COLORADO COURT OF APPEALS                                      2017COA128


Court of Appeals No. 14CA1795
El Paso County District Court No. 13CR4158
Honorable Barney Iuppa, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Marcus Lee Robinson,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division VI
                         Opinion by JUDGE BERGER
                             Harris, J., concurs
                         Furman, J., specially concurs

                         Announced October 19, 2017


Cynthia H. Coffman, Attorney General, John T. Lee, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Lynn Noesner, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    During opening statement in this criminal prosecution

 charging defendant, Marcus Lee Robinson, with multiple counts of

 sexual assault, attempted sexual assault, and unlawful sexual

 contact, the prosecutor told the jury:

            You’re going to hear that [one of the victims,
            A.M.,] is white. And she’s actually pretty
            pasty. She’s pasty white. And you obviously
            have seen Mr. Robinson is dark. He is an
            African American of dark complexion. [The
            other victim, E.G.,] looks over and she can see
            a dark penis going into a white body. That’s
            how graphic she could see [sic].

¶2    Defense counsel did not object, and the trial court did not

 interrupt the proceedings to either admonish the prosecutor or

 instruct the jury to disregard the prosecutor’s statements.

¶3    Viewed objectively, the prosecutor’s statements could have

 been reasonably understood by the jury as an appeal to racial

 prejudice that raises a substantial question whether Robinson

 received a trial free from the taint of racial prejudice. 1 Only by


 1 In deciding this case we assume both that the prosecutor acted in
 good faith and that the prosecutor does not harbor any racial
 animus. We recognize that it is possible that the last, unintelligible,
 sentence of the quoted portion of the prosecutor’s opening
 statement was an ineffective attempt to explain why she was
 making what otherwise were inappropriate racially based
 statements. The prosecutor’s subjective intent is irrelevant. We

                                    1
 reversing Robinson’s convictions can we ensure that racial

 prejudice plays no part in the adjudication of this case.

 Accordingly, we reverse Robinson’s convictions and remand for a

 new trial. Because they are likely to arise on retrial, we also

 address Robinson’s other contentions of prosecutorial misconduct.2

             I.    Relevant Facts and Procedural History

¶4    A.M. and her roommate hosted a party at their apartment.

 A.M. drank a lot of alcohol and eventually passed out on a couch.

 E.G. also attended the party and she became ill after the alcohol

 she drank reacted with her prescription medication. E.G. fell sleep

 on the same couch on which A.M. had passed out.

¶5    Robinson, who was in an intimate relationship with A.M.’s

 roommate, arrived at the apartment late in the night, when the



 view the prosecutor’s words objectively, and analyze whether such
 words, regardless of the intent, are inconsistent with Robinson’s
 right to a fair trial, free from racially charged words and concepts.
 Wend v. People, 235 P.3d 1089, 1099 (Colo. 2010) (holding that
 improper statements made by a prosecutor, regardless of intent,
 can affect the jury’s impartiality, thus corrupting the fundamental
 fairness of the trial).
 2 In view of our disposition, we do not address Robinson’s assertion

 that the Colorado Sex Offender Lifetime Supervision Act of 1998
 (SOLSA), §§ 18-1.3-1001 to -1012, C.R.S. 2017, under which he
 was sentenced, is unconstitutional, or that the mittimus incorrectly
 reflects the crimes of which he was convicted.

                                    2
 party was winding down. E.G. testified that Robinson woke her by

 straddling her head and putting his exposed penis in her face. She

 told him to go away and he did, at least for a time. E.G. wakened

 again to see Robinson rubbing A.M.’s thighs and breasts (A.M.

 remained asleep or unconscious) and again told him to go away.

 She was awakened a third time when, she testified, she saw

 Robinson vaginally penetrating the still sleeping or unconscious

 A.M. E.G. told the jury that she yelled at Robinson and he left the

 apartment. E.G. called 911 to report the sexual assault and

 medical personnel were dispatched to attend to A.M., who

 ultimately was revived.

¶6    After Robinson left, he sent A.M.’s roommate a text message,

 admitted at trial, that said, “That girl was curse n out me I must did

 something if dig dumthg ribg I’m sorry so lft don’t knie I’m s [sic].”

 Robinson explained to the police that “he knew he was in the wrong

 for trying to have sex with [A.M.]” because he was in a relationship

 with her roommate.

¶7    While Robinson admitted to the police that he asked A.M. to

 have sex with him, he denied any sexual contact with her, claiming




                                    3
  that he left her alone after she repeatedly declined his requests.

