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
for Respondent: Philip J. Weiser, Attorney General, John T.
Lee, Senior Assistant Attorney General, Denver, Colorado
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
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, 150 Colo. 64, 371 P.2d 443 (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.
I. 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
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-Walkers girlfriends 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-Walkers 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
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-Walkers] credibility" with the District
Attorneys Office and "it would help him." At that
point, Howard-Walker became emotional and stopped talking.
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-Walkers shoes matched the shoeprints found outside
The police also executed a search warrant at Howard-Walkers
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-Walkers apartment. The
officers also didnt find a gun, a black backpack, or a hat
and sunglasses resembling those in the video.
After the search, Detective Garcia showed Howard-Walkers
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-Walkers 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 ...