COLORADO COURT OF APPEALS                                           2016COA88


Court of Appeals No. 13CA1431
Adams County District Court No. 11CR3119
Honorable Jill-Ellyn Straus, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

April Rose Travis,

Defendant-Appellant.


                      RULINGS AFFIRMED IN PART AND CASE
                         REMANDED WITH DIRECTIONS

                                  Division VII
                         Opinion by JUDGE BERGER
                              Kapelke*, J., concurs
                Richman, J., concurs in part and dissents in part

                           Announced June 16, 2016


Cynthia H. Coffman, Attorney General, Molly E. McNab, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Kamela Maktabi, 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. 2015.
¶1    Defendant, April Rose Travis, beat her housemate with a mop

 handle and stabbed her over a disagreement about money. A jury

 convicted Travis of second degree assault causing serious bodily

 injury, felony menacing, and third degree assault with a deadly

 weapon. The trial court sentenced Travis to ten years

 imprisonment and three years of mandatory parole.

¶2    Travis claims three errors on appeal. First, she argues that

 the trial court erred when it denied her motion to suppress

 statements she made to the police and admitted those statements

 at trial. Second, she contends that the trial court abused its

 discretion when it denied her motion to continue the trial so she

 could hire private counsel. Third, she argues that statements by

 the prosecution during closing argument constituted prosecutorial

 misconduct. Travis also asserts that the cumulative effect of these

 alleged errors requires reversal.

¶3    Because we are unable to determine on the record before us

 whether the court should have continued the trial, we remand for

 further proceedings. We reject all other claims of error.




                                     1
               I. Relevant Facts and Procedural History

¶4    Travis, her husband, and the victim lived together in a three-

 bedroom trailer. The victim suffered from disabilities and Travis

 purportedly helped the victim manage her money and medications.

¶5    Travis learned that the victim had between six and eight

 dollars in her purse. Travis told the victim she was not permitted to

 have any money (the basis for such a directive is unclear), and took

 away the victim’s purse. The victim demanded that Travis return

 her purse. In response, Travis slapped the victim and punched her

 in the face several times. The victim fell and knocked over a potted

 plant, spilling dirt on the floor. Travis ordered the victim to clean

 up the mess. When the victim did not do so to Travis’s satisfaction,

 Travis hit the victim with a mop handle repeatedly, tore out clumps

 of her hair, and stabbed her arm with a kitchen knife. The victim

 called 911.

¶6    Several medical personnel and police officers responded to the

 call. While the victim received medical attention in the living room,

 one of the officers asked Travis to step into the adjoining kitchen,

 where he questioned her for about ten minutes. A second officer

 participated in a portion of that interview.


                                    2
¶7    After Travis told the first officer that she had attacked the

 victim, the second officer arrested Travis and drove her to the police

 station, where she was advised of her Miranda rights and further

 interrogated. Travis again admitted to the attack during this

 interrogation. Travis was charged with second degree assault

 causing serious bodily injury, felony menacing, and second degree

 assault with a deadly weapon.

¶8    Travis moved to suppress the statements she made to the

 police at her home and at the police station. The trial court denied

 her motion. On the morning of trial, Travis requested a

 continuance to enable her to dismiss her public defender and hire

 private counsel. The court denied that motion, the trial

 commenced, and the jury convicted Travis of the offenses described

 above.

            II. Suppression of Travis’s Statements to Police

                      A. Custody Determination

¶9    Travis argues that the trial court erroneously concluded that

 she was not in custody during the interview with police that

 occurred at her home and that, because she was not advised of her

 Miranda rights, the court erred in denying her motion to suppress


                                    3
  the statements she made at that time. Like the trial court, we

  conclude that Travis was not in custody during that interview and

  thus no Miranda warnings were required.

                                   1. Law

¶ 10      “To protect a [defendant’s] Fifth Amendment right against self-

  incrimination, Miranda prohibits the prosecution from introducing

  in its case-in-chief any statement . . . procured by custodial

  interrogation, unless the police precede their interrogation with

  [Miranda] warnings.” People v. Matheny, 46 P.3d 453, 462

  (Colo. 2002) (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)).

  The protections of Miranda apply only if a defendant is subject to

  both custody and interrogation. Mumford v. People, 2012 CO 2,

  ¶ 12.

¶ 11      The People concede that Travis was subjected to interrogation

  at her home. Thus, to resolve Travis’s claim, we must determine

  whether the trial court correctly ruled that she was not in custody

  at that time.1



  1 There is no dispute that Travis was in custody at the police
  station.


                                      4
¶ 12   Determining whether a person is in custody for Miranda

  purposes is a mixed question of fact and law. Matheny, 46 P.3d at

  462. We defer to the trial court’s findings of historical fact if those

  findings are supported by competent evidence in the record. Id.

  However, we review de novo the legal question of whether the facts,

  taken together, establish that a defendant was in custody for

  Miranda purposes. People v. Elmarr, 181 P.3d 1157, 1161

  (Colo. 2008).

¶ 13   “To determine if a particular defendant was in custody, trial

  courts must decide whether a reasonable person in the defendant’s

  position would consider himself to be deprived of his freedom of

  action to the degree associated with a formal arrest.”

  People v. Pascual, 111 P.3d 471, 476 (Colo. 2005) (citation omitted).

  To make this determination, a court must consider the totality of

  the circumstances under which the interrogation was conducted.

