Wend v. People

mа- reasons, I dissent these For Initiative Proposed conclusion jority's subjects. multiple contains

# 91 RICE that Justice state authorized

I am dissent. in this

joins WEND, Petitioner Lee-Renee

Jennifer the State PEOPLE Respondent.

Colorado,

No. 09SC478. Colorado, Court

Supreme

En Banc. 28, 2010.

June 16, 2010.* Aug.

Rehearing Denied

* petition. grant would Eid and Justice Coats Justice

1091 General, Kath- Attorney Suthers, W. John General, Attorney Hansen, Assistant A. erine Section, Division, Justice Criminal

Appellate Respondent. Denver, CO, for of the Opinion delivered RICE Justice Court. re- case to in this certiorari granted We in an conclusion appeals' the court

view pros- that, although decision unpublished "lie" word used improperly ecutor statements, was no and opening of the use agree that We error. reversible cate- forms any its other "lie" prece- our according to improper gorically However, that hold we dent. the word stressed repeatedly eredibility defendant's in which trial defense, was essential fairness fundamental prejudiced conduct reversible and constituted return Therefore, and reverse error. re- directions appeals court of a new for mand the Case Facts I. shooting in the from appeal stems This Adamson, in the victim, Michael home The Day, 2002. morning of Christmas early Wend, had Lee-Renee defendant, Jennifer for home in his Adamson staying ‍‌​​‌‌‌‌‌‌‌​​​‌​‌‌​​‌​‌​​‌​​​‌​‌​‌​​​​‌​‌​‌‌​​​‌​‍with been hall across a room months, occupying few Adamson alleged defense him. allowing Wend for in return sex sought demand and home in his reside methamphetamine escalating coupled with Adamson between relationship made use in late increasingly tumultuous and Wend case, testified witnesses prior by Adamson threatened felt Wend out moved never shooting but home. frequent were Adamson Wend Both ap- users, were and both methamphetamine It shooting. time of at the high parently midnight sometime uncontested once Adamson Day, shot on Christmas at trial claimed stomach. awith threatening gestures made Adamson dog both gun towards then Adamson in self-defense. him shot CO, Boulder, Petitioner. Weisz,

