Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 14CA562
Attorneys for Petitioner: Megan A. Ring, Public Defender
Meredith K. Rose, Deputy Public Defender Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General
John T. Lee, Senior Assistant Attorney General Denver,
¶1 Two men, one carrying what seemed to be a gun, broke
into an unoccupied Colorado Springs home and stole roughly
$8, 000 in cash and other valuables from a safe in a bedroom
closet. As it happens, the homeowner had a motion-activated
camera in his alarm clock. The camera captured the burglary,
albeit on grainy footage.
The homeowner, who owned a video-editing business, enhanced
that footage and then shared it with local television news
stations, along with an offer of a reward for the
"conviction" of the burglars. When the video aired
on the news, someone identified the man carrying the gun in
the video as the defendant, Kyree Howard-Walker.
Howard-Walker was ultimately convicted of first degree
burglary and conspiracy to commit first degree burglary,
after a two-day trial. On appeal, he argued that his
relatively brief trial was riddled with errors that, at the
very least, collectively warranted reversal.
A division of the court of appeals sifted through the many
errors alleged and eventually identified eight, but also
concluded that those errors did not warrant reversal
individually or collectively. See People v.
Howard-Walker, 2017 COA 81M, ¶ 2, ___P.3d ___. In
reaching this conclusion, the division adopted a new approach
to cumulative error review. Id. at ¶¶
118-21. Instead of relying only on our precedent in Oaks
v. People, 371 P.2d 443 (Colo. 1962), the division
sought more guideposts and, in so doing, crafted a two-step,
multi-factor test based on precedent from federal circuit
courts. Howard-Walker, ¶¶ 120-21. After
applying this new cumulative error analysis, the division
determined that Howard-Walker received a fair trial despite
the eight errors. Id. at ¶ 125.
We conclude that the division below erred by supplementing
the Oaks standard. And under Oaks, we
reverse because the cumulative effect of these errors
deprived Howard-Walker of a fair trial. Because we conclude
there was cumulative error, we do not address the question of
whether plain error is determined at the time of appeal or
the time of trial. Accordingly, we reverse the judgment of
conviction and remand for a new trial.
Facts and Procedural History
In August 2013, D.S. spent a night away from his home in
Colorado Springs. When he returned the next day, he found his
home in disarray. The garage door was open, and his bed was
flipped over. D.S. checked his (accidentally unlocked) safe
and saw that burglars had "cleaned [it] out,"
taking some $8, 000 in cash, numerous credit cards, watches,
jewelry, and other valuables.
After verifying that the burglars had left, D.S. checked the
motion-activated camera in his alarm clock. The camera had
recorded the burglary. The video showed two unfamiliar men,
both wearing baseball caps and sunglasses, rummaging through
D.S.'s closet. One man held a black backpack. The other
held what looked like a gun.
D.S. called 911. A responding officer took photos of
D.S.'s bedroom and the suspected entry point in the back
of the house, which featured unfamiliar shoeprints. The
officer collected a copy of the video and brought it, as well
as a box touched by one of the burglars, back to the precinct
for further investigation.
Despite these efforts by the police, D.S. remained uneasy.
Worried that someone might be trying to kill him, he used
software from his video-editing business to enhance the crime
video. After converting the original footage to a high
definition format and editing its length, he sent it to local
television news stations. He also offered a reward of $1, 000
Shortly thereafter, the enhanced video hit the news.
Howard-Walker's girlfriend's uncle saw it and went to
the police station to report that he knew one of the men in
the video based on the sunglasses and hat the man wore. He
identified that man as Howard-Walker, and he provided a photo
of Howard-Walker wearing a hat and sunglasses like those
visible in the video.
Based on that tip, Detective Mark Garcia contacted
Howard-Walker's probation officer and asked him to look
at still photos from the video to see whether he thought the
man in the video was Howard-Walker. The probation officer
said he was "95 percent sure" that it was
Howard-Walker in the photos.
Police then arrested Howard-Walker and took him to a police
station where Detective Garcia interviewed him. Howard-Walker
denied participating in the burglary, but after the
interview, as Detective Garcia walked Howard-Walker back to
the holding cell area, Howard-Walker asked Detective Garcia
"what [it] would . . . get him if [Howard-Walker] gave
[Detective Garcia] the name of the other person" in the
video. Detective Garcia responded that "it would build
[Howard-Walker's] credibility" with the District
Attorney's Office and "it would help him." At
that point, Howard-Walker became emotional and stopped
Upon booking Howard-Walker at the jail, the officers took
custody of the personal property he had at the time of his
arrest. That property included his shoes and a pair of
sunglasses. Detective Garcia thought the sunglasses resembled
those in the camera footage. And he found the tread of
Howard-Walker's shoes matched the shoeprints found
outside D.S.'s home.
