v. Payne
No. 18CA0283, People v. Payne — Criminal Law — Trials — Closing Arguments
In the third issue of this opinion, a division of the court of appeals considers whether a trial court erred by allowing a prosecutor to waive the initial closing statement and then give a rebuttal. Because Colorado law does not require a prosecutor to give the initial closing statement, or necessitate that a prosecutor waives rebuttal remarks by forgoing the initial closing, the division concludes that a trial court does not abuse its discretion by allowing the prosecutor to reserve her closing statement until rebuttal absent prejudice to the defendant. Because the defendant was not prejudiced here, the division affirms the judgment of conviction.
I. Background
¶ 2 In May 2015, two Grand Junction police officers patrolling the downtown area heard a man screaming and cursing in the street. When the officers approached the man, later identified as Payne, he aggressively turned toward the officers and ignored their commands to stop. The officers placed him in handcuffs, called for backup, and were escorting Payne out of the street and toward their police car when he kicked one of the officers in the groin. A jury found
II. Lay Witness Testimony
¶ 3 Payne contends that the trial court reversibly erred by admitting lay witness testimony that he was “lawfully confined or in custody,” thereby usurping the jury‘s role to decide whether he was confined or in custody. We disagree.
A. Additional Background
¶ 4 At trial, Officer Jason Evans testified as a lay witness for the prosecution. In discussing Payne‘s arrest, the following colloquy occurred:
[Prosecutor]: Was . . . Payne, compliant when you instructed him to stop and then had to go and put handcuffs on him?
[Officer Evans]: No, ma‘am.
[Prosecutor]: At this point did you consider that he was lawfully confined or in custody?
[Officer Evans]: At that point he was not free to leave.
[Prosecutor]: Did you consider that he was lawfully confined or in custody?
[Officer Evans]: Yes, ma‘am.
B. Preservation and Standard of Review
¶ 5 We review a trial court‘s decision to admit testimony for an abuse of discretion. People v. Robles-Sierra, 2018 COA 28, ¶ 23. An abuse of discretion occurs when a trial court‘s ruling is manifestly arbitrary, unreasonable, or unfair, or if it misapplies the law. People v. Casias, 2012 COA 117, ¶ 29.
¶ 6 Because Payne did not preserve this issue for appeal, we apply plain error review. Hagos v. People, 2012 CO 63, ¶ 14. Thus, we reverse only if any error was obvious and substantial, meaning the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Id.
C. Law and Analysis
¶ 7 A testifying witness may not usurp the jury‘s factfinding role. Robles-Sierra, ¶ 24. However, CRE 704 provides that opinion testimony that is “otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” In
¶ 8 While the second degree assault statute,
¶ 9 Payne argues that Officer Evans’ testimony that Payne was not free to leave and that he was “lawfully confined or in custody” improperly usurped the jury‘s role. He asserts that allowing the testimony constituted reversible error because the testimony expressed a legal opinion, Payne‘s counsel did not clarify the opinion on cross-examination, and the jury was never given a definition for “lawfully confined or in custody.”
¶ 11 Whether Payne was in custody for purposes of committing second degree assault was a factual determination for the jury to decide. See People v. Armstrong, 720 P.2d 165, 169 (Colo. 1986) (“It is for the trier of fact to determine after the evidence has been presented at trial whether, under the totality of the circumstances, [the defendant] may be guilty of . . . second degree assault[.]“). Officer Evans’ description of Payne‘s arrest was useful for the jury to determine whether Payne was in custody at the time of the charged assault.
¶ 12 Accordingly, the trial court did not abuse its discretion by allowing Officer Evans’ testimony, and thus we perceive no plain error. See Hagos, ¶ 14; Rector, 248 P.3d at 1203.
III. Jury Instruction
¶ 13 Payne next argues that the trial court erred by failing to give a jury instruction defining “lawfully confined or in custody.” We disagree.