  Robinson also denied any sexual contact with E.G.

¶8     As to A.M., Robinson was charged with two counts of sexual

  assault (victim helpless); two counts of sexual assault (victim

  incapable); and two counts of unlawful sexual contact (victim

  helpless). As to E.G., Robinson was charged with one count of

  attempted sexual assault (victim incapable); one count of attempted

  sexual assault (victim helpless); and one count of attempted

  unlawful sexual contact (victim helpless).

¶9     At trial, the nurse who examined A.M. testified that she had

  no injuries to her internal or external genitalia. A DNA expert also

  testified that the trace amount of male DNA found on A.M.’s

  external genitalia was too small of a sample to be matched to any

  individual, including Robinson.

¶ 10   The jury acquitted Robinson of all of the charges related to

  E.G. It acquitted Robinson of the completed crimes of sexual

  assault against A.M., thus rejecting, at least in part, E.G.’s

  testimony, but convicted him of two counts of unlawful sexual

  contact and two counts of the lesser included offense of attempted




                                     4
  sexual assault. The trial court sentenced Robinson under the Sex

  Offender Lifetime Supervision Act to four years to life imprisonment.

   II.    Analysis of the Prosecutor’s Raced-Based Statements During
                             Opening Statement

¶ 11     Robinson argues that the prosecutor’s description of “a dark

  penis going into a white body” during opening statement

  constituted prosecutorial misconduct amounting to plain error,

  requiring reversal of his convictions. We agree.

¶ 12     We engage in a two-step analysis to review 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. If we

  conclude that the conduct was improper, we then determine

  whether it warrants reversal according to the proper standard of

  review. Id.

         A.   The Prosecutor’s Opening Statement Was Flagrantly,
                    Glaringly, and Tremendously Improper

¶ 13     “A prosecutor has the responsibility of a minister of justice

  and not simply that of an advocate.” Colo. RPC 3.8 cmt. 1. More

  than eighty years ago, the United States Supreme Court explained

  that a prosecutor’s interest in a criminal prosecution “is not that


                                      5
  [she] shall win a case, but that justice shall be done.” Berger v.

  United States, 295 U.S. 78, 88 (1935).

¶ 14   In executing her substantial powers, a prosecutor must refrain

  from improper methods calculated to produce a wrongful

  conviction. Harris v. People, 888 P.2d 259, 263 (Colo. 1995). This

  constraint protects a defendant’s right to be tried by a fair and

  impartial jury “empaneled to determine the issues solely on the

  basis of the evidence introduced at trial rather than on the basis of

  bias or prejudice for or against a party.” Id. at 264; see U.S. Const.

  amend. VI; Colo. Const. art. II, § 16.

¶ 15   Prosecutorial remarks that evoke any kind of bias or prejudice

  are always improper; “such argument clearly trespasses the bounds

  of reasonable inference or fair comment on the evidence.” Harris,

  888 P.2d at 265 (quoting ABA Standards for Criminal Justice:

  Prosecution Function and Defense Function § 3-5.8 cmt. (3d ed.

  1993)); see also People v. Dunlap, 975 P.2d 723, 758 (Colo. 1999).

¶ 16   A prosecutor’s appeal to racial stereotypes or racial bias to

  achieve a conviction is especially deplorable and gravely violates a

  defendant’s right to due process of law. Harris, 888 P.2d at 264;

  see U.S. Const. amends. V, VI, XIV, § 1; Colo. Const. art. II, §§ 16,


                                     6
  25; see also Batson v. Kentucky, 476 U.S. 79 (1986); Miller v. North

  Carolina, 583 F.2d 701, 703 (4th Cir. 1978); State v. Monday, 257

  P.3d 551, 556 (Wash. 2011).

¶ 17   The prosecutor did not articulate to the jury any conceivably

  proper use of the race-based statements. Thus, irrespective of

  whether a different record might justify such statements, this

  record does not permit such a conclusion. Instead, viewed

  objectively, the prosecutor’s opening statement, by its words and in

  the context it was presented to the jury, was an appeal to racial

  prejudice. Indeed, the prosecutor’s words invoked some of the most

  damaging historical racial stereotypes — stereotypes that have

  infected judicial proceedings in this country for generations. See,

  e.g., Loving v. Virginia, 388 U.S. 1, 3, 7 (1967) (rejecting the trial

  judge’s assertion that “Almighty God created the races white, black,

  yellow, malay and red, and he placed them on separate continents .

