury. See, e.g., Renfrow, 193 Colo. at 135,
564 P.2d at 414 (no Fifth Amendment violation where "
exhibition of the scar was for the sole purpose of
corroborating the identity of the defendant and was not
testimonial" ); La Blanc v. People, 161 Colo.
274, 277, 421 P.2d 474, 476 (1966) (no Fifth Amendment
violation where trial court compelled the defendant " to
expose to the jury the arm bearing the tattoo" described
by a police officer beforehand). These cases only frame the
issue that must be decided -- was the voice exemplar Ortega
provided more like the demonstration in Serratore or
a mere display of a physical attribute, as in
Renfrow and LaBlanc ?
[¶20] With only a few Colorado cases for
guidance, we turn to decisions from other jurisdictions.
See People v. Clemens, 2013 COA 162, ¶
15 (considering cases from other jurisdictions "
[b]ecause no Colorado case has addressed" the issue).
[¶21] In many federal courts and some other
states, " [i]t is well-settled that requiring a
defendant to provide a voice exemplar for purposes of
identification" by a witness does not violate the Fifth
Amendment. United States v. Flanagan, 34 F.3d 949,
953 (10th Cir. 1994). Fewer cases have addressed compelling
the exemplar solely for the jury's benefit. But the cases
to have done so suggest that no Fifth Amendment violation
[¶22] In United States v. Williams,
704 F.2d 315, 317 (6th Cir. 1983), after a defense witness
" described [the offender's] voice on the telephone
as a 'distinctive . . . gravelly-type voice' with a
Southern drawl," the prosecution had the defendant read
a passage from a magazine as rebuttal evidence " for the
purposes of the jury hearing his voice." (Internal
quotation marks omitted.) In deciding " whether a
defendant may be compelled to articulate in the presence of
the jury to demonstrate his speech and voice characteristics
for comparative purposes," id. at 318, the
court relied on Supreme Court decisions recognizing "
that the distinctive resonance, speech and voice
idiosyncrasies of an individual are identifiable
physical characteristics, the compelled
demonstration of which infringes no interest protected by the
privilege against compulsory self-incrimination,"
id. at 317. The court also rejected the
defendant's distinction " 'between in-court
demonstrations for the benefit of witnesses and those
conducted for the benefit of the jury,'" as without
" 'relevance to the issue of self-incrimination,
since in both instances the jury observes the
demonstration.'" Id. at 319 (quoting
United States v. Turner, 472 F.2d 958, 959 (4th Cir.
[¶23] In United States v. Leone,
823 F.2d 246, 249 (8th Cir. 1987), police officers had taped
telephone conversations between drug suspects. When one of
the suspects arrived, an undercover officer who saw the
defendant and heard him speak testified that the
defendant's voice matched the voice on the phone.
Id. Later in the trial, the court ordered the
defendant to " speak certain words connected with the
identification testimony so that the jury could compare his
voice with the voice on the tape." Id. at 250.
[¶24] In rejecting the Fifth Amendment
claim, the Leone court concluded that " [i]t
strain[ed] credulity to argue that uttering the phrases:
'About an hour,' 'I took the phone off the hook,
one of them,' and 'I did,' which [we]re totally
void of any incriminatory content, amount[ed] to an admission
of guilt." Id. ; see also State v.
Morton, 684 S.W.2d 601, 606 (Mo. Ct.App. 1985)
(upholding a procedure requiring the defendant to read from a
Mark Twain novel " so the jury w[ould] have a sample of
what the defendant's voice sound[ed] like" (internal
quotation marks omitted)).
[¶25] For three reasons, the analysis in
these cases is persuasive.
[¶26] First, Ortega cites no contrary
[¶27] Second, courts have generally approved
of non-communicative demonstrations that enable a witness to
identify a voice even when they occur in the jury's
presence. See Williams, 704 F.2d at 319
(Courts " have universally adjudged that compelling a
defendant to actively cooperate in non-communicative activity
in the presence of the jury does not abdicate fifth amendment
guarantees." ). Thus, because " in both instances
the jury observes the demonstration," id.
(internal quotation marks omitted), we do not discern any
principled difference between an in-court demonstration for a
witness's benefit and one conducted for the jury's
benefit. This observation undercuts Ortega's distinction
[¶28] Third, we discern no meaningful
distinction between a person's voice and any other
physical characteristic. As explained in Gilbert v.
California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 18
L.Ed.2d 1178 (1967):
One's voice and handwriting are, of course, means of
communication. It by no means follows, however, that every
compulsion of an accused to use his voice or write compels a
communication within the cover of the privilege. A mere
handwriting exemplar, in contrast to the content of what is
written, like the voice or body itself, is an identifying
physical characteristic outside its protection.
because the " prohibition against self-incrimination . .