¶ 14 Before closing arguments, the trial court instructed the jury on the presumption of Payne‘s innocence and that the prosecution had to prove every element of each charged crime beyond a reasonable doubt. Regarding the second degree assault charge, lawfully confined or in custody, the trial court stated that the prosecution had to prove each of the following elements beyond a reasonable doubt:
(1) that the Defendant, (2) in the state of Colorado, at or about the date and place charged, (3) knowingly and violently, (4) while lawfully confined or in custody, (5) applied physical force against the person of a peace officer engaged in the performance of his duties (6) and the Defendant knew or should have reasonably known that the victim was a peace officer engaged in the performance of his duties.2
¶ 15 Although the jury was provided with some definitions — for terms such as “voluntary act” and “bodily injury” — the jury was not given a definition for “lawfully confined or in custody.” Payne‘s
B. Standard of Review, Preservation, and Applicable Law
¶ 16 We review de novo whether jury instructions accurately informed the jury of the relevant governing law, People v. Carbajal, 2014 CO 60, ¶ 10, but a trial court has substantial discretion in formulating jury instructions if “they are correct statements of the law and fairly and adequately cover the issues presented,” People v. Nerud, 2015 COA 27, ¶ 35 (citation omitted). Thus, we review a trial court‘s decision to give, or not to give, a particular jury instruction for an abuse of discretion. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011).
¶ 17 The parties agree that this issue was not preserved for appeal. We therefore review for plain error. See Hagos, ¶ 14.
¶ 18 A definitional instruction is not required for a term or phrase familiar to a reasonable person of common intelligence, especially when the term‘s “meaning is not so technical or mysterious as to create confusion in jurors’ minds.” People v. Thoro Prods. Co., 45 P.3d 737, 745 (Colo. App. 2001), aff‘d, 70 P.3d 1188 (Colo. 2003).
C. Analysis
¶ 19 Payne argues that the trial court reversibly erred by failing to instruct the jury on the meaning of “lawfully confined or in custody” because the terms have technical, specific legal meanings that the jury could not have understood without such an instruction.
¶ 20 The instructions the trial court gave matched Colorado‘s model criminal jury instruction for second degree assault, lawfully confined or in custody. See COLJI-Crim. 3-2:13 (2018); see also People v. Rester, 36 P.3d 98, 102 (Colo. App. 2001) (“Pattern jury instructions . . . are intended as guidelines . . . [that] carry weight and should be considered by a trial court[.]“). We agree with Payne that using model instructions does not always ensure that the trial court avoided plain error. See Garcia v. People, 2019 CO 64, ¶ 23 (recognizing that a jury instruction that tracked the model instruction wasn‘t enough to avoid plain error). But here, we
¶ 21 Confinement and custody, for
¶ 22 From the evidence presented and the instructions given at trial, the jury was aware that whether Payne was in custody was a key element the prosecution had to prove. The jury was told the
¶ 23 Thus, we conclude that the trial court did not abuse its discretion when it did not offer, sua sponte, a supplemental definitional instruction for “lawfully confined or in custody.” See Day, 255 P.3d at 1067.
¶ 24 Payne next argues that the trial court reversibly erred by allowing the prosecution to waive its initial closing statement and then give a rebuttal closing argument. We disagree.
A. Additional Background
¶ 25 After the trial court instructed the jury, the prosecutor informed the trial court that she would reserve her closing argument time for rebuttal. Payne‘s counsel did not object and gave his closing statement, arguing that Payne was innocent of the two second degree assault charges because (1) he was unable to form the required intent for second degree assault, bodily injury on a peace officer, as he was intoxicated; and (2) he was neither confined nor in custody when he kicked Officer Evans. Regarding the second degree assault charge, lawfully confined or in custody, Payne‘s counsel argued that Payne was not confined because he was not in jail. And while Payne was in handcuffs, his counsel argued that Payne was not yet in custody because multiple officers were needed to complete the arrest before he bent down and kicked Officer Evans.
B. Standard of Review and Preservation
¶ 27 Trial courts are afforded broad discretion over the presentation of closing arguments and in determining whether closing arguments are improper. People v. Brown, 218 P.3d 733, 740 (Colo. App. 2009), aff‘d, 239 P.3d 764 (Colo. 2010); see also People v. Motley, 179 Colo. 77, 79, 498 P.2d 339, 340 (1972) (“It is fundamental in Colorado that the scope of final argument rests in the sound discretion of the trial court.“). “A trial court abuses its discretion if its decision is manifestly arbitrary, unreasonable, or unfair, or if it misconstrues or misapplies the law.” People v. Bohl, 2018 COA 152, ¶ 16. However, we review de novo whether the trial court misapplied the law, People v. Jimenez, 217 P.3d 841, 859 (Colo. App. 2008), by allowing the prosecution to give a rebuttal closing argument after waiving initial closing.
C. Analysis
¶ 29 Payne asserts that because his counsel was forced to give his closing statement first and was thus unable to respond to the prosecutor‘s closing remarks, his constitutional right to a fair trial and to present a complete defense was violated. We disagree.