  . . [t]he fact that he separated the races shows that he did not

  intend for the races to mix”).

¶ 18   To be sure, in limited instances the race of the defendant, the

  victim, or a witness may be relevant to the issues presented. “An

  unembellished reference to evidence of race simply as a factor


                                      7
  bolstering an eyewitness identification of a culprit, for example,

  poses no threat to purity of the trial.” United States v. Doe, 903

  F.2d 16, 25 (D.C. Cir. 1990). “The line of demarcation is crossed,

  however, when the argument shifts its emphasis from evidence to

  emotion.” Id. This principle is especially pronounced when, as

  here, a prosecutor’s argument objectively appeals to racial prejudice

  in the context of a sexual crime, “for few forms of prejudice are so

  virulent.” Miller, 583 F.2d at 707.

¶ 19   The Attorney General points out that on direct examination,

  E.G. testified that she was able to see A.M. in the dimly lit room

  because of A.M.’s light complexion. But E.G. never testified that

  Robinson’s darker complexion aided her ability to see what was

  happening. To the contrary, the only time that E.G. testified about

  Robinson’s skin tone was in direct response to the prosecutor’s

  questions about Robinson’s race and complexion:

            PROSECUTOR: How could you see that [A.M.
            was naked from the waist down]?

            E.G.: Because it was a dark room and [A.M.] -- I
            hate to say it, but she’s really, really white. So
            I could see that she was naked from the waist
            down.

            Q: What was going on at that point?


                                     8
A: He was inside of her. He was having sex
with her.

Q: How do you know he was inside of her?

A: Because I could see it. I could see it from
my angle. He was in the process of having sex
with her. And then he realized that I woke up.
And he looks over to me as he’s penetrating
her[.]

....

Q: You said he was penetrating her. How was
Mr. Robinson dressed at this point?

A: Um, at this point by the third incident he
was actually -- he was naked from the waist
down. That I do remember. I can’t remember
if he was wearing a shirt or not. But he was
naked from the waist down because he had to
run and get pants.

Q: What race is Mr. Robinson?

A: He’s African American.

Q: And how would you describe his
complexion?

A: It’s dark.

Q: Could you see his penis?

A: Like if I had to draw a picture of it, no. But
the fact that I saw him from the waist down
and he was naked from the waist down and
when he took off, I could see his butt clearly.

Q: And is he dark complected at that location on
his body as well?

                        9
             A: Yes.

  (Emphasis added.)

¶ 20   The prosecutor drew no connection between this examination

  (or her opening statement) and any proper purpose for the use of

  the raced-based statements. Instead, the quoted colloquy regarding

  the defendant’s race and skin tone was entirely gratuitous given

  that the defendant was in the courtroom during the trial. Never did

  the prosecutor explain why Robinson and A.M.’s different skin

  tones aided E.G.’s visual perception or were otherwise a proper

  consideration.

¶ 21   State v. Blanks, 479 N.W.2d 601 (Iowa Ct. App. 1991), is

  instructive. There, the defendant (who, like Robinson, was African-

  American) was charged with multiple crimes stemming from a

  violent argument he had with his white girlfriend. During

  arguments to the jury, the prosecutor referred to Gorillas in the Mist

  (Universal Pictures 1988), a movie about the behavior of gorillas.

  Id. at 602. The prosecutor later asserted that he was merely trying

  to suggest that humans, unlike gorillas, must be subject to a rule of

  law. Id.




                                    10
¶ 22   The Iowa Court of Appeals concluded that the prosecutor’s

  reference to the movie, in which a “young white woman stands

  alone against . . . black African hunters . . . [who] violently murder

  her,” improperly injected racial overtones into the trial. Id. at 604-

  05. The court held that despite the prosecutor’s “good faith

  intentions and what he claims to be an innocent remark, there is

  the prejudicial possibility that from the jury’s standpoint an attempt

  was made to compare the behavior of the defendant with that of

  apes and gorillas.” Id. at 605. It concluded that it was the effect,

  not the intent, of the prosecutor’s comments that unfairly

  prejudiced the defendant. Id.

¶ 23   In our view, Robinson’s prosecutor’s statements were

  comparable to the prosecutor’s conduct in Blanks. In the context of

  a sexual assault case, the prosecutor’s graphic description of “a

  dark penis going into a white body” posed an unacceptable risk of

  poisoning the jury based on racial prejudice.