Lisa managed to crawl across the room, (2003). hall to his Wend argued at trial that she acted collapsed where he shortly died thereaf- in self-defense when she shot Adamson. We ter. Blood from the shooting remained in granted certiorari specifically on the issue of both Wend's and Adamson's rooms for many prosecutorial "whether misconduct warrants days, including large pool on reversal," Adamson's only so the instances from the trial floor, bedroom police until executed search related to that issue are discussed herein. warrant on premises. specific Of concern to us is the Wend never contacted police. Along repeated use of the word "lie" in opening and friend, with a Randy Anderson, Wend dis- closing statements. In his opening, pros posed of body days some after the shoot- ecutor mentioned Detective Derek Graham's ing by putting it in an empty refrigerator videotаped interrogation Wend,1 predict and leaving it in dump yard a outside Castle ing to jury "you'll that hear lie after lie Rock, Days later, Colorado. Anderson after lie after lie from Jennifer Wend about agreed plead to guilty to an accomplice what happened to MichaelAdamson." Later charge in exchange for locating the body and in opening, prosecutor stated, "for about testifying for the State. the first half of [the interrogation video,] lies, same police When same lies." called It Wend for questioning should be noted that defense counsel also regarding used disappearance word "lie" of Adamson, regarding the interrogation she initially during any open denied his knowledge of his ing statement, saying, "[Wend] whereabouts. does Police lie to interrogated Wend on people about 3, what January happened 2008, to they but let Michael go after shе Adamson. She lies claimed she's helpful have no afraid of information about what's going happen to her if Adamson. After she Anderson tells the eventually told truth." Defense police again counsel about body observed and how he assist- throughout his closing ed Wend in statement covering up Wend the killing, police "lied," had but comments, his arrested Wend on January 17, merely 2003. During acknowledged fact second round Wend interrogation had 17th, changed story, Wend initially ostensibly attempted denied knowledge of the mitigate the damage shooting, from the then briefly interrogation tried to blame video that prosecution Anderson for had killing Adamson, dissected in finally and great detail with changed Detective stories and Graham during admitted to shooting Adamson in self-defense. his statement, prosecutor IL The Trial began by telling jury: The charged State Wend with first-degree "I shot him." "I haven't been honest with murder under 18-3-102, section you CRS. from the bеginning." "I'm the one trial, During prosecutor introduced video of both the interrogations aforementioned of Wend. Q: you Have anyone ever had trying that was prosecutor The played segments of the video for to be more convincing than she was about jury paused and often tape directly what the truth was? question witness Detective Graham, who was A: Oh she up mean, was there. I I've interrogator on both prose- occasions. The people had that tried to convince me they cutor frequently asked Detective Graham to com- didn't something do they where ultimately con- ment on whether he believed Wend lying was it, doing fess to but very she tried hard to lead during interrogation. Examples of ques- such me to believe that being she was truthful with tioning include: me lying and not to me. Q: So this was the truth that she telling was All of examples these came as the watched you there? segments of video, interrogatiоn in which A: No. she actively misleading Detective Graham about Adamson's Beyond Q: whereabouts. merely you say, When "You've very been honest potential misconduct in the ques- form with me," is that a true statement? tioning, we generally approve do not A: this use That's I technique. mean, she's been me, lying the video. but I doing rapport some building. confession, she 2008, of Wend's 17th, video In the liar." January the him." shot who "Randy's says point one swears often Derek to Detective tells had confess- he told liar" fuckin' calling back games, weeks after Graham prosecu- object of Regardless lies. ed. lies lies and forth, lies "fucking comment, term ambiguous lies all tor's keep count hardly could You certainly of closing statement January Har" interviews, one in two told concern. finally, and out moved had she soon interview. second in the lies all then object to contemporaneously did by paraphrasing court. сontinued The comments these any of during comments misleading of Wend's more observing that stage, investigatory Posture Procedural III. "heard witnesses also police just second actually the appeal instant The he closing, in his lies, Later too." these initially prosecution The case. in this appeal realized "the stated murder, a first-degree charged Gra Derek] lying [Detective keep couldn't jury returned felony, but class-one up. give gonna see, wasn't Derek You ham. murder second-degree verdict guilty closet, like in his have skeletons didn't Derek felony. a class-two passion, heat without prosecution use." methamphetamine to the judgment initial appealed Wend Wend, she confessed after posited also er found reversible which appeals, of court suddenly re interrogation, the second during in an instruction jury flawed aof because ror this buying "they're figured laxed first In this in 2006. оpinion unpublished "crocodile cried then story" and self-defense appel 2 left other appeals of court the opinion, tears." judgment its undecided late issues statement, the of middle the In dispositive.3 was jury instructions on the prosecutor's of the evidence further there The a language. ordered appeals of use of court Initially, careless rehearing for petition stated: but, a trial new judgment its modified was prosecution, by the propose people The her denial, over either if not between to elect in