  People v. Barraza, 2013 CO 20, ¶ 17. Factors a court should

  consider include the following:

             (1) the time, place, and purpose of the
             encounter; (2) the persons present during the
             interrogation; (3) the words spoken by the
             officer to the defendant; (4) the officer’s tone of
             voice and general demeanor; (5) the length and


                                      5
              mood of the interrogation; (6) whether any
              limitation of movement or other form of
              restraint was placed on the defendant during
              the interrogation; (7) the officer’s response to
              any questions asked by the defendant; (8)
              whether directions were given to the defendant
              during the interrogation; and (9) the
              defendant’s verbal or nonverbal response to
              such directions.

  Matheny, 46 P.3d at 465-66. No single factor is determinative.

  People v. Pleshakov, 2013 CO 18, ¶ 20.

                               2. Application

                                  a. Facts

¶ 14     The following undisputed facts inform our analysis of the

  custody issue:

        At about 1:00 a.m., several officers and medical personnel

         responded to an emergency call at Travis’s home.

        One of the officers approached Travis and asked her to step

         from the living room into the kitchen, a distance of about

         fifteen feet, so he could ask her some questions.

        No walls separated the kitchen and the living room.

        The officer questioned Travis about the events of that night for

         about ten minutes.




                                      6
 Travis’s husband was seated five or six feet away from Travis

  during the interview and was within her line of sight.

 The officer did not place Travis in handcuffs or touch her

  during the interview.

 The officer asked open-ended questions and maintained a

  conversational tone.

 Travis’s demeanor was calm and relaxed, she was responsive

  to questions and gave coherent answers, and she did not ask

  the officers any questions.

 A second officer joined the interview for three or four minutes

  and then left before the interview had concluded.

 Though both officers were in uniform and armed, neither

  made any threats or promises or brandished their weapons.

 Immediately after the interview concluded, the first officer took

  the second officer aside and told him that Travis had admitted

  to having committed the assault. The second officer then told

  Travis, “you are going to be placed under arrest for assault

  against [the victim],” placed her in handcuffs, and drove her to

  the police station.




                                7
                                 b. Analysis

¶ 15   For five reasons, we conclude that Travis was not in custody

  for Miranda purposes during the interview at her home.

¶ 16   First, neither of the officers used physical restraint or force on

  Travis during the interview. See People v. Breidenbach, 875 P.2d

  879, 886 (Colo. 1994) (“One well-recognized circumstance tending

  to show custody is the degree of physical restraint used by police

  officers to detain a citizen.”). To the contrary, the first officer did

  not demand, but merely requested, that Travis move to the kitchen.

  See People v. Howard, 92 P.3d 445, 452 (Colo. 2004) (suspect was

  not in custody where the officer asked, but did not direct, the

  suspect to step outside of his home).

¶ 17   Second, though Travis was never told that she was “free to

  leave,” she did not appear emotionally distraught, was calm, and

  never indicated that she wanted the interview to end. See

  People v. Klinck, 259 P.3d 489, 494 (Colo. 2011).

¶ 18   Third, the interview was brief, lasting no more than ten

  minutes. See id. This scenario is significantly different from the

  circumstances in People v. Holt, 233 P.3d 1194, 1195-96 (Colo.

  2010), where the supreme court concluded that the defendant was


                                      8
  in custody because at least six police officers entered the

  defendant’s apartment with their weapons drawn, the defendant

  was handcuffed and ordered not to move, the defendant’s voice

  quavered during questioning, and the interview lasted nearly thirty

  minutes.

¶ 19   Fourth, though several officers were present in and around

  Travis’s home, only two questioned Travis, and one participated in

  the conversation for only three or four minutes. Moreover, Travis’s

  husband (who was also unrestrained) was nearby, and the officers’

  tones were conversational. These circumstances are similar to

  those in Pleshakov, ¶ 30, where the supreme court concluded that

  the defendant was not in custody when four officers were present

  during the interrogation with the defendant, but only one officer

  questioned the suspect while the other officers were engaged in

  other tasks; the defendant was questioned in close proximity to his

  two companions, neither of whom was handcuffed; and the tone of

  the interaction was conversational.

¶ 20   Lastly, although the interview took place late at night during a

  response to an emergency call, it took place in Travis’s kitchen and

  not in a secluded location. In People v. Cowart, 244 P.3d 1199,


                                    9
  1204 (Colo. 2010), the supreme court addressed the significance of

  an interview taking place in the suspect’s home, which is inherently

  less coercive than questioning in a “police-dominated setting.” Cf.

  Orozco v. Texas, 394 U.S. 324, 326-27 (1969) (holding that a

  neutral locus is not determinative because Miranda protections are

  not limited to police station interrogations). In Cowart, four officers

  went to the defendant’s home at night to question him about an

  alleged sexual assault. 244 P.3d at 1204. One officer asked the

  defendant to sit down in the living room and then asked him

  questions while the other officers stood a few feet away. Id. During

  the interview, the defendant’s wife was seated nearby, and the

  defendant was never isolated from her by the officers. Id. Taking

  these circumstances into consideration, the court concluded that

  “[a] consensual interview that takes place in the defendant’s house

  and in the presence of his wife does not exert the compulsive forces

  Miranda sought to prevent.” Id. at 1205.