¶ 24   This nation is burdened with a tragic history of punishing

  black men for sexual crimes against white women much more

  severely than white men who committed the same crimes. See

  Jeffrey J. Pokorak, Rape as a Badge of Slavery: The Legal History of,


                                    11
  and Remedies for, Prosecutorial Race-of-Victim Charging Disparities,

  7 Nev. L.J. 1, 25 (2006). The prosecutor’s statements echoed a time

  when judges instructed juries that “they should presume no White

  woman in Alabama would consent to sex with a Black.” Id. at 25

  n.128; see also Pumphrey v. State, 47 So. 156, 158 (Ala. 1908)

  (holding that in determining whether an assault was made with

  intent to rape, the jury may consider that the woman assaulted was

  white and that the accused was black, a now defunct rule applied

  as recently as 1953 in McQuirter v. State, 63 So. 2d 388, 390 (Ala.

  Ct. App. 1953)).

¶ 25   Against this sobering historical backdrop, we conclude that

  the prosecutor’s conduct was not only improper, but “flagrantly,

  glaringly, [and] 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)).

                       B.    Reversal is Required

¶ 26   The more difficult question in this case is whether the

  prosecutor’s statements and questions require reversal. Because

  Robinson did not object, we review only for plain error. Reversal is

  required if the misconduct was obvious and “so undermined the


                                   12
  fundamental fairness of the trial itself as to cast serious doubt on

  the reliability of the judgment of conviction.” Wilson v. People, 743

  P.2d 415, 420 (Colo. 1987).

¶ 27   We first conclude that the impropriety of the statements, given

  their lack of context that arguably might, under very unusual

  circumstances, have justified such race-based statements, was

  obvious. Hagos v. People, 2012 CO 63, ¶ 18. Except under

  extremely rare circumstances, such racially based statements are,

  and have been for years, totally off-limits in all courts in the United

  States. See generally Debra T. Landis, Annotation, Prosecutor’s

  Appeal in Criminal Case to Racial, National, or Religious Prejudice as

  Ground for Mistrial, New Trial, Reversal, or Vacation of Sentence —

  Modern Cases, 70 A.L.R. 4th 664 (1989) (collecting and analyzing

  cases determining whether racial statements made by a prosecutor

  require reversal). The only remaining question is whether the

  statements cast serious doubt on the reliability of Robinson’s

  convictions.

¶ 28   We agree with the Attorney General that several circumstances

  may have mitigated the impact of the prosecutor’s statements.

  First, “[a] passing reference in opening statements . . . may not be


                                    13
  prejudicial in the context of a lengthy trial,” People v. Rios, 2014

  COA 90, ¶ 35, and here the prosecutor’s statements were brief and

  not repeated (although, as noted above, the prosecutor’s direct

  examination of E.G. also addressed race). But Robinson’s trial was

  not lengthy: excluding voir dire of the prospective jurors and

  deliberations, it lasted less than two days.

¶ 29   Second, courts recognize that a failure to object may

  demonstrate defense counsel’s belief that the statement was not

  overly damaging. People v. Rodriguez, 794 P.2d 965, 972 (Colo.

  1990).

¶ 30   Third, we acknowledge that the trial court instructed the jury

  “not to allow bias or prejudice, including gender bias, or any kind of

  prejudice based upon gender” to influence its decisions, and “[w]e

  presume that the jury followed the court’s instructions, absent

  evidence to the contrary.” People v. Garcia, 2012 COA 79, ¶ 20.

  But other than the standard instruction on bias or prejudice (which

  focused on gender discrimination rather than racial discrimination),

  the trial court never admonished the prosecutor or instructed the

  jury to disregard the offending statements.




                                     14
¶ 31   Fourth, the fact that the jury acquitted Robinson of all of the

  charges related to E.G. and the most serious charges related to

  A.M. suggests that it could fairly and properly weigh and evaluate

  the evidence without considering extraneous factors. People v.

  Braley, 879 P.2d 410, 414-15 (Colo. App. 1993). But this does not

  foreclose the possibility that racial animus nevertheless played a

  role in the jury’s decision finding Robinson guilty of other serious

  sex crimes, particularly when the evidence of guilt in this case was

  not overwhelming. See People v. Estes, 2012 COA 41, ¶¶ 39, 42

  (holding that prosecutorial misconduct in closing argument did not

  warrant reversal because, among other things, overwhelming

  evidence supported the guilty verdict).