The police also executed a search warrant at
Howard-Walker's apartment. The warrant included a list of
items the officers were looking for-a gold medallion, a gold
chain, three rings adorned with diamonds, approximately $8,
000 in cash, twelve credit cards, and multiple watches. The
officers found none of these items at Howard-Walker's
apartment. The officers also didn't find a gun, a black
backpack, or a hat and sunglasses resembling those in the
After the search, Detective Garcia showed Howard-Walker's
girlfriend three still photos from the video. According to
Detective Garcia, the girlfriend identified Howard-Walker as
the man in the photos. When Detective Garcia asked how sure
she was, he said she became visibly upset and responded that
she was "80 percent" sure.
Armed with this information, the People charged Howard-Walker
with one count of first degree burglary and one count of
conspiracy to commit first degree burglary. At trial,
Howard-Walker's main defense was that he was not the man
in the video, and there was a "race to a
conviction" that resulted in an incomplete
investigation. The trial lasted less than nine hours over the
course of two days, excluding voir dire and jury
deliberations. The jury convicted Howard-Walker on both
On appeal, a division of the court of appeals found eight
errors: five resulting from Detective Garcia's testimony
(including the detective's opinion about
Howard-Walker's truthfulness), id. at
¶¶ 47-48, 58, 60, 70, 74, 80; two instructional
errors (including failure to offer any instruction on the
elements of the predicate crime of theft), id. at
¶ 101; and one instance of prosecutorial misconduct
(involving the district attorney explicitly commenting on the
defendant's failure to testify at trial), id. at
¶ 92. Still, it concluded that the one preserved error
was harmless, id. at ¶ 63, and the other seven
unpreserved errors were not plain, id. at
¶¶ 48, 72, 74, 81, 94, 102. So, the division turned
to Howard-Walker's cumulative error claim.
The division cited our long-standing decision in
Oaks. Id. at ¶ 119. There, we noted
that "numerous formal irregularities, each of which in
itself might be deemed harmless, may in the aggregate show
the absence of a fair trial." Oaks, 371 P.2d at
446. Perhaps unsurprisingly, the division looked beyond that
broad standard for more meaningful guidance, particularly
regarding how to analyze cumulative error when a defendant
has preserved some underlying errors but has failed to
preserve others. See Howard-Walker, at ¶¶
118-21. The division adopted a two-step test from the Tenth
Circuit. See id. at ¶ 118 (citing United
States v. Caraway, 534 F.3d, 1290, 1302 (10th Cir.
2008)). First, the division stated it would review the
preserved errors as a group under the harmless error
standard. Id. If the preserved errors were not
cumulatively harmless, then reversal would be warranted.
Second, it would examine the preserved and unpreserved errors
to determine whether collectively they were "sufficient
to overcome the hurdles necessary to establish plain
error." Id. (quoting Caraway, 534 F.3d
at 1302). The division then looked to a nonexhaustive list of
factors suggested by the Eleventh Circuit, "including:
the nature and number of the errors committed; their
interrelationship, if any, and combined effect; how the
district court dealt with the errors as they arose (including
the efficacy of any remedial efforts); the strength of the
government's case; and, the length of the trial," as
further guidance. Id. at ¶ 121 (citing
United States v. Baker, 432 F.3d 1189, 1223 (11th
Cir. 2005), abrogated in part by Davis v.
Washington, 547 U.S. 813 (2006)).
In applying its new test, the division first noted that
"even the most serious error- the improper comment on
Howard-Walker's exercise of his right against
self-incrimination-was fleeting." Id. at ¶
123. "[A]nd the less serious errors bore little relation
to each other." Id. The division acknowledged
that some of Detective Garcia's testimony "may have
tended to undermine Howard-Walker's misidentification
defense," but ultimately concluded that the
impermissible testimony was "brief." Id.
at ¶ 124. So, the division held that "[e]ven when
considered cumulatively, these errors were relatively small
events scattered over the course of a two-day trial, during
which substantial evidence was presented . . . from which the
jury reasonably could have ...