deep prosecution waist allow least this for judgment of a accepting the second or about case Around retrying head. by provocation, got mon- murder he second-degree knows Randy [Anderson] year rent, about by re- for responded felony. Wend ey from class-three he he knows the third modifica- contesting onAnd rehearing 400 buсks. questing Oh, but request refrigerator. body tion, in that did she but put be get appeal on initially couldn't raised the defendant third issues see, Let's denied appeals that? Why was Randy. The court hold reheard. it, in for Yeah, he's court this petitioned that's then in Missouri. Wend request. he was Yeah, it. Wend denied. Randy did also Oh, certiorari, was Missouri. appeals That Har. the court fucking The Randy. a motion filed yeah, then reconsideration, else. too everybody this but like out selling demanding Randy, exhausted, He were appeals in Sedalia. all he was After Randy knows denied. second- lesser dump. accepted returned prosecution he knows § charge, 18- provocation murder degree added). to surmise It is difficult (Emphasis (2008), (3)(b), 3-103(1), C.R.S. prosecution whether cold record from sentencing conviction, new entered court quote Wend attempting haphazardly years. thirty-six "fucking Wend Randy accomplice calling her opinion did rule its appeals in The court general- expression that anis tears" "Crocodile impact a new that would evidentiary issues display of three insincere hypocritical or to a ly refers issues, substantive trial, the other expression passed on origins possible emotion. no possess crocodiles myth that vary from weeping to lure of crocodiles tales ducts tear they as victims crying their over prey or their them. consume 2007, appealed this entry new of mit an appeal to fail where there has been no judgment to the court appeals, raising a culpable fault, although may have been myriad of issues including prosecutorial mis- some errors irregularities." Wigton v. conduct. In this appeal, second the court of Wigton, 19, 22, Colo. 133, 169 P. appeals held that prosecutor's (1917). use of the Hence, precedent demands we re word "He" was improper but was a fair des- view this waiver issue with all doubts re criptor for what both parties were, admitted solved in favor of preserving the appellate fact, Moreover, lies. the court believed right. Peterson, 113 708; Wigton, 69 statements were not Colo. at 169 P. at 134. designed to passions inflame the jury, Wend's conviction for second-degree mur- meaning there was no prejudice unfair by provocation der has had no opportunity Hence, statements. although the court appeal yet. as If we were to deny recognized the error prosecution's use right to this second appeal, it would "lie," of the word it found no reversible unacceptably deny her the ability to appeal error. appeal This followed. many facets of her criminal conviction that the court appeals refused to address. The IV. Waiver court of appeals in the first appeal did not The State contends that Wend waived consider any issue besides instruc- appeal prosecutorial misconduct (on tion which it initially vacated judg- by failing to raise the issue part as of her ment and trial) remanded for a new and the first appeal. direct The State accurately ob evidentiary questions that would foreseeably serves that in her first appeal direct impact the new trial. The court of appeals' failed to challenge use of the decision to avoid other trial issues because it word "lie" throughout opening and closing was vacating that trial anyway logical makes statements, but that is not fatal to appeal sense, but it problematic became when the for three First, reasons. the court of appeals court later modifiedits judgment to allowthe refused to many address of the issues Wend State to accept a lesser сharge based on the raised in the first appeal because they be original same trial. The modification essen- came moot when the court of appeals re tially cireumvented right Wend's appeal all (before manded for a new trial later amend arising issues in the first Thus, ing its judgment to allow the State to accept this appeal second after the trial court's con- different, a lesser murder charge). Next, viction on the lesser charge is absolutely instead of a mere resentencing in the trial necessary protect Wend's fundamental court after the appeal, first the court of right to appeal. appeals entirely vacated original the convic Next, because the court of appeals vacated tion, meaning the trial court technically con the initial conviction for second-degree mur- victed Wend of a new crime prior to the der without heat of passion, this appeal is the second appeal. Finally, our shift towards a first after entry of a new conviction for see- categorical prohibition against prosecutorial ond-degree ‍‌​​‌‌‌‌‌‌‌​​​‌​‌‌​​‌​‌​​‌​​​‌​‌​‌​​​​‌​‌​‌‌​​​‌​‍murder provocation. Again, use of the word postdates "lie" Wend's initial section guarantees 16-12-101 right the "to appeal, so the change in our constitutional review the proceedings resulting in conviec- Jurisprudence justifies this later appeal. tion," and the conviction at the heart of the "Every person convicted of an offense appeal instant has had no opportunity for under the statutes of this state has right the appellate review. While the difference be- appeal to review the proceedings resulting tween this appeal and the first is largely in § conviction." 16-12-101, (2009). C.R.S. procedural beсause both convictions stem This right to appeal is fundamental to our from trial, the same that does not change the system, so "we construe the rules liberally fact that new standards and elements attach and disfavor interpretations that work a for to this new crime and conviction. We recog- feiture of that right." Peterson v. People, nize a fundamental right to appeal every 706, 113 P.3d (Colo.2005). 708 Similarly, we conviction; criminal thus, we recognize must have held that "courts are per- reluctant the appeal this new conviction.