¶ 32   We observe that when the jury acquitted Robinson of all of the

  alleged completed sex offenses against A.M., the jury necessarily

  rejected the most damaging portions of E.G.’s testimony — that she

  observed Robinson penetrating A.M. We do not know why the jury

  then convicted Robinson of attempted, not completed, sex offenses

  against A.M. This disconnect does not provide comfort that the

  jury’s verdict was completely free of racial bias.




                                     15
¶ 33    Notwithstanding the mitigating factors presented by the

  Attorney General, we conclude that the prosecutor’s conduct

  requires reversal for four reasons.

¶ 34    First, earlier this year, the United States Supreme Court again

  instructed the lower courts that we must treat errors implicating

  racial discrimination “with added precaution.” Pena-Rodriguez v.

  Colorado, 580 U.S. ___, ___, 137 S. Ct. 855, 869 (2017). “[R]acial

  bias implicates unique historical, constitutional, and institutional

  concerns.” Id. at ___, 137 S. Ct. at 868 (emphasis added).

¶ 35    Second, we are mindful that racial bias operates on multiple

  levels. The juror’s statements in Pena-Rodriquez typify overt racial

  prejudice. But racial prejudice can be much more subtle and

  equally prejudicial. See, e.g., State v. Kirk, 339 P.3d 1213, 1216

  (Idaho Ct. App. 2014) (“An invocation of race by a prosecutor, even

  if subtle and oblique, may be violative of due process or equal

  protection.”); State v. Cabrera, 700 N.W.2d 469, 475 (Minn. 2005)

  (“Bias often surfaces indirectly or inadvertently and can be difficult

  to detect. . . . Affirming this conviction would undermine our strong

  commitment to rooting out bias, no matter how subtle, indirect, or

  veiled.”).


                                    16
¶ 36   Third, we also recognize, as have numerous scientists and

  academics, that principles of primacy may cause statements and

  arguments made early in a trial to have a disproportionately

  influential weight. See, e.g., L. Timothy Perrin, From O.J. to

  McVeigh: The Use of Argument in the Opening Statement, 48 Emory

  L.J. 107, 124 (1999); see also John B. Mitchell, Why Should the

  Prosecutor Get the Last Word?, 27 Am. J. Crim. L. 139, 157-58

  (2000) (discussing primacy studies in the trial context, including

  one that concluded that some eighty percent of jurors make up

  their minds on civil liability after opening statement).

¶ 37   Finally, in view of the unique concerns attendant to a

  prosecutor’s appeal to racial prejudice, we agree with the

  Washington Supreme Court’s conclusion that a comment such as

  the one at issue here “fundamentally undermines the principle of

  equal justice and is so repugnant to the concept of an impartial trial

  its very existence demands that appellate courts set appropriate

  standards to deter such conduct.” Monday, 257 P.3d at 557-58.3


  3 While it may be tempting to characterize this type of prosecutorial
  misconduct as structural error, we resist the temptation, partly
  because no court has found that even blatantly racially biased
  statements constitute structural error, but also because we simply

                                    17
¶ 38   Although under the circumstances presented we cannot know

  with certainty what impact, if any, the prosecutor’s conduct

  actually had on the jury, see Pena-Rodriguez, 580 U.S. at ___, 137

  S. Ct. at 866; People v. Juarez, 271 P.3d 537, 544 (Colo. App. 2011);

  see also CRE 606(b), the risk that Robinson did not receive a fair

  trial by unbiased jurors simply is too great to ignore. It is the

  responsibility of courts “to purge racial prejudice from the

  administration of justice.” Pena-Rodriguez, 580 U.S. at ___, 137 S.

  Ct. at 867. Only by reversing Robinson’s convictions and giving

  him a new trial without racial taint can we discharge this

  responsibility.

             III.   Evidence Regarding Robinson’s Infidelity

¶ 39   To provide guidance on retrial, Kaufman v. People, 202 P.3d

  542, 546 (Colo. 2009), we briefly address Robinson’s argument that

  the prosecutor engaged in misconduct when she implied that

  Robinson was unfaithful to his girlfriend.




  cannot discern where the line would be drawn between such
  structural error and other improper and prejudicial prosecutorial
  statements.

                                    18
¶ 40   As noted above, at the time of the alleged sexual assaults,

  Robinson was in an intimate relationship with A.M.’s roommate.

  Robinson was also living with still another woman at that time.

