People v. Koper , 2018 COA 137 ( 2018 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 20, 2018
2018COA137
No. 15CA1912, People v. Koper — Criminal Law — Jury
Instructions — Defense of Person; Affirmative Defenses — Self-
Defense; Prosecutorial Misconduct
A division of the court of appeals considers whether the trial
court erred in rejecting defense-tendered jury instructions on the
affirmative defense of self-defense. The defendant asserted that he
drew his weapon to defend himself against an ongoing assault by a
third party. The People charged defendant with two counts of
felony menacing, naming as victims bystanders against whom
defendant admitted he did not act in self-defense. The division
concludes that defendant was entitled to a self-defense instruction
because his intent to defend himself against the third party could
be transferred to the named victims. Because the erroneous denial
of the transferred intent self-defense instructions was not harmless,
the division reverses the felony menacing convictions.
The division further concludes that prosecutorial misconduct
requires reversal of defendant’s prohibited possession of a weapon
conviction.
The division also addresses, to the extent the issues are likely
to arise on remand, the defendant’s claims that the trial court erred
in rejecting a jury instruction on the presumption and inferences a
jury can draw based on blood alcohol content testing and in
precluding an expert witness from giving testimony concerning the
same.
Accordingly, the division reverses the judgment of conviction
and remands for a new trial.
COLORADO COURT OF APPEALS 2018COA137
Court of Appeals No. 15CA1912
City and County of Denver District Court No. 14CR6405
Honorable Kenneth M. Laff, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brian Michael Koper,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE CASEBOLT*
Bernard and Welling, JJ., concur
Announced September 20, 2018
Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 Defendant, Brian Michael Koper, appeals the judgment of
conviction entered on jury verdicts finding him guilty of two counts
of felony menacing and one count of prohibited possession of a
firearm while under the influence of intoxicating liquor. He
contends that the trial court failed to give a self-defense instruction,
to which he was entitled, on the felony menacing counts and plainly
erred in allowing the prosecutor to pose at least forty-four improper
“were they lying” type questions during cross-examination. He also
contends that the court erred in rejecting his tendered instruction
concerning the presumption and inferences that arise when a
person’s blood alcohol level is less than .05 and in precluding his
expert witness from giving testimony concerning the same. In an
issue of first impression, we conclude that defendant was entitled to
a self-defense instruction concerning the menacing charges based
on the legal doctrine of transferred intent, and we further conclude
that prosecutorial misconduct requires reversal of the prohibited
possession of a firearm conviction. We therefore reverse and
remand for a new trial on all counts.
1
I. Background
¶2 While at a bar one evening, defendant saw an acquaintance he
knew only as “Abraham” or “Abram” along with several members of
his family. Defendant said something to Abram’s sister that
offended Abram. Trying to make amends, defendant approached
Abram on the bar’s patio to offer him a beer. Abram responded by
punching defendant twice in the face. Defendant then drew his
firearm, for which he had a concealed carry permit, and aimed it at
Abram. After a short standoff, defendant handed the gun to his
fiancee and the two left the bar.
¶3 The People charged defendant with two counts of felony
menacing under section 18-3-206(1)(a), C.R.S. 2017 (proscribing
the knowing placement of or attempt to place another person in fear
of imminent serious bodily injury by employing any threat or
physical action by the use of a deadly weapon). The first count
named the alleged victim as M.B., a security guard at the bar who
had stepped between defendant and Abram after defendant drew
his weapon. The second count named the alleged victim as B.B.,
another bar patron who had been sitting on the patio at a picnic
table behind Abram. The People also charged defendant with
2
prohibited possession of a firearm under section 18-12-106(1)(d),
C.R.S. 2017 (prohibiting “possession [of] a firearm while [a] person
is under the influence of intoxicating liquor”). The jury found
defendant guilty as charged.
II. Self-Defense Instructions
¶4 Defendant contends that the trial court erred in rejecting his
jury instructions on the affirmative defense of self-defense. We
agree.
A. Additional Facts
¶5 During trial, the defense tendered jury instructions defining
the elements of “defense of person,” explaining “apparent necessity,”
and raising the affirmative defense of self-defense as to the
menacing charges. The People objected to the instructions, arguing
that defendant had not acted in self-defense as to the named
victims but rather in response to Abram’s actions, and no offense
concerning Abram had been charged. In response, the defense
argued that, though defendant “certainly . . . wasn’t defending
himself against [M.B.] or [B.B.] . . . he pulled the weapon in defense
of an assault that had actually occurred, and in his opinion, was
ongoing. The jury needs to know in some way, shape, or fashion, in
3
these instructions, that he is entitled to defend himself against an
assault.”
