People v. Garcia

• Citation: 296 P.3d 285
• Decision Date: 10 May 2012
• Docket Number: No. 05CA1922.,05CA1922.
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Jaime Orlando GARCIA, Defendant–Appellant.
• Court: Court of Appeals of Colorado

296 P.3d 285

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Jaime Orlando GARCIA, Defendant–Appellant.

No. 05CA1922.

Colorado Court of Appeals,

Div. I.

May 10, 2012.

John W. Suthers, Attorney General, Jennifer A. Berman, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Douglas D. Barnes, Deputy State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge TAUBMAN.

¶ 1 Defendant, Jaime Orlando Garcia, appeals the judgments and sentences entered upon jury verdicts convicting him of three counts of sexual assault—victim incapable of appraising, with sentence enhancers for two of those counts, three counts of sexual assault—victim physically helpless, second degree burglary, and third degree assault. We affirm in part, vacate in part, and remand for resentencing and correction of the two mittimuses.

I. Background

¶ 2 Between October 2002 and January 2004, five women alleged that Garcia committed sexual misconduct against them while they were intoxicated or drugged. Garcia was charged in two separate cases with numerous sexual misconduct counts, as well as burglary and assault of one woman's boyfriend, N.W.

¶ 3 The People requested that both cases be joined. The trial court granted the People's request over Garcia's objection. The joinder of cases and the consolidation of offenses against separate victims in a single trial are a basis for this appeal.

¶ 4 After a trial on all counts, a jury acquitted Garcia of the charges involving two of the victims, R.B. and J.N. The jury convicted Garcia of second degree burglary, third degree assault against N.W., three counts of sexual assault—victim physically helpless (B.J.W., V.J., and J.M.), three counts of sexual assault against a victim incapable of appraisingnature of conduct (B.J.W., V.J., and J.M.), and a sentence enhancer for impairing J.M.'s power to appraise her conduct by means of drugs or intoxicants.

¶ 5 The trial court entered judgment of conviction on the jury's verdict, and also found a sentence enhancer, not found by the jury, concerning V.J. It sentenced Garcia to concurrent sentences of twelve years and two years for the burglary and assault of N.W., respectively, to be served consecutively with fifteen years to life for his convictions related to B.J.W. and with two concurrent sentences of fifteen years to life for the assaults against V.J. and J.M.

II. Prosecutorial Misconduct

¶ 6 As an initial matter, we resolve Garcia's contention that the prosecutor committed misconduct twice during closing argument, once in denigrating his female attorney, and again in implying that the jury could consider his propensity for committing sexual misconduct. In an issue of apparent first impression, we conclude that a prosecutor may not argue that a defendant in a sexual assault case unfairly seeks to bolster his case by using his female attorney to blame the female victims for the defendant's conduct. However, we conclude the improper argument here does not require reversal.

A. Standard of Review

¶ 7 In determining whether prosecutorial misconduct mandates a new trial, an appellate court must evaluate the severity and frequency of the misconduct, any curative measures taken by the trial court to alleviate the misconduct, and the likelihood that the misconduct constituted a material factor leading to the defendant's conviction. People v. Merchant, 983 P.2d 108, 114 (Colo.App.1999).

¶ 8 When no contemporaneous objection is made, the plain error standard of review applies. People v. Cevallos—Acosta, 140 P.3d 116, 122 (Colo.App.2005). To constitute plain error, prosecutorial misconduct must be “flagrant or glaringly or tremendously improper,” and so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. People v. Salyer, 80 P.3d 831, 839 (Colo.App.2003). Prosecutorial misconduct in closing argument rarely constitutes plain error. People v. Weinreich, 98 P.3d 920, 924 (Colo.App.2004), aff'd,119 P.3d 1073 (Colo.2005).

B. Denigration of Defense Counsel

¶ 9 The defense theory during trial was that the victims regretted having sexual contact with Garcia, had “buyer's remorse,” and sought to minimize their responsibility for what occurred. Of his two defense attorneys, the female attorney delivered opening statement and initially articulated this theory. Garcia's male counsel reiterated the theory in closing argument.

¶ 10 In response, the prosecutor stated in his closing argument:

Now in their opening, [the female defense attorney], she said these women just have buyers['] remorse. They tell you these women just don't want to take responsibility for what they did. It is the women's fault. It is all of those different women's fault. Just because in opening they have another woman blaming those women doesn't make it believable.

The defense did not object to this statement.

