People v. Walters, 02CA2419.

• Decision Date: 13 July 2006
• Docket Number: No. 02CA2419.,02CA2419.
• Citation: 148 P.3d 331
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Alan WALTERS, Defendant-Appellant.
• Court: Colorado Court of Appeals

148 P.3d 331

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Alan WALTERS, Defendant-Appellant.

No. 02CA2419.

Colorado Court of Appeals, Div. IV.

July 13, 2006.

Certiorari Denied December 18, 2006.^*

COPYRIGHT MATERIAL OMITTED

John W. Suthers, Attorney General, Cheryl Hone, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CARPARELLI.

Defendant, Alan Walters, appeals the judgment of conviction entered upon jury verdicts finding him guilty of sexual assault on a child and contributing to the delinquency of minor. He also appeals the sentence imposed. We affirm in part, reverse in part, and remand for a new trial on the sexual assault charge.

I. Background

The victim, a fourteen year old girl, and her girlfriend, WH, were visiting defendant's son, AJ, and AJ's friend at defendant's home. The victim alleged that, while she and defendant were alone in the bedroom, defendant kissed her hand, touched her vaginal area, and put her hand on the crotch of his trousers where she could feel his erect penis. That night, the victim told WH about the event, and the next day, after talking with her father, the victim went to the police. The police told the victim to call defendant to try to get him to admit he sexually assaulted her. During the recorded telephone conversation, defendant apologized to the victim, but did not admit to touching her inappropriately.

Following defendant's arrest for the sexual assault, the police found marijuana and drug paraphernalia in his home. Defendant was charged with sexually assaulting the victim and contributing to the delinquency of defendant's minor son. After a trial, the jury found defendant guilty on both counts.

On the sexual assault count, the trial court sentenced defendant to an indeterminate probationary term of ten years to life. The court imposed a concurrent six year probationary term on the contributing to delinquency count. The court also ordered defendant to serve ninety days in jail on the sexual assault charge and a consecutive sixty days in jail on the contributing to delinquency charge. In addition, the court imposed a two year work release sentence and offense specific therapy.

Based on a complaint filed by defendant's probation officer, the court revoked defendant's probation. On the sexual assault count, the court resentenced defendant to an indeterminate sentence of four years to life in the Department of Corrections and a concurrent term of four years in prison plus three years of mandatory parole on the contributing to delinquency count. Defendant appeals his convictions and sentence.

II. Prosecutorial Misconduct

Defendant contends that prosecutorial misconduct during closing argument violated his right to due process and to a fair and impartial jury. We agree, but only with respect to the sexual assault on a child charge.

A. Law

A defendant has a constitutional right to trial by a fair and impartial jury. U.S. Const. amend. VI; Colo. Const. art. II, §§ 16, 23; see also Harris v. People, 888 P.2d 259 (Colo.1995). This constitutional right requires that an impartial jury determine guilt or innocence based solely on properly admitted evidence at trial. Domingo-Gomez v. People, 125 P.3d 1043 (Colo.2005). When a jury has been misled by inadmissible evidence or argument, it is no longer impartial. Harris v. People, supra; Oaks v. People, 150 Colo. 64, 68, 371 P.2d 443, 446-47 (1962).

During closing argument, a prosecutor has wide latitude and may refer to the strength and significance of the evidence, conflicting evidence, and reasonable inferences that may be drawn from the evidence. Domingo-Gomez v. People, supra.

However, to safeguard a defendant's right to a fair trial, a prosecutor must stay within the limits of appropriate prosecutorial advocacy during closing argument. Domingo-Gomez v. People, supra; Harris v. People, supra. For example, it is not proper for a prosecutor to refer to facts not in evidence or to make statements reflecting his or her personal opinion or personal knowledge. Nor may a prosecutor inflame and appeal to the jury's passions or prejudices. Domingo-Gomez v. People, supra; Harris v. People, supra; see also Wilson v. People, 743 P.2d 415 (Colo.1987) (stating that expressing personal opinion in closing argument is particularly inappropriate in criminal trials); People v. Sepeda, 196 Colo. 13, 581 P.2d 723 (1978); People v. Salazar, 648 P.2d 157 (Colo. App.1981) (disapproving of a prosecutor's appeal to the jury's emotions). Prosecutorial misconduct that misleads a jury to decide innocence or guilt on the basis of bias or prejudice may warrant reversal of a conviction. Harris v. People, supra.