¶ 21   Similarly, Travis was interviewed in her kitchen with her

  husband in view and the officers did not isolate her. This contrasts

  with People v. Minjarez, 81 P.3d 348, 356-57 (Colo. 2003), where

  the defendant was determined to be in custody when he was


                                    10
  questioned in a conference room at a hospital with the door closed

  and officers blocking the exit.

¶ 22   All of these circumstances support the trial court’s conclusion

  that Travis was not in custody when she was questioned at her

  home.

¶ 23   Nevertheless, Travis argues, relying on People v. Polander,

  41 P.3d 698 (Colo. 2001), that because it was objectively apparent

  that police officers had reason to arrest her, she did not feel at

  liberty to terminate the interrogation and leave, and therefore was

  in custody.

¶ 24   In Polander, officers witnessed the defendant and two others

  using drugs in the back of a van parked in a restaurant parking lot.

  Id. at 701. The officers made an investigatory stop and patted down

  the occupants of the vehicle for weapons. Id. They found narcotics

  in the pocket of one of the occupants, handcuffed him, and

  instructed him to sit on a nearby curb. Id. The defendant was not

  yet handcuffed but also was ordered to sit on the curb while the

  officers searched the van. Id. The officers then found more

  narcotics in the van, and asked the defendant whether they

  belonged to her. Id. She admitted that they did and the officer


                                    11
  arrested her. Id. The supreme court concluded that, under those

  circumstances, the defendant was subjected to custodial

  interrogation because, among other reasons, she “had every reason

  to believe she would not be briefly detained and then released.” Id.

  at 705.

¶ 25   But, eight years later, the supreme court held in

  People v. Hankins, 201 P.3d 1215, 1219 (Colo. 2009), that a

  defendant’s reasonable belief that she would be arrested is not

  dispositive to a custody determination; rather, it is just one factor to

  consider under the totality of the circumstances.

¶ 26   In Hankins, the court concluded that even though the

  defendant confessed to murdering his wife and brought the police

  officers to the site where he buried her body, “the surrounding

  factual circumstances [fell] short of demonstrating restraint

  equivalent to arrest.” Id. at 1219. The court so concluded because,

  unlike the situation in Polander, the police did not seize Hankins

  when he gave his initial confession, he invited the officers to his

  home to talk, he voluntarily led the police to the burial site, and he

  was not the subject of an investigatory stop or any other kind of

  detention. Id. at 1220. Accordingly, Hankins’s “expectation,


                                    12
  apprehension, or knowledge of inevitable arrest” did not compel a

  custody determination because “[a] consensual interview that takes

  place at the defendant’s request, on his property and at a place

  where he offered to drive the investigators does not exert the

  compulsive forces Miranda sought to prevent.” Id. at 1219-20.

¶ 27   The facts of this case are closer to those in Hankins than those

  in Polander. As in Hankins, Travis was never frisked and she

  voluntarily admitted to attacking the victim. Unlike in Polander,

  Travis was never ordered to stand or sit in any location while the

  officers conducted their police work and none of the other

  occupants in the trailer home was ordered to sit or stand at any

  particular place. Though the first interviewing officer asked Travis

  about the assault, he requested an explanation of the events of that

  night, and did not accuse her of committing a crime. Indeed, no

  accusation was made until after the interview had concluded, when

  the second interviewing officer arrested Travis.

¶ 28   Travis may have reasonably expected that she would be

  arrested because it was apparent that an assault had taken place,

  but this factor alone does not outweigh the numerous other factors




                                    13
  supporting a determination that she was not in custody. Hankins,

  201 P.3d at 1219-20.

¶ 29   Under these circumstances, we agree with the trial court that

  a reasonable person in Travis’s position would not have believed

  that she was deprived of her freedom of action to the degree

  associated with a formal arrest. Thus, Travis was not in custody

  when she gave the statements at her home to the police, and the

  trial court did not err in denying her motion to suppress the

  statements she made at her home.

                    B. Voluntariness of Statements

¶ 30   Travis also argues that the trial court erred in concluding that

  the statements she made to the police during interviews at her

  home and at the police station on the night of the assault were

  voluntary. She argues that, regardless of whether there was

  Miranda compliance, the trial court erred in denying her motion to

  suppress. We disagree.

                                 1. Law

¶ 31   The state bears the burden of establishing the voluntariness of

  a defendant’s statement by a preponderance of the evidence.

  Effland v. People, 240 P.3d 868, 878 (Colo. 2010). We uphold a trial


                                   14
  court’s findings of fact on the voluntariness of a statement if they

  are “supported by adequate evidence in the record.” Id. However,

  the ultimate determination of whether a statement is voluntary is a

  legal question that we review de novo. Id.

¶ 32   The Due Process Clauses of the United States and the

  Colorado Constitutions forbid the use of a defendant’s involuntary

  statement in a criminal prosecution. Jackson v. Denno, 378 U.S.

  368, 376 (1964); Effland, 240 P.3d at 877. “A confession or

  inculpatory statement is involuntary if coercive governmental

  conduct played a significant role in inducing the statement.”

  Effland, 240 P.3d at 877. Coercive conduct includes not only

  physical abuse or threats but also subtle forms of psychological

  coercion. Id.

¶ 33   Conversely, a statement is voluntary if it is “the product of an

  essentially free and unconstrained choice by its maker.” Id.

  (citation omitted).

