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Supreme Court of Colorado • 2010

Wend v. People

235 P.3d 1089

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Takeaway

In short, this case holds that a prosecutor may never call a defendant or witness a liar, and repeated use of that forbidden language can be reversible plain error when the defendant's credibility is central to the defense.

Background

Jennifer Wend shot Michael Adamson, the man with whom she had been living, on Christmas Day 2002. Wend admitted shooting Adamson but claimed self-defense: she said Adamson threatened her and her dog with a gun. Rather than report the shooting, Wend concealed it, disposed of Adamson's body with Randy Anderson's help, and initially gave police several false accounts of Adamson's whereabouts before admitting that she shot him.

At trial, the prosecution repeatedly called Wend's statements “lies” and referred to her as a “liar” in opening and closing argument. The prosecutor opened by telling jurors they would hear “lie after lie after lie after lie” from Wend. Wend did not contemporaneously object. Her defense counsel also acknowledged that she had lied to police, but argued that fear and distrust of police—not guilt—explained those false statements.

The jury originally convicted Wend of second-degree murder without heat of passion. On her first appeal, the court of appeals vacated that conviction because of an instructional error and initially ordered a new trial. After rehearing, however, it allowed the prosecution to accept a conviction for second-degree murder by provocation instead. The prosecution chose that option, and the trial court entered the new conviction and imposed a thirty-six-year sentence.

On Wend's second appeal, the court of appeals held that the prosecutor's use of “lie” was improper but not reversible plain error because the word fairly described statements both sides acknowledged were false and was not intended to inflame the jury. The Colorado Supreme Court reversed and ordered a new trial.

Issues

Issue #1

Whether Wend waived her prosecutorial-misconduct claim by failing to raise it in her first appeal.

Holding

No. Wend could raise the claim in an appeal from her new conviction for second-degree murder by provocation.

Reasoning

Colorado broadly protects a criminal defendant's statutory right to appeal and resolves doubts against forfeiture of that right. Wend's first appeal did not provide meaningful review of this claim because the court of appeals initially vacated her conviction and declined to decide many remaining trial issues as moot.

The later modification of the first appellate judgment created a serious problem: instead of receiving the new trial that had made other issues moot, Wend received a new conviction on a lesser offense based on the original trial. Denying review of unaddressed trial errors in the appeal from that conviction would effectively deny her an appeal from the proceedings that produced it.

This case was unlike authorities in which a defendant sought a second appeal after only resentencing on the same conviction. Here, the original conviction was vacated and the trial court entered a new conviction with different elements and legal consequences.

A significant change in governing law also justified the later challenge. At the time of Wend's first appeal, some Colorado appellate decisions permitted a prosecutor to call testimony a lie when supported by evidence. Domingo-Gomez and Crider, decided afterward, established a categorical prohibition on a prosecutor's use of “lie” and its variants.

Issue #2

Whether the prosecutor's repeated use of “lie,” “lied,” and “liar” to describe Wend was improper.

Holding

Yes. Under Colorado precedent, a prosecutor's use of “lie” or any of its variants to characterize a defendant's or witness's veracity is categorically improper.

Reasoning

The categorical rule protects the right to a fair trial before an impartial jury. Calling a witness a liar can communicate the prosecutor's personal view of credibility, suggest that the prosecutor has knowledge beyond the evidence, and improperly intrude on the jury's exclusive role in deciding whom to believe.

The term is also inherently inflammatory. When the State's representative repeatedly uses it, the language may provoke a strong negative reaction against the defendant rather than direct the jury to assess the evidence rationally.

The prosecutor therefore acted improperly each time he described Wend's statements as “lies,” said that she “lied” or could not “keep lying,” or otherwise invoked the term to attack her truthfulness. The fact that Wend had made false statements did not create an exception to the categorical rule.

Issue #3

Whether the prosecutor's improper remarks required reversal under plain-error review despite Wend's failure to object at trial.

Holding

Yes. The cumulative effect of the repeated remarks undermined the fundamental fairness of a trial in which Wend's credibility was central to her self-defense claim.

Reasoning

Because Wend did not make contemporaneous objections and the misconduct was not structural or a direct constitutional violation, the Court applied plain-error review. Reversal was required only if the misconduct was flagrantly improper and seriously affected the fairness or integrity of the trial.

The Court evaluated the entire context, including the precise language, the nature and frequency of the misconduct, the likely prejudice, the surrounding circumstances, and the strength of the evidence. The prosecutor's language was especially troubling because he repeatedly emphasized “lies” and “liar” in both opening and closing argument rather than making an isolated or quickly corrected remark.

The evidence established that Wend shot Adamson, but it did not resolve her self-defense claim. That defense depended heavily on whether jurors believed her account of Adamson's threatening conduct. By persistently framing Wend as someone who could not be trusted, the prosecutor improperly targeted the very credibility on which her defense rested.

Unlike Domingo-Gomez, there was no sua sponte objection by the trial judge, no curative instruction, and no shift to less inflammatory phrasing such as saying that Wend had not told the truth. Defense counsel's own references to Wend's false statements did not meaningfully cure the harm, because counsel used them to confront damaging evidence and explain why Wend had initially misled police.

The Court found Wilson particularly instructive because that case also involved a credibility-dependent defense and repeated prosecutorial assertions that defense witnesses had lied. Here, the prosecutor's pervasive use of the prohibited terms, including the ambiguous and crude phrase “That fucking liar,” contaminated the jury's assessment of Wend's credibility and required a new trial.

Dissents

Justice Eid

Reasoning

Justice Eid agreed that the prosecutor violated the categorical prohibition on calling a defendant's statements lies, but concluded that the error did not rise to plain error. In her view, reversal under plain-error review is a drastic remedy reserved for misconduct that actually undermines the fundamental fairness of the trial.

Wend admitted that she had misled police about Adamson's whereabouts, and her counsel repeatedly and expressly described those statements as lies in both opening and closing argument. Counsel used that concession strategically, arguing that Wend lied because she feared police and prison, not because her self-defense account was false.

In this context, Justice Eid reasoned that the prosecutor's descriptions were unlikely to be understood as an improper personal opinion or as a claim to knowledge outside the record. The prosecutor was commenting on Wend's admitted false statements to investigators, not merely declaring that her trial testimony or self-defense theory was untrue.

Justice Eid also concluded that defense counsel's repeated use of the same term diminished its inflammatory force and suggested that counsel perceived no obvious prejudice from the prosecutor's remarks. Because the evidence and argument openly established that Wend had lied to investigators, the prosecutor's improper wording did not create the fundamental unfairness necessary for reversal. Justice Coats joined her dissent.