¶6 The trial court rejected the affirmative defense instructions.
However, it allowed the defense to incorporate a self-defense
argument in a theory of the case instruction that read, in relevant
part, that defendant “drew his firearm and used it solely for the
purposes of preventing further assault [by Abram] and holding his
assailant at bay.” In permitting that instruction, the trial court
stated, “[T]here was an element of self-defense in the case; it was
not as to the people who were allegedly menaced.”
¶7 During closing argument, the prosecutor argued that “nowhere
in the jury instructions does the word or concept ‘self-defense’ show
up.” He also stated that when a person points a gun at another,
whether it is in self-defense is “immaterial” because the action
inevitably scares the person at whom the gun is pointed.
B. Standard of Review
¶8 If there is some credible evidence presented that a defendant
has acted in self-defense, “the prosecution bears the burden of
proving beyond a reasonable doubt that the defendant did not act
in self-defense, and the trial court must instruct the jury
4
accordingly.” People v. Pickering, 276 P.3d 553, 556 (Colo. 2011).
“The question of whether the defendant has presented ‘some
credible evidence’ to support each element of an affirmative defense
is a question of law,” and we therefore review the issue de novo.
People v. Oslund, 2012 COA 62, ¶ 16.
¶9 We review preserved instructional errors for nonconstitutional
harmless error. See Castillo v. People, 2018 CO 62, ¶¶ 55-61
(reviewing erroneous initial aggressor instruction for harmless
error); People v. Garcia, 28 P.3d 340, 344 (Colo. 2001). Under that
standard, we reverse only if the error “substantially influenced the
verdict or affected the fairness of the trial proceedings.” Hagos v.
People, 2012 CO 63, ¶ 12 (quoting Tevlin v. People, 715 P.2d 338,
342 (Colo. 1986)).
C. Applicable Law
1. Self-Defense
¶ 10 Colorado recognizes a limited statutory right to use physical
force in self-defense. See generally § 18-1-704, C.R.S. 2017. In
particular, a person may use physical force on another person to
defend himself from what “he reasonably believes to be the use or
imminent use of unlawful physical force by that other person.”
5
§ 18-1-704(1). Additionally, a person acting in self-defense may
employ “a degree of force which he reasonably believes to be
necessary” to defend himself. Id.
2. Transferred Intent
¶ 11 The doctrine of transferred intent “is a legal fiction that is used
to hold a defendant criminally liable to the full extent of his or her
criminal culpability.” People v. Hunt, 2016 COA 93, ¶ 24 (quoting
State v. Fekete, 901 P.2d 708, 714 (N.M. 1995)). The doctrine is
typically invoked when an actor intends to commit a criminal act,
but “the actual result differs from the result designed or
contemplated only in that a different person or property was injured
or affected.” Id. (quoting Fekete, 901 P.2d at 714). By way of
example, if A intends to shoot B, but misses and instead shoots and
kills unintended victim C, A can be held criminally liable for C’s
murder even though A did not intend to harm C. In that scenario,
A’s criminal intent to harm B “transfers” to C. See People v.
Jackson, 2018 COA 79, ¶ 89 (discussing transferred intent in the
context of determining whether attempted murder after deliberation
of one person is a lesser included offense of the murder after
deliberation of another person).
6
¶ 12 Thus, the doctrine of transferred intent is most frequently
used as a “sword” by the prosecution to hold a defendant criminally
liable. Nevertheless, the doctrine can also limit a defendant’s
liability:
There are, of course, some situations where,
though A intentionally kills or injures B, A is
not guilty of murder or battery. Though he
kills B, . . . he may be guilty of no crime at all
(e.g., when he is privileged to kill or injure B in
self-defense, or to prevent B’s commission of a
felony). Now suppose A shoots at B under
these circumstances but, missing B, hits and
kills or injures C, an innocent bystander. If A
aims at his attacker B in proper self-defense,
but hits C instead, he is not generally guilty of
murder or battery of C. Once again, he is only
as guilty as to C as he would have been had
his aim been accurate enough to have hit B.