¶ 41   During direct examination of one of the investigating officers,

  the prosecutor proved that Robinson sent a text message apology to

  A.M.’s roommate after the alleged sexual assaults. The prosecutor

  then attempted to ask the officer about Robinson’s relationship with

  the woman with whom he lived. She asked, “Did you later learn

  from [the woman] that she thought it was ―.” Before any answer

  was given, Robinson objected, and the trial court sustained his

  objection.

¶ 42   During closing, Robinson argued that his text message apology

  was merely an admission that had acted improperly (but not

  criminally) when he attempted to have consensual sex with A.M. at

  a time when he was supposed to be with A.M.’s roommate.

¶ 43   In rebuttal closing, the prosecutor argued: “Vague,

  speculative, imaginary. Mr. Robinson’s apologizing for trying to

  cheat on [the roommate]. That is why is he apologizing? You heard

  he lives with another woman.” Robinson objected, and the trial

  court overruled his objection. The prosecutor went on to say,


                                   19
             He shares an apartment with [the woman]. He
             drives [her] car. And he’s coming over to
             [A.M.’s roommate’s] house at a quarter to 4:00
             in the morning? He is not worried about what
             [her roommate] is thinking. He is [doing]
             exactly what he told you he was doing, getting
             some ass. And I am apologizing for using the
             crass words, but those were his words, not
             mine.

¶ 44   Robinson asserts that the prosecutor’s statements insinuated

  that he was in an intimate relationship with and cheating on the

  woman he lived with, and that this insinuation was irrelevant and

  unfairly prejudicial.

¶ 45   The prosecutor never stated that Robinson was in an intimate

  relationship with the woman he lived with because Robinson’s

  timely objection prevented her from doing so. As for the reasons for

  Robinson’s apology, “[p]rosecutors may comment on the evidence

  admitted at trial and the reasonable inferences that can be drawn

  therefrom.” People v. McMinn, 2013 COA 94, ¶ 61. The

  prosecutor’s argument that Robinson’s text message to A.M.’s

  roommate was an apology for sexually assaulting A.M., not merely

  for requesting sex from A.M., was a fair response to Robinson’s

  characterization of the text message apology. People v. Richardson,

  58 P.3d 1039, 1046-47 (Colo. App. 2002).


                                   20
¶ 46   However, we agree that the nature of Robinson’s relationship

  with the woman with whom he lived, and whether he might have

  been unfaithful to her, was irrelevant. The woman had nothing

  whatsoever to do with the charges in this case. The trial court

  apparently recognized this because it sustained an objection to

  such evidence during the testimony portion of the trial. The

  prosecutor should not have insinuated that Robinson was being

  unfaithful to the woman, especially after the trial court sustained

  the objection. On retrial, the trial court, upon proper objection,

  should limit testimony and argument to that logically related to

  Robinson’s apology.

                              IV.   Conclusion

¶ 47   The judgment of conviction is reversed, and the case is

  remanded for a new trial.

       JUDGE HARRIS concurs.

       JUDGE FURMAN specially concurs.




                                     21
       JUDGE FURMAN, specially concurring.

¶ 48   Racial prejudice has no place in our criminal justice system.

  Racial evidence or argument might have a place in proper context,

  though. The question in this case is when can parties introduce

  evidence or argument related to race without inviting racial

  prejudice. I agree with the majority that the judgment should be

  reversed and the case remanded with directions. I write separately,

  however, because it is my hope that should the supreme court

  review this case, it will give guidance on when, if ever, it is proper

  for evidence or argument related to race to be presented to the jury.

¶ 49   Both sides seem to agree that some circumstances, such as

  identification, evidence of race might be relevant and serve a

  legitimate purpose. The prosecution contends that such a purpose

  was present in this case, while Robinson contends that “there was

  no need or legitimate reason for the prosecution to highlight Mr.

  Robinson’s race.” I agree with Robinson.

         I.    Racial Evidence or Argument Can Be Prejudicial

¶ 50   Among the most vital precepts of American law are equal

  protection and due process. Evidence or argument that improperly

  injects race into a trial risks denying a defendant both. As Justice


                                     22
  Sotomayor recently noted, such evidence or argument is “an affront

  to the Constitution’s guarantee of equal protection of the laws. And

  by threatening to cultivate bias in the jury, it equally offends the

  defendant’s right to an impartial jury.” Calhoun v. United States,

  568 U.S. 1206, 1206 (2013) (Sotomayor, J., respecting denial of

  certiorari).