¶ 34   Whether a statement is voluntary must be evaluated under the

  totality of the circumstances. Id. Factors to consider include the

  following:




                                    15
            Whether the defendant was in custody or was
            free to leave and was aware of his situation;
            whether Miranda warnings were given prior to
            any interrogation and whether the defendant
            understood and waived his Miranda rights;
            whether the defendant had the opportunity to
            confer with counsel or anyone else prior to the
            interrogation; whether the challenged
            statement was made during the course of an
            interrogation or instead was volunteered;
            whether any overt or implied threat or promise
            was directed to the defendant; the method and
            style employed by the interrogator in
            questioning the defendant and the length and
            place of the interrogation; and the defendant’s
            mental and physical condition immediately
            prior to and during the interrogation, as well
            as his educational background, employment
            status, and prior experience with law
            enforcement and the criminal justice system.

  Id. at 877-78.

                             2. Application

                      a. Interview at Travis’s Home

¶ 35   Travis argues that the statements she made to the police at

  her home were involuntary because (1) she was not given a Miranda

  warning prior to that interview; (2) she was physically isolated from

  her husband during the interview; and (3) the behavior of the

  interviewing officers and the presence of other officers in her home

  during the interview constituted coercive conduct.



                                   16
¶ 36   Though Travis was not given a Miranda warning prior to the

  interview, we have concluded above that none was required. See

  California v. Beheler, 463 U.S. 1121, 1125 (1983) (holding that there

  is no requirement to give a Miranda warning to a person not in

  custody, even when that person is the subject of interrogation).

¶ 37   The record does not support Travis’s claim that she was

  physically isolated from her husband. As explained in the previous

  section, Travis’s husband was only a few feet away from her, she

  and her husband could see each other the entire time, and no walls

  separated Travis from her husband.

¶ 38   Most importantly, there simply is no evidence of any coercive

  behavior by the police ― a condition precedent to a finding of

  involuntariness. Effland, 240 P.3d at 877. The officers’ behavior

  did not “overbear [Travis’s] will to resist and bring about

  confessions not freely self-determined.” Id. Two officers were

  present for only a portion of what was a brief interview, and the

  other officers were attending to other tasks. During the interview,

  the officers maintained a distance of several feet from Travis, who

  stood at least three feet away from the nearest wall. The interview

  was conversational at all times; the officers never made specific


                                    17
  threats or demands, or promised Travis anything in return for her

  conversation; the interview took place in Travis’s home; Travis never

  asked to stop the interview or to speak with an attorney; and Travis

  appeared calm and relaxed.

¶ 39   For these reasons, we reject Travis’s argument that the

  statements she made to the officers at her home were involuntary.

                    b. Interview at the Police Station

¶ 40   To support her argument that her statements at the police

  station were involuntary, Travis asserts that she was “stressed.”

  She notes that at one point she started to write her statement, but

  stopped after a few lines because she did not want to retell her

  story.

¶ 41   As noted above, “coercive government conduct is a necessary

  predicate to the finding that a confession is not voluntary.” Id.

  (citation omitted). Even if coercive conduct is found, the conduct

  must have “played a significant role in inducing the statements.”

  People v. Valdez, 969 P.2d 208, 212 (Colo. 1998).

¶ 42   The record is devoid of any evidence of coercive conduct at the

  police station, much less coercive conduct that played a significant

  role in inducing Travis’s statements. Therefore, the trial court did


                                    18
  not err in denying Travis’s motion to suppress her statements made

  at the police station.

                           III. Motion to Continue

¶ 43   Travis argues that the trial court abused its discretion when it

  denied her request for a continuance to seek new counsel. In

  People v. Brown, 2014 CO 25, a case decided after Travis’s trial, the

  supreme court held that a trial court must consider at least eleven

  factors when it decides such a motion for continuance. Although

  the district court considered some of the Brown factors, it could not

  have known at that time that the supreme court would later require

  express consideration and balancing of many other factors to

  resolve a motion for a trial continuance for the purposes of hiring

  new counsel. Because there is insufficient information in the

  record for us to determine whether the trial court abused its

  discretion in denying the motion to continue, we must remand the

  case to the trial court for additional findings.2


  2 Although People v. Brown, 2014 CO 25, does not state whether its
  holding should be applied to continuance motions decided before
  Brown was announced, based on Brown’s disposition (which
  remanded for the trial court to make additional findings), we
  conclude that Brown is applicable at least to cases directly appealed


                                     19
                                  A. Law

¶ 44   A criminal defendant is entitled to representation by counsel of

  her choice. Id. at ¶ 16; see also U.S. Const. amend. VI. This right

  is not absolute, however. Considerations such as judicial efficiency

  or the public’s interest in the integrity of the judicial process may

  outweigh the defendant’s interest in being represented by a

  particular attorney. Brown, ¶ 17. The trial court must apply a

  multi-factor test to balance these interests. Id. at ¶ 24. The Brown

  factors are:

             1. the defendant’s actions surrounding the
             request and apparent motive for making the
             request;

             2. the availability of chosen counsel;

             3. the length of continuance necessary to
             accommodate chosen counsel;

             4. the potential prejudice of a delay to the
             prosecution beyond mere inconvenience;

             5. the inconvenience to witnesses;

             6. the age of the case, both in the judicial
             system and from the date of the offense;



  after Brown. Thus, Brown is applicable to this case. See People v.
  Stidham, 2014 COA 115, ¶ 17.


                                    20
             7. the number of continuances already granted
             in the case;

             8. the timing of the request to continue;

             9. the impact of the continuance on the court’s
             docket;

             10. the victim’s position, if the victims’ rights
             act applies; and

             11. any other case-specific factors
             necessitating or weighing against further
             delay.