1095 Fiallo-Jacome, 874 apple." appellate at the resen- mere a conviction, instead A new appeal when (denying a second 1482 F.2d at from case instant the distinguishes tencing, resentencing); United a merely instance, in there For State. by the cited those (5th 504, 507 Williams, F.2d 679 Fiallo-Jacome, Elev the v. States v. States United when appeal Cir.1982) a sеcond (upholding second defendant's the denied Cireuit enth changed case had posture court trial procedural after appeal at attempt double-jeopardy defen- a vacated appeals to correct him court resentenced after verdict). F.2d not-guilty sentencing. dant's first in error words, Cir.1989). In other (11th 1480-82 a guarantees 16-12-101 Section process, sentencing in the flaw was since have could issue an when appeal single only a resentenc- remanded court appellate convie a after appeal first on raised been conviction, same ing on under in the change significant tion, a unless without sentence adjusted simply court justifies subse law applicable or lying facts Id. conviction. original reconsidering here, only did not applied As appeals. quent Semior, California a v. People in Similarly, new conviction a from issue appeal "affirmed appeal first court appellate short, also but cut appeal first her resen ordered but convictions defendant's in the change Cal.App.4th significant Cal.Rptr.2d 1, 41 has been tencing." 83 53 word use regarding law applicable tried then (1995). 1, 2 in As detailed appeal. first since appeal, "lie" in another resentencing challenge to section, have shifted following a second denied appeals court prohibition categorical the same wards from issued have that would appeal Cal.Rptr.2d 538,41 use Id. conviction. held previously have Although we entirely vacat context. appeals case, court this express for counsel appeal, improper first "it is conviction ed falsity or the truth belief second personal where cases it from distinguishes Wilson argument," during final testimony conviction. very same issued appeal (Colo.1987), we 415, 418 P.2d People, v. commented have cases Finally, the prohibition categorical recognized had where exception an recognize issue in all prosecutorial to all applying new included have could appeal first Domingo-Gomez 2005 with until contexts sum- court The Semtor faith. good issue (Colo.2005), 1043, 1050-51 People, held: it rule general marized 39, P.3d People, 186 Crider 2008 with and have could a criminal "where we observed (Colo.2008). Crider 41-42 appel- appeal, prior in a issue an raised had, jurisdiction law case "some that the issue not entertain need court late to sanction appeared recently, very until justi- showing absent appeal subsequent lie, testimony as a of witness characterization at 5 41 Call delay." fication relat argument attorney's long as as cautioned added). court The (emphasis to demon tended that evidence specifiс toed broadly, how- holding too its applying against At 42. Id. at case."4 to be that strate many cir- are observing "[tlhere that ever, court appeal, first of Wend's time contemplate- numerous cumstances-too use of sanctioning the opinions appeals' arise issues appellate legitimate where precedent. current good, still "lie" were word remand." appeal following an trial court Crider, both Domingo-Gomez Cireuits Eleventh Fifth Similarly, the Id. categorical awith precedent such overruled are situa- that recognized have both Thus, appeal. first rule, postdated bites get "two may a defendant where tions word use of that conclusion port of its People v. appeals in example, court For 4. lies. actual referred acceptable if it be could prosecutor no error found Dashner ("We have (Colo.App.2002) 930, 934-35 P.3d 64 had lied the defendant stated referring testi established evi- however, not, the statement supported prosecutorial per se lie constitutes mony aas had demonstrating dence v. Hernande States United (quoting misconduct." 787, (Colo.App.2003). 792 77 P.3d lied. fact (10th 1007, Cir. 1012 z-Muniz, F.3d People v. Kerber appeals in Similarly, court 1999))). sup- jurisdictions from cases referenced the cases significant constituted a change in ing the "le"), with Harris v. People, the applicable law and merit a 259, Wilson, appeal fresh 263-64 (Colo.1995),and after the second conviction. (both 43 P.2d at 418-19 7 stating a broad test for prosecutorial For reasons, these misconduct we could find that Wend has using find the word "lie" improper waived right stop appeal the issue of ping short of prosecutorial explicitly stating a categorical misconduct in this instance. it). rule prohibiting prohibition stems V. Prosecutorial to a fair by trial Misconduct an impartial jury guarаnteed by the Sixth Amendment of Analytical A. The Framework the United States Constitution II, and article "A prosecutor, while free to strike sections 16 and 23 of the Colorado Constitu blows, hard is not at liberty to strike foul Harris, tion. See 888 P.2d at 263. ones." Domingo-Gomez, 125 P.3d at 1048 We have observed that (quotingBerger v. States, United 78, 295 U.S. [t]he word "lie" is such a strong expression 88, 55 S.Ct. (1985)). 79 L.Ed. 1314 We it necessarily reflects personal granted certiorari in this case to determine opinion of speaker. When spoken by whether prosecutor's actions during the representative State's in the court- trial, specifically repeated use of the word room, the word "lie" has the dangerous "lie" in opening and closing statements, were potential of swaying from their foul blows that violated Wend's rights to due duty to determine the guilt accused's process and a fair an impartial jury. innocence on the evidence properly pre- We that, hold despite Wend's failure to ob sented at trial. ject trial, prosecutor's actions, when Domingo-Gomez, 125 evaluated on Just totality of the cireum- years later, three stances, again we explained were so improper egregious in word "lie" this case that they constitute reversible error. prohibited is not only poses because ‍‌​​‌‌‌‌‌‌‌​​​‌​‌‌​​‌​‌​​‌​​​‌​‌​‌​​​​‌​‌​‌‌​​​‌​‍it risk of communicating the lawyer's person- In a claim prosecutorial miscon al opinion about the veracity of a witness duct, the reviewing court engages in a two- and implying that the lawyer privy step analysis. Domingo-Gomez, 125 P.3d at information not before the jury, but also First, it must determine whether simply because the word "lie" is an inflam- questionable conduct was im matory term, (whether likely