v. Payne
2019 COA 167
Colo. Ct. App.2019Background:
- In May 2015 in Grand Junction, officers encountered Cameron Payne screaming in the street, handcuffed him, and while escorting him he kicked an officer; a jury convicted Payne of resisting arrest, disorderly conduct, and second-degree assault while lawfully confined/in custody.
- At trial Officer Jason Evans (lay witness) testified he considered Payne not free to leave and "lawfully confined or in custody." Defense did not elicit a clarifying definition on cross.
- The trial court instructed the jury using the model elements for second-degree assault but did not give a supplemental definition of "lawfully confined or in custody." Defense lodged no instruction request or contemporaneous objection.
- The prosecutor waived an initial closing, defense counsel spoke first, then the prosecutor made a rebuttal closing (no objection at trial); the prosecutor used "reason and common sense" language to describe custody.
- Payne appealed, arguing (1) lay testimony usurped the jury, (2) failure to define "lawfully confined or in custody," (3) prosecutorial waiver of initial closing but reserved rebuttal was improper, and (4) prosecutorial misconduct/misstatement of law in rebuttal.
- The Court of Appeals affirmed: it applied plain-error review (issues not preserved) and found no abuse of discretion or prejudice on any claim.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of lay witness testimony that Payne was "lawfully confined or in custody" | Officer's brief opinion addressed a factual element and was admissible under CRE 704; jury instructed on credibility | Testimony usurped jury by expressing a legal conclusion on custody; counsel did not clarify on cross | No plain error; testimony factual, not a legal conclusion, brief, and jury told to decide credibility |
| Failure to give definitional instruction on "lawfully confined or in custody" | Model element instruction sufficed; terms lack statutory definition and court has discretion; no confusion or request | Terms have technical legal meaning requiring instruction to avoid prejudice | No abuse of discretion; model instruction adequate, no jury confusion, no plain error |
| Allowing prosecutor to waive initial closing but give rebuttal | Colorado rules silent on closing order; reserving rebuttal is not waiver; trial court has broad discretion; error only if prejudicial | Forcing defense to open deprived defendant of ability to respond and denied fair trial | Upheld: prosecution may reserve rebuttal absent rule; court adopts prejudice test and found no prejudice here |
| Prosecutorial misconduct for misstating custody/confinement law in rebuttal | Remarks were inartful but invited jury to resolve custody as a factual question and tied to evidence; jury was instructed on burden | Prosecutor misstated law, lowered burden, and misstated meaning of confinement | No plain error: comments brief, tied to evidence, jury instructed, and defense did not object |
Key Cases Cited
- People v. Rector, 248 P.3d 1196 (Colo. 2011) (discusses limits on witness testimony that may embrace ultimate issues)
- People v. Rawson, 97 P.3d 315 (Colo. App. 2004) (defines "in custody" for § 18-3-203 purposes as physical control to ensure person does not leave)
- People v. Armstrong, 720 P.2d 165 (Colo. 1986) (whether defendant was in custody is a factual determination for the jury)
- People v. Ortega, 899 P.2d 236 (Colo. App. 1994) (handcuffing can establish custody without formal arrest)
- People v. Marquez-Lopez, 952 P.2d 788 (Colo. App. 1997) (second-degree assault provision can apply outside institutional confinement)