¶ 51    The eradication of racial considerations from criminal

  proceedings is one of the animating purposes of the Equal

  Protection Clause of the Fourteenth Amendment. Miller v. North

  Carolina, 583 F.2d 701, 707 (4th Cir. 1978). Our law demands that

  people be punished for what they do, not who they are. Buck v.

  Davis, 580 U.S. ___, ___, 137 S. Ct. 759, 778 (2017); Rose v.

  Mitchell, 443 U.S. 545, 555 (1979) (“Discrimination on the basis of

  race, odious in all aspects, is especially pernicious in the

  administration of justice.”).

¶ 52    Regarding due process, the jury is a criminal defendant’s

  fundamental “protection of life and liberty against race or color

  prejudice.” McCleskey v. Kemp, 481 U.S. 279, 310 (1987) (quoting

  Strauder v. West Virginia, 100 U.S. 303, 309 (1880)). The right to a

  trial by a fair and impartial jury guaranteed by both the United


                                    23
  States Constitution and article II, sections 16 and 23, of the

  Colorado Constitution implies a verdict free from the admission of

  evidence or argument that arouses the prejudices of the jury.

  Harris v. People, 888 P.2d 259, 263-64 (Colo. 1995).

¶ 53   Evidence or argument related to race might provoke prejudices

  in the jury. Thus, a jury that has been misled by inadmissible

  argument or evidence cannot be considered impartial. Id. at 264.

  Regardless of whether the prosecutor’s appeal to prejudice was

  subtle or unintended, we cannot ignore “that references to race not

  intended to provoke prejudice may nevertheless do so.” Sheri Lynn

  Johnson, Racial Imagery in Criminal Cases, 67 Tul. L. Rev. 1739,

  1778 (1993).

¶ 54   But knowing the magnitude of the impact that evidence or

  argument related to race could have on the jury is impossible. As

  the United States Supreme Court recently explained, “the impact of

  [race-related] evidence cannot be measured simply by how much air

  time it received at trial or how many pages it occupies in the record.

  Some toxins can be deadly in small doses.” Buck, 580 U.S. at ___,

  137 S. Ct. at 777.




                                    24
¶ 55   In this case, the prosecutor’s remarks were particularly

  troubling because they echoed our country’s history of prejudice

  toward black men, particularly those accused of victimizing white

  women. See Loving v. Virginia, 388 U.S. 1, 7 (1967) (noting the

  State’s reliance on white supremacist doctrines to justify statutes

  preventing interracial marriage); see also Miller, 583 F.2d at 708

  (where the prosecutor argued that a white woman would never

  consent to sexual relations with a black man).

¶ 56   The seemingly illogical verdict in this case is also troubling.

  E.G.’s testimony represented a large portion of the evidence against

  Robinson. Given that A.M. was unconscious at the time, E.G. was

  the only eyewitness to Robinson’s acts against her and A.M. Yet,

  the jury, by acquitting on the sexual assault charges and the

  charges regarding E.G., apparently did not believe much of E.G.’s

  testimony. It nonetheless found Robinson guilty of attempted

  sexual assault (two counts) and unlawful sexual contact (two

  counts) against A.M. This outcome begs the question — was this a

  compromise verdict? And if so, was it poisoned by racial prejudice?




                                    25
           II.   Racial Evidence or Argument Can Be Relevant

¶ 57   Even so, I understand the State’s position — evidence or

  argument related to race is sometimes relevant, even necessary,

  evidence. The State, quoting United States v. Doe, 903 F.2d 16, 25

  (D.C. Cir. 1990), contends that “the impropriety of racially biased

  comments only extends to ‘comments beyond the pale of legally

  acceptable modes of proof,’” and that “[a]n unembellished reference

  to evidence of race . . . poses no threat to purity of the trial.”

¶ 58   Giving the prosecutor the benefit of the doubt, Robinson’s skin

  color, or rather the contrast between his and A.M.’s skin colors,

  might have been relevant to bolster E.G.’s testimony. Perhaps this

  explains why Robinson did not object and the district court judge

  did not interrupt during opening statement. But, when E.G.

  described how she was able to see that Robinson was penetrating

  A.M., she made no mention of Robinson’s race, skin color, or any

  contrast between them.

¶ 59   Then, for no proper purpose that I can identify, the prosecutor

  directly asked E.G. about Robinson’s race and complexion. At that

  point, any potential relevance of Robinson’s race had dissipated.

