Peo v. Schwenk, 22CA0372

Daniel Caleb Schwenk was convicted by a jury of first degree assault and menacing after shooting a hotel acquaintance, G.P., in a hotel known for criminal activity.
The altercation followed a contentious history between Schwenk and the victim, who had previously struck Schwenk with a gun.
Surveillance and witness testimony confirmed Schwenk brought and used a shotgun; flight from the scene was also caught on camera.
Schwenk claimed self-defense at trial; the prosecution theorized Schwenk wanted to "make a point."
The jury hung on attempted second-degree murder, which was dismissed. The trial court found habitual criminal counts but deemed the habitual sentence constitutionally disproportionate, imposing a 20-year sentence with substantial restitution.
On appeal, Schwenk challenged trial errors (prosecutorial misconduct, exclusion of impeachment evidence) and the timeliness of the restitution order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutorial misconduct (voir dire and closing)	Conduct was within permissible bounds or errors were harmless	Prosecutor indoctrinated jury, trivialized burden of proof, misstated self-defense law	Errors occurred but were not prejudicial enough to require reversal
Exclusion of impeachment evidence (victim's felony convictions)	Any error was harmless due to limited impact of victim's statements	Right to impeach hearsay declarant (victim) was violated	Court erred, but error was harmless since victim's credibility wasn't material
Timeliness of the restitution order	Restitution request was made within court's established deadline	Restitution statute not followed; order must be vacated	Restitution order affirmed; court acted within discretion despite prosecution's delay
Confrontation Clause (re: hearsay statements)	Not preserved for appeal; victim’s bodycam statements not testimonial	Constituted constitutional violation	Not properly preserved; even if error, not plain error

Domingo-Gomez v. People, 125 P.3d 1043 (Colo. 2005) (prosecution must avoid improper methods in pursuit of conviction)
Wend v. People, 235 P.3d 1089 (Colo. 2010) (framework for reviewing prosecutorial misconduct)
Hagos v. People, 288 P.3d 116 (Colo. 2012) (harmless versus plain error standards for review)
People v. Monroe, 466 P.3d 478 (Colo. 2020) (prohibiting prosecutorial arguments about duty to retreat unless defendant is initial aggressor)
Tibbels v. People, 505 P.3d 51 (Colo. 2022) (burden of proof analogies by court are problematic)