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People v. Howard-Walker

Court of Appeals of Colorado, Second Division

June 15, 2017

The People of the State of Colorado, Plaintiff-Appellee,
Kyree Davon Howard-Walker, Defendant-Appellant.

         El Paso County District Court No. 13CR3349 Honorable Thomas K. Kane, Judge

          Cynthia H. Coffman, Attorney General, Matthew S. Holman, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, M. Shelby Deeney, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


          BERGER JUDGE

         ¶ 1 A jury convicted defendant, Kyree Davon Howard-Walker, of first degree burglary and conspiracy to commit first degree burglary. He appeals, arguing that the trial court erred in (1) denying his three challenges under Batson v. Kentucky, 476 U.S. 79 (1986), to allegedly discriminatory peremptory strikes; (2) admitting allegedly improper testimony from one of the investigating detectives; and (3) failing to instruct the jury on the predicate crime of theft and failing to define "intent." He also claims that the prosecutor engaged in misconduct and that that the cumulative effect of these errors requires reversal.

         ¶ 2 We conclude that there were several trial errors, most resulting from prosecutorial overreach and one instance of prosecutorial misconduct. Howard-Walker's counsel objected to almost none of these errors and the standard of review for almost all of them is thus plain error. None of these errors, considered by themselves, requires reversal. Moreover, these errors did not substantially prejudice Howard-Walker's right to a fair trial and thus do not require reversal under the cumulative error doctrine. Therefore, we affirm the judgment.

         I. Relevant Facts and Procedural History

         ¶ 3 The victim, the owner of a marijuana business, left his home one night to run errands and spend time with his girlfriend. When he returned home the next day, he discovered an open garage door, a window which had been broken, and his bedroom in disarray. The contents of the unlocked safe in his bedroom (he had evidently forgotten to lock the safe) - some $8000 in cash, several watches, other pieces of jewelry, and a number of credit cards - were gone.

         ¶ 4 Video from a motion-activated surveillance camera showed two men (whom the victim did not recognize) entering the victim's bedroom. Both of the men were wearing baseball caps and sunglasses, and one - allegedly, Howard-Walker - was holding a gun. The video showed the men searching the room, opening the safe, and removing its contents. After viewing the video, the victim reported the burglary to the police.

         ¶ 5 A police officer responded to the victim's home. The officer viewed the surveillance video and took a copy of the video as evidence. Near the broken window, the officer discovered footprints which the victim said did not belong to him. The officer measured and took photographs of the footprints. Consistent with the police department's policy for "cold" burglaries, no crime scene technicians were called to the scene.

         ¶ 6 After the officer left, the victim, who also owned a video-editing business, edited the surveillance video and made a shorter, clearer, "enhanced" version. He sent it to a number of media outlets and offered a reward of $1000 for information about the perpetrators. Some of the media outlets played the video on local television stations and advertised the reward.

         ¶ 7 Howard-Walker's girlfriend's uncle supposedly recognized him from a news broadcast and contacted the police. He told the police that, although it was difficult to discern the faces of the two men committing the burglary, he recognized the hat and sunglasses that Howard-Walker was wearing in the video. He also provided the police with a photograph of Howard-Walker wearing a similar hat and sunglasses.

         ¶ 8 Based on the uncle's tip, one of the investigating officers, Detective Mark Garcia, contacted Howard-Walker's probation officer. He showed the probation officer several still photos derived from the surveillance video and asked if he recognized Howard-Walker. The probation officer said that he was "ninety-five percent sure" that Howard-Walker was depicted in the photos.

         ¶ 9 The police arrested Howard-Walker, and Detective Garcia interviewed him after advising him of his Miranda rights. Howard-Walker consistently denied that he committed the burglary. However, at one point near the end of the interview, Howard-Walker asked the detective "what it would get him if he gave [Detective Garcia] the name of the other person." The detective responded that if Howard-Walker identified the other burglar, he would apprise the district attorney of Howard-Walker's assistance, which would "help him, " but promised no concessions. Howard-Walker later refused to speak further with the police.

         ¶ 10 Detective Garcia then searched (under a warrant) Howard-Walker's apartment. He found none of the stolen items; none of those items were ever recovered by the police. He also showed Howard-Walker's live-in girlfriend the still photographs from the surveillance video and asked if she recognized the person in the photos. According to the detective, the girlfriend initially told him that she was "eighty percent" certain that one of the men in the photos was Howard-Walker. At trial, the girlfriend denied making, and then recanted, that statement, claiming that Detective Garcia had intimidated her into identifying Howard-Walker.