. does not exclude one's body as evidence," La
Blanc, 161 Colo. at 277, 421 P.2d at 476, the Fifth
Amendment does not protect " [p]articular
characteristics of a person's voice," such as "
tone, accents, or speech impediments," York v.
Commonwealth, 353 S.W.3d 603, 606 (Ky. 2011).
[¶29] Ortega's emphasis on the
demonstration being the only time that the jury heard his
voice fails to explain why we should not apply this physical
characteristic analysis. After all, in such cases the jury
observes the characteristic -- whether scar, tattoo, or voice
-- only once.
[¶30] Therefore, because Ortega was
compelled only to participate in a non-communicative
demonstration revealing the qualities of his voice, we
conclude that the procedure did not violate his right against
Right to Due Process
[¶31] Ortega next contends the in-court
voice identification procedure constituted an impermissible
one-on-one confrontation that was unnecessarily suggestive,
thereby violating his right to due process. We also reject
[¶32] " [U]nder some circumstances an
in-court identification may constitute an impermissible
one-on-one confrontation which is unnecessarily suggestive
and conducive to irreparable mistaken identification."
People v. Walker, 666 P.2d 113, 119 (Colo. 1983)
(reviewing but upholding trial court's denial of motion
to suppress in-court identification of the defendant by a
witness during in camera hearing). " One-on-one
confrontations are viewed with disfavor because they tend to
be suggestive and present greater risks of mistaken
identification than a line-up." Id. Even so,
such confrontations are not per se violations of due process.
Id. Rather, " [i]n considering a claim that the
identification procedures used violated due process, the
court must decide whether the resulting identification is
reliable under the totality of the circumstances surrounding
the confrontation." Id.
[¶33] Ortega analogizes the procedure of the
jury hearing only his voice -- with no other voices to
compare with the recording -- to a one-on-one confrontation
that created a substantial likelihood of irreparable
misidentification. For three reasons, this analogy is flawed.
[¶34] First, Ortega cites no authority --
nor have we found any in Colorado -- precluding an in-court
identification not based on a disputed pretrial confrontation
as an impermissible one-on-one confrontation. To the
contrary, in People v. Monroe, 925 P.2d 767, 774
(Colo. 1996), the supreme court discerned no error in an in
camera hearing at which a witness confronted the defendant,
whom the witness was identifying for the first time. The
Monroe court also rejected an independent source
requirement for such in-court identifications. Id.
[¶35] Second, an in-court identification not
derived from an earlier out-of-court confrontation involves
" different considerations." Thompson, 524
F.3d at 1135 (internal quotation marks omitted). Unlike an
in-court identification based on a witness's prior
confrontation, an in-court identification by the jury does
not risk spillover from a prior confrontation. See
United States v. Domina, 784 F.2d 1361, 1368 (9th
Cir. 1986) (" The concern with in-court identification
where there has been suggestive pre-trial identification is
that the witness later identifies the person in court, not
from his or her recollection of observations at the time of
the crime charged, but from the suggestive pre-trial
identification." ). Instead, the jury is acting as an
independent fact finder. See United States v.
Curtis, 344 F.3d 1057, 1063 (10th Cir. 2003) ("
Defendant's displaying of his teeth simply allowed the
jury to make its own comparison between the description given
by the two witnesses and Defendant's actual
[¶36] Third, Ortega's challenge that
impermissible suggestion occurred because the jury heard only
his voice could be made to any procedure in which the jury
observes only a physical characteristic of the defendant --
such as a scar or tattoo -- but is not shown other persons
with similar characteristics for comparison. Yet, as
discussed above, such procedures have been uniformly upheld.
See, e.g., Renfrow, 193 Colo. at 135, 564
P.2d at 414; La Blanc, 161 Colo. at 277, 421 P.2d at
476; see also People v. Sims, 64 Cal.App.3d
544, 134 Cal.Rptr. 566, 571 (Cal. Ct.App. 1976) (upholding
procedure requiring defendant to read seven statements
allegedly made by the assailant, after which the victim
testified that the voice belonged to her attacker, because
the " voice is merely another identifying physical
characteristic" (internal quotation marks omitted)).
[¶37] But suppose the voice identification
may have been somewhat suggestive. Defense counsel could have
proposed procedures " to forestall suggestiveness in the
course of the in-court identification." Monroe,
925 P.2d at 774. For example, counsel could have suggested
that the jury hear other persons reading the same words, as
Ortega argues for the first time on appeal. See id.
(collecting cases). Counsel made no suggestions.
[¶38] In any event, one-on-one
confrontations occurring in court have been upheld where the
" identification [wa]s reliable under the totality of
the circumstances surrounding the confrontation."