1 Wayne R. LaFave, Substantive Criminal Law § 6.4(d) (3d ed. 2017)
(footnote omitted).
¶ 13 Accordingly, several jurisdictions have embraced the concept
of “transferred intent self-defense.” Under that concept, “the
doctrine of self-defense is available to insulate one from criminal
responsibility where his act, justifiably in self-defense, inadvertently
results in the injury of an innocent bystander.” People v. Mathews,
154 Cal. Rptr. 628, 631-32 (Cal. Ct. App. 1979); see State v. Clifton,
7
290 N.E.2d 921, 923 (Ohio Ct. App. 1972); Holloman v. State, 51
P.3d 214, 221-22 (Wyo. 2002) (collecting cases); see also State v.
Bellinger, 278 P.3d 975, 989-91 (Kan. Ct. App. 2012) (Atcheson, J.,
dissenting). Colorado’s appellate courts have not addressed this
precise issue. But see Henwood v. People, 54 Colo. 188, 194, 129 P.
1010, 1013 (1913) (approving in dicta self-defense instruction when
defendant unintentionally shot and killed a bystander while acting
to defend himself from a third person).
D. Analysis
¶ 14 It is essentially undisputed that defendant raised some
credible evidence that he acted in self-defense against Abram.
Defendant testified that after Abram punched him twice in rapid
succession, he stumbled backward and took a knee before drawing
his weapon. Abram was pacing back and forth in front of him and
threatening to continue the fight. Defendant testified that he
believed Abram “was going to beat [him] to a bloody pulp” if he did
not use the firearm to keep Abram at bay. In our view, that
evidence would have been sufficient to raise an affirmative defense
of self-defense if Abram had been named as a victim. See People v.
Speer, 255 P.3d 1115, 1119 (Colo. 2011) (“It is too well settled to
8
merit further discussion that a trial court is obliged to instruct the
jury on a requested affirmative defense if there is any credible
evidence, including even highly improbable testimony of the
defendant himself, supporting it.”).
¶ 15 The crux of the issue here, however, is whether defendant was
entitled to raise self-defense as an affirmative defense as to M.B.
and B.B. As the Mathews court reasoned:
[T]he common law theory of “transferred
intent” . . . , in its principal application,
establishes that one’s criminal intent follows
the corresponding criminal act to its
unintended consequences. As the noted cases
have held, the reasoning applies equally to
carry the [l]ack of criminal intent to the
unintended consequences and thus preclude
criminal responsibility.
154 Cal. Rptr. at 631. We find that reasoning persuasive and
therefore elect to follow the jurisdictions that have adopted and
applied the concept of “transferred intent self-defense.”
¶ 16 Under the facts of the present case, we conclude that
defendant was entitled to raise the affirmative defense as to both
victims.
¶ 17 On the menacing charge alleging B.B. as the victim, B.B.
testified that she heard glass break, turned, and saw defendant
9
with “a bunch of guys around him, and they were all kind of
fighting.” When asked if the gun was ever pointed at her, she
responded that “[i]t was pointed in [her] direction.” During cross-
examination, B.B. testified that Abram was between her and
defendant during the period when defendant’s gun was drawn.
¶ 18 Thus, to the extent that defendant “knowingly place[d] or
attempt[ed] to place [B.B.] in fear of imminent serious bodily injury”
as is required by the statute defining felony menacing, § 18-3-
206(1), his actions may have been justified self-defense. The
evidence adduced at trial indicated that B.B. was a bystander
incidentally affected by defendant’s asserted attempt to defend
himself against what he perceived as a threat posed by Abram.
Thus, defendant was entitled to assert that his intent to defend
himself against Abram transferred to B.B.
¶ 19 Concerning M.B., that victim testified, “[Defendant] had the
gun pointed at the patron [Abram], at the other guy. As I went to
approach him, he went from pointing the pistol at him to pointing it
at me.” M.B. stated that he approached defendant from the front at
“a 45-degree-ish angle” from the right, and that defendant pointed
the gun in his face.
10
¶ 20 M.B.’s testimony by itself would not allow defendant’s conduct
as to him to be justified by self-defense. According to this
testimony, defendant pulled his weapon away from the initial
aggressor — Abram — and trained it on M.B., even pointing it at his
face. And no evidence adduced at trial indicated that defendant
believed M.B. may have been a confederate of Abram’s such that
defendant believed M.B. presented a threat.
