     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                July 11, 2019

                               2019COA105

No. 16CA1059, People v. Flynn — Constitutional Law — Sixth
Amendment — Right to Counsel; Criminal Law — Counsel of
Choice

     In this case, a division of the court of appeals further explores

the trial court’s obligations when addressing a criminal defendant’s

request for a continuance in order to retain counsel of choice. The

division concludes that where the defendant had identified the

attorney he wished to speak to about representation, but no steps

had been taken to retain that attorney, the trial court was not

required to consider the eleven factors set forth in People v. Brown,

2014 CO 25. Instead, the division concludes that the facts of this

case fall closer to People v. Travis, 2019 CO 15, in which the

supreme court did not require explicit findings on any specific

factors. Because the facts were more similar to those in Travis, the
division determines that the trial court did not abuse its discretion

in denying the continuance, and therefore affirms the trial court.

     The division also declines to disturb the convictions based on

allegations that the prosecution suppressed evidence in violation of

Brady and that comments made by the trial court during voir dire

lowered the burden of proof and therefore implicated the

defendant’s constitutional rights. Nevertheless, regarding the trial

court’s voir dire comments, the division reiterates the concern that

such extended discussion of the core legal principles, going beyond

the scope of the standard definition in the model jury instructions,

provides little in the way of additional clarity, and runs the risk of

creating structural error.
COLORADO COURT OF APPEALS                                         2019COA105


Court of Appeals No. 16CA1059
Adams County District Court No. 15CR1862
Honorable Francis C. Wasserman, Judge
Honorable Thomas R. Ensor, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Thomas T. Flynn,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division V
                            Opinion by JUDGE TOW
                      Richman and Rothenberg*, JJ., concur

                            Announced July 11, 2019


Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith E. Osborne, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1    Defendant, Thomas T. Flynn, appeals his judgment of

 conviction entered on jury verdicts finding him guilty of menacing,

 vehicular eluding, reckless endangerment, failure to stop at a red

 light, and speeding. We affirm.

                            I.    Background

¶2    In 2015, William Garibay was driving home from work when

 he noticed a Cadillac driving in front of him in the left lane. When

 Garibay’s car approached the Cadillac, the driver of the Cadillac

 stepped on his brakes, causing Garibay to brake abruptly. The

 Cadillac then moved into the right lane, and its driver started

 yelling profanities at Garibay. The driver held a pistol across his

 chest and pointed it at Garibay. Garibay called 911, provided the

 dispatcher with the Cadillac’s temporary license plate number, and

 attempted to follow the vehicle until he lost sight of it.

¶3    Garibay met with a responding police officer and provided a

 physical description of the driver, indicating he would be able to

 recognize the driver. In the meantime, a police officer located the

 Cadillac and gave chase, but the Cadillac driver eluded the officer.

 During the investigation, police determined that the temporary tag

 was associated not with a Cadillac, but rather with an older model


                                     1
 Buick sedan registered to Flynn’s father. Garibay then identified

 Flynn in a photographic array as the driver of the Cadillac. The

 police never located the Cadillac or the gun. A jury found Flynn

 guilty of menacing, vehicular eluding, reckless endangerment,

 failure to stop at a red light, and speeding. Flynn now appeals the

 convictions.

                             II.   Analysis

¶4    Flynn contends that a new trial is required because the trial

 court erred by (1) denying his motion to continue; (2) determining

 that no due process violation resulted from the prosecution’s failure

 to disclose certain evidence; and (3) giving instructions to the jury

 that lowered the prosecution’s burden of proof. We address and

 reject each contention in turn.

                       A.    Motion to Continue

¶5    Flynn first argues that the trial court erred in denying his

 motion to continue his trial. Because he sought a continuance to

 obtain substitute defense counsel, Flynn argues that the trial

 court’s denial of his motion violated his Sixth Amendment rights.

 We disagree.