Walker, 666 P.2d at 119. Walker ultimately
upheld an in-court one-on-one confrontation because the trial
court had " concluded that there was an independent
basis for the in-court identification." Id. at
120 (noting that the court had considered the witness's
prior opportunity to observe the defendant and her "
cool demeanor" as the crime occurred).
[¶39] Here, although the jurors had not seen
or heard Ortega before trial, they listened to the
officer's and detective's testimony describing their
out-of-court identifications of Ortega. This testimony gave
them " an independent basis" for identifying Ortega
as the seller. Therefore, we conclude that the totality of
the circumstances indicates that the identification procedure
did not violate due process.
[¶40] Asserting that the in-court
identification procedure was more prejudicial than probative,
Ortega contends it violated CRE 403. Again, we are not
[¶41] " Even relevant evidence is
excludable if it is unfairly prejudicial, that is, if it has
an undue tendency to suggest a decision on an improper basis,
commonly but not necessarily an emotional one, such as
sympathy, hatred, contempt, retribution, or horror."
People v. Brown, 313 P.3d 608, 615 (Colo.App. 2011)
(internal quotation marks omitted). To be excludable,
however, " the danger of unfair prejudice must
substantially outweigh the legitimate probative value of the
evidence." Id. " CRE 403 strongly favors
admissibility of relevant evidence," and " the
balance should generally be struck in favor of admission when
evidence indicates a close relationship to the event
charged." People v. Gibbens, 905 P.2d 604, 607
(Colo. 1995) (internal quotation marks omitted). Thus, "
an appellate court must afford the evidence the maximum
probative value attributable by a reasonable fact finder and
the minimum unfair prejudice to be reasonably expected."
[¶42] Ortega argues that the "
prosecution sought to inflame the jury's indignation
regarding the alleged 'drug market'" in the
public park. He asserts that " rather than requesting
that he recite an innocuous sentence," the prosecution
impermissibly required him to reveal his familiarity with the
" more serious drug dealing in the park."
[¶43] The court " f[ound] it probative
that the jury c[ould] compare what they hear[d] as Mr.
Ortega's voice in open court with the voice that [wa]s on
th[e] tape." Ortega does not argue otherwise. Instead,
he disputes the court's conclusion that the evidence was
not unfairly prejudicial because " you can hear
basically one sentence from Mr. Ortega -- from whoever is on
the tape, that the detective has already identified as Mr.
[¶44] True, as Ortega argues, the better
practice would have been to require that he read a completely
neutral passage, rather than the marijuana seller's
statement. See, e.g., Williams, 704 F.2d at
317 (requiring defendant to read from Time
magazine); Morton, 684 S.W.2d at 605 (instructing
defendant to read from Mark Twain novel). And there "
may be situations where forcing a criminal defendant to utter
the words of the crime would be so inherently prejudicial
that a conviction would warrant reversal." State v.
Hubanks, 173 Wis.2d 1, 496 N.W.2d 96, 101 n.8 (Wis.
[¶45] But the statement that Ortega read was
unconnected to the marijuana sale. And when the prosecutor
initially proposed the procedure, he mentioned the
alternative of using a " generic statement." Still,
defense counsel did not ask the court to use a neutral
statement rather than an excerpt from the recording.
[¶46] For these reasons, we conclude that
the trial court's determination that the voice exemplar
posed a minimal risk of unfair prejudice was not "
manifestly arbitrary, unreasonable, or unfair."
Melillo, 25 P.3d at 773.
The Prosecutor's Improper Comments During Closing
Arguments Do Not Require Reversal
[¶47] Finally, Ortega contends the
prosecutor's comments during closing argument denied him
a fair trial. We discern no reversible error.
[¶48] During closing arguments, the
prosecutor said: " Now, one of my problems in this case
is getting you, the jury, to care about this." Defense
counsel objected, arguing " [t]here is a specific
instruction that the jury is not to consider emotions. The
District Attorney's burden is proof beyond a reasonable
doubt." After the court overruled the objection, the
I have to get you to care. Why should you care about this
crime? This isn't a robbery. This isn't a homicide.
Why should you care? You should care for this city. We do not
want an open drug market in Acacia Park right in the heart of
Colorado Springs. We do not want an open drug market directly
across the street from Palmer High School. We want people to
have jobs and to be productive members of society. We
don't want them to be drug dealers.
Now, this is marijuana. I am not going to ask you to care
about marijuana. Care about the laws of this state that say
distribution of marijuana is illegal. Care about the laws of
this state and find the defendant guilty.
Preservation and Standard of Review
[¶49] The Attorney General concedes
preservation of this issue.
[¶50] In prosecutorial misconduct claims,
" the reviewing court engages in a two-step
analysis." Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we " determine whether the
prosecutor's questionable conduct was improper based on
the totality of the circumstances." Id. Because
" [w]hether a prosecutor's statements constitute
misconduct is generally a matter left to the trial
court's discretion," Domingo-Gomez v.