¶ 21 However, defendant testified that M.B. approached him from
the “back of [his] right hand,” put two hands on defendant’s two-
handed grip of his pistol, and squeezed defendant’s hands together.
M.B. then stepped forward and “came into [defendant’s] chest.”
Defendant testified he perceived that there were a number of people
around him who were trying to disarm him, including M.B., but he
was trying not to be disarmed because he was “getting [his] butt
kicked by Abram.” Then, according to defendant, he was able to
avoid being disarmed by pointing the gun upward and saying, “[B]e
careful, man, this thing is loaded,” whereupon the crowd backed
away from him. Defendant testified that he did not point the gun at
M.B., and he denied waving the gun around at other patrons on the
patio.
11
¶ 22 This testimony presents a contrary version of the events
surrounding M.B.’s interaction with defendant. If believed by the
jury, defendant’s testimony constitutes sufficient evidence to justify
a self-defense instruction as to victim M.B. Defendant’s intent to
defend himself against Abram would, if the jury believed this
testimony, allow the intent as to Abram to transfer to the encounter
with M.B.
¶ 23 Thus, we conclude the trial court erred in rejecting defendant’s
jury instructions on self-defense as an affirmative defense to the
menacing charges. We further conclude that the error was not
harmless because while the defense’s theory of the case instruction
referred generally to self-defense, the instruction did not require the
prosecution to disprove self-defense beyond a reasonable doubt.
See Pickering, 276 P.3d at 556. The instructions on the menacing
charges provided no means by which the jury could acquit
defendant if it found that, though he committed felony menacing,
he was justified in acting to defend himself. Because we conclude
that the erroneous denial of the self-defense instructions
“substantially influenced the verdict,” Hagos, ¶ 12, we reverse the
convictions for felony menacing.
12
¶ 24 We emphasize that we express no opinion as to whether
defendant used reasonable physical force or whether his conduct as
to either victim was in fact justified. Our conclusion merely leaves
it to the jury to decide whether defendant’s actions were justified
under appropriate jury instructions. See § 18-1-704(1) (a person
must reasonably fear the use or imminent use of unlawful physical
force by another person and use reasonable force in response); cf.
Holloman, 51 P.3d at 222 (“Under these alleged facts, we
nevertheless believe that [defendant’s] testimony required that the
jury be instructed on the law of self-defense. The jury’s role is to
determine whether [his] intentional acts were self-defense . . . .”).
¶ 25 The People do not directly address defendant’s transferred
intent argument. Instead, they assert in their brief that (1)
defendant was not entitled to any affirmative defense because he
did not admit that he committed the charged acts and (2) there was
no credible evidence that either alleged victim used unlawful force
against defendant.
¶ 26 As to the first contention, we disagree that defendant is barred
from raising any affirmative defense as to either menacing victim.
Although he did not concede guilt, he admitted that he committed
13
the acts that gave rise to those charges. See People v. Whatley, 10
P.3d 668, 670 (Colo. App. 2000) (“An affirmative defense is a
defense that admits conduct leading to the act charged but seeks to
justify, excuse, or mitigate that conduct.”) (emphasis added). As to
the second argument, we disagree for the reasons expressed in our
analysis above.
¶ 27 The People asserted during oral argument that transferred
intent self-defense is only available under a first degree murder
after deliberation or assault charge, given the statutes’ allowance of
a charge even when the intended victim is not harmed, but a third
person’s death or assault is caused by the actor. See, e.g., § 18-3-
102(1)(a), C.R.S. 2017; § 18-3-202(1)(a)-(c), C.R.S. 2017. Because
this contention was raised for the first time at oral argument, we
decline to address it here. See People v. Becker, 2014 COA 36, ¶ 23
(court will not address an argument first raised by the People
during oral argument).
¶ 28 Thus, we conclude that on remand defendant is entitled to
raise the affirmative defense of self-defense as to the menacing
charges, if the evidence at trial on remand is presented in a similar
14
posture as that presented on this appeal, and the trial court must
give appropriate instructions concerning it.
III. Prosecutorial Misconduct
¶ 29 Defendant contends that prosecutorial misconduct requires
reversal of his conviction for possession of a firearm while
intoxicated. Reviewing under a plain error standard because
defendant did not object to the questions, we agree.
