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Howard-Walker v. State

Supreme Court of Colorado, En Banc

July 1, 2019

Kyree Davon Howard-Walker, Petitioner
The People of the State of Colorado. Respondent

          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, Colorado


          HOOD JUSTICE

          ¶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.

         ¶2 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.

         ¶3 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.

         ¶4 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.

         ¶5 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

         ¶6 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.

         ¶7 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.

         ¶8 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.

         ¶9 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 per "conviction."

         ¶10 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.

         ¶11 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.

         ¶12 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 talking.

         ¶13 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.

         ¶14 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 video.

         ¶15 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.

         ¶16 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 charges.

         ¶17 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.

         ¶18 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)).

         ¶19 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 ΒΆ 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 ...

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