or not actual- proper based on the totality of the cireum- ly designed) to evoke strong and negative and, stances second, whether such actions emotional reactions the witness. warrant reversal according to the proper Crider, 186P.3d at 41. standard of review. Id. Each step analyt ically independent of the Thus, other. For an reasons, these again em appellate court could find phasize con that a prosecutor acts improperly duct improper, but it uphold could when using any trial form of the word "lie" in court's verdict because the errors reference to were a witness's or defendant's verac See, harmless. eg., id. ity. at Thus, 1054-55. we hold that prosecutor this case acted improperly each time he used B. The Comments Were Improper "Hes," the words "lied," and "liar" in relation to the defendant Wend. step first in appellate review prose- of cutorial misconduct asks if C. The Comments actions Warrant were in fact Reversal improper. We have According to Plain recently Error held that Review prоsecutorial use of the word "lie" and the various forms of "lie" are The responsibility for judging the categorically improper. Compare Crider, effect of a improper actions first 186 41-42, P.3d at and Domingo-Gomez, 125 falls to the court, trial for the trial judge inis (both P.3d at 1050-51 explicitly holding that position the best to potential assess prejudi there is a categorical prohibition against us- impact. cial See 888 P.2d at 265. Harris 42 Crider, P.3d at 186 error." constitutional its may conduct reviewing court a appeal, On omitted). Because (citations necessary to and, if record of the review own im affected impermissibly here used A as Id. a new order injustice, prevent directly not did jury but of partiality but applies, review standard deferential is rights, constitutional impact maxim to the subject remains analysis id.; See error. constitutional a case not to positioned best is court trial "the J., dissenting). (Bender, 45 at id. also see made any statements whether evaluate Domin- jury's verdict." affected counsel to fails misconduct When 1049-50. 125 go-Gomez, step next magnitude, constitutional reach if there asks framework analytical in our re to determining whether See at trial. objection contemporaneous a the stan impropriety, prosecutorial verse de If 1053. at 125 P.3d Domingo-Gomez, cir depending varies review dard trial, at objection an registered counsel fense court appellate requires cumstances harmless general to error subject we steps. analytical multiple through proceed If at 43. Crider, P.3d 186 review. error reversal automatically warrants First, error objection to contemporaneous no is there affecting the structural, is "the error only if review standard statement, error plain a pro trial which within very framework 1053; at P.3d 125 Domingo-Gomez, 159P.3d People, applies. v. Arteaga-Lansaw ceeds." Wilson, at P.2d 267; 743 Harris, at P.2d 888 errors structural (Colo.2007). Such 107, 110 52(b). Here, Wend P. 419; also Crim. see right a defendant's upon impinge directly closing state or opening object to the not any did permitted be cannot trial a fair standard error a ments, apply we so no structural is There Id. cireumstances. review.5 mistak however, error, advocacy proper bounds oversteps the enly maximizes review error Plain framework actual influence not does but court, it does to the deference error no structural trial, so responsi its court appellate excuse here. prejudice errors address bility to stan plain error apply To defendant. attuned particularly also areWe in must court reviewing appellate dard, "[a] a defen directly prejudice errors seriously af errors whether into quire Although rights. constitutional dant's trial." integrity or fairness fected a de affect implicitly can error prosecutorial ("Only 1053 at P.3d 125 Domingo-Gomez, trial, refuse we a fair fendant's flagrantly, misconduct prosecutorial prosecuto- finding all rule any broad impose war improper tremendously glaringly, magni constitutional to be rial misconduct omitted)). (internal citations reversal." Instead, rants at Crider, P.3d 186 tude. may demon objection of an lack jurisprudence "[the While Court Supreme U.S. follow live belief counsel's defense strate specifically only errors hold cold appearance despite its argument, constitu defendant's a directly offend People v. damaging," overly record, in nature. "constitutional" are rights tional (Colo.1990), 965, 972 P.2d 18, 24- 794 Rodriguez, U.S. 386 California, Chapman See an to allow tempered be (1967)(ap must deference 705 such 824, L.Ed.2d S.Ct. egre particularly correct court appellate reasonable beyond "hаrmless plying For, Wilson, errors). errors. gious For for constitutional test doubt" responsi court's appellate all, it is above a de comment instance, "impermissible justice for miscarriage of bility to avoid constitutional specific aof exercise fendant's seri counsel defense when even testify, his to right his as right, such States United See trial. at ously lapses right to his jury, by a tried to be 1038, 84 15, 105 S.Ct. 470 U.S. Young, as addressed silence, been have post-arrest solely case the decide we argument because this generalized argues that Although Wend 5. open- in of misconduct issue narrow more the examples miscon- on potential other objections to apply statements. ing questioning should involving witness duct misconduct, not reach need we instances all (1985). L.Ed.2d 1 Ensuring fundamental prosecutor's statement. Id. prosecutor fairness trial is the plain beacon of error rephrased argument, his stating that the de- Id.; review. Wilson, (and 743 P.2d at 419-20 fendant "did not you tell the truth." Id. at therein). cases cited 1051. Furthermore, prosecutor the alluded to a "sereening process for charging cases" Thus, plain error depends review that ensured only strong cases went to particular the facts and context of the Id. at 1052. We held that all of given case, these only because through an examina actions prosecutorial constituted misconduct tion of the totality of the cireumstances can but determined that the cumulative effect the appellate court deduce whether error fell short plain error. Id. at 1055. We affected based the fundamental fairness of the trial. our conclusion on (1) four Crider, factors: "[t]he 43; Domingo-Gomez, 125 court eradicated prejudicial the effect the We focus on the cumulative prosecutor's use of the word by effect 'lied' the sustain- using