                                    2
                            1.    Additional Facts

¶6        At the pretrial conference, one week before trial, Flynn’s court-

 appointed attorney requested a continuance of trial, noting Flynn’s

 request to substitute counsel:

               MS. LANZEN: The other thing that Mr. Flynn
               had noted to me is that it’s his intent to hire
               counsel of his choice. He has been working
               and saving money to get a retainer to hire an
               attorney. It was his hope that he would have
               that attorney today. However, he needed a
               little more time. He said he was going to go
               over to Harvey Steinberg’s office afterwards to
               see if he can set up the retainer.
                      We would ask the Court to vacate the
               jury trial.

¶7        The trial court denied this motion, in part because the request

 was “very last minute” and there was “no indication that there’s

 other counsel who is actually going to enter his or her appearance

 in this matter.” The court described the motion as a tactic to delay

 trial.

¶8        On the first day of trial, defense counsel renewed her request

 for a continuance, again noting that Flynn wanted to hire a private

 attorney for trial:

               MS. LANZEN: He originally hired an attorney.
               That attorney had to withdraw. My office was
               appointed. And then after some limited


                                       3
             contact with Mr. Flynn, he had made the
             decision to hire an attorney. He just didn’t
             have the money. . . .
                  He said he had contacted Howard –
             Harvey Steinberg and wanted to retain him to
             represent him at the trial and so wanted me to
             ask the Court to continue this so that he could
             have the attorney of his choice.

¶9     The court again denied the request. The court noted that

  “[h]ad another attorney entered or even been present today, I might

  have considered [a continuance].”

                        2.        Standard of Review

¶ 10   “A motion for a continuance falls within ‘the sound discretion

  of the trial court.’” People v. Brown, 2014 CO 25, ¶ 19 (quoting

  People v. Hampton, 758 P.2d 1344, 1353 (Colo. 1988)). Thus, we

  review the trial court’s denial of a motion for a continuance for an

  abuse of discretion. Id. In reviewing the trial court’s findings of

  fact, we will defer to such findings “so long as [they] are supported

  by evidence in the record.” Id. at ¶ 26.

                             3.    Applicable Law

¶ 11   The Sixth Amendment affords criminal defendants the right to

  be represented by counsel of their choice. U.S. Const. amend. VI;

  see Rodriguez v. Dist. Court, 719 P.2d 699, 705 (Colo. 1986). This



                                        4
  right is entitled to “great deference.” Rodriguez, 719 P.2d at 705.

  Nevertheless, the right is not absolute and must in some cases yield

  when “fundamental considerations other than a defendant’s interest

  in retaining a particular attorney are deemed of controlling

  significance.” Id. at 706.

¶ 12   In Brown, the supreme court set forth an eleven-factor test for

  trial courts to use when analyzing a request for a continuance to

  substitute defense counsel. Under Brown, ¶ 24, a trial court must

  consider the following:

             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;

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

             8. the timing of the request to continue;



                                     5
             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.

  No one factor is dispositive, “and the weight accorded to each factor

  will vary depending on the specific facts at issue in the case.” Id.

¶ 13   Our supreme court has recently made clear that Brown does

  not apply in every case, however. In People v. Travis, the court held

  that, while Brown is not limited to its facts, it is inapplicable when

  “the defendant expresses a general interest in retaining counsel, but

  has not identified replacement counsel or taken any steps to retain

  any particular lawyer.” 2019 CO 15, ¶ 14. Applying Brown in such

  circumstances would require the trial court to speculate about the

  availability of unknown counsel and the amount of time unknown

  counsel would require preparing for trial. Id. at ¶ 15. Thus, an

  analysis pursuant to Brown “would require an unrealistic level of

  speculation by the trial court.” Id.




                                      6
                             4.   Application

¶ 14   Contrary to both parties’ arguments, we need not determine

  whether the trial court properly applied Brown’s eleven-factor test.

  Like the defendant in Travis, Flynn’s interest in retaining alternate

  counsel was too tenuous to be analyzed by the trial court pursuant

  to Brown. The inapplicability of Brown is highlighted by the fact

  that at least two factors cannot even begin to be considered here: (1)

  the availability of counsel and (2) the length of a continuance

  necessary to accommodate counsel. See Travis, ¶ 15. Further,

  until the length of the resulting delay is known, the trial court

  would be hard-pressed to fully consider other Brown factors, such

  as the potential prejudice to the prosecution and the inconvenience

  to witnesses.

