v. Robinson, 454 P.3d 229

Defendant Marcus Robinson (Black) was accused of sexually assaulting A.M. (white) while she was unconscious; E.G., a witness, awoke multiple times and described seeing sexual contact.
At trial the prosecutor, during opening, described A.M. as "pasty white" and Robinson as "dark," saying the jury would hear E.G. saw "a dark penis going into a white body." Defense did not object at trial.
E.G.'s live testimony did not corroborate the prosecutor's graphic race-based phrasing; the prosecutor later elicited that A.M. appeared very white and that Robinson was dark, but no witness testified exactly as the opening portrayed.
The jury acquitted Robinson of all counts requiring penetration and convicted him of lesser included attempted sexual assault and unlawful sexual contact; he was sentenced under Colorado's sex-offender statute.
The Colorado Court of Appeals unanimously reversed for plain error, reasoning the race-based opening was obvious and undermined reliability; the Colorado Supreme Court granted certiorari.
The Colorado Supreme Court held the prosecutor's race-based comments were improper (probative value outweighed prejudice) but, on these facts, did not constitute reversible plain error and reversed the court of appeals.

Issue	People's Argument	Robinson's Argument	Held
Whether the prosecutor's race-based opening remarks were reversible plain error	The remarks were a permissible description of anticipated evidence showing how the witness perceived penetration in a dark room	The remarks improperly injected race and appealed to racial prejudice, requiring reversal for plain error	Remarks were improper (probative value outweighed prejudice) but did not rise to plain error on these facts; convictions not reversed by Supreme Court

Berger v. United States, 295 U.S. 78 (prosecutor's duty is to seek justice, not merely convict)
Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (racial bias in the courtroom demands added precaution)
Wend v. People, 235 P.3d 1089 (framework for reviewing prosecutorial misconduct)
People v. Miller, 113 P.3d 743 (plain-error standard for unpreserved claims)
Domingo-Gomez v. People, 125 P.3d 1043 (reversal for prosecutorial misconduct requires flagrant, glaring, or tremendous impropriety)
United States v. Doe, 903 F.2d 16 (race-based argument shifts from evidence to emotion and becomes improper)
Miller v. North Carolina, 583 F.2d 701 (race appeals in sexual-crime context are especially prejudicial)
People v. Braley, 879 P.2d 410 (acquittal on related charges can indicate the jury weighed evidence despite alleged improper argument)