ing the judge's own objеction to factors the including word's the exact language used, use"; (2) prosecutor the the used nature "weaker" lan- misconduct, degree guage like "did not tell prejudice you the truth" in associated misconduct, other improper statements; (8) surrounding context, context strength surrounding the "screening other process" guilt. evidence of Crider, com- 186 P.3d at ment mitigated 43; effect; (4) its Domingo-Gomez, 125 P.3d at defense counsel failed object. Id. at 1054. Using these guide factors to plain our er- ror here, review Three of find those four exact factors language are absent as applied used-specifically Wend. Only "lies," the failure words object "lied," parallels "liar"-to be obviously case, deficient. The under closer exami- context surrounding nation statements failed cireumstances surrounding the mitigate failure quite impact are their different. After the one in- substantial way prosecutor stance in continually Domingo-Gomez stressed prose- the theme that Wend simply cutor said that could not be "lied," objec- trusted. While the by tion against evidence defense counsel was unnecessary and Wend clearly indicates that she would shot have Adam- been rendered moot the trial son, that fact is disputed judge's as Wend decision has to immediately object and argued self-defense-a defense that offer depends curative instructions himself. And the largely on the defendant's credibility "did you not tell the truth" comment quickly eyes of jury. Thus, followed the judge's sponte sua objection, so personal attacks on the it quite defendant's veracity reasonable for defense counsel represent a heightened degree prejudice assume that the judge would address in- because the prosecution, with appropriate its inflammato- comments if necessary. ry and еxtraneous language, improperly led More importantly, none of the other three to distrust Wend. The cumulative factors so important in Domingo-Gomeszex- effect of these factors calls question into ist in any form here. There was no "weaker" fundamental fairness of a jury verdict language like "did not you tell the truth" in Wend. the Wend opening and closing statements. We applied have plain error review to in- There was no context surrounding the state- stances of prosecutorial before, misconduct ments that could ameliorate prejudicial and these cases inform our opinion today. impact of repeating the word "lie." Although This court in Domingo-Gomez found no defense counsel also used word, he did so error despite improper prosecutorial conduct only in response to the interrogation video, during trial. 125 P.3d at 1055. In his clos- which prosecution had stressed through- ing statement, stated that the out the trial and repeatedly raised in opening defendant and other defense witnesses had and closing statements. Moreover, "lied." Id. at 1050. The trial judge ‍‌​​‌‌‌‌‌‌‌​​​‌​‌‌​​‌​‌​​‌​​​‌​‌​‌​​​​‌​‌​‌‌​​​‌​‍immedi- certainly was no sua sponte objection or eu- ately responded by sustaining objec- own rative instruction to minimize impact of 2a tion and informing the jury to disregard the statement "you'll like hear le after lie after jury all the on effect making its cumulative Thus, con- Wend." Jennifer lie from after lie in his predicted prosecutor case the worse. with Domingo-Gomes trasting lie after "you'll hear review error plain opening statement exactly when highlights Wend." from Jennifer after lie lie lie after mistrial. require a does does only in of "lie" use counsel's defense Unlike Wilson, assault sexual Conversely, in video, prose the interrogation the relation conflicting on primarily depended charges by inform opened the defendant, statement cutor's victim, the the testimony from tell "lie would the defendant jurors 420- ing P.2d at wife. defendant's and the He," implicitly which lie after lie after pros- the closing arguments, Throughout 21. story. self-defense her entire and include would the flatly stated ecutor testimony. Id. at in was even lied the word had use of his wife indiscriminate Such ob- contemporaneous no there was closing Because statement in the pervasive more of error standard plain applied jection, lie," "the defen does like "[Wend] comments com- prosecutor's the review, concluding that games, weeks ... after [confessed] dant fair- fundamental the "so undermined ments lies," "all the lies and lies and lies and ... of doubt cast serious as to trial itself the ness of interview," defen and "the in the second lies convic- judgment reliability of the the Fi lying." keep couldn't realized dant that, de- concluded We at 421. Id. tion" language in imprecise was the nally, there jury the noting that jury instruction spite a closing statement truthful- about all conclusions make should The reference fucking liar." said, "That ad- in not error itself, plain was ness impact best, prejudicial unclear word of the use dressing the language sloppy use and imprecise such the issue emphasized Id. We "lie." it. intent behind of the regardless apparent in a sexual crucial particularly credibility was "lies," "lied," invokingthe words Repeatedly the defendant's charge pitting assault and in of the State behalf "liar" on and Id. at 420. the victim's. largely case to the defendant relation made analogy can be An obvious credibility un the defendant's dependent on case in this at issue self-defense claim of impartiality, jury's doubtedly affects believing depends it too because fair fundamental corrupts the in turn the beacon Again, the defendant. the trial. ness of fair "basic be to ensure must review error resulting conviction. trial and ness" VI. Conclusion have As we Wilson, 419-20. Wilson, calling the the State in already held state- improper Because "basic offends particularly liar closing opening pervaded ments defendant's any trial where fairness" totality of statements, we find defense part of the integral credibility is an prose- cireumstances demonstrates review plain error Although Id. strategy. fair- the basic affected misconduct cutorial deference, we will considerable affords court of reverse trial We ness of the in order deference blindly cling to such the case with and return decision appeals' prosecuto- where unjust conviction an uphold a new to remand directions jury's contaminated has misconduct rial impartiality. dissents, COATS Justice EID Justice per conduct case, improper In this statements,6 joins in the dissent. clоsing opening