¶ 15   Although Flynn identified an attorney by name in his requests

  for a continuance, there was no indication that this attorney was

  available, or willing, to take Flynn’s case.1 Indeed, Flynn only said

  he was going to visit the named attorney’s office “to see if he can set

  up the retainer.” Cf. Ronquillo v. People, 2017 CO 99, ¶ 36 (the


  1We note that this attorney is not the same attorney who had
  originally represented him before withdrawing early in the case.

                                     7
  defendant sought to fire retained counsel and proceed with a public

  defender, whom he was eligible to retain); Brown, ¶ 33 (newly

  retained counsel had already filed an entry of appearance). Flynn’s

  nascent desire to retain another attorney was, at best, aspirational.

  Under such uncertain circumstances, applying the Brown factors

  “would require an unrealistic level of speculation by the trial court.”

  Travis, ¶ 15. 2

¶ 16   Because the findings set forth in Brown were not required

  here, we review the trial court’s decision to deny the continuance

  for a “clear abuse of discretion.” Id. at ¶ 16 (quoting People v. Crow,

  789 P.2d 1104, 1106 (Colo. 1990)).

¶ 17   In denying Flynn’s requests for a continuance, the trial court

  considered Flynn’s incentive to delay trial — particularly in light of

  his attorney’s representations that Flynn had not been in contact

  with her during her preparations for trial — and the lack of

  evidence indicating that he had taken any steps at all to retain

  private counsel. The court also noted that it might have considered


  2 Were we to hold otherwise, a defendant could avoid the
  application of Travis merely by mentioning by name any attorney,
  regardless of whether he or she had taken any steps whatsoever to
  retain that attorney.

                                     8
  a continuance if private counsel had filed an entry of appearance, or

  even been present to indicate a conditional intent to represent

  Flynn. Because nothing suggests the trial court abused its

  discretion, we perceive no error.

                 B.    Suppression of Material Evidence

¶ 18   Flynn next argues that the trial court erred in determining

  that no due process violation occurred when the prosecution

  suppressed exculpatory, material evidence.

                          1.    Additional Facts

¶ 19   At trial, Detective Dean Groff testified as to the efforts he

  undertook to locate the Cadillac or connect it to Flynn. Groff

  testified that for a couple weeks, he “made special efforts daily” to

  drive by Flynn’s house, but never saw the Cadillac in front of the

  house. In response to a jury question, Groff also testified that he

  checked Division of Motor Vehicles (DMV) records and failed to find

  a Cadillac registered to Flynn’s address. Groff did not document

  these efforts in any police report, and the information was not

  provided to the defense before trial.

¶ 20   During the jury instruction conference, defense counsel

  requested that the trial court “instruct the jury that the prosecution


                                      9
  is under legal duty to disclose all potentially exculpatory evidence,

  evidence that tends to negate guilt of the defendant, or even just

  plain helpful information” and submitted a proposed instruction.

  Defense counsel argued that this instruction should be provided

  because Groff’s investigatory efforts should have been disclosed

  during discovery pursuant to Crim. P. 16 and would have assisted

  defense counsel in preparing a defense in this case.

¶ 21   The trial court rejected the instruction but indicated that

  counsel could argue the point in closing. The court was hesitant to

  characterize the evidence as exculpatory:

            THE COURT: The issue that I have got, and I
            reviewed this instruction, the issue I have is
            the third paragraph where it says Detective
            Dean Groff was aware he had researched
            records from the [DMV]. My recollection of the
            testimony was that he basically took the
            information obtained by Officer Lawrence who
            did the – who did the DMV search, and used
            that in whatever way.
                  The other concern I have is that I am not
            sure just how -- whether his failure to put in a
            report that he drove by his house a couple
            times once or twice a day looking for this
            Cadillac, I don’t know if that is exculpatory at
            all or helpful.
                  I suppose helpful is a subjective word.
            The defense may consider it helpful. The
            prosecution may consider it to be non-
            information. So I am not sure how to


                                    10
              categorize that. I don’t want to state as a
              matter of law something that is ambiguous.

