County District Court No. 13CR4158 Honorable Barney Iuppa,
Cynthia H. Coffman, Attorney General, John T. Lee, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Lynn
Noesner, Deputy State Public Defender, Denver, Colorado, for
1 During opening statement in this criminal prosecution
charging defendant, Marcus Lee Robinson, with multiple counts
of sexual assault, attempted sexual assault, and unlawful
sexual contact, the prosecutor told the jury:
You're going to hear that [one of the victims, 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. [The other victim,
E.G., ] looks over and she can see a dark penis going into a
white body. That's how graphic she could see [sic].
2 Defense counsel did not object, and the trial court did not
interrupt the proceedings to either admonish the prosecutor
or instruct the jury to disregard the prosecutor's
3 Viewed objectively, the prosecutor's statements could
have been reasonably understood by the jury as an appeal to
racial prejudice that raises a substantial question whether
Robinson received a trial free from the taint of racial
prejudice.  Only by reversing Robinson's
convictions can we ensure that racial prejudice plays no part
in the adjudication of this case. Accordingly, we reverse
Robinson's convictions and remand for a new trial.
Because they are likely to arise on retrial, we also address
Robinson's other contentions of prosecutorial
Relevant Facts and Procedural History
4 A.M. and her roommate hosted a party at their apartment.
A.M. drank a lot of alcohol and eventually passed out on a
couch. E.G. also attended the party and she became ill after
the alcohol she drank reacted with her prescription
medication. E.G. fell sleep on the same couch on which A.M.
had passed out.
5 Robinson, who was in an intimate relationship with
A.M.'s roommate, arrived at the apartment late in the
night, when the party was winding down. E.G. testified that
Robinson woke her by straddling her head and putting his
exposed penis in her face. She told him to go away and he
did, at least for a time. E.G. wakened again to see Robinson
rubbing A.M.'s thighs and breasts (A.M. remained asleep
or unconscious) and again told him to go away. She was
awakened a third time when, she testified, she saw Robinson
vaginally penetrating the still sleeping or unconscious A.M.
E.G. told the jury that she yelled at Robinson and he left
the apartment. E.G. called 911 to report the sexual assault
and medical personnel were dispatched to attend to A.M., who
ultimately was revived.
6 After Robinson left, he sent A.M.'s roommate a text
message, admitted at trial, that said, "That girl was
curse n out me I must did something if dig dumthg ribg
I'm sorry so lft don't knie I'm s [sic]."
Robinson explained to the police that "he knew he was in
the wrong for trying to have sex with [A.M.]" because he
was in a relationship with her roommate.
7 While Robinson admitted to the police that he asked A.M. to
have sex with him, he denied any sexual contact with her,
claiming that he left her alone after she repeatedly declined
his requests. Robinson also denied any sexual contact with
8 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). 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).
9 At trial, the nurse who examined A.M. testified that she
had no injuries to her internal or external genitalia. A DNA
expert also testified that the trace amount of male DNA found
on A.M.'s external genitalia was too small of a sample to
be matched to any individual, including Robinson.
10 The jury acquitted Robinson of all of the charges related
to E.G. It acquitted Robinson of the completed crimes of
sexual assault against A.M., thus rejecting, at least in
part, E.G.'s testimony, but convicted him of two counts
of unlawful sexual contact and two counts of the lesser
included offense of attempted sexual assault. The trial court
sentenced Robinson under the Sex Offender Lifetime
Supervision Act to four years to life imprisonment.
Analysis of the Prosecutor's Raced-Based Statements
During Opening Statement
11 Robinson argues that the prosecutor's description of
"a dark penis going into a white body" during
opening statement constituted prosecutorial misconduct
amounting to plain error, requiring reversal of his
convictions. We agree.
12 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 determine whether the
prosecutor's conduct was improper "based on the
totality of the circumstances." Id. If we
conclude that the conduct was improper, we then determine
whether it warrants reversal according to the proper standard
of review. Id.