A. Standard of Review
¶ 30 We engage in a two-step analysis in reviewing claims of
prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we determine whether the prosecutor’s conduct
was improper based on the totality of the circumstances. Id.Second, we decide whether, under the proper standard of review,
any misconduct warrants reversal. Id. We review conduct to which
a defendant did not object for plain error. Id. at 1097.
B. Applicable Law
¶ 31 “[A]sking a witness to opine on the veracity of another witness
is prejudicial, argumentative, and ultimately invades the province of
the fact-finder.” Liggett v. People, 135 P.3d 725, 732 (Colo. 2006).
Thus, “were they lying” type questions are “categorically improper.”
15
Id. at 733; see also People v. Wittrein, 221 P.3d 1076, 1081 (Colo.
2009) (“In Colorado, neither lay nor expert witnesses may give
opinion testimony that another witness was telling the truth on a
specific occasion.” (citing CRE 608(a))).
¶ 32 Improper “were they lying” type questions include asking a
testifying defendant whether another witness was “mistaken,” State
v. Flanagan, 801 P.2d 675, 679 (N.M. Ct. App. 1990) (noted as
support for a finding of error in Liggett), as well as questions asking
a defendant to explain the testimony of an adverse witness, Burgess
v. State, 495 S.E.2d 445, 447 (S.C. 1998) (also noted as support in
Liggett).
C. Application
¶ 33 We have little difficulty in concluding that the prosecutor’s
questions here were improper “were they lying” questions.
¶ 34 Defendant testified in his own defense. As noted earlier,
during direct examination, defense counsel summarized M.B.’s
testimony that defendant had aimed his weapon directly at M.B.
and asked defendant, “Is that what happened?” Defendant
responded, “No.” Later, defense counsel also asked whether
defendant believed he had been “substantially incapable of
16
exercising sufficient physical control” when he drew his weapon, to
which defendant responded, “Absolutely not, and I think the
testimony of everybody proves that.”
¶ 35 During cross-examination, the prosecutor repeatedly asked
defendant to opine on testimony given by prosecution witnesses.
The prosecutor asked defendant about inconsistencies between his
testimony and that of the People’s witnesses, asking whether the
People’s witnesses were “wrong,” “right or wrong,” “completely
incorrect,” and “completely wrong,” and also asking at various
points whether testimony from the People’s witnesses had been “no
good” and “true or untrue.”
¶ 36 In particular, the prosecutor asked defendant whether other
witnesses incorrectly testified that he had “waved” the gun around
and that he had been drunk. He also asked whether defendant
believed the People’s witnesses were wrong about various details,
including what time he had arrived at the bar, how he had reacted
to Abram’s punches, and whether he had had his jacket over his
arm when he approached Abram.
¶ 37 The People assert that the prosecutor’s questions were proper
under Liggett because they were merely designed to highlight
17
conflicting evidence and “did not call for defendant to opine as to
whether the witnesses were lying.” The record belies this argument.
The prosecutor asked defendant point blank whether the People’s
witnesses were lying, incorrect, and wrong. Cf. Liggett, 135 P.3d at
735 (considering questions about whether witness was “mistaken”
to fall within prohibited category).
¶ 38 The People acknowledge on appeal that
[t]here are other ways to emphasize conflicts in
the evidence and raise questions as to a
witness’s credibility that do not involve asking
“were they lying” types of questions. For
example, a cross-examiner may ask non-
prejudicial questions that highlight the
discrepancies and later emphasize any
conflicting accounts by juxtaposing them in
closing argument.
Id. at 732. But contrary to the People’s further argument, the
prosecutor here went beyond asking non-prejudicial questions
designed to highlight discrepancies in the evidence. Instead, by our
count, the prosecutor asked defendant some forty-four times
whether another witness’s testimony was incorrect, wrong, or
untrue, or whether the witness had lied. These questions fell
squarely within the category of prohibited “were they lying”
questions.
18
¶ 39 The People also contend that the defense opened the door to
any impermissible questions. At the outset, it is not clear that the
“opening the door” concept applies in this context. In Liggett, a
division of the court of appeals concluded that “were they lying”
questions were generally disallowed, “except when the only possible
explanation for the inconsistent testimony is deceit or lying or when
the defendant has opened the door by testifying about the veracity
of other witnesses on direct examination.” People v. Liggett, 114
P.3d 85, 88 (Colo. App. 2005), aff’d, 135 P.3d 725. While the
supreme court affirmed the division’s outcome, it disagreed with the
division’s holding that there were exceptions to the categorical
prohibition on “were they lying” questions, stating: “[W]e decline to
adopt the rule articulated by the court of appeals. Instead, we
adopt the approach followed in a majority of jurisdictions that
broadly prohibits asking a witness to comment on the veracity of
another witness.” 135 P.3d at 727. But see People v. Kessler, 2018
COA 60, ¶¶ 43-44 (appearing to apply the opening the door
exception generally but finding it inappropriate under the facts).