meated telling truth; thought instances other if she sel not address We need Derek Detective asking witness repeatedly number potential misconduct prod- telling truth and Wend was if Graham examples of misconduct gravity Wend's truthfulness opine on ding Graham support alone opening and needs appealing to the future general; and instanc- new trial. These for a remand our be on saying "would community by Randy if Anderson asking witness es include jury con- dealing drugs" unless the ... streets for borrow- motives suspicious of Wend's he her. victed Tas- Van asking Deborah the witness ing gun; EID, Justice dissenting. theory Wend's self-defense, Wend's coun- sel stated: agree I with majority prosecu that the Which-which brings us to the les. tion violated our categorical rule That's all prosecution [the And, has] left. "lie," use of the word but disagree with the yes, Jennifer Wend led. Pretty obvious. majority that prosecution's use of the She led to a number of people. She Hed word in this case plain constitutes error. about what happened, remember, Here, Wend admitted that she had lied to the fact that Jennifer may have Hed police regarding the whereabouts, victim's about what happened does not change the counsel, and her both during opening and fact of actually what happened. closing statements, repeatedly referred to the fact that she had "lied." Under added). (emphases cireumstances, Later on in the closing argument, did not so undermine the fundamental fair counsel stated: ness of the trial as to warrant the "drastic Oftentimes, told, once a He is gonna it's not remedy of reversal under error come clean until the Ke brought has every- standard." Domingo-Gomez v. People, 125 thing upon down it. And Jennifer Wend (Colo.2005). Accordingly, I le, told a and it did take on a life of its respectfully dissent from majority's opin own. lie, Shе told that and then she felt ion. boxed in. That lis had been told. She initially police told investigators didn't think police gonna were believe arguing with her on originally, Christmas morn- why so they are gonna be- ing, the victim must have left town lieve her now that she's told a He? So she she received a text message if, from him continued with i, continued with day next saying that he was in Vegas. Las continued with i until there was no Later, she police told the place might he left go be in but the truth. Cripple Creek. Finally, she stated that she added). (emphases didn't was, know where he but that she be- Wend's counselthen addressed her admis- lieved he was still alive. Ultimately, howev- sion that she had police misled about er, "(had she admitted that she not] been whereabouts victim, stating: honest [police with investigators] from the And that's they got, where to the truth. beginning" and that she "shot [the viectim]." you And can see it right on videotape. words, she admitted that she had says, She "I haven't been honest you. misled investigators about the fact that she I shot him." had been in contact with the that, victim and instead, she had shot him. At point, Wend's counsel returned to explanation for why she police misled As majority points out, prosecution investigators. in this case repeatedly referred to the fact She you told in the videotape that she that Wend had police lied to investigators figured even if person got shot acciden- about the victim's Maj. whereabouts. op. at tally, they're still gonna go prison. 1092-98; id. at 1099. Importantly, however, That, conjunction with the fact that she her counsel repeatedly referred to her "lies" worried, she didn't trust police, as well. In opening statement, Wend's coun- why led, that's ladies gentlemen. sel stated that: She didn't Hebecause she didn't act in self- And she does le to people about what defense, she led because she figured what- happеned to [the victim]. She les because happened, ever it gonna be the same she's afraid of what's going happen result. her if she tells the truth. added). (emphases (emphases added). Again, Wend's counsel referred to the fact Wend's counsel repeatedly used the term that she had "lied" to various people regard- "lie" in as well. After discussing ing the whereabouts, victim's but that the influence improperly that could to ion saying she was what parts of true were inflammatory word second, an and, it is such people: negative strong likely to evoke it is that oftentimes that knows everybody And or witness against the reactions emotional lis, gleam you can a tells person a P.3d at 125 Domingo-Gomez, defendant. He. of truth nuggets little expres strong ("The 'lie' is such word 1050 added). (emphases personal necessarily the reflects it sion closing his finished counsel Finally, Wend's Crider, P.3d 186 speaker."); the opinion mislеd reiterating that she by argument only (the prohibited "lie" "is word 41 stating: police, communicating the a risk of poses it gun pointing victim] veracity [the about talks She about opinion personal lawyer's truth, if it's even see the can lawyer You is at her. that the implying and a witness she's bits, stories little only in jury, but before information privy to what admit finally does until she up told an "lie" is word simply because also she gentlemen, Ladies happened. (whether or not term, likely inflammatory fact of JIchange the lied, [ that