  Id. The trial court must make findings on each of the Brown factors

  to enable appellate review of the discretionary decision to grant or

  deny the continuance. Id. at ¶¶ 19, 25; Stidham, ¶ 17.

¶ 45   Because the trial court did not have the benefit of Brown when

  it denied the motion to continue, it apparently did not consider or

  weigh all of the Brown factors.

¶ 46   The threshold question here is whether Brown always requires

  an appellate court to remand to the trial court for further

  proceedings when the trial court did not consider or balance all of

  the Brown factors.

¶ 47   The supreme court did not expressly address this question in

  Brown. However, its explanation for why it remanded that case to

  the trial court for further factual findings is instructive, and leads

                                     21
  us to conclude that, at least under some circumstances, an

  appellate court may affirm the denial of a trial continuance even

  when the trial court did not expressly consider and balance all

  eleven Brown factors.

¶ 48   In directing a remand to the trial court, the supreme court in

  Brown stated:

            Although the record contains some of the
            information for evaluating whether the trial
            court abused its discretion in denying the
            continuance, the record lacks information
            about other factors that the court should have
            considered when making its decision.
            Importantly, lacking from the record is any
            information about how long it would take [the
            defendant’s substitute counsel] to prepare for
            trial. The trial court did not inquire into how
            long of a continuance was needed. The record
            also lacks information about the court's docket
            and whether the continuance would cause
            significant inconvenience for the witnesses
            who had already been subpoenaed several
            times. The record also does not contain
            information regarding whether the trial court
            considered the age of the case when deciding
            to deny the continuance. Finally, the victim’s
            position regarding a potential continuance is
            relevant and must be considered. The victim’s
            position regarding this motion to continue is
            not in the record in this case. Given the lack
            of information about these other factors, it is
            necessary for us to remand the matter so that
            the trial court may make sufficient factual
            findings.


                                   22
  Brown, ¶¶ 28-29.

¶ 49   We read these passages in Brown to authorize an appellate

  court to affirm a denial of a trial continuance even when the trial

  court has not expressly considered and balanced the eleven Brown

  factors if, but only if, the record contains sufficient information

  concerning the Brown factors such that an appellate court can

  meaningfully determine whether the trial court’s denial of the

  continuance was an abuse of discretion.

                                  B. Analysis

¶ 50   On the day that trial was set to begin, Travis made the

  following request: “My request was that I was going to look for and

  pay for an attorney. I don’t feel this case is fair regarding [the

  victim]. There’s a lot of stuff that needs to come out about her. I

  don’t think it’s fair to me.”

¶ 51   The court responded that because the case had been pending

  for a “very long time,” Travis had had “plenty of time” to decide if

  she wanted to hire private counsel. The court described Travis’s

  appointed counsel as experienced, careful, and hard working. It

  then denied her request for a continuance, and informed Travis

  that, if she was dissatisfied with her current legal representation,


                                      23
  she could proceed pro se. Travis elected to proceed with her

  appointed counsel.

¶ 52   The dissent construes Travis’s statements to the trial court as

  indicating that she had done nothing to attempt to hire new

  counsel, but we are not as sure as the dissent. Not infrequently,

  defendants incarcerated on a pretrial basis have family members or

  friends who attempt to retain counsel for the defendant. We cannot

  tell from this record whether any such activities were underway.

  Thus, on this record, we cannot sufficiently consider “the

  availability of chosen counsel” or “the length of a continuance

  necessary to accommodate chosen counsel.”

¶ 53   Similarly, there is nothing in this record that addresses the

  potential prejudice of a delay to the prosecution beyond mere

  convenience; the inconvenience to witnesses; the impact of the

  continuance on the court’s docket; or the victim’s position, if the

  victims’ rights act applies. Because there is insufficient evidence in

  the record to determine the missing Brown factors, a remand is

  required.

¶ 54   The dissent accurately distinguishes this case, in which the

  identity of substitute counsel was not specified by Travis, from


                                    24
  Brown, in which the defendant had already retained substitute

  counsel (and substitute counsel actually argued the request for

  continuance). However, to the extent that the dissent argues that

  Brown is inapplicable to this case because of those distinguishing

  facts, we cannot agree.

¶ 55   We are aware of no authority holding that a defendant’s failure

  to secure substitute counsel at the time of the motion to continue

  precludes application of a balancing test weighing the public’s

  interest against the defendant’s right to choice of counsel. Instead,

  every case we have reviewed employing such balancing tests treats

  the defendant’s success or failure in retaining acceptable substitute

  counsel as a nondispositive factor that the trial court can (and,

  under Brown, must) weigh in deciding the motion. See, e.g., United

  States v. Burton, 584 F.2d 485, 491 (D.C. Cir. 1978) (One of the

  factors a trial court may consider in deciding a continuance motion

  is “whether the defendant has other competent counsel prepared to

  try the case.”); State v. DeWitt, 289 P.3d 60, 64 (Idaho Ct. App.

  2012) (“[I]f a defendant seeks to obtain new private counsel just

  before trial, the district court must decide if the reasons for the

  defendant’s request . . . justify a continuance.”); People v. Curry,


                                     25
  990 N.E.2d 1269, 1278 (Ill. App. Ct. 2013) (A court does not abuse

  its discretion in denying a defendant’s motion to continue to

  accommodate substitute counsel where, after an inquiry, the court

  determines that counsel is not “ready, willing, and able to make an

  unconditional entry of appearance.”); State v. Kates, 81 A.3d 662,

  664 (N.J. 2014) (following Burton); Vargas v. State, 322 P.3d 1282,

  1286 (Wyo. 2014) (same).