         ¶ 11 Detective Garcia also compared the photographs of the footprints found at the scene of the burglary with the shoes that Howard-Walker was wearing at the time of his arrest, and concluded (and testified) that the footprints matched the shoes.

         ¶ 12 The prosecution charged Howard-Walker with first degree burglary, see § 18-4-202(1), C.R.S. 2016, and conspiracy to commit first degree burglary, see § 18-2-201, C.R.S. 2016.

         ¶ 13 Howard-Walker's defense at trial was that he did not commit the burglary and that the witnesses had misidentified him from the video and still photos. The jury convicted Howard-Walker as charged, necessarily rejecting his misidentification defense. The trial court sentenced him to thirteen years in the custody of the Department of Corrections.

         II. Batson Challenges

         ¶ 14 Howard-Walker contends that the trial court erred when it denied his Batson challenges to the prosecutor's peremptory strikes excusing three prospective jurors - one who identified himself as African-American, and two who identified themselves as Hispanic. Specifically, he challenges the trial court's rulings on the third Batson step, asserting that the prosecutor's stated "race-neutral" reasons for removing the jurors were not worthy of belief.

         A. Standard of Review

         ¶ 15 The United States and Colorado Constitutions prohibit peremptory strikes to dismiss prospective jurors on the basis of race, gender, or ethnicity. Batson, 476 U.S. at 85-87; People v. Beauvais, 2017 CO 34, ¶ 20; People v. Lucero, 2014 COA 53. In Batson, the Supreme Court prescribed a three-step process to evaluate claims of purposeful discrimination in jury selection.

         ¶ 16 First, the person challenging a peremptory strike must make a prima facie showing that the prosecutor used a peremptory strike to exclude a prospective juror based on his or her race. Batson, 476 U.S. at 96; Beauvais, ¶ 21.[1] A prima facie showing requires only that the challenger "present evidence sufficient to raise an inference that discrimination occurred." Valdez v. People, 966 P.2d 587, 590 (Colo. 1998).

         ¶ 17 If the challenger meets his burden under step one of Batson, the burden shifts to the prosecutor to articulate a non-discriminatory reason for the strike. Id.

         ¶ 18 If the prosecutor does so, step three of Batson requires the trial court, after giving the challenger an opportunity to rebut the prosecutor's reason for the strike, to determine if the prosecutor's reason is worthy of belief or is, instead, pretextual. Id. If the trial court finds, based on a preponderance of the evidence, that the prosecutor's reason is pretextual, the court must deny the peremptory strike. Batson, 476 U.S. at 85-87. "[T]he ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [objecting party]." Beauvais, ¶ 24 (citation omitted). Accordingly, a trial court should sustain a Batson objection only if "the striking party's non-discriminatory reasons are sufficiently incredible that the discriminatory hypothesis better fits the evidence." Id. (citation omitted).

         ¶ 19 We review de novo whether the parties have met their respective burdens under Batson steps one and two. Valdez, 966 P.2d at 590-91. We review the trial court's Batson step three determination of whether the prosecutor's strike was motivated by purposeful discrimination for clear error. People v. Robinson, 187 P.3d 1166, 1174 (Colo.App. 2008); People v. Gabler, 958 P.2d 505, 507 (Colo.App. 1997). We give considerable deference to a trial court's Batson step three findings because "[o]nly the trial court can assess non-verbal cues, such as hesitation, voice inflection, and facial expressions, that are not recorded on a transcript." People v. Wilson, 2015 CO 54M, ¶ 18. Given this deferential standard, reversal of a trial court's factual determination that the strike was not motivated by discriminatory animus is justified only under "exceptional circumstances." Beauvais, ¶ 22 (quoting Snyder v. Louisiana, 552 U.S. 472, 477 (2008)).

         B. Analysis of the Peremptory Strikes

         ¶ 20 We address each of the peremptory strikes in turn.

         1. Female Hispanic Juror

         ¶ 21 The prosecutor exercised a peremptory strike against a female juror who identified herself as Hispanic on her jury questionnaire. This met Howard-Walker's minimal step one Batson burden. In response to Howard-Walker's challenge, the prosecutor said that the juror had "apparently filled out her jury questionnaire." Because the significance of the juror having filled out the questionnaire (as all of the other prospective jurors had done) is unclear, we presume that the prosecutor's statement as reflected in the record resulted from a transcription error. The prosecutor also claimed that she had "seemed jumpy" during voir dire, and contended that the prospective juror "didn't want to be here."

