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People v. Robinson

Court of Appeals of Colorado, Sixth Division

October 19, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Marcus Lee Robinson, Defendant-Appellant.

         El Paso County District Court No. 13CR4158 Honorable Barney Iuppa, Judge

          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 Defendant-Appellant

          OPINION

          BERGER JUDGE.

         ¶ 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 statements.

         ¶ 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. [1] 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 misconduct.[2]

         I. 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 E.G.

         ¶ 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.

         II. 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.

         A. The 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 (Colo. 1999).

         ¶ 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 complexion:

PROSECUTOR: How could you see that [A.M. was naked from the waist down]?
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 ...

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