¶ 56   Even if the defendant’s failure to hire or even attempt to hire

  substitute counsel before requesting a continuance served as a bar

  to a continuance, based on the record before us, we cannot be sure

  that Travis or her family had not made a sufficient (or any) effort to

  identify private counsel so as to overcome that bar because the trial

  court did not inquire whether she had. All we know is that Travis

  desired a continuance so that she could “look for and pay for an

  attorney.” While Travis’s statements might be read, as the dissent

  evidently reads them, to mean that she had not yet done anything

  to find new counsel, we cannot conclude with sufficient confidence

  that that was surely the case.

¶ 57   The dissent also would affirm on the independent ground that

  any abuse of discretion in denying the trial continuance constituted


                                    26
  constitutionally harmless error. The United States Supreme Court

  has held that when a request for a continuance for the purpose of

  obtaining new counsel is improperly denied, the error is structural

  and is not subject to constitutional harmless error review. United

  States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006).

¶ 58   The parties have not briefed the question of whether the

  allegedly improper denial of Travis’s request for a continuance in

  this case requires the application of constitutional harmless error

  review or automatic reversal under the structural error doctrine. In

  the absence of such briefing we, like the supreme court in Brown,

  consider it prudent not to decide the question.

¶ 59   We nevertheless reject the dissent’s suggestion that we may

  affirm because any error in the trial court’s denial of the

  continuance motion was harmless beyond a reasonable doubt.

  While we do not hold that the Brown error here was structural, the

  reasons that supported the Supreme Court’s determination that

  structural error applies to at least some improperly denied motions

  for trial continuances informs our determination that the error here

  was not harmless beyond a reasonable doubt.




                                    27
¶ 60   As the Supreme Court has recognized, the strategies and

  abilities of counsel vary tremendously. Id. Applying the strict

  definition of constitutional harmless error, we cannot conclude, as

  does the dissent, that even the existence of a confession makes any

  error in depriving Travis of her choice of counsel constitutionally

  harmless. While the confession may have rendered some conviction

  very likely in this case, regardless of who represented Travis at trial,

  that conclusion does not exclude the reasonable possibility that a

  jury would convict on some but not all of the charged offenses or

  convict on a lesser included offense but acquit of the greater

  offense. In our view, though we recognize the force of the dissent’s

  argument, we cannot conclude that any error was harmless beyond

  a reasonable doubt.

¶ 61   Because there is insufficient information in the record to

  determine if the court acted within its discretion or abused it and

  violated Travis’s Sixth Amendment right to counsel of her choice by

  denying the continuance, we remand the case for the trial court to

  make written findings and enter an order either upholding its denial

  of the continuance, or, if the court determines that Brown required




                                    28
  it to grant the motion for continuance, granting a new trial. In

  doing so, the court may consider additional evidence.

                       IV. Prosecutorial Misconduct

¶ 62   Travis argues the prosecutor’s closing argument was improper

  because the prosecutor (1) singled out lesser included offense

  instructions requested by Travis and (2) told the jury that Travis’s

  counsel believed Travis was guilty.

¶ 63   “Whether a prosecutor’s statements constitute misconduct is

  generally a matter left to the trial court’s discretion.”

  Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005).

  Reviewing a claim of prosecutorial misconduct requires a two-step

  analysis. People v. McMinn, 2013 COA 94, ¶ 59. First, we must

  determine whether the prosecutor’s challenged conduct was

  improper based on the totality of the circumstances. Id. Only if we

  conclude that the conduct was improper do we then consider

  whether it warrants reversal according to the proper standard of

  review. Id.

¶ 64   During voir dire, Travis’s counsel told the jury panel, “What

  I’ve kind of been getting at is that the law recognizes there’s lesser

  offenses. It’s pretty rare that you have a defense attorney stand up


                                     29
  here and say I’m going to tell you right now that my client is guilty

  of some things, right?” Travis’s counsel went on to ask a potential

  juror whether she understood that there are varying degrees of

  assault. Defense counsel also told the jury during its opening

  statement that Travis was “overcharge[d].”

¶ 65   In addition to instructions for the charged crimes, the jury was

  instructed on the lesser included offenses of third degree assault ―

  criminal negligence and third degree assault ― knowingly or

  recklessly.

¶ 66   During closing argument, the prosecutor argued, in part:

                Defense counsel stood up in their opening and
                during jury selection and they told you my
                client is guilty. We just don’t think she
                committed the crime that the prosecution has
                charged her with committing. That’s why you
                have so many options in this paperwork. You
                have the crime that we’ve charged and the
                crime that the People are attempting to prove.
                You have the crime that my office has charged
                and then you have a lesser crime, the crime
                that is encompassed in the higher charge that
                my office has filed. I suspect that when
                defense counsel comes up and when they talk
                to you during their closing argument, they’re
                going to ask you to come back with not guilty
                on anything. Knowing and having admitted
                that their client has committed a crime, they’re
                going to ask you to come back on those lesser
                offenses, the more minimal charges, charges,


                                       30
              they say their client was likely guilty of on that
              night.