                         2.        Standard of Review

¶ 22   A Brady claim presents a mixed question of fact and law.

  People v. Bueno, 2018 CO 4, ¶ 20. We review the trial court’s

  factual findings for clear error and its legal conclusions de novo. Id.

  The standard of reversal for a trial error in resolving an asserted

  Brady violation is constitutional harmless error. People v. Mendez,

  2017 COA 129, ¶ 35. “Under this standard, reversal is required

  unless we are ‘able to declare a belief that [the error] was harmless

  beyond a reasonable doubt.’” Id. (alteration in original) (citation

  omitted).

                              3.    Applicable Law

¶ 23   In addition to their disclosure obligations under the Rules of

  Criminal Procedure, prosecutors have a constitutional duty to

  disclose to the defense any material, exculpatory evidence they

  possess. U.S. Const. amends. V, XIV; Colo. Const. art. 2, § 25;

  Crim. P. 16(I)(a)(2); see also Salazar v. People, 870 P.2d 1215, 1220

  (Colo. 1994). The prosecution’s suppression of such evidence




                                        11
  violates a defendant’s due process rights. Brady v. Maryland, 373

  U.S. 83, 87 (1963).

¶ 24   To establish such a violation, a defendant must show “(1) the

  prosecution suppressed evidence (2) that is exculpatory or favorable

  to the defendant and (3) that is material to the case.” Bueno, ¶ 29.

¶ 25   In the event of a due process violation, the court should

  fashion a sanction with the goal of “restor[ing] as nearly as possible

  the level playing field that existed before the discovery violation.”

  People v. Dist. Court, 808 P.2d 831, 837 (Colo. 1991). To determine

  the appropriate sanction, the court should consider the reason for

  the delay in disclosing discoverable information, any prejudice a

  party suffered because of the delay, and the feasibility of curing any

  prejudice through a continuance or recess during trial. People v.

  Zadra, 2013 COA 140, ¶ 16, aff’d, 2017 CO 18.

                             4.    Application

¶ 26   The first question is whether evidence was suppressed.

  Suppression occurs when a prosecutor fails to disclose evidence,

  regardless of whether the prosecutor acts in bad faith. Kyles v.

  Whitley, 514 U.S. 419, 432 (1995). Groff admitted at trial that he

  failed to report his observations as to Flynn’s house and the results


                                     12
  of his search of the DMV records. As a result, neither was disclosed

  to the defense during discovery. Therefore, we conclude the

  prosecution suppressed this evidence.

¶ 27   We turn now to the second and third prongs: whether the

  evidence was exculpatory or favorable to the defense, and whether it

  was material.

                   a.   Observations of Flynn’s House

¶ 28   As the trial court aptly noted, it is difficult to characterize the

  value of Groff’s observations of Flynn’s house. Although Groff

  testified that he never saw the Cadillac at Flynn’s house, he also

  testified that he did not know what was in the “large, oversized

  garage” on the property. He explained that these observations were

  made “in the mornings and then again possibly in the afternoon.”

  However, that the vehicle was not seen during these relatively

  fleeting moments is of little, if any, import. Because we agree with

  the trial court that the value of this evidence is unclear, we perceive

  no error in its decision to not treat its suppression as a Brady

  violation.




                                     13
                             b.     DMV Search

¶ 29   The DMV search presents a closer question. Although the trial

  court characterized this evidence as simply following up on the

  investigation of another officer, this is not dispositive of our

  analysis. Exculpatory evidence “tends to mitigate the likelihood of

  guilt or the severity of the sentence.” Bueno, ¶ 31. The DMV search

  was unable to connect the Cadillac identified by Garibay to Flynn or

  his residence. Thus, evidence of this DMV search was exculpatory

  because it mitigated, albeit only slightly, the likelihood that Flynn

  was the driver of the Cadillac.

¶ 30   The inquiry must then turn to whether the evidence was

  material. In the Brady context, evidence is material if “there is a

  reasonable probability that, had the evidence been disclosed to the

  defense, the result of the proceeding would have been different. A

  ‘reasonable probability’ is a probability sufficient to undermine

  confidence in the outcome.” Id. at ¶ 32 (quoting United States v.