         ¶ 22 The trial court did not review the juror's questionnaire, but, in denying the Batson challenge, said it "trust[ed]" the prosecutor's characterization of what was said in the questionnaire. The court further explained that it had observed the female juror during voir dire and that she "seemed disinterested."

         ¶ 23 We first reject Howard-Walker's argument that the trial court's decision not to review the female juror's questionnaire amounted to a summary denial of his Batson challenge and reflected the court's failure to weigh the evidence.

         ¶ 24 One important tool that a trial court uses to determine whether the objecting party proved that the striking party exercised its peremptory challenges with "discriminatory animus" is "an assessment of the striking party's credibility and the plausibility of its non-discriminatory explanations." Id. at ¶ 23. Having observed the demeanor of the prospective juror (and, for that matter, the prosecutor), the trial court was entitled to credit the prosecutor's assessment that the juror "did not want to be here." See id. at ¶ 25; Wilson, ¶ 14. And, though the prosecutor did not question the juror prior to exercising his strike against her, which might raise an inference of purposeful discrimination, Gabler, 958 P.2d at 508, the trial court agreed that the juror had seemed "disinterested." A prospective juror's disinterest in the proceedings is a legitimate, non-discriminatory reason for exercising a peremptory strike. See, e.g., Beauvais, ¶ 9 (use of peremptory strikes against two jurors who had not been directly questioned because both jurors "looked disinterested" did not violate Batson). Howard-Walker did not then and does not now attempt to refute the trial court's assessment of the juror's level of interest in the proceedings.

         ¶ 25 We reject Howard-Walker's argument that the trial court committed legal error in considering that the female Hispanic juror was not of the same race as Howard-Walker. Though we agree that Batson does not require that the excluded juror share the same racial identity as the defendant, Valdez, 966 P.2d at 589, our reading of the record does not support Howard-Walker's argument. While the trial court noted that it perceived the female juror as "a person of color[, ] . . . [a]lbeit not the same ethnicity as the defendant, " it rested its denial of the Batson challenge on the juror's lack of interest in the proceedings, not on any comparison of the races of the juror and Howard-Walker.

         ¶ 26 Thus, we conclude that the trial court's Batson step three findings with respect to the female Hispanic juror are supported by the record.

         2. African-American Male Juror

         ¶ 27 After the prosecutor exercised four of the prosecution's six peremptory strikes, he accepted the jury as then constituted, which defense counsel characterized as "completely white." Howard-Walker continued exercising his peremptory strikes, which resulted in a male juror who identified himself as African-American joining the panel. Despite having previously accepted the jury, the prosecutor then exercised one of its remaining peremptory strikes against that juror.

         ¶ 28 In response to Howard-Walker's Batson challenge, the prosecutor explained that the prospective juror "seemed anti-prosecution" because, in response to voir dire questions, he said that police officers often misidentify suspects and he indicated on his jury questionnaire that he had had a "particularly bad experience" with law enforcement. Howard-Walker attempted to rebut this explanation by noting that some unchallenged white jurors had expressed similar opinions about police misidentification and also reported negative experiences with the police.

         ¶ 29 The trial court denied the Batson challenge, saying that "this isn't a pattern yet" and because, based on its own observations, the juror apparently believed that law enforcement officers often make mistakes.

         ¶ 30 Howard-Walker asserts that the prosecutor's retention of a white juror who had discussed his negative views of police officers at some length and its retention of other white jurors who had expressed that the police sometimes make mistakes in identifying suspects demonstrated that the prosecutor's reasons for the strike was pretexual. "A prosecutor's disparate treatment of prospective jurors, who, but for their race, have similar and allegedly objectionable experiences, is pretextual." Gabler, 958 P.2d at 508.

         ¶ 31 The Colorado Supreme Court in Beauvais recently clarified the required procedure for a Batson comparative juror analysis. While "[t]wo potential jurors need not be identical in every respect, " "[i]solated similarities do not automatically render two jurors 'similarly situated' for purposes of deciding a Batson challenge." Beauvais, ¶ 56. For example, "if an attorney strikes a female potential juror because she is unemployed and lacks a college degree, a male potential juror who is either unemployed or lacks a college degree would not be similarly situated and not suitable for comparison." Id. at ¶ 57.

