People v. Howard-Walker
| Citation | 446 P.3d 843 |
| Decision Date | 15 June 2017 |
| Docket Number | Court of Appeals No. 14CA0562 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kyree Davon HOWARD-WALKER, Defendant-Appellant. |
| Court | Court of Appeals of Colorado |
Cynthia H. Coffman, Attorney General, Matthew S. Holman, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, M. Shelby Deeney, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE BERGER
¶ 1 A jury convicted defendant, Kyree Davon Howard-Walker, of first degree burglary and conspiracy to commit first degree burglary. He appeals, arguing that the trial court erred in (1) denying his three challenges under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to allegedly discriminatory peremptory strikes; (2) admitting allegedly improper testimony from one of the investigating detectives; and (3) failing to instruct the jury on the predicate crime of theft and failing to define "intent."
He also claims that the prosecutor engaged in misconduct and that that the cumulative effect of these errors requires reversal.
¶ 2 We conclude that there were several trial errors, most resulting from prosecutorial overreach and one instance of prosecutorial misconduct. Howard-Walker's counsel objected to almost none of these errors and the standard of review for almost all of them is thus plain error. None of these errors, considered by themselves, requires reversal. Moreover, these errors did not substantially prejudice Howard-Walker's right to a fair trial and thus do not require reversal under the cumulative error doctrine. Therefore, we affirm the judgment.
¶ 3 The victim, the owner of a marijuana business, left his home one night to run errands and spend time with his girlfriend. When he returned home the next day, he discovered an open garage door, a window which had been broken, and his bedroom in disarray. The contents of the unlocked safe in his bedroom (he had evidently forgotten to lock the safe)—some $8000 in cash, several watches, other pieces of jewelry, and a number of credit cards—were gone.
¶ 4 Video from a motion-activated surveillance camera showed two men (whom the victim did not recognize) entering the victim's bedroom. Both of the men were wearing baseball caps and sunglasses, and one—allegedly, Howard-Walker—was holding a gun. The video showed the men searching the room, opening the safe, and removing its contents. After viewing the video, the victim reported the burglary to the police.
¶ 5 A police officer responded to the victim's home. The officer viewed the surveillance video and took a copy of the video as evidence. Near the broken window, the officer discovered footprints which the victim said did not belong to him. The officer measured and took photographs of the footprints. Consistent with the police department's policy for "cold" burglaries, no crime scene technicians were called to the scene.
¶ 6 After the officer left, the victim, who also owned a video-editing business, edited the surveillance video and made a shorter, clearer, "enhanced" version. He sent it to a number of media outlets and offered a reward of $1000 for information about the perpetrators. Some of the media outlets played the video on local television stations and advertised the reward.
¶ 7 Howard-Walker's girlfriend's uncle supposedly recognized him from a news broadcast and contacted the police. He told the police that, although it was difficult to discern the faces of the two men committing the burglary, he recognized the hat and sunglasses that Howard-Walker was wearing in the video. He also provided the police with a photograph of Howard-Walker wearing a similar hat and sunglasses.
¶ 8 Based on the uncle's tip, one of the investigating officers, Detective Mark Garcia, contacted Howard-Walker's probation officer. He showed the probation officer several still photos derived from the surveillance video and asked if he recognized Howard-Walker. The probation officer said that he was "ninety-five percent sure" that Howard-Walker was depicted in the photos.
¶ 9 The police arrested Howard-Walker, and Detective Garcia interviewed him after advising him of his Miranda rights. Howard-Walker consistently denied that he committed the burglary. However, at one point near the end of the interview, Howard-Walker asked the detective "what it would get him if he gave [Detective Garcia] the name of the other person." The detective responded that if Howard-Walker identified the other burglar, he would apprise the district attorney of Howard-Walker's assistance, which would "help him," but promised no concessions. Howard-Walker later refused to speak further with the police.
¶ 10 Detective Garcia then searched (under a warrant) Howard-Walker's apartment. He found none of the stolen items; none of those items were ever recovered by the police. He also showed Howard-Walker's live-in girlfriend the still photographs from the surveillance video and asked if she recognized the person in the photos. According to the detective, the girlfriend initially told him that she was "eighty percent" certain that one of the men in the photos was Howard-Walker. At trial, the girlfriend denied making, and then recanted, that statement, claiming that Detective Garcia had intimidated her into identifying Howard-Walker.