  Bagley, 473 U.S. 667, 682 (1985)).

¶ 31   However, unlike most other Brady cases of which we are

  aware — in which the jury never heard about the suppressed

  evidence because the suppression was not unearthed until after


                                      14
  trial — the jury here heard testimony about the DMV search at trial

  and defense counsel was able to cross-examine Groff about this

  evidence. Because the jury heard the suppressed evidence and

  returned a guilty verdict, we must conclude that the suppressed

  evidence itself was not material.

¶ 32   Flynn nevertheless maintains that defense counsel could have

  exploited this evidence had she received advance notice, and her

  lost opportunity to do so undermines confidence in the outcome.

  We are not persuaded.

¶ 33   Specifically, Flynn argues that counsel was unable to present

  documentation from the DMV to substantiate the lack of connection

  between Flynn and the Cadillac or the viability of Groff’s DMV

  search. But the prosecution did not attempt to undermine the

  validity of Groff’s testimony that the DMV search failed to find a

  Cadillac registered to Flynn’s address. 3 Thus, we conclude there is



  3 Similarly, Flynn argues that he could have called witnesses to
  establish that the Cadillac was not in his garage. While this
  argument is directed more to the evidence of the failed surveillance
  efforts, which we have concluded was neither exculpatory nor
  favorable to the defense, we note that, because the prosecution
  never disputed the fact that it could not tie the Cadillac to Flynn or
  his address, the surveillance evidence was not material either.

                                      15
  no reasonable possibility that the suppression of the DMV search

  until trial “might have contributed to the conviction.” Mendez, ¶ 45

  (quoting Hagos v. People, 2012 CO 63, ¶ 11).

           C.   The Trial Court’s Comments During Voir Dire

¶ 34   Flynn lastly argues that the trial court erred in making

  comments during voir dire that lowered the prosecution’s burden of

  proof. We disagree.

                          1.    Additional Facts

¶ 35   The trial court conducted “a lengthy voir dire, which it

  informed the jury would ‘deal[] with all of the fundamental

  principles of criminal cases and jury service.” As relevant here, the

  trial court used a number of hypotheticals and examples to explain

  several legal concepts to the jury.

¶ 36   The court first used a hypothetical to explain the prosecution’s

  burden of proof. The court hypothetically accused a juror of

  stealing an iPod, then explained that if charges were brought

  against the juror, he would be presumed innocent “until the

  prosecution’s evidence proves that he is guilty beyond a reasonable

  doubt.” The court then read the standard definition of presumption

  of innocence to the jury.


                                    16
¶ 37   The court then used hypotheticals to explain reasonable doubt

  to the jury. The court distinguished reasonable doubt from any

  doubt by questioning the stability of the courthouse and the validity

  of a juror’s birth certificate:

             THE COURT: . . . I can probably raise some
             doubt about whether this building’s going to
             stand for another 24 hours by talking about
             the cracks that I see in the foundation and
             everything. Would you all go running out?
             No. Okay? But, you know, that’s a vague
             doubt.

             ....

             THE COURT: You know, I can create some
             kind of vague, imaginary doubt about
             anything, you know. Well, maybe the hospital
             was wrong, and maybe your mom got the date
             wrong.

             THE PROSPECTIVE JUROR: Sure.

             THE COURT: But I guarantee you this March
             17 you are going to recognize that as your
             birthday, aren’t you?

             THE PROSPECTIVE JUROR: I am.

             THE COURT: Because I haven’t convinced you
             beyond a reasonable doubt.

  The court then applied the concept of reasonable doubt to criminal

  cases.



                                    17
¶ 38   The trial court also compared the prosecution’s burden of

  proof to “beyond a shadow of a doubt,” a higher burden popularized

  by a television show:

            THE COURT: . . . [Perry Mason] was a very
            imposing man played by Raymond Burr. He
            was in the courtroom, a defense attorney, and
            he would always, at the close of evidence in the
            trial, he would approach the jury and say,
            ladies and gentlemen of the jury, the
            prosecutor has failed to prove this case beyond
            a shadow of a doubt. Oh, did that sound good.
            Okay? There is no such thing, okay? Not in
            any -- not in civil law, not in criminal law. We
            don’t have proof beyond a shadow of a doubt,
            okay?
                   Again, going back, it’s proof beyond a
            reasonable doubt, and that is the -- one of the
            highest burdens of proof in American
            jurisprudence, okay? It’s proof beyond a
            reasonable doubt.

