Wend v. The People Of The State Of Colo., No. 09SC478.

• Docket Nº: No. 09SC478.
• Citation: 235 P.3d 1089
• Case Date: August 16, 2010
• Court: Supreme Court of Colorado

235 P.3d 1089

Jennifer Lee-Renee WEND, Petitioner
v.
The PEOPLE of the State of Colorado, Respondent.

No. 09SC478.

Supreme Court of Colorado,
En Banc.

June 28, 2010.
Rehearing Denied Aug. 16, 2010.^*

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COPYRIGHT MATERIAL OMITTED

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Lisa Weisz, Boulder, CO, for Petitioner.

John W. Suthers, Attorney General, Katherine A. Hansen, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, CO, for Respondent.

Justice RICE delivered the Opinion of the Court.

We granted certiorari in this case to review the court of appeals' conclusion in an unpublished decision that, although the prosecutor improperly used the word “lie” in opening and closing statements, there was no reversible error. We agree that use of the word “lie” or any of its other forms is categorically improper according to our precedent. However, we hold that because the prosecutor repeatedly stressed the word “lie” in a trial in which the defendant's credibility was essential to the defense, the prosecutor's conduct prejudiced the fundamental fairness of the trial and constituted reversible plain error. Therefore, we reverse and return to the court of appeals with directions to remand for a new trial.

I. Facts of the Case

This appeal stems from a shooting in the home of the victim, Michael Adamson, in the early morning of Christmas Day, 2002. The defendant, Jennifer Lee-Renee Wend, had been staying with Adamson in his home for a few months, occupying a room across the hall from him. The defense alleged that Adamson sought sex in return for allowing Wend to reside in his home and that this demand coupled with escalating methamphetamine use made the relationship between Adamson and Wend increasingly tumultuous in late 2002. In any case, witnesses testified that Wend felt threatened by Adamson prior to the shooting but never moved out of the home.

Both Wend and Adamson were frequent methamphetamine users, and both were apparently high at the time of the shooting. It is uncontested that sometime after midnight on Christmas Day, Wend shot Adamson once in the stomach. Wend claimed at trial that Adamson made threatening gestures with a gun towards both her and her dog and that she shot him in self-defense. Adamson then

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managed to crawl across the hall to his room, where he collapsed and died shortly thereafter. Blood from the shooting remained in both Wend's and Adamson's rooms for many days, including a large pool on Adamson's bedroom floor, until police executed a search warrant on the premises.

Wend never contacted the police. Along with a friend, Randy Anderson, Wend disposed of the body some days after the shooting by putting it in an empty refrigerator and leaving it in a dump yard outside Castle Rock, Colorado. Days later, Anderson agreed to plead guilty to an accomplice charge in exchange for locating the body and testifying for the State.

When police called Wend for questioning regarding the disappearance of Adamson, she initially denied any knowledge of his whereabouts. Police interrogated Wend on January 3, 2003, but they let her go after she claimed to have no helpful information about Adamson. After Anderson eventually told the police about the body and how he assisted Wend in covering up the killing, police arrested Wend on January 17, 2003. During a second round of interrogation on the 17th, Wend initially denied any knowledge of the shooting, then briefly tried to blame Anderson for killing Adamson, and finally changed stories and admitted to shooting Adamson in self-defense.

II. The Trial

The State charged Wend with first-degree murder under section 18-3-102, C.R.S. (2003). Wend argued at trial that she acted in self-defense when she shot Adamson. We granted certiorari specifically on the issue of “whether prosecutorial misconduct warrants reversal,” so only the instances from the trial related to that issue are discussed herein.

Of specific concern to us is the prosecutor's repeated use of the word “lie” in opening and closing statements. In his opening, the prosecutor mentioned Detective Derek Graham's videotaped interrogation of Wend,¹ predicting to the jury that “you'll hear lie after lie after lie after lie from Jennifer Wend about what happened to Michael Adamson.” Later in opening, the prosecutor stated, “for about the first half of [the interrogation video,] same lies, same lies.” It should be noted that defense counsel also used the word “lie” regarding the interrogation during his opening statement, saying, “[Wend] does lie to people about what happened to Michael Adamson. She lies because she's afraid of what's going to happen to her if she tells the truth.” Defense counsel again observed throughout his closing statement that Wend had “lied,” but his comments, which merely acknowledged the fact that Wend had changed her story, ostensibly attempted to mitigate the damage from the interrogation video that the prosecution had dissected in great detail with Detective Graham during trial.