¶ 40 In any event, we do not agree that the defense opened the door
to the barrage of “were they lying” questions the prosecutor
19
employed here. Although defendant testified that he did not agree
with M.B.’s version of events and that he believed other witnesses’
testimony supported his assertion that he had not been under the
influence, he did not directly comment on the truth or veracity of
any witness who had given testimony during direct examination.
¶ 41 Thus, we conclude that the prosecutor’s “were they lying”
questions were improper.
D. Plain Error Review
¶ 42 We turn to whether the prosecutor’s misconduct requires
reversal under the plain error standard. We conclude that it does.
¶ 43 An error is plain only if it is “obvious and substantial.” Hagos,
¶ 14. For an error to be obvious, it must ordinarily “contravene (1)
a clear statutory command; (2) a well-settled legal principle; or (3)
Colorado case law.” Scott v. People, 2017 CO 16, ¶ 16 (quoting
People v. Pollard, 2013 COA 31M, ¶ 40). Put another way, an error
is obvious if it is so clear-cut that a trial court should be able to
avoid it without the benefit of objection. People v. Ujaama, 2012
COA 36, ¶ 42. An error is substantial if it “undermined the
fundamental fairness of the trial itself so as to cast serious doubt
20
on the reliability of the judgment of conviction.” Hagos, ¶ 14
(quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).
¶ 44 Here, we conclude that the error was obvious because it
violated controlling Colorado case law — namely, the Colorado
Supreme Court’s holding in Liggett. See also Kessler, ¶ 46
(describing rule “that witnesses should not be asked to comment on
the veracity of other witnesses” as a “well-settled legal principle”).
The rule set forth in Liggett is categorical and, in our view, one a
trial court should apply even absent an objection, at least in
circumstances, such as those here, where the prosecutor repeatedly
and pervasively poses improper questions. Indeed, the trial court in
this case acknowledged the impropriety of asking defendant
whether other witnesses had lied. After redirect examination, a
juror submitted a question for defendant asking in part, “Are you
saying that all the witnesses who said you were drunk and waving a
gun were lying?” The trial court sustained the defense’s speculation
objection, stating, “It’s also not appropriate for one witness to
comment upon the credibility of others.”
¶ 45 The error was substantial. Almost the entirety of the
prosecutor’s cross-examination of defendant consisted of
21
impermissible questions. The People contend that defendant’s
testimony on cross-examination bolstered his version of events, and
thus the error was not prejudicial. However, that argument gives
short shrift to the untenable position defendant was in during the
cross-examination: asking the defendant to opine on the veracity of
the People’s witnesses places him “in a no-win situation. If the
defendant says the other witness is lying, then the defendant is put
in the position of calling someone a liar . . . . If the defendant says
a contradictory witness is not lying, then a fair inference is that the
defendant is lying.” Liggett, 135 P.3d at 732 (quoting State v.
Graves, 668 N.W.2d 860, 872 (Iowa 2003)); see also id. at 733
(noting that the defendant’s responses “d[id] not excuse the
impropriety of the questioning”).
¶ 46 The questions here were not limited to a particular or
peripheral issue. Instead, the prosecutor asked defendant to opine
on nearly every witness’s testimony about every contested issue in
the case. Cf. id. at 735 (noting that questions about whether
witness was “mistaken” were not plainly erroneous where “the
subject matter of the questions was largely peripheral to issues
before the court” and the trial court did not refer to remarks in its
22
findings). Most significantly, the improper questions concerned
both defendant’s level of intoxication and whether he had “waved”
the gun or had kept it trained on Abram. These issues were central
to the prosecution’s case on the possession of a firearm charge.
¶ 47 Furthermore, the proffered jury question that the trial court
declined to ask concerning the contrast between defendant’s
testimony and that of the prosecution’s witnesses shows that at
least one member of the jury readily connected the prosecutor’s
questioning on cross-examination to a potential assertion that
either defendant or the prosecution witnesses were “lying.”