¶ 30 First, whether the trial court erred here — by allowing the prosecutor to delay her closing statement until rebuttal — did not implicate Payne‘s constitutional right to a fair trial.3 See People v. Flockhart, 2013 CO 42, ¶ 20 (“Only those errors ‘that specifically and directly offend a defendant‘s constitutional rights are “constitutional” in nature.‘“) (citations omitted); People v. Davis, 280 P.3d 51, 53 (Colo. App. 2011) (observing that closing argument “is broadly accepted as being subject to the discretion of the trial court,
¶ 31 Second, Colorado procedure does not dictate a specific order for closing arguments.
¶ 32 While Payne relies on
¶ 33 Because the order of closing remarks does not implicate Payne‘s constitutional rights, and Colorado has not adopted a rule like
¶ 34 While our supreme court is free to adopt a rule similar to
¶ 35 We next address whether a trial court abuses its discretion by allowing a prosecutor to raise new arguments during rebuttal. See Motley, 179 Colo. at 79, 498 P.2d at 340; Brown, 218 P.3d at 740. Our supreme court has not, by procedural rules or precedent, explicitly required prosecutors to limit their rebuttal closing statements to issues that they addressed in their initial closing
¶ 36 Whether a trial court abuses its discretion by allowing a prosecutor to raise new arguments during rebuttal — new in the sense that the prosecutor did not give the initial closing statement or that the prosecutor‘s rebuttal addressed issues not raised by defendant‘s counsel in closing — appears to be a matter of first impression for our court. Accordingly, we look to other jurisdictions without a rule similar to
¶ 37 Some of these jurisdictions have rejected the notion that a trial court inherently errs by allowing the prosecution to reserve its closing statement until rebuttal. See Commonwealth v. Seminara, 483 N.E.2d 92, 99 (Mass. App. Ct. 1985) (“That the drafters of the Federal Rules of Criminal Procedure have endorsed a different order of argument does not . . . compel the Massachusetts courts to do the same. . . . If defense counsel hears prejudicial error in the prosecutor‘s closing, there is an opportunity to object, request curative instructions, or move for a mistrial.“); Margraves v. State, 56 S.W.3d 673, 684 (Tex. App. 2001) (rejecting defendant‘s contention that the trial court erred in allowing the State to reserve its entire closing argument for rebuttal and noting that if “the legislature intended the State to be required to open the closing arguments, it could have easily indicated that intention [in the Texas Code of Criminal Procedure]“); see also Porter v. United States, 826 A.2d 398, 409 (D.C. 2003) (recognizing that while the prosecutor should not develop new arguments on rebuttal, it “is not
¶ 38 Other jurisdictions often look to whether a defendant was prejudiced. See Bailey v. State, 440 A.2d 997, 1001 (Del. 1982) (holding that the trial court abused its discretion in allowing the prosecution, during its rebuttal, to discuss testimony not mentioned by the defense or by the prosecution in its opening closing statement); Presi v. State, 534 A.2d 370, 371 (Md. Ct. Spec. App. 1987) (holding that the trial court abused its discretion in allowing the prosecution to raise a new issue in its rebuttal because the defendant was prejudiced by having no “opportunity to rebut the State‘s new argument“); State v. Hughes, 796 S.E.2d 174, 181 (S.C. Ct. App. 2017) (holding that the defendant failed to demonstrate prejudicial error, where the trial court allowed the prosecutor to delay most of his closing remarks until rebuttal, because the prosecutor‘s rebuttal closing “was confined to content
¶ 39 We adopt the prejudice approach and conclude that because Colorado law does not require the prosecutor to give the initial closing statement, and a prosecutor does not waive rebuttal remarks by forgoing the initial closing, a trial court abuses its discretion by allowing the prosecutor to reserve her closing statement until rebuttal only when the prosecutor‘s rebuttal remarks prejudice the defendant, and the court fails to remedy such prejudice, such as by striking the argument or allowing surrebuttal by the defense. We perceive no such prejudice here.