         ¶ 32 At least three white jurors who served on the jury expressed views similar to the male African-American's juror's that police sometimes make mistakes in identifying suspects. But none of those jurors also expressed that they had had "a particularly bad experience" with law enforcement. Moreover, the record demonstrates that these jurors' statements were more limited in scope, while the African-American prospective juror's statements were broader and less deferential to the police, particularly in regard to identification of a suspect in a photograph or video. For instance, while one of the other jurors said that misidentification sometimes happens, she also said that misidentification might result from not getting "the best look" at the person. Another juror similarly said that misidentification might occur due to any number of circumstances, including the time of day and distance. Still another asserted that misidentification could occur based on a video or photograph if either of those mediums lacked clarity.

         ¶ 33 In contrast, the African-American juror opined that police officers are no better at identifying a person in a photograph or video than anyone else, and that misidentification may occur unless the photograph or video was completely clear.

         ¶ 34 Having observed the prospective juror's responses to questions during voir dire, the trial court agreed with the prosecutor's assessment that the African-American juror seemed "anti-prosecution, " an assessment that has record support. Additionally, we note that the prosecutor exercised a peremptory strike against a white juror who had similarly expressed that "policemen are humans so they can make errors just like anybody else."

         ¶ 35 Howard-Walker also asserts the prosecutor's reasons for exercising a peremptory strike against the prospective juror were pretextual because, although the juror indicated on his jury questionnaire that he had had a negative experience with law enforcement, no strikes were exercised against white jurors who had also indicated negative experiences with law enforcement on their questionnaires. We reject this argument because there is no indication in the record that the trial court relied on the juror's negative experience with law enforcement to deny Howard-Walker's Batson challenge. And, as we noted above, no other juror disclosed both a negative experience with law enforcement and a belief that police officers sometimes misidentify suspects; thus, no other juror was similarly situated to the excused juror. Id. at ¶¶ 56-57.

         ¶ 36 We recognize that the trial court said, with respect to the denial of Howard-Walker's challenge of the strike against the African-American juror, that "this isn't a pattern yet." Had the court concluded that Howard-Walker had not proved purposeful discrimination with respect to the juror because he had not established a "pattern" of discrimination, that would have been error. A pattern of strikes may "give rise to an inference of discrimination, " but is not "a necessary predicate to a [Batson] violation." Batson, 476 U.S. at 95-97. But the court did not rest its Batson step three determination on whether Howard-Walker had proved a pattern. Rather, the court, with record support, concluded that the juror believed that police officers frequently misidentified suspects - a central issue in the case. Howard-Walker does not dispute that the juror expressed that police officers may misidentify suspects. Based on the juror's responses to voir dire questions, and with deference to the court's superior opportunity to judge the juror's demeanor, we discern no clear error by the court in concluding that the prosecutor's race-neutral reasons for excusing that juror were credible.

         3. Male Hispanic Juror

         ¶ 37 After the African-American prospective juror was excused, another male juror, who identified himself as Hispanic, joined the panel. The prosecutor exercised his final peremptory strike against the juror. In response to Howard-Walker's Batson challenge, the prosecutor explained that the juror had reported a bad experience with law enforcement on his jury questionnaire, had faced a criminal conviction on charges brought by the same district attorney's office, and had indicated in his responses to voir dire questions that he had a negative view of law enforcement.

         ¶ 38 Howard-Walker attempted to rebut the prosecutor's race-neutral explanation for the strike, asserting that the prosecutor's peremptory strikes had shown a pattern of excusing "minorities" and that white jurors who had disclosed similar experiences and views regarding the police had not been stricken. The trial court denied the Batson challenge, noting that the prospective juror "was quite reluctant and critical of law enforcement generally."

         ¶ 39 While it is true that a white juror said on his jury questionnaire that he had had a particularly bad experience with the police, his answers to questions during voir dire revealed that his experiences were significantly different from that of the challenged male Hispanic juror. The white juror was a firefighter. He said that he did not have "a high impression" of the police because they often "butted heads" at work. He then clarified that he only had a bad impression of state patrol officers (as opposed to other police officers) during traffic stops, and that he could put his negative perceptions aside. The state patrol was not involved in Howard-Walker's case.

         ¶ 40 The dismissed male Hispanic juror also said that he felt some police officers are "bad apples" and that he felt his liberties were "on the line" because, generally speaking, the police were becoming "a little militia with a private army." There was no rehabilitative questioning either by the court or defense counsel that would demonstrate that the juror could set aside his negative impressions of the police.

         ¶ 41 As we did with respect to the female Hispanic juror, we reject Howard-Walker's argument that the trial court erred in considering that the male Hispanic juror was not of the same race as Howard-Walker. Though the court noted that the male Hispanic juror and Howard-Walker's ethnicities were not the same, it ...

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