¶ 67    Relying on People v. Coria, 937 P.2d 386 (Colo. 1997), Travis

  contends that these statements by the prosecutor essentially

  created two classes of jury instructions — one class from the court

  and the other from the defendant. From this purported inference,

  Travis argues that she was deprived of a fair trial.

¶ 68    We first observe that Coria is factually inapposite. There, the

  county court directed the jurors to mark the instruction containing

  the defendant’s theory of the case with the words “defendant’s

  theory of the case.” Id. at 392. On appeal, the district court

  reversed the conviction on several grounds, concluding, as relevant

  here, that the court’s direction to the jury deprived the defendant of

  a fair trial. Id.

¶ 69    The supreme court reversed and reinstated the conviction,

  holding that while the county court should not have spontaneously

  directed the jurors to mark the instruction, the county court did not

  comment either on the evidence or on the merits of the case or the

  instruction and did not deprive the defendant of a fair trial. Id.




                                      31
¶ 70   Even if Coria were on point, we reject Travis’s arguments. We

  do not read the prosecutor’s remarks here as purporting to create

  two classes of instructions. Instead, the prosecutor responded

  appropriately to the statements previously made to the jury panel

  and jury by defense counsel asserting that the prosecutor had

  “overcharged” Travis. Moreover, it is not misconduct for a

  prosecutor to tell the jury that a theory of defense instruction is not

  a statement of law and that the jury need not accept the

  defendant’s theory. McMinn, ¶ 63.

¶ 71   For similar reasons, we reject Travis’s argument that the

  prosecutor denigrated defense counsel by implying that counsel did

  not have a good faith belief in Travis’s innocence. The prosecutor’s

  remarks were a fair comment on the defense’s jury argument that

  while Travis was guilty of a crime, she was not guilty of the

  principal charges filed against her.

                           V. Cumulative Error

¶ 72   Finally, Travis asserts that the cumulative effect of the errors

  she alleges denied her a fair trial. Because we conclude that there

  were no errors, there could not have been cumulative error.

  People v. Gordon, 32 P.3d 575, 581 (Colo. App. 2001).


                                    32
                              VI. Conclusion

¶ 73   Other than the trial court’s ruling on the motion for

  continuance, we affirm the trial court’s rulings challenged by

  Travis. We remand the case for the trial court to make the written

  findings and conclusions mandated by Brown and enter an order

  either upholding its denial of the continuance, or, if the court

  determines that Brown required it to grant the motion for

  continuance, granting a new trial. In doing so, the court may

  consider additional evidence.

¶ 74   After the trial court issues its order on remand, the clerk of

  the trial court must submit a copy of the order to this court and the

  appeal will be recertified. If the trial court determines that a

  continuance was not required, the judgment of conviction will be

  affirmed, subject to Travis’s right to appeal the court’s order on

  remand. If the court determines that a continuance should have

  been granted, the judgment will be reversed and the case will be

  remanded for a new trial, subject to the appellate rights of any

  party regarding the court’s order on remand.

       JUDGE KAPELKE concurs.

       JUDGE RICHMAN concurs in part and dissents in part.


                                     33
       JUDGE RICHMAN, concurring in part and dissenting in part.

¶ 75   I agree with the majority that suppression of the statements

  made by Travis to the police at her residence and at the police

  station is not required and that the prosecution did not commit

  misconduct in the closing argument at trial. I therefore join in

  those portions of the opinion.

¶ 76   I disagree that a remand to the trial court to make further

  findings regarding the denial of the motion to continue the trial is

  necessary on the facts of this case and therefore dissent from that

  portion of the opinion.

¶ 77   As the majority correctly observes, the denial of the motion to

  continue the trial occurred prior to the decision in People v. Brown,

  2014 CO 25, and in denying the motion, the court did not make

  explicit findings on, or conduct an express balancing of, all eleven

  factors listed in Brown. The majority acknowledges that under

  some circumstances, an appellate court may affirm the denial of a

  trial continuance even when the trial court did not expressly

  consider and balance all eleven Brown factors, but concludes this is

  not that case. I disagree. In my view, a remand for further findings

  in this case is not required, even under application of Brown.


                                    34
¶ 78   First, this case is factually and procedurally distinguishable

  from Brown, because there the defendant had already retained

  private counsel and private counsel had entered an appearance by

  the time defendant sought a continuance. In fact, it was the private

  counsel who filed the motion requesting the continuance and stated

  the grounds for the request. In addition, when the motion was

  considered by the court, the private counsel was present before the

  court and was available to answer questions, such as how long it

  would take counsel to prepare for trial, even though the trial court

  did not ask. See id. at ¶¶ 8-9.

¶ 79   By contrast, in this case, Travis had not hired private counsel;

  she did not identify, and apparently did not even contemplate, who

  the private counsel might be. Accordingly, she had not spoken to

  the private counsel and did not know if counsel would take the

  case. In fact, all she said was that she was “going to look for and

  pay for an attorney.”

¶ 80   Second, although the trial court did not make findings or a

  record on each of the eleven factors listed in Brown, it did consider,

  as the majority acknowledges, some of the Brown factors.




                                    35
¶ 81   It did consider the age of the case and the timing of the motion

  to continue. The motion to continue was filed on the morning of the

  first day of trial. In denying the motion, the court stated that the

  case “ha[d] been pending for a very long time” and Travis had “had

  plenty of time to decide if [she wanted] to hire” private counsel.

