People v. Tibbels, Court of Appeals No. 17CA0620

• Docket Nº: Court of Appeals No. 17CA0620
• Citation: 490 P.3d 517
• Case Date: November 27, 2019
• Court: Court of Appeals of Colorado

490 P.3d 517

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Ernest Joseph TIBBELS, Defendant-Appellant.

Court of Appeals No. 17CA0620

Colorado Court of Appeals, Division I.

Announced November 27, 2019

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith K. Rose, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE FREYRE

¶1 In this criminal case, we address an issue that has repeatedly arisen in prior cases but, to date, has not necessitated reversal — a trial court's use of everyday examples to explain legal concepts like reasonable doubt. Our supreme court recently held that "[a]n instruction that lowers the prosecution's burden of proof below reasonable doubt constitutes structural error and requires automatic reversal." Johnson v. People , 2019 CO 17, ¶ 8, 436 P.3d 529 (citing Sullivan v. Louisiana , 508 U.S. 275, 281-82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) ). This case presents a close question, as reflected by our split decision, and highlights the need for trial courts to discontinue this practice.

¶2 Defendant, Ernest Joseph Tibbels, appeals his conviction of possession of contraband. He argues that reversal is required because (1) the prosecutor improperly invited the jury to "hold him accountable" for disrupting jail operations when he was not charged with disruption; and (2) the trial court impermissibly lowered the prosecution's burden of proof by comparing reasonable doubt to a structurally significant crack in the foundation of a prospective house for purchase. Mr. Tibbels also asks us to vacate his conviction for possession of contraband as a class 4 felony and to enter a conviction for possession of contraband as a class 6 felony, based on the court's failure to provide an interrogatory requiring the jury to find that he possessed a dangerous instrument. We address and reject each of his contentions.

I. Background

¶3 Mr. Tibbels called 911 in the midst of a mental health crisis. Police officers then arrested him based on their mistaken belief that he had violated a protection order.

¶4 The officers transported Mr. Tibbels to the Adams County Detention Facility. He refused to follow instructions and physically resisted the deputies’ attempts to complete the booking process. Consequently, the deputies could only conduct a "cursory search" before placing Mr. Tibbels in a "quiet room" to calm down.

¶5 After several hours in the quiet room, Mr. Tibbels grew agitated and threatened to kill himself by tying a torn piece of his shirt around his neck. He then removed a sharpened metal spike from his pocket; struck the door with it, which caused damage, and shouted, "If you guys come in here, motherfuckers, I'll kill you." Perceiving Mr. Tibbels’ actions as a threat, the deputies called for "lethal cover" and locked down the entire jail until they could subdue Mr. Tibbels, who complied with the deputies’ commands. The deputies recovered a three-inch metal spike from the cell floor and documented the damage to the door.

¶6 The State charged Mr. Tibbels with first degree introduction of contraband, felony menacing, and first degree possession of contraband. During voir dire, the trial court compared the concept of reasonable doubt to a structurally significant crack in the foundation of a house being considered by a prospective purchaser.

¶7 During trial, the prosecution elicited testimony about how deputies responded to Mr. Tibbels by coming from their assigned

490 P.3d 521

posts throughout the facility. During closing argument, the prosecutor asked the jury to hold Mr. Tibbels "accountable" for his "temper tantrum" that shut down the jail. The jury subsequently convicted Mr. Tibbels of possession of contraband, but it acquitted him of the other two charges.

II. Prosecutorial Misconduct

¶8 Mr. Tibbels contends that the prosecutor's appeal to the jury to hold him accountable for the jail lockdown was irrelevant, prejudicial, and misled the jury. We discern no reversible error.

A. Additional Facts

¶9 The "accountability" argument first arose in opening statement when the prosecutor asked the jury to "hold [Mr. Tibbels] accountable for the situation that he create[d]. Because it was a crime." Defense counsel did not object.

¶10 Then, during the direct examination of a booking deputy, the prosecutor asked whether other parts of the jail were left with fewer resources because of the incident involving Mr. Tibbels. The court sustained defense counsel's relevance objection and said, "[t]hat's not what he's charged with."