  Defense counsel did not object.

                          2.   Standard of Review

¶ 39   We review de novo whether the trial court properly instructed

  the jury on the burden of proof. People v. Robles, 302 P.3d 269,

  280 (Colo. App. 2011), aff’d, 2013 CO 24. In most cases, we review

  unpreserved issues for plain error. People v. Baca, 2015 COA 153,

  ¶ 12. Thus, reversal is warranted “only if the error was obvious and

  ‘so undermined the fundamental fairness of the trial itself so as to


                                    18
  cast serious doubt on the reliability of the judgment of conviction.’”

  Id. (citations omitted). However, “[a]n instruction that lowers the

  prosecution’s burden of proof below reasonable doubt constitutes

  structural error and requires automatic reversal.” Johnson v.

  People, 2019 CO 17, ¶ 8 (citing Sullivan v. Louisiana, 508 U.S. 275,

  281-82 (1993)).

                        3.    Law and Application

¶ 40   “To be valid, a reasonable doubt instruction must instruct the

  jury that it may return a guilty verdict only if sufficient proof has

  been submitted to satisfy the standard.” People v. Munoz, 240 P.3d

  311, 316 (Colo. App. 2009). The instruction must “apprise[] the

  jury of the necessity that the defendant’s guilt be proved beyond a

  reasonable doubt, and no particular form is required.” Id.

¶ 41   Trial courts are instructed to explain to prospective jurors “in

  plain and clear language . . . [g]eneral legal principles applicable to

  the case including the presumption of innocence, burden of proof,

  definition of reasonable doubt, elements of charged offenses and

  other matters that jurors will be required to consider and apply in

  deciding the issues.” Crim. P. 24(a)(2)(v). To that end, the model

  jury instructions provide introductory comments to be read to the


                                     19
  jury, which explain the standard definitions of these basic

  principles. COLJI-Crim. B:01 (2018).

¶ 42   Well-intentioned trial courts, seeking to provide additional

  clarity to prospective jurors, sometimes feel the urge to go beyond

  these instructions and either insert their own supplemental

  instructions or attempt to add “flesh to the bones” of the standard

  instructions by providing examples and hypotheticals. Divisions of

  this court have repeatedly expressed disapproval of the practice,

  because such instructions run the risk of confusing the jurors and

  may even lower the burden of proof or diminish the presumption of

  innocence. See, e.g., People v. Boyd, 2015 COA 109, aff’d, 2017 CO

  2; People v. Estes, 2012 COA 41; People v. Gomez-Garcia, 224 P.3d

  1019 (Colo. App. 2009); People v. Sherman, 45 P.3d 774 (Colo. App.

  2001).

¶ 43   Our supreme court has recently added its voice to this

  cautionary chorus: “[F]urther attempts by courts or parties to define

  ‘reasonable doubt’ do not provide clarity.” Johnson, ¶ 13 (citing

  Holland v. United States, 348 U.S. 121, 140 (1954)). In Johnson,

  the trial court had attempted to explain “hesitate to act” in the

  context of “reasonable doubt.” Id. at ¶ 4. The trial court explained


                                    20
  that engaging in deliberations was not the same as hesitating to act,

  but that hesitating meant: “You just have to hesitate. It’s not there.

  You can’t find her guilty because the quality or quantity of evidence

  just doesn’t let you.” Id. at ¶ 17. The supreme court characterized

  the instruction as “indecipherable” and “unintelligible.” Id.

  However, it concluded that the instruction, albeit confusing, “did

  not lower the prosecution’s burden in violation of due process.” Id.

  at ¶ 18. 4

¶ 44   Indeed, particularly because an inarticulate attempt to do so

  — if it takes the form of an instruction 5 — may result in automatic

  reversal, deviating from or expounding on the standard instructions

  in this area is undeniably risky, in that it exposes the conviction to

  a challenge that the comments lowered the burden of proof.


