280 P.3d 51
Colo. Ct. App.2011Background
- Davis convicted of two counts of sexual assault based on April 14, 2005 assault after meeting W.B. in 2003 and engaging in prior consensual sex.
- Prosecutor conducted closing argument and slide show about trauma trauma-victim “stages” without any expert or lay testimony.
- Prosecutor portrayed stages as common knowledge and suggested W.B.'s conduct fit those stages.
- Trial court permitted the prosecutor's argument and slides, which the court now treats as improper.
- Court reverses and remands for a new trial due to prosecutorial misconduct; remaining issues (double jeopardy and sentence) not reached.
- Evidence against Davis was not overwhelming and credibility issues with W.B. were central to the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutor’s closing argument on trauma stages improper | Davis contends the stages argument bolstered credibility. | People argues it was about demeanor, not an unsupported theory. | Improper closing argument; reversible error. |
| Misconduct warranting reversal under harmless-error standard | Misconduct was significant and not harmless. | No curative instruction necessary; error harmless? | Not harmless; reversal warranted. |
| Remedy and scope of reversal | Remand for new trial required due to prejudice. | Curative measures insufficient; needed new trial? | Judgment and sentence reversed and remanded for new trial. |
Key Cases Cited
- Crider v. People, 186 P.3d 39 (Colo.2008) (prosecutorial misconduct reviewed for non-constitutional harmless error)
- Wend v. People, 235 P.3d 1089 (Colo.2010) (two-step analysis for prosecutorial misconduct)
- People v. Jones, 832 P.2d 1036 (Colo.App.1991) (standard for assessing prosecutorial misconduct in closing arguments)
- United States v. Young, 470 U.S. 1 (U.S. 1985) (general standard for evaluating prosecutorial remarks and prejudice)
- People v. Mersman, 148 P.3d 199 (Colo.App.2006) (curative instructions generally insufficient to erase prejudice)
- People v. Walters, 148 P.3d 331 (Colo.App.2006) (outside-record information and opinions improper in closing)
- Farley v. People, 746 P.2d 956 (Colo.1987) (rape-trauma syndrome and lay testimony considerations)
- Hampton v. People, 746 P.2d 947 (Colo.1987) (admissibility of rape-trauma syndrome testimony)
- Shreck v. People, 22 P.3d 68 (Colo.2001) (abrogation/limits on certain rape-trauma evidence)