Certiorari to the Colorado Court of Appeals, Court
of Appeals Case No. 14CA1795
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
Attorneys for Respondent: Megan A. Ring, Colorado State
Public Defender, Lynn Noesner, Deputy State Public Defender,
This case requires us to decide whether a court of appeals
division erred in concluding that a prosecutors race-based
comments in her opening statement constituted reversible
plain error. We conclude that the prosecutors
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 prosecutors 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 Robinsons trial as to
cast serious doubt on the reliability of his judgment of
Accordingly, we reverse the divisions judgment and remand
for further proceedings consistent with this opinion.
I. Facts and Procedural History
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.
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
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
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.
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.
Thereafter, during the prosecutors opening statement, she
described certain testimony that the jury purportedly would
Youre going to hear that [A.M.] is white. And shes actually
pretty pasty. Shes 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