¶ 11 Detective Garcia also compared the photographs of the footprints found at the scene of the burglary with the shoes that Howard-Walker was wearing at the time of his arrest, and concluded (and testified) that the footprints matched the shoes.
¶ 12 The prosecution charged Howard-Walker with first degree burglary, see § 18-4-202(1), C.R.S. 2016, and conspiracy to commit first degree burglary, see § 18-2-201, C.R.S. 2016.
¶ 13 Howard-Walker's defense at trial was that he did not commit the burglary and that the witnesses had misidentified him from the video and still photos. The jury convicted Howard-Walker as charged, necessarily rejecting his misidentification defense. The trial court sentenced him to thirteen years in the custody of the Department of Corrections.
¶ 14 Howard-Walker contends that the trial court erred when it denied his Batson challenges to the prosecutor's peremptory strikes excusing three prospective jurors—one who identified himself as African-American, and two who identified themselves as Hispanic. Specifically, he challenges the trial court's rulings on the third Batson step, asserting that the prosecutor's stated "race-neutral" reasons for removing the jurors were not worthy of belief.
¶ 15 The United States and Colorado Constitutions prohibit peremptory strikes to dismiss prospective jurors on the basis of race, gender, or ethnicity. Batson , 476 U.S. at 85-87, 106 S.Ct. 1712 ; People v. Beauvais , 2017 CO 34, ¶ 20, 393 P.3d 509 ; People v. Lucero , 2014 COA 53, 353 P.3d 874. In Batson , the Supreme Court prescribed a three-step process to evaluate claims of purposeful discrimination in jury selection.
¶ 16 First, the person challenging a peremptory strike must make a prima facie showing that the prosecutor used a peremptory strike to exclude a prospective juror based on his or her race. Batson , 476 U.S. at 96, 106 S.Ct. 1712 ; Beauvais , ¶ 21.1 A prima facie showing requires only that the challenger "present evidence sufficient to raise an inference that discrimination occurred." Valdez v. People , 966 P.2d 587, 590 (Colo.1998).
¶ 17 If the challenger meets his burden under step one of Batson , the burden shifts to the prosecutor to articulate a non-discriminatory reason for the strike. Id.
¶ 18 If the prosecutor does so, step three of Batson requires the trial court, after giving the challenger an opportunity to rebut the prosecutor's reason for the strike, to determine if the prosecutor's reason is worthy of belief or is, instead, pretextual. Id. If the trial court finds, based on a preponderance of the evidence, that the prosecutor's reason is pretextual, the court must deny the peremptory strike. Batson , 476 U.S. at 85-87, 106 S.Ct. 1712. "[T]he ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [objecting party]." Beauvais , ¶ 24 (citation omitted). Accordingly, a trial court should sustain a Batson objection only if "the striking party's non-discriminatory reasons are sufficiently incredible that the discriminatory hypothesis better fits the evidence." Id. (citation omitted).
¶ 19 We review de novo whether the parties have met their respective burdens under Batson steps one and two.
Valdez , 966 P.2d at 590-91. We review the trial court's Batson step three determination of whether the prosecutor's strike was motivated by purposeful discrimination for clear error. People v. Robinson , 187 P.3d 1166, 1174 (Colo.App.2008) ; People v. Gabler , 958 P.2d 505, 507 (Colo.App.1997). We give considerable deference to a trial court's Batson step three findings because "[o]nly the trial court can assess non-verbal cues, such as hesitation, voice inflection, and facial expressions, that are not recorded on a transcript." People v. Wilson , 2015 CO 54M, ¶ 18, 351 P.3d 1126. Given this deferential standard, reversal of a trial court's factual determination that the strike was not motivated by discriminatory animus is justified only under "exceptional circumstances." Beauvais , ¶ 22 (quoting Snyder v. Louisiana , 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) ).
¶ 20 We address each of the peremptory strikes in turn.
¶ 21 The prosecutor exercised a peremptory strike against a female juror who identified herself as Hispanic on her jury questionnaire. In response to Howard-Walker's challenge, the prosecutor said that the juror had "apparently filled...
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