People v. Robinson

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          Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 14CA1795

         Attorneys for Petitioner: Daniel May, District Attorney, Fourth Judicial District, Doyle Baker, Senior Deputy District Attorney, Fourth Judicial District, Jennifer Darby, Deputy District Attorney, Fourth Judicial District, Colorado Springs, Colorado

          Attorneys for Respondent: Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State Public Defender, Denver, Colorado

         OPINION

         GABRIEL, JUSTICE

         [¶1] This case requires us to decide whether a court of appeals division erred in concluding that a prosecutor’s race-based comments in her opening statement constituted reversible plain error.^[1] We conclude that the prosecutor’s comments on the contrasting skin tones of defendant Marcus Lee Robinson and the victim were improper because any probative value that these comments might have had was substantially outweighed by the danger of unfair prejudice to Robinson. We further conclude, however, that, on the facts presented here, the prosecutor’s comments did not rise to the level of reversible plain error because even if obvious (an issue that we need not decide), the error did not so undermine the fundamental fairness of Robinson’s trial as to cast serious doubt on the reliability of his judgment of conviction.

         [¶2] Accordingly, we reverse the division’s judgment and remand for further proceedings consistent with this opinion.

          I. Facts and Procedural History

         [¶3] A.M. and her roommate hosted a gathering for some co-workers in their apartment. A.M. drank heavily and eventually passed out on a couch. E.G., one of the guests at the party, fell ill after the alcohol that she drank reacted with a new medication that she was taking, and she fell asleep at the other end of the same couch on which A.M. had passed out.

         [¶4] Robinson arrived at the apartment later in the evening, when things were winding down. According to E.G., she woke to Robinson standing over her with his exposed penis in her face. She told him to get away from her, and he did. E.G. fell back asleep but subsequently woke to some motion on the couch. She then saw Robinson touching a

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still-unconscious A.M.’s breasts and leg. E.G. yelled at Robinson to leave A.M. alone and to get off of her, and he left the room. E.G. fell asleep again, but she claims to have been awakened a third time, this time by a "sexual motion, like a grinding." She allegedly saw Robinson vaginally penetrating the still-incapacitated A.M. E.G. screamed at Robinson, and after he left the apartment, she called 911 to report the sexual assault. Medical personnel arrived and attended to A.M., whom they found unconscious and with her leggings and underwear around her ankles. Ultimately, the medical personnel were able to rouse and treat her.

         [¶5] Robinson was arrested, and he admitted to the police that his initial intentions were to try to get A.M. to have sex with him. He, however, denied any sexual contact with her, claiming that she had said "no" several times and that he understood that "when you hear too many nos, that means no." Robinson also denied any sexual contact with E.G.

         [¶6] The People subsequently charged Robinson with multiple counts arising from the foregoing incidents. 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). People v. Robinson, 2017 COA 128M, ¶ 8, __ P.3d __. 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). Id.

         [¶7] The case proceeded to trial, and during voir dire, defense counsel, who was apparently sensitive to the underlying racial issues in this case (Robinson is African American, and A.M. is white), inquired of the prospective jurors whether there was anything about the difference in the parties’ races that made anyone uncomfortable. No one indicated any concern. Counsel then asked several of the prospective jurors whether they would be comfortable bringing any improper discussion of race in the jury room to the attention of the court. These jurors said that they would, and one of them noted that he understood that he could not allow racial considerations to influence him improperly.

         [¶8] Thereafter, during the prosecutor’s opening statement, she described certain testimony that the jury purportedly would hear, stating:

You’re going to hear that [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. [E.G.] looks over and she can see a dark penis going ...