People v. McBride

• Decision Date: 01 October 2009
• Docket Number: No. 06CA2524.,06CA2524.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas W. McBRIDE, Defendant-Appellant.
• Court: Colorado Court of Appeals

228 P.3d 216

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Thomas W. McBRIDE, Defendant-Appellant.

No. 06CA2524.

Colorado Court of Appeals, Div. VII.

October 1, 2009.

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John W. Suthers, Attorney General, Christopher Y. Bosch, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

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

Opinion by Judge CONNELLY.

Defendant, Thomas W. McBride, was convicted after a jury trial of attempted first degree murder and first degree assault. The trial court imposed concurrent prison terms of forty-eight years for the attempted murder and thirty-two years for the assault. We hold the prosecution's closing arguments were so flagrantly improper as to constitute plain error that should have prompted corrective action by the trial court even absent timely objection. Because the evidence on the assault count was overwhelming, and because one of the improper arguments could only have affected the attempted murder count, we reverse only the attempted murder conviction.

I. Background

Defendant and the victim were in a relationship for more than two years. The victim testified that during this relationship defendant committed several violent acts, including punching, beating, and choking her. She also recounted incidents when defendant had threatened her with a knife and shotgun.

The shooting giving rise to these convictions occurred on Christmas Eve 2005. The victim denied the couple had argued that day, though she said defendant had been angry the previous night because she had fallen asleep and not called him.

The couple returned to defendant's duplex residence after trying to do some last-minute shopping and then stopping at a liquor store. The victim went into the bedroom and put on what she described as a "sexy" pair of shorts to prepare for an intimate evening. She believed defendant was making drinks in the kitchen.

Defendant entered the bedroom minutes later with a shotgun rather than drinks. He pointed the gun at the victim without speaking and shot her in the face. The bloodied victim fell to the floor. At the victim's urgings, defendant ultimately called 911. The victim somehow survived but suffered horrific injuries.

II. The Prosecution's Closing Arguments

"Prosecutors have a higher ethical responsibility than other lawyers": they must effectuate "the sovereign's goal that justice be done in every case and not necessarily that the prosecution `win.'" Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). But they are also "advocates" with "wide latitude" to make arguments based on "facts in evidence and any reasonable inferences drawn therefrom." Id. at 1048. The most oft-quoted case drew a line (easy to state but not always easy to apply) between striking "hard blows" and "foul ones." Berger v. United States, 295 U.S. 78, 89, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).

Given the sometimes fuzzy line between hard-but-fair blows and foul blows, and because arguments delivered in the heat of trial are not always perfectly scripted, see Donnelly v. DeChristoforo, 416 U.S. 637, 646-47, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), reviewing courts accord prosecutors the benefit of doubt where remarks are "ambiguous," id., or simply "inartful." Domingo-Gomez, 125 P.3d at 1051. But this does not alter the fundamental duty of prosecutors "scrupulously to avoid comments that could mislead or prejudice the jury." Id. at 1049.

Where, as here, a defendant did not preserve a claim of error by objecting at trial, appellate review is circumscribed by the plain error standard of Crim. P. 52(b). Defendant must show the arguments were "flagrantly, glaringly, or tremendously improper." Domingo-Gomez, 125 P.3d at 1053 (internal quotations omitted). Also, because courts do not reverse convictions to punish prosecutors, see Crider v. People, 186 P.3d 39, 44 (Colo.2008), defendant must show the arguments so undermined the trial's fundamental fairness as to cast doubt on the judgment's reliability. See Liggett v. People, 135 P.3d 725, 735 (Colo.2006). Not surprisingly, "prosecutorial misconduct in closing argument rarely constitutes plain error." Id. This is that rare case.

A. The flagrant improprieties

1. Accusing defendant of having "lied over and over"

If one thing is settled in Colorado— not just today but when this case was tried in 2006—it is that prosecutors may not accuse defendants of having "lied." Id. at 1050-51; see Crider, 186 P.3d at 41 (the 2005 decision in Domingo-Gomez made this prohibition "abundantly clear"). Indeed, while some earlier cases "appeared to sanction the characterization of witness testimony as a lie, as long as the attorney's argument was related to specific evidence that tended to demonstrate that to be the case," Crider, 186 P.3d at 42 (citing cases that were disapproved in Colorado as of 2005), it was held almost three decades ago that it was plain error for a prosecutor to argue that a defendant's out-of-court statements were lies. People v. Trujillo, 624 P.2d 924, 925-26 (Colo.App.1980).

