March 27, 2012
Colorado Court of Appeals 3-15-12 People v. Estes
People v. Estes Judicial Misconduct / Prosecutorial Misconduct
Facts: Mr. Estes's cousin, a kid, got hit in the back either intentionally or accidentally by a neighbor kid. At 11:30 pm, Mr. Estes went to the home of the alleged assailant, banged on the door, and made demands. Eventually, he starts to leave, claims another person hit him with the door of the car that pulled up. Mr. Estes punched one person and pointed a gun at the entire group of people from the home. A jury convicted him of menacing and third degree assault. During voir dire, Adams County District Court Judge Wasserman tells the jury that, “This defendant did something. I'm going to tell you that right now, he did something. We didn't just walk out to the bus stop this morning and find [defendant] sitting there waiting for a bus and say: Guess what ... this is your lucky day. Okay? Obviously, he did something.”
Further, during closing the prosecutor argued, “[W]hen [this trial] started, you were told that you have the presumption of innocence. That presumption of innocence, after the evidence has come in, that cloak, the presumption of innocence is now gone.... You have the evidence. You have all that you need and ... you should have to find the defendant guilty.”
Issue: Whether the trial court lessened the prosecution’s burden of proof with the ‘defendant did something’ comment during voir dire?
Reasoning: The Court of Appeals went through a number of unpublished cases where the Court disapproved of Judge Wasserman’s explanation that the ‘defendant did something’ to get here (See, e .g., People v. Bonilla–Barrera, (Colo.App. No. 09CA0462, Mar. 1, 2012)(not published pursuant to C.A.R. 35(f)) (“We do not condone the trial court's statement that defendant ‘did something.’ ”); People v. Williams, (Colo.App. No. 09CA0906, Jan. 12, 2012) (not published pursuant to C.A.R. 35(f)) (similar); People v. Cruz–Avila, (Colo.App. No. 09CA1957, Dec. 8, 2011) (not published pursuant to C.A.R. 35(f)) (similar); People v. Harris, (Colo.App. No. 09CA1626, Nov. 3, 2011)(not published pursuant to C.A.R. 35(f)) (similar);People v. Edwards, (Colo.App. No. 08CA1764, Aug.12, 2010) (not published pursuant to C.A.R. 35(f))(similar).)
However, while frowning on the comments, again, the Court of Appeals refused to do anything about it. The Court found no substantial prejudice to Mr. Estes.
Issue: Whether the prosecutor’s legally wrong argument regarding the presumption of innocence amounted substantial prejudice?
Reasoning: The Court of Appeals found the comments by the prosecutor legally wrong, the error obvious, but refused to find any substantial prejudice.
The Court of Appeals pointed out that trial counsel did not object to either the trial court's comments during voir dire or to the prosecutor’s comments during closing argument. Thus, the Court of Appeals reviewed the errors under the plain error analysis. Chief Judge Davidson wrote the opinion with Judge Vogt concurring; Judge Rothenberg wrote a dissent where he found both the trial court and the prosecutor committed plain error.