  This was not an identity case. A.M. knew Robinson, and Robinson


                                      26
  admitted being there. And, E.G. did not point to Robinson’s race as

  aiding her ability to view the act of penetration in any way.

¶ 60   Instead, the prosecutor’s questioning simply drew attention to

  a characteristic that the Constitution generally commands the jury

  to ignore. McFarland v. Smith, 611 F.2d 414, 417 (2d Cir. 1979);

  see also McCleskey, 481 U.S. at 309 n.30 (noting the numerous

  cases in which the United States Supreme Court has sought to

  eradicate racial prejudice from our criminal justice system). Thus,

  as the majority concluded, the prosecutor’s injection of race into the

  trial was improper in this case.

¶ 61   Still, I recognize that there are cases where racial evidence or

  argument is relevant. As noted by both parties, race may be

  relevant where the prosecution has to prove the identity of the

  perpetrator. Race would likely also be relevant to prove motive for a

  particular type of hate crime. Yet, in what cases and to what extent

  evidence or argument related to race is admissible as a general rule

  remains unclear.

              III.   Supreme Court Should Give Guidance

¶ 62   My primary concern is a fair trial for both sides. Fairness to a

  defendant means that his or her rights are protected. Most notably


                                     27
  here, the rights to due process and equal protection of the law are

  essential. Due process necessarily includes a fair and impartial

  jury. Fairness to the prosecution and the people of the State of

  Colorado, on the other hand, requires that we not unduly burden

  the State by unnecessarily excluding relevant evidence.

¶ 63   Our rules of evidence and procedure are designed to keep the

  trial fair. They prevent poisoning the jury with prejudicial,

  irrelevant, or unreliable information. The rules also give both sides

  adequate notice to prepare their cases effectively.

¶ 64   Still, evidence or argument related to race is different. In a

  recent case, Justice Kennedy noted that “[a]ll forms of improper

  bias pose challenges to the trial process. But there is a sound basis

  to treat racial bias with added precaution.” Pena-Rodriguez v.

  Colorado, 580 U.S. ___, ___, 137 S. Ct. 855, 869 (2017). I agree that

  added precaution is necessary to prevent racial prejudice from

  entering a trial.

¶ 65         Thus, the question is when can parties introduce racial

  evidence or argument without inviting racial prejudice. I agree with

  the Court of Appeal of Louisiana, Second Circuit, which stated that

  racial evidence or argument is improper and calls for a mistrial if it


                                    28
  is “not material and relevant and might create prejudice against the

  defendant in the mind of the jury.” State v. Walker, 221 So. 3d 951,

  966 (La. Ct. App. 2017); see also La. Code Crim. Proc. Ann. art. 770

  (2017). Based on my review of the record, because the prosecutor’s

  questions regarding Robinson’s race had no relevance to a disputed

  issue at trial and might create undue prejudice against him in the

  mind of the jury, I agree with the majority that the case should be

  reversed and remanded for a new trial.

¶ 66         But, to provide the added precaution to which Justice

  Kennedy alluded, I believe that addressing evidence or argument

  related to race pretrial would be more appropriate. Parties should

  give notice of their intent to introduce evidence or argument related

  to race and should have to overcome a presumption that such

  evidence is irrelevant. A pretrial screening process would provide

  parties with clear guidelines of what is relevant and appropriate and

  help ensure that evidence or argument related to race is only used

  for a proper and limited purpose. Plus, parties’ objections would be

  preserved, and the trial court’s findings would be clearly recorded

  for appellate review.




                                   29
¶ 67         True, a witness might unexpectedly introduce racial

  evidence or comments during direct or cross-examination. Should

  this happen, I suggest the parties be afforded an opportunity

  outside the jury’s presence to have the trial court determine what, if

  any, additional racial evidence might have a proper and limited

  purpose.

¶ 68         Our supreme court has drawn clear lines for other kinds

  of prejudicial evidence or argument. See, e.g., CRE 404(b); People v.

  Spoto, 795 P.2d 1314, 1319 (Colo. 1990) (stating that prior bad acts

  are presumptively inadmissible unless prosecutor articulates logical

  relevance independent of the forbidden propensity inference); see

  also Wilson v. People, 743 P.2d 415, 420 (Colo. 1987) (a prosecutor

  calling the defendant and defense witnesses liars is plain error). It

  is my hope that, should the supreme court review this case, it will

  draw an equally clear line for racial evidence or argument in

  criminal cases.




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