¶ 11 Garcia contends that the reference to his attorney's gender in this statement denigrated defense counsel and implied that she attempted to strengthen an otherwise weak argument based solely on her gender.

¶ 12 We conclude the prosecutor's comment about the defense attorney's gender was inappropriate. See American Bar Association Standards for Criminal Justice 3–5.8(c) & cmt. (3d ed. 1993) (“[t]he prosecutor should not make arguments calculated to appeal to the prejudices of the jury” and “[t]he prosecutor should not, moreover, use arguments which are, in essence, personal attacks on defense counsel”).

¶ 13 A trial is not a referendum on the conduct of the attorneys, and disparagement of opposing counsel is improper. See United States v. Young, 470 U.S. 1, 7, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). Appeals based on racial identity or other attributes of counsel are also improper. Bates v. United States, 766 A.2d 500, 508 (D.C.2000) (“Charging defense counsel with ‘racism’ was an egregious ad hominem attack.”).

¶ 14 In Bates, the prosecutor used the fact that he and defense counsel were of different races to rebut defense counsel's closing argument and argued that defense counsel relied on race to support his argument. Bates, 766 A.2d at 508. The court held that this was an improper appeal “to evaluate the defense challenge to the government's case on the basis of counsel's race and background rather than the merits.” Id.

¶ 15 Here, the strength of Garcia's case should not depend on whether he was represented by a man or a woman. The prosecutor argued that the jurors should not be swayed because the female defense attorney was blaming the female victims for Garcia's conduct. This argument improperly sought to shift the focus from the strength of the evidence to the gender of Garcia's counsel.

¶ 16 However, the statement did not rise to the level of plain error. See People v. Collins, 250 P.3d 668, 678–79 (Colo.App.2010); People v. Kenny, 30 P.3d 734 (Colo.App.2000).

¶ 17 The prosecutor's improper statement was not repeated. See Domingo–Gomez v. People, 125 P.3d 1043, 1053 (Colo.2005) (“Comments that were ‘few in number, momentary in length, and were a very small part of a rather prosaic summation’ do not warrant reversal under the plain error standard.”) (quoting People v. Mason, 643 P.2d 745, 753 (Colo.1982)). Nor did the prosecution insinuate that defense counsel lacked a good faith belief in her client's case. Cf. People v. Jones, 832 P.2d 1036, 1039 (Colo.App.1991) (prosecutor implied that opposing counsel did not have a good faith belief in the innocence of her client when he suggested that she knew that the prosecution's argument was true and that the defense should concede the issue).

C. Propensity

¶ 18 Garcia next contends that the prosecutor's propensity argument during the rebuttal phase of closing argument also warrants reversal. We disagree.

¶ 19 The prosecutor stated:

Police came out in April of '03, again 11–7–03, and 1–2–04. The police are involved in all of those. You can ask yourself, and you can draw inferences. You can ask yourself, is it reasonable that this poor nice guy that went to a bar just tried to lend a shoulder for sad girls to talk to, gets caught up in a sexual assault allegation. You can ask yourself after having that happen to him, was it reasonably believable behavior that he would go back out [and] find another drunk sad girl and take her.

...

Garcia objected, and the trial court sustained the objection. The court also instructed the jury to disregard the prosecutor's last statement.

¶ 20 In addition, the court instructed the jury not to consider evidence of one charge as propensity evidence for the other charges before each witness testified and in the final written instructions. We presume that the jury followed the court's instructions, absent evidence to the contrary. Qwest Services Corp. v. Blood, 252 P.3d 1071, 1088 (Colo.2011).

¶ 21 Garcia contends that the prosecution's misconduct materially affected the jury verdicts. See Merchant, 983 P.2d at 114. However, the jury's acquittal of Garcia on all charges concerning R.B. and J.N. suggests otherwise. See People v. Barnum, 217 P.3d 908, 910 (Colo.App.2009).

III. Severance of Charges

¶ 22 Garcia next contends that the trial court abused its discretion in denying his motion to sever the charges into separate trials under Crim. P. 14. He maintains that his right to testify about the consent of J.M., B.J.W., and V.J. was unfairly restricted by the risk he faced in refraining from testifying concerning R.B. and J.N. Because we conclude that Garcia has not shown prejudice, we disagree.

A. Standard of Review

¶ 23 Whether to sever charges under Crim. P. 14 is a determination within the sound discretion of the trial court. People v. Walker, 189 Colo. 545, 549, 542 P.2d 1283, 1286 (1975). We will not overturn such a decision absent an abuse of its discretion. Id.

B. Analysis

¶ 24 The People originally charged...