Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 14CA1795
Judgment
Reversed.
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 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 into a white body. That's how
graphic she could see [sic].
Defense
counsel did not object to these comments, and the trial court
...