We may consider a lack of contemporaneous objection by the defendant as demonstrating "the defense counsel's belief that the live argument, despite its appearance in a cold record, was not overly damaging." Domingo-Gomez v. People, supra, 125 P.3d at 1054 (quoting People v. Rodriguez, 794 P.2d 965, 972 (Colo.1990)). When a defendant does not make a contemporaneous objection during closing argument, we review only for plain error. Harris v. People, supra; Wilson v. People, supra.

Prosecutorial misconduct during closing arguments rarely constitutes plain error that requires reversal. People v. Constant, 645 P.2d 843 (Colo.1982). To warrant reversal, the misconduct must be obvious and substantial and "so undermine[] the fundamental fairness of the trial itself . . . as to cast serious doubt on the reliability of the judgment of conviction." People v. Miller, 113 P.3d 743, 750 (Colo.2005) (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo.2003)); see People v. Constant, supra; People v. Petschow, 119 P.3d 495 (Colo.App.2004). Prosecutorial misconduct amounts to plain error when it is flagrant or glaringly or egregiously improper. Domingo-Gomez v. People, supra.

When determining whether the prosecutor's statements were proper and whether reversal is warranted, we consider, among other things, the language used, the context of the statements, whether a statement improperly expressed the prosecutor's personal opinion, whether the statement is an acceptable comment on the credibility of witnesses, the strength of the evidence, whether the evidence is conflicting or inconclusive, whether the prosecutor improperly appealed to the jurors' sentiments, whether the misconduct was repeated, and any other relevant factors. Domingo-Gomez v. People, supra; Harris v. People, supra; Wilson v. People, supra; People v. Adams, 708 P.2d 813 (Colo.App. 1985).

Although prosecutorial misconduct rarely requires reversal, an appellate court will reverse when a prosecutor engages in repeated misconduct that deprives a defendant of a fair trial. People v. Adams, supra (concluding that repeated instances of prosecutorial misconduct deprived the defendant of a fair trial). Reversal may also be warranted when a prosecutor repeatedly expresses personal opinions about the credibility of witnesses or evidence, or when the evidence against a defendant is conflicting and inconclusive and the prosecutor continually appeals to the jurors' sentiments. See Domingo-Gomez v. People, supra; Harris v. People, supra.

Here, defendant did not object, and, therefore, we review the prosecutor's arguments for plain error.

B. Defendant's Demeanor

In closing, after arguing that the victim was frightened by defendant, the prosecutor said:

You saw the demeanor, the way this man acts. Defiant, aggressive. He stood up hard against [cross-examination]. He refused to answer questions. Imagine that man with a 14-year-old girl. Terrified.

. . . .

Remember [the victim's] words as she cried? . . . She was trying. She wants to be as honest with you as she can. She told you everything she remembered. She tried to answer all of the questions she could.

. . . .

[The victim] was emotionally drained by cross-examination. We had to take a break.

What did the defendant do? Did anybody see the defendant when she was leaving the courtroom crying? Did any of you? And ask your fellow jurors if [they] saw him laugh and smile when she left. Because I saw it. What did—talk to your fellow jurors, because I saw it.

In People v. Constant, supra, the supreme court concluded that the prosecutor's closing argument references to the defendant's demeanor at counsel table were not plain error. The court explained that a prosecutor may argue reasonable inferences to be drawn from a witness's demeanor when testifying, and that, although witness demeanor is not evidence, juries are instructed to consider it when evaluating a witness's credibility. The court was persuaded, in part, by the fact that the defendant testified in his own defense and, thereby, made his demeanor and credibility proper subjects for the jury to consider. The court also noted that the prosecutor argued that the defendant's demeanor was evidence of his credibility and not that his demeanor was itself evidence of guilt.

Here, as in Constant, defendant testified and put his credibility in issue. The quoted portion of the prosecutor's argument focused on the victim's and defendant's credibility, and because the victim's and defendant's testimony about the events conflicted, it was permissible for the prosecutor to contrast the credibility of the two and to comment on defendant's demeanor in relation to his credibility.

However, it was not proper for the prosecutor to say, "Because I [defendant laugh and smile]. What did—talk to your fellow jurors, because I saw it." The prosecutor's attestation regarding what he saw impermissibly injected the prosecutor's credibility into the jury's consideration of defendant's demeanor.

C. Effects of Multiple Sclerosis

Defendant's neurologist testified that she treated defendant for multiple sclerosis (MS) and...