¶ 40 During the prosecutor‘s rebuttal statement, she responded only to Payne‘s counsel‘s closing arguments. Specifically, her statements disputed Payne‘s counsel‘s argument that Payne was not confined or in custody. Further, the prosecutor‘s rebuttal remarks were tied to evidence admitted during trial or to reasonable
¶ 41 For the same reasons — that the prosecutor‘s rebuttal remarks did not exceed the scope of Payne‘s counsel‘s closing remarks and the prosecutor properly reminded the jury that closing arguments did not constitute evidence, see People v. Trujillo, 2018 COA 12, ¶ 40 — and because Payne‘s counsel failed to object to the prosecution reserving its closing statement until rebuttal, see People v. Lovato, 2014 COA 113, ¶ 65, we conclude that Payne was not prejudiced, see Bailey, 440 A.2d at 1001; Presi, 534 A.2d at 371; Hughes, 796 S.E.2d at 181. Therefore, under the facts of this case, the trial court did not abuse its discretion by allowing the prosecutor to reserve her closing statement until rebuttal. See Bohl, ¶ 16; People v. Krueger, 2012 COA 80, ¶ 51.
¶ 42 Payne last argues that the trial court reversibly erred by allowing the prosecutor to misstate the custody and confinement law during closing. We disagree.
A. Additional Background
¶ 43 Regarding whether Payne was confined or in custody, the prosecutor stated,
What does your reason and common sense tell you about custody or confinement. . . . [Y]ou see someone being approached on the street. That person is told by law enforcement, “Police, stop.” They . . . are handcuffed, detained, not free to leave, as the officer testified, an officer on each hand and they‘re being walked to sit down while they‘re giving identifying information about themselves. Handcuffed, ordered to stop, two police officers hands on with them. I would argue to you your reason and common sense is fairly clear. That person is clearly in custody or confinement. Now [Payne‘s counsel] would ask you to believe that confinement must refer to only someone who was in a detention facility. That‘s not in the jury instructions. That‘s not the law the judge has given to you. Custody or confinement means what your reason and common sense tells you those words mean.
¶ 44 Our review of a prosecutorial misconduct claim involves a two-step analysis. First, we determine whether the prosecutor‘s conduct was improper based on the totality of the circumstances; second, we determine whether the conduct warrants reversal under the proper standard of review. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).
¶ 45 “We review the district court‘s determination whether a prosecutor engaged in misconduct for an abuse of discretion. We will not disturb the court‘s ruling absent a showing of a gross abuse of discretion resulting in prejudice and a denial of justice.” Krueger, ¶ 51 (citations omitted). Where defense counsel failed to object at trial, as here, we review for plain error. See Hagos, ¶ 14. “To constitute plain error, prosecutorial misconduct must be flagrant or glaringly or tremendously improper, and it must so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction.” People v. McMinn, 2013 COA 94, ¶ 58.
¶ 46 We evaluate claims of improper argument in the context of the argument as a whole and in light of the evidence before the jury. People v. Conyac, 2014 COA 8M, ¶ 132. During closing remarks, prosecutors have wide latitude in the language and style they choose to employ. Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005). Additionally, “because arguments delivered in the heat of trial are not always perfectly scripted, reviewing courts accord prosecutors the benefit of the doubt when their remarks are ambiguous or simply inartful.” People v. Samson, 2012 COA 167, ¶ 30. However, a prosecutor may not misstate the evidence or the law. People v. Robles, 302 P.3d 269, 279 (Colo. App. 2011), aff‘d, 2013 CO 24.
¶ 47 In determining whether a closing argument was improper, we may consider the language used, the context of the statements, the strength of the evidence, and whether the prosecutor repeated the misconduct. Lovato, ¶ 64; see also Trujillo, ¶ 40 (A “reviewing court may consider whether proper jury instructions mitigated the prejudicial effect of prosecutorial misconduct.“). Defense counsel‘s
D. Analysis
¶ 48 Payne asserts that the prosecutor‘s rebuttal statement misstated the law, lowered the burden of proof, and misled the jury by implying that Payne‘s counsel wrongly stated that confinement refers only to someone in a detention facility and that confinement and custody have a broader meaning rather than a specific, legal definition. We disagree.
¶ 49 When viewed in context, the prosecutor‘s remarks did not constitute plain error. Although the prosecutor wrongly suggested that confinement was not limited to someone in a detention facility, the jury could properly find Payne guilty of second degree assault if it found confinement or custody. See Marquez-Lopez, 952 P.2d at 789-90 (rejecting defendant‘s contention that
¶ 50 Ultimately, given that (1) the prosecutor‘s confinement statement was brief, see Lovato, ¶ 64; (2) Payne‘s counsel did not
VI. Conclusion
¶ 51 We affirm the judgment of conviction.
JUDGE J. JONES and JUDGE TOW concur.