People, 125 P.3d 1043, 1049 (Colo. 2005), " we will
not disturb [the court's] ruling . . . in the absence
of a showing of gross abuse of discretion resulting in
prejudice and a denial of justice," People v.
Strock, 252 P.3d 1148, 1152 (Colo.App. 2010). Second, we
decide " whether such actions warrant reversal according
to the proper standard of review." Wend, 235
P.3d at 1096.
[¶51] Ortega's assertion that we must
review this claim for constitutional harmless error is
unsupported. See Crider v. People, 186 P.3d
39, 42 (Colo. 2008) ( " [E]xceeding less well-defined
ethical boundaries by threatening to mislead a jury with
expressions of personal opinion or inflammatory comments is
broadly accepted as being subject to the discretion of the
trial court, which does not rise to the level of
constitutional error." ). Instead, we review for
nonconstitutional harmless error. Id. " [E]ven
properly objected-to trial error will be disregarded as
harmless whenever there is no reasonable probability that it
contributed to the defendant's conviction."
[¶52] " [A] prosecutor, while free to
strike hard blows, is not at liberty to strike foul
ones." Domingo-Gomez, 125 P.3d at 1048
(internal quotation marks omitted). " In closing
argument, [a prosecutor] may employ rhetorical devices and
engage in oratorical embellishment and metaphorical
nuance," People v. Allee, 77 P.3d 831, 837
(Colo.App. 2003), but cannot " inflame and appeal to the
jury's passions or prejudices," People v.
Walters, 148 P.3d 331, 334 (Colo.App. 2006). Although
" a prosecutor has wide latitude and may refer to the
strength and significance of the evidence, conflicting
evidence, and reasonable inferences that may be drawn from
the evidence," the prosecutor " must stay within
the limits of appropriate prosecutorial advocacy during
closing arguments." Id. We evaluate
prosecutorial misconduct claims " in the context of the
argument as a whole and in light of the evidence."
People v. Gutierrez, 622 P.2d 547, 554 (Colo. 1981).
[¶53] Ortega argues that the
prosecutor's comments " appealed to the jurors'
fears and concerns for public safety," thus denying him
a fair trial. Because the park's proximity to the high
school was not relevant to any element of the offense, he
asserts that the prosecutor intended to " call to the
mind of the jurors the image of young teenagers"
becoming involved in the drug trade.
[¶54] The Attorney General responds by
characterizing the statements as " rhetorical comment[s]
reflecting on the nature of the charges and the evidence
presented." But this characterization cannot avoid the
widely-cited principle that a " prosecutor may not urge
jurors to convict a criminal defendant in order to protect
community values, preserve civil order, or deter future
lawbreaking." United States v. Monaghan, 741
F.2d 1434, 1441, 239 U.S.App.D.C. 275 (D.C. Cir. 1984).
Therefore, " [w]e agree with defendant that the
prosecutor's [comments] w[ere] an improper attempt to
persuade the jurors to convict defendant in order to combat
evil for the community." People v. Clemons, 89
P.3d 479, 483 (Colo.App. 2003) (Paraphrasing famous Burke
statement that " the only thing necessary for the
triumph of evil is for good men to stand by and do
nothing" was improper.).
[¶55] Still, because this comment " was
an isolated incident in an otherwise proper closing
argument," we conclude that the error was harmless.
See id. (harmless error even though prosecutor
improperly appealed to jury's duty to fight evil in the
community). Because two witnesses identified Ortega and the
jury was instructed to apply the rules of law to the evidence
presented at trial, we discern no " reasonable
probability that [any error] contributed to the
defendant's conviction." Crider, 186 P.3d
[¶56] The judgment of conviction is
DAILEY and JUDGE RICHMAN concur.
Instead, Ortega relies on cases
involving in-court identification procedures that allegedly
were tainted by suggestive pretrial identification.
Bernal v. People, 44 P.3d 184, 191 (Colo. 2002);
People v. Smith, 620 P.2d 232, 237 (Colo.
Citing United States v. Thompson,
524 F.3d 1126, 1136 (10th Cir. 2008), Ortega points out that
the Tenth Circuit, in upholding a one-on-one confrontation,
noted that the trial court had given a cautionary
instruction. But because Ortega rejected the court's
offer to instruct the jury that it was compelling the
defendant to make the statement and he did not request any
other clarifying instructions, he waived the right to argue
on appeal that the court should have given cautionary
instructions. See Martinez v. People, 177
Colo. 272, 276, 493 P.2d 1350, 1352 (1972) (Where the "
trial court offered to instruct the jury on the limited
purpose for which the evidence was to be received, and
specifically inquired of counsel if he wished such an
instruction," and counsel refused, and " did not
thereafter request any instruction limiting the
evidence," the defendant waived the limiting