¶ 82   The court had also considered what can be viewed as “case-

  specific factors,” id. at ¶ 24, in denying a related motion to continue

  filed just five days earlier. That prior motion sought a continuance

  to obtain the presence of a witness to testify about the victim.

  When denying that motion, the trial court noted that securing the

  presence of the witness had not been accomplished, despite a

  continuance of several months. The court also expressed doubt

  regarding the importance of the possible testimony of the witness,

  noting that she was not an eyewitness. When Travis again moved

  for a continuance on the morning of trial, she explained that she

  wanted to hire private counsel because “[t]here’s a lot of stuff that

  needs to come out about [the victim].” Thus, her stated reason for

  seeking a continuance was related to the prior motion to continue,

  and the case-specific factors that the court considered in denying




                                    36
  that prior motion also applied to its denial of her motion on the

  morning of trial.

¶ 83   In addition, although the trial court did not make an explicit

  finding, the prosecution had previously advised the court that the

  victim was under emotional stress as a result of the pending case,

  and “expressed great interest” in having the case go forward.

¶ 84   Of course, the trial court did not make findings on the

  “availability of chosen counsel” or “the length of continuance

  necessary to accommodate chosen counsel” because no counsel

  had been chosen. Id. at ¶ 24.

¶ 85   I recognize that the majority in the Brown opinion concluded

  that “when deciding whether to grant a continuance to allow a

  defendant to change counsel, the trial court must conduct a multi-

  factor balancing test and determine whether the public’s interest in

  the efficiency and integrity of the judicial system outweighs the

  defendant’s Sixth Amendment right to counsel of choice.” Id. at

  ¶ 30. But earlier in the opinion, after listing the eleven factors,

  Brown also states: “no single factor is dispositive and the weight

  accorded to each factor will vary depending on the specific facts at

  issue in the case.” Id. at ¶ 24.


                                     37
¶ 86   Taken together, I read these holdings as directing

  consideration of the applicable and relevant factors. But that does

  not require a rote recitation by the trial court of all eleven factors,

  nor does it mandate an automatic remand by an appellate court if

  some of the factors are not discussed by the trial court. Moreover,

  some of the factors listed in Brown could not possibly have been

  weighed by the court because no new counsel had been identified,

  and it is impractical to make findings on remand as to other factors

  identified in Brown, as Justice Márquez astutely pointed out in her

  dissent to Brown. See id. at ¶¶ 48-49 (Márquez, J., dissenting).

¶ 87   On the record before us in this case, I conclude that the trial

  court denied the continuance because it essentially found that the

  public’s interest in the efficiency and integrity of the system

  outweighed Travis’s indefinite request that she wished “to look for

  and pay an attorney.” That is all Brown requires.

¶ 88   Third, I note that in setting forth the standards to be applied

  by an appellate court reviewing the denial of a motion to continue,

  Brown states that “[o]n appeal, we do not disturb a trial court’s

  denial or grant of a motion for a continuance in the absence of an

  abuse of discretion” and “[w]e . . . find error only if the [trial] court’s


                                      38
  decision was arbitrary or unreasonable and materially prejudiced

  the defendant.” Id. at ¶ 19 (citation omitted). I would conclude in

  this case that there was no material prejudice to Travis, even if her

  choice of counsel was not recognized.

¶ 89   As the majority correctly holds, Travis provided two admissible

  confessions of the assault to the police: one in her home almost

  immediately after the attack, and a second shortly afterwards at the

  police station. The statements were frank admissions that Travis

  committed an assault on the victim. Given the fact that both

  confessions were admitted at trial, I believe that having her choice

  of different counsel would have made no difference in the outcome

  of this case, and thus, any error by the trial court was harmless

  beyond a reasonable doubt.

¶ 90   I recognize that in United States v. Gonzalez-Lopez,

  548 U.S. 140, 150 (2006), the Supreme Court held that when a

  defendant’s choice of counsel is denied, structural error applies.

  Gonzalez-Lopez states that “[w]here the right to be assisted by

  counsel of one’s choice is wrongly denied, . . . it is unnecessary to

  conduct an ineffectiveness or prejudice inquiry to establish a Sixth

  Amendment violation.” Id. at 148. The majority states that it need


                                    39
  not address whether the constitutional harmless error test is

  applicable here. I conclude that it can be applied.

¶ 91   In this case, Travis was not denied the right to a specific

  counsel of her choice; she never named or said she had a specific

  counsel as was true in Gonzalez-Lopez. See id. at 142-43.

  Accepting that Gonzalez-Lopez establishes a standard of structural

  error on the facts of that case, those facts are simply not present

  here. Moreover, our supreme court in Brown was well aware of

  Gonzalez-Lopez when it stated that a showing of material prejudice

  to the defendant was required to find an abuse of discretion in

  denying a motion to continue, for the Gonzalez-Lopez opinion is

  cited in the next paragraph of Brown. Brown, ¶¶ 19-20. And,

  Brown states that “[b]ecause we do not decide whether there was an

  impermissible violation of Brown’s Sixth Amendment right to

  counsel, we do not address whether such a denial constitutes a

  structural error, thus requiring reversal of the convictions.” Id. at

  ¶ 29 n.6.

¶ 92   Thus, I conclude that a structural error analysis does not

  apply to the denial of a continuance in this case, and given the




                                    40
language in Brown regarding a showing of material prejudice, I

believe the constitutional harmless error test may be applied here.




                                 41