Prosecutor's Opening Statement Was Flagrantly, Glaringly,
and Tremendously Improper
13 "A prosecutor has the responsibility of a minister of
justice and not simply that of an advocate." Colo. RPC
3.8 cmt. 1. More than eighty years ago, the United States
Supreme Court explained that a prosecutor's interest in a
criminal prosecution "is not that [she] shall win a
case, but that justice shall be done." Berger v.
United States, 295 U.S. 78, 88 (1935).
14 In executing her substantial powers, a prosecutor must
refrain from improper methods calculated to produce a
wrongful conviction. Harris v. People, 888 P.2d 259,
263 (Colo. 1995). This constraint protects a defendant's
right to be tried by a fair and impartial jury
"empaneled to determine the issues solely on the basis
of the evidence introduced at trial rather than on the basis
of bias or prejudice for or against a party."
Id. at 264; see U.S. Const. amend. VI;
Colo. Const. art. II, § 16.
15 Prosecutorial remarks that evoke any kind of bias
or prejudice are always improper; "such argument clearly
trespasses the bounds of reasonable inference or fair comment
on the evidence." Harris, 888 P.2d at 265
(quoting ABA Standards for Criminal Justice: Prosecution
Function and Defense Function § 3-5.8 cmt. (3d ed.
1993)); see also People v. Dunlap, 975 P.2d 723, 758
16 A prosecutor's appeal to racial stereotypes or racial
bias to achieve a conviction is especially deplorable and
gravely violates a defendant's right to due process of
law. Harris, 888 P.2d at 264; see U.S.
Const. amends. V, VI, XIV, § 1; Colo. Const. art. II,
§§ 16, 25; see also Batson v. Kentucky,
476 U.S. 79 (1986); Miller v. North Carolina, 583
F.2d 701, 703 (4th Cir. 1978); State v. Monday, 257
P.3d 551, 556 (Wash. 2011).
17 The prosecutor did not articulate to the jury any
conceivably proper use of the race-based statements. Thus,
irrespective of whether a different record might justify such
statements, this record does not permit such a conclusion.
Instead, viewed objectively, the prosecutor's opening
statement, by its words and in the context it was presented
to the jury, was an appeal to racial prejudice. Indeed, the
prosecutor's words invoked some of the most damaging
historical racial stereotypes - stereotypes that have
infected judicial proceedings in this country for
generations. See, e.g., Loving v. Virginia,
388 U.S. 1, 3, 7 (1967) (rejecting the trial judge's
assertion that "Almighty God created the races white,
black, yellow, malay and red, and he placed them on separate
continents . . . [t]he fact that he separated the races shows
that he did not intend for the races to mix").
18 To be sure, in limited instances the race of the
defendant, the victim, or a witness may be relevant to the
issues presented. "An unembellished reference to
evidence of race simply as a factor bolstering an eyewitness
identification of a culprit, for example, poses no threat to
purity of the trial." United States v. Doe, 903
F.2d 16, 25 (D.C. Cir. 1990). "The line of demarcation
is crossed, however, when the argument shifts its emphasis
from evidence to emotion." Id. This principle
is especially pronounced when, as here, a prosecutor's
argument objectively appeals to racial prejudice in the
context of a sexual crime, "for few forms of prejudice
are so virulent." Miller, 583 F.2d at 707.
19 The Attorney General points out that on direct
examination, E.G. testified that she was able to see A.M. in
the dimly lit room because of A.M.'s light complexion.
But E.G. never testified that Robinson's darker
complexion aided her ability to see what was happening. To
the contrary, the only time that E.G. testified about
Robinson's skin tone was in direct response to the
prosecutor's questions about Robinson's race and
PROSECUTOR: How could you see that [A.M. was naked from the
E.G.: Because it was a dark room and [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.
Q: What was going on at that point?
A: He was inside of her. He was having sex ...