doesn't nega strong and to evoke actually designed) in self- acted happened [when what the wit reactions emotional tive defense]. ness"). added). (emphasis however, case, this context of In the analysis focuses plain error majority's use of prosecutor's little chanee state prosecution's exclusively on the almost As these concerns. implicated "lie" the word state isolation, that the suggesting in ments were comments first, prosecution's render as to "indiscriminate" so were ments police misled Wend fact that focused Maj. op. at 1099. trial unfair Wend's victim. See of the the whereabouts regarding acknowledges majority contrast, while 1092-98; Wend at 1099. id. maj. op. at "lie," it the word use counsel's defense police, and misled had that she admitted fact understand acceptable, his statements finds the fact referred repeatedly her counsel "only in relation made they were ing that where- the victim's about had "Hed" that she "merely ac video" interrogation "yes, Jennifer abouts, stating that expressly changed had fact that Wend knowledged Where Pretty obvious." lied. Wend Yet, as Maj. op. at story." ad- a defendant's characterizes prosecution held, prosecutor's consistently have "lies," there is as statements mittedly untrue similarly be evalu "lie" must of the word use jury will construe little risk trial." entire of the "in the context ated expressing as characterization prosecutor's 1054; also see P.3d at 125 Domingo-Gomez, on some either "based opinion personal (Colo.2008) 39, 43 People, 186 Crider veracity or ... judging experience greater (the impact of prejudicial actually knowledge of what greater on some totality "in the considered must be statement Crider, P.3d at 186 occurred." case-by-case ba cireumstances, aon that she case, admitted sis"). In this inflammatory nature second, the As to regarding police with honest" been not] "[had un "lie" the word Additionally, her whereabouts. victim's re counsel Wend's doubtedly muted when "lies" dur to her repeatedly referred counsel Indeed, it is word as well. used the peatedly Given argument. ing opening use prosecution's how to see difficult references context, prosecution's glaringly, "flagrantly, could be "lie" the word funda her trial not render "lies" did Wend's Domingo-Go improper," tremendously mentally unfair. (citation omitted), giv mez, character repeatedly counsel en that respect concern our Importantly, as well. "lies" as ized Wend's its "lie" and word of the use prosecution's amade counsel Here, that Wend's appears it and Crider Domingo-Gomesz variants fact directly address strategic decision first, essentially two-fold: victim's about "lied" had opin- convey personal may use whereabouts, and explanation offered an certain of [defendant's] assertions" pho- those "lies." Under cireumstances, it tographic evidence scene). from the crime likely that the failure of Wend's counsel to Finally, the fact that Wend repeatedly mis- object prosecution's to the use of the term investigators led about the victim's where- perceived "evidences that hе no obvious abouts, and then ultimately admitted that she prejudice" to Wend from the statements. not] been honest" with "Thad them and that Domingo-Gomez, 125 P.3d at 1054. she had in fact shot victim, undoubtedly affected jury's assessment of argu- The majority does not consider whether ment that she shot the victim in self-defense. the context gives this case rise to these Maj. op. at 1098. given But that Wend ad- underlying Instead, concerns. it focuses on mitted that she ‍‌​​‌‌‌‌‌‌‌​​​‌​‌‌​​‌​‌​​‌​​​‌​‌​‌​​​​‌​‌​‌‌​​​‌​‍had police misled about the comparing the factual circumstances here victim's whereabouts, given the fact that with those in other cases in prosecu her counsel at trial repeatedly characterized tors used the word Maj. "lie." op. at 1098-99 "lies," statements as I cannot conclude (discussing Domingo-Gomez, 125 P.3d 1043 prosecution's that the characterization of her People, Wilson v. (Colo. 743 P.2d 415 statements as "lies" created the 1987)). sort of fun- But the majority fails to note an damental unfairness that warrants invocation important distinction between those cases remedy "drastic of reversal under the and the case at bar. In Domingo-Gomez plain error standard." See Domingo-Gomesz, Wilson, used the word 125P.3d at 1055. summarizing the defendant's and de fense witness's testimony stand, Accordingly, I would hold that although whereas the use of the word here related to statements were improper, presented evidence regarding Wend's out-of- they do not warrant reversal in this case. I court police. Given Wend's therefore respectfully dissent from the ma- "(had admission that she not] been honest" jority's opinion. police and her counsel's repeated I am authorized to state that JUSTICE references to the fact that she had "lied" joins COATS in this dissent. during police investigation, prosecu tor's statements were likely taken jury as a comment on the evidence in the Cf., Crider, case. 186 P.3d at (finding

prosecutor's use of "lie" and its variants not part error in they were "ex

pressly directed at the irreconcilability of

Case Details

Case Name: Wend v. People

Court Name: Supreme Court of Colorado

Date Published: Jun 28, 2010

Citation: 235 P.3d 1089

Docket Number: 09SC478

Court Abbreviation: Colo.