County District Court No. 13CR3349 Honorable Thomas K. Kane,
Cynthia H. Coffman, Attorney General, Matthew S. Holman,
Senior Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, M. Shelby
Deeney, Deputy State Public Defender, Denver, Colorado, for
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.
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
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
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
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
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
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.
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. 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.
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
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)).
Analysis of the Peremptory Strikes
20 We address each of the peremptory strikes in turn.
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
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.
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
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.
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
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
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 ...