Here, in direct violation of these settled admonitions, the prosecutor accused defendant of having "offered a whole rainbow of explanations" and thereby having "lied over and over," which "shows his guilt." The six cited examples were three pretrial statements by defendant (differing mainly in nuance), defense counsel's opening statement, defense counsel's cross-examination of a detective, and testimony by a defense expert. The prosecutor argued the reason defendant was "offering you story after story after story" was that he had "been running from this horrible truth" since the shooting. The prosecutor also referred repeatedly to what was and was not "true": he stated the defense theory "ain't true" and was "not the truth," while "the truth" was attempted first degree murder and first degree assault.

The prosecutor's repeated accusations that the defense had "lied" were plainly improper under settled Colorado law. Indeed, the arguments here were more flagrantly wrong than those condemned in prior Colorado cases because the prosecutor based the "liar" accusations not just on defendant's own statements but also on legitimate opening statements and cross-examinations by the defense attorney.

2. Inflammatory appeals to jury emotions

Defendant challenges several prosecution arguments as having been improperly inflammatory appeals to jury emotions. Before detailing the particular arguments, we must consider what makes an argument not just improper but so obviously improper as to be plain error even absent trial court objection.

Arguments are obviously wrong if controlling law directly precludes them. The "liar" arguments fall into that category.

But novelty does not provide a safe harbor for flagrantly improper arguments. Colorado appellate courts have held various arguments plainly improper even though no prior Colorado case had considered those specific arguments. E.g., Harris v. People, 888 P.2d 259, 267-69 & n. 5 (Colo.1995) (holding plainly improper arguments that after analogizing defendant to Saddam Hussein, made allusions to the need to punish and for jurors to have courage to punish brutes, thugs, and bullies); People v. Walters, 148 P.3d 331, 336-37 (Colo.App.2006) (argument that defendant had been "lurking around elementary schools" was plainly and "egregiously improper" where it was not supported by that particular record); see also Domingo-Gomez, 125 P.3d at 1052-53 (in conducting plain error review, court applied general principles to hold improper (albeit not sufficiently prejudicial to require reversal) specific prosecution arguments—that defense witnesses made up stories and that case had passed a screening process—without citing any prior case law precluding those specific arguments).

Thus, "the `plainness' of the error can depend on well-settled legal principles as much as well-settled legal precedents." United States v. Brown, 352 F.3d 654, 664 (2d Cir.2003) (emphasis in original). The "obviousness" requirement can be no more demanding than the requirement that the law have been "clearly established" before government officials face damages liability for constitutional violations. See id. at 665 n. 10. For that law "to be established clearly,. . . there is no need that the very action in question have previously been held unlawful." Safford Unified School Dist. No. 1 v. Redding, 557 U.S. ___, ___, 129 S.Ct. 2633, 2643, 174 L.Ed.2d 354 (2009) (internal quotations and punctuation omitted). Rather, government officials can "be on notice that their conduct violates established law even in novel factual circumstances." Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

We must apply a general principle to specific arguments first challenged on appeal. The general principle is that prosecutors may not resort to "inflammatory comments" that serve no purpose but "inflaming the passions of the jury." Domingo-Gomez, 125 P.3d at 1049. It is often "hard to draw" the line between proper and improper arguments. Id. at 1051. Not here.

a. Calling defendant a "coward"

The prosecutor argued defendant was "not only guilty" but was also "a coward." Referring to evidence that had been admitted for the limited purpose of helping the jury evaluate defendant's intent in the shooting, the prosecutor opined: "Where I come from, any time you beat a woman, it's a cowardly act." The prosecutor later described the shooting as "the ultimate act of cowardice."

We do not hold that calling a defendant a "coward" is always error, much less obvious error. Prosecutors should avoid "pejoratives" that amount to no more than "name calling," see United States v. Rodriguez-Estrada, 877 F.2d 153, 159-60 & n. 6 (1st Cir.1989); United States v. White, 486 F.2d 204, 207 ...