  4 In a further peal of the cautionary bell, though our supreme court
  found some of the instruction “logical and not legally infirm,” it
  nevertheless disapproved of the entire instruction. Johnson v.
  People, 2019 CO 17, ¶ 17 & n.2.
  5 We do not believe that every comment made by a trial court to the

  jury panel during voir dire is automatically an instruction. See
  People v. Boyd, 2015 COA 109, ¶ 12 (opining that the court’s
  comments during voir dire discussions were not an instruction),
  aff’d, 2017 CO 2. But see People v. Carter, 2015 COA 24M-2, ¶ 54
  (characterizing the trial court’s use in voir dire of a puzzle analogy
  as an “instruction on the beyond a reasonable doubt standard”).


                                    21
¶ 45   Flynn argues precisely that. In particular, he identifies both

  published and unpublished cases from this court that repeatedly

  disapprove of certain comments made by the same trial court judge

  during voir dire in other cases. See People v. Ramos, 2012 COA

  191; Estes, 2012 COA 41. 6 The comments in those cases “risked

  inviting the jurors to assume that defendant had a bad character or

  to discard the possibility that he may have been arrested and

  charged through mistake or inadvertence.” Estes, ¶ 11.

¶ 46   But the comments made here were analogous to those in Estes

  and Ramos only in the sense that they involved extended efforts to

  supplement the standard jury instructions. Unlike the comments

  in those cases, the trial court’s discussion in this case did not

  suggest to the jury that Flynn “did something” that resulted in him

  being charged, nor did they “improperly align[] the court with the

  prosecution.” Estes, ¶ 10. Nor did the comments suggest that the



  6 The People object to Flynn’s “citation” to unpublished opinions.
  However, the unpublished opinions were cited in one of the
  published opinions on which Flynn relies, People v. Estes, 2012
  COA 41, ¶ 8. Flynn does not discuss the details of any of the
  unpublished cases and does not argue that any of them should be
  given precedential weight. Thus, we discern no violation of this
  court’s policy prohibiting citation to unpublished cases.

                                    22
  prosecution’s evidence appeared to be “too good to be true.” Ramos,

  ¶ 43. We decline to find error merely because the same judicial

  officer erred in the past.

¶ 47   Flynn’s reliance on Sherman is also misplaced. There, the trial

  court gave an instruction that essentially redefined reasonable

  doubt, stating that it was “a doubt for which you could give a

  reason. It’s a rational, objective statement of why you feel that

  something hasn’t been proven, or why you have a doubt.” 45 P.3d

  at 777. This instruction was fundamentally inconsistent with the

  beyond a reasonable doubt instruction because there is no support

  for the suggestion that a juror must be able to articulate why he or

  she has a doubt. Here, in contrast, the trial court did not add any

  requirements to the definition of reasonable doubt.

¶ 48   Flynn’s reliance on Jones v. State, 656 So. 2d 489 (Fla. Dist.

  Ct. App. 1995), is equally unavailing. There, the Fourth District

  Court of Appeal of Florida found error where the trial court told

  jurors they did not have to have “an absolute certainty of the

  Defendant’s guilt,” but did not otherwise give a proper definition of

  reasonable doubt. Id. at 490-91. Here, the trial court repeatedly

  referred the jury to the standard definition of reasonable doubt.


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¶ 49   In contrast to the cases relied upon by Flynn, we find the

  analysis in Johnson to be more helpful. As in that case, each of the

  hypotheticals here was discussed verbally, and only once. None

  was mentioned again at any time during the proceedings. The trial

  court read the correct definitions of beyond a reasonable doubt and

  presumption of innocence contemporaneously with the discussions.

  Indeed, the trial court repeatedly referred back to the appropriate

  standard definition of reasonable doubt. And at the conclusion of

  trial, the correct instructions were again read to the jury. Thus, we

  conclude the comments did not lower the burden of proof.

                            III.   Conclusion

¶ 50   The judgment is affirmed.

       JUDGE RICHMAN and JUDGE ROTHENBERG concur.




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