In his closing statement, the prosecutor began by telling the jury:

“I shot him.” “I haven't been honest with you from the beginning.” “I'm the one

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who shot him.” January the 17th, 2003, the defendant tells that to Detective Derek Graham after weeks of games, calling back and forth, of lies and lies and lies and lies. You could hardly keep count of all the lies told in two interviews, one on January 3, soon after she had moved out finally, and then all the lies in the second interview.

The prosecutor continued by paraphrasing more of Wend's misleading comments during the investigatory stage, observing that not just the police but also witnesses “heard these lies, too.” Later in his closing, he stated that “the defendant realized she couldn't keep lying to [Detective Derek] Graham. You see, Derek wasn't gonna give up. Derek didn't have skeletons in his closet, like methamphetamine use.” The prosecution also posited that Wend, after she confessed during the second interrogation, suddenly relaxed and figured that “they're buying this self-defense story” and then cried “crocodile tears.” ²

In the middle of the closing statement, there is further evidence of the prosecutor's careless use of language. The prosecutor stated:

The people propose that the defendant was at least waist deep in denial, if not over her head. Around about the second of this year Randy [Anderson] knows he got money from the defendant for his rent, about 400 bucks. And on the third he knows he put the body in that refrigerator. Oh, but on the third the defendant couldn't get a hold of Randy. Why was that? Let's see, he was in Missouri. Yeah, that's it, he's in Missouri. Oh, and Randy did it. Yeah, yeah, Randy The fucking liar. That Randy, selling her out like everybody else. Randy knows he was in Sedalia. He knows he returned to the dump.

(Emphasis added). It is difficult to surmise from the cold record whether the prosecution was haphazardly attempting to quote Wend in calling her accomplice Randy a “fucking liar.” In the video of Wend's confession, she often swears and at one point says “Randy's a fuckin' liar” when told that he had confessed. Regardless of the object of the prosecutor's ambiguous comment, the term “fucking liar” in a closing statement is certainly of concern.

Wend did not contemporaneously object to any of these comments in the trial court.

III. Procedural Posture

The instant appeal is actually the second appeal in this case. The prosecution initially charged Wend with first-degree murder, a class-one felony, but the jury returned a guilty verdict for second-degree murder without heat of passion, a class-two felony. Wend appealed that initial judgment to the court of appeals, which found reversible error because of a flawed jury instruction in an unpublished opinion in 2006. In this first opinion, the court of appeals left other appellate issues undecided because its judgment on the jury instructions was dispositive.³

Initially, the court of appeals ordered a new trial but, after a petition for rehearing by the prosecution, modified its judgment to allow the prosecution to elect between either retrying the case or accepting a judgment for second-degree murder by provocation, a class-three felony. Wend responded by requesting a rehearing contesting the modification, but she did not request that any of the other issues she initially raised on appeal be reheard. The court of appeals denied the request. Wend then petitioned this court for certiorari, which was also denied. Wend then filed a motion with the court of appeals demanding reconsideration, but this too was denied. After all appeals were exhausted, the prosecution accepted the lesser second-degree murder by provocation charge, § 18-3-103(1), (3)(b), C.R.S. (2003), and the trial court entered the new conviction, sentencing Wend to thirty-six years.

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In 2007, Wend appealed this new entry of judgment to the court of appeals, raising a myriad of issues including prosecutorial misconduct. In this second appeal, the court of appeals held that the prosecutor's use of the word “lie” was improper but was a fair descriptor for what both parties admitted were, in fact, lies. Moreover, the court believed that the prosecutor's statements were not designed to inflame the passions of the jury, meaning there was no unfair prejudice from the statements. Hence, although the court recognized the error in the prosecution's use of the word “lie,” it found no reversible plain error. This appeal followed.

IV. Waiver

The State contends that Wend waived her right to appeal prosecutorial misconduct by failing to raise the issue as part of her first direct appeal. The State accurately observes that in her first direct appeal Wend failed to challenge the prosecutor's use of the word “lie” throughout opening and closing statements, but that is not fatal to this appeal for three reasons. First, the court of appeals refused to address many of the issues...