¶ 48 In sum, we conclude that the error undermines our confidence
in the reliability of the judgment of conviction.
¶ 49 We acknowledge that reversal is warranted under plain error
review only when prosecutorial misconduct is “flagrantly, glaringly,
or tremendously improper.” Domingo-Gomez v. People, 125 P.3d
1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676
(Colo. App. 1997)). In our view, this is the rare case in which the
misconduct rose to that level.
23
¶ 50 Accordingly, we conclude that the prosecutor’s misconduct
requires reversal of defendant’s prohibited possession of a firearm
conviction.
IV. Presumption Instruction and Expert Testimony
¶ 51 Defendant also contends that the trial court erred in (1)
rejecting his proposed jury instruction on the presumption and
inferences a jury can draw based on blood alcohol content (BAC)
and (2) precluding an expert witness from testifying on the same
topic. We briefly address this contention to provide guidance on
remand.
¶ 52 Defendant submitted a jury instruction tracking the
presumption and permissible inferences set out in section 42-4-
1301(6)(a), C.R.S. 2017 — namely, that a BAC of .05 or less entitles
the defendant to a presumption that he or she was not driving
under the influence of alcohol, a BAC above .05 but below .08 gives
rise to a permissible inference that the defendant’s driving was
impaired by the consumption of alcohol, and a BAC above .08 gives
rise to a permissible inference that the defendant was driving under
the influence of alcohol. The tendered instruction stated that the
jury could draw an inference or presumption based on defendant’s
24
BAC as “shown by analysis of the defendant’s blood or breath.”
However, there was no evidence that police officers had tested
defendant’s blood or breath at any time in connection with this
case. Because of the lack of blood or breath analysis, the trial court
rejected the instruction. Instead, it allowed a defense-tendered
instruction defining “under the influence.”
¶ 53 Defendant called a toxicologist as an expert witness. Based on
information provided by the defense detailing the food and drinks
defendant had consumed at the bar, as well as his height and
weight, the expert testified that defendant’s BAC at the time he
drew his weapon was below .05. However, the trial court ruled that
the expert could not tie her conclusion about defendant’s BAC to
the presumption in section 42-4-1301(6)(a). The trial court also
ruled that the expert could not testify on how a BAC of .05 or below
would affect a person’s body and mental functioning because that
information had not been disclosed in the expert’s report. See
Crim. P. 16(II)(b).
¶ 54 First, we conclude that the trial court did not err in rejecting
the defense-tendered instruction on the BAC-related permissible
inferences and presumption. As the trial court reasoned, the
25
presumption and inferences are set forth in the statute prohibiting
driving while impaired and driving under the influence. See
generally § 42-4-1301. The presumption and inferences are not
incorporated in the prohibited possession of a firearm statute;
section 18-12-106(1)(d) does not define “under the influence” at all,
much less in terms related to a person’s BAC.
¶ 55 More significantly, the language of section 42-4-1301(6)
implies that a BAC calculation must be based on analysis of the
defendant’s blood or breath. Such analysis was not done in this
case. For the same reason, we conclude the trial court did not err
in ruling that the defense’s expert witness could not tie her
conclusions about defendant’s BAC to the inferences and
presumption in the driving while impaired and driving under the
influence statute.
¶ 56 To the extent defendant contends the trial court erred in
concluding that the expert could not testify on the physical effects
of a BAC of .05 or lower, because that issue was not addressed in
her report, we decline to address the contention. That issue is
unlikely to arise on remand.
26
¶ 57 We take no position on whether the People opened the door to
evidence or an instruction tying defendant’s BAC to section 42-4-
1301(6), by eliciting testimony from police officers that they
considered defendant too intoxicated to drive when he was arrested.
Because it is not clear that the issue will arise on remand, we
decline to address it. See People v. Weinreich, 98 P.3d 920, 924
(Colo. App. 2004) (declining to address evidentiary issue unlikely to
arise “in the same context” on retrial), aff’d, 119 P.3d 1073 (Colo.
2005).
V. Cumulative Error
¶ 58 In light of our determination that defendant’s convictions must
be reversed, we need not address his argument regarding
cumulative error.
VI. Conclusion
¶ 59 The judgment is reversed, and the case is remanded for a new
trial on all charges.
JUDGE BERNARD and JUDGE WELLING concur.
27