¶11 Without objection, the prosecutor then asked two additional deputies to describe the impact of Mr. Tibbels’ behavior, and they explained that the entire facility had to be locked down. A final deputy was asked whether other areas of the jail were left with fewer resources because of Mr. Tibbels’ behavior, and again, defense counsel objected on relevance. This time, the court overruled the objection without further comment.

¶12 In rebuttal closing argument and without objection, the prosecutor argued:

And the most disturbing thing of this is that 14 deputies had to respond to this, fourteen deputies out of the 29 that were there to guard the 952 inmates. So the other 952 were left less guarded because of Mr. Tibbels’[s] actions, because of his little show, his little stunt.

And you know, I keep referring to this as a ‘little show,’ but it's not. It's serious. It's not like he's an actor in a play and you're the audience. No. He committed a crime. He's the defendant. It's not like he's going to come up here and take a bow. And it's not like I'm going to ask you for applause at this point, because what I'm demanding is something much more appropriate. I'm demanding accountability.

....

You have all of the evidence. Hold him accountable for his actions. Find him guilty.

B. Standard of Review and Law

¶13 We review claims of prosecutorial misconduct using a two-step analysis. First, we determine whether the prosecutor's conduct was improper based on the totality of the circumstances. Wend v. People , 235 P.3d 1089, 1096 (Colo. 2010). Then, we determine whether such actions warrant reversal under the proper standard of review. Id.

¶14 If the defendant contemporaneously objected to the alleged misconduct at trial, we review for harmless error. Id. at 1097. Whether misconduct is harmless requires a court to evaluate "the severity and frequency of 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. Hogan , 114 P.3d 42, 55 (Colo. App. 2004). We reverse "only if we conclude that error occurred and that there is a reasonable probability that the error contributed to the guilty verdict." People v. Gonzales , 2017 COA 62, ¶ 26, 415 P.3d 846.

¶15 If the defendant fails to contemporaneously object to the alleged misconduct, we review for plain error. Wend , 235 P.3d at 1097. Prosecutorial misconduct constitutes plain error when it was obvious and "seriously affected the fairness or integrity of the trial." Domingo-Gomez v. People , 125 P.3d 1043, 1053 (Colo. 2005) (citing United States v. Young , 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) ). "Only prosecutorial misconduct which is ‘flagrantly, glaringly, or tremendously improper’ warrants reversal.’ " Id. (quoting People v. Avila , 944 P.2d 673, 676 (Colo. App. 1997) ).

490 P.3d 522

¶16 Because the right to a fair trial includes the right to an impartial jury, prosecutorial misconduct that misleads a jury may warrant reversal. Harris v. People , 888 P.2d 259, 264 (Colo. 1995). Indeed, prosecutors may not use arguments calculated to inflame the passions or prejudices the jury. People v. Oliver , 745 P.2d 222, 228 (Colo. 1987) ; see, e.g. , People v. Conyac , 2014 COA 8M, ¶ 147, 361 P.3d 1005 ("Prosecutors may not pressure jurors by suggesting that guilty verdicts are necessary to do justice for a sympathetic victim."). But a prosecutor's use of rhetorical devices to argue record evidence or to respond to the defense's arguments is not misconduct. See People v. Samson , 2012 COA 167, ¶ 31, 302 P.3d 311 (prosecutors may "employ rhetorical devices and engage in oratorical embellishments"); see also People v. Gibson , 203 P.3d 571, 577 (Colo. App. 2008) ("[T]he prosecutor is entitled to comment on the absence of evidence to support a defendant's contentions."); see also, e.g. , People v. Welsh , 176 P.3d 781, 788 (Colo. App. 2007) (concluding the prosecutor's comment about the absence of a suicide note was "a permissible reference to the absence of evidence to support defendant's contention that she was intending to kill herself").

C. Analysis

¶17 The parties dispute preservation of the various incidents of alleged misconduct. We need not resolve this dispute, however, because even if we assume that all alleged errors were preserved, we conclude that they are harmless and do not require reversal.

¶18 First, the trial court properly instructed the jury that opening statements "are not evidence. Their purpose is just simply to...