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Supreme Court of Colorado • 2019

Howard-Walker v. People

2019 CO 69 | 443 P.3d 1007

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Takeaway

In short, Howard-Walker confirms that Colorado applies Oaks’s flexible cumulative-error standard, and that several individually nonreversible errors can require a new trial when their combined effect undermines the fairness of a close criminal case.

Background

Two men burglarized an unoccupied Colorado Springs home, taking about $8,000 in cash and other valuables. A motion-activated camera concealed in the homeowner’s alarm clock recorded grainy footage of the burglary. The homeowner, who worked in video editing, enhanced the footage and gave it to local television stations while offering a reward for the burglars’ convictions.

After the footage aired, Howard-Walker’s girlfriend’s uncle identified the armed man in the video as Howard-Walker. His probation officer said he was 95 percent sure the footage showed Howard-Walker, and Howard-Walker’s girlfriend later told a detective she was 80 percent sure. Police found no stolen property, gun, backpack, or matching clothing at Howard-Walker’s apartment, though they believed his shoes matched prints near the home. During an interview, Howard-Walker denied involvement but asked what benefit he would receive if he identified the other person in the video.

A jury convicted Howard-Walker of first degree burglary and conspiracy to commit first degree burglary after a trial lasting less than nine hours over two days. The court of appeals identified eight trial errors—five involving the detective’s testimony, two faulty jury instructions, and one improper prosecutorial comment on Howard-Walker’s silence—but concluded that no individual error warranted reversal. It adopted a new, two-step cumulative-error framework drawn from federal circuit precedent and affirmed the convictions. The Colorado Supreme Court reversed and ordered a new trial.

Issues

Issue #1

Whether Colorado’s cumulative-error review is governed by the longstanding Oaks standard or by the court of appeals’ newly adopted federal multi-factor test.

Holding

The Oaks standard governs; the court of appeals erred by supplementing it with a federal two-step, multi-factor test.

Reasoning

Due process guarantees a criminal defendant a fair trial, though not a perfect one. Under Oaks v. People, multiple irregularities that appear harmless when viewed separately may nevertheless demonstrate that the defendant did not receive a fair trial when viewed together. Cumulative-error review therefore asks whether the combined prejudice from multiple errors substantially affected the fairness of the proceedings and the integrity of the fact-finding process.

Cumulative error is not structural error. Structural errors are a limited category that can require reversal without a prejudice inquiry because they affect the framework of the trial or are inherently unquantifiable. By contrast, cumulative-error reversal requires identified errors that, collectively, prejudice the defendant’s substantial rights, even if no single error independently requires reversal.

Oaks had governed Colorado cumulative-error claims for nearly sixty years, and both parties agreed it supplied the controlling rule. Although its flexible formulation may be less detailed than the federal approach adopted by the court of appeals, that flexibility is useful in evaluating the combined effect of trial errors. The Court therefore held that Oaks applies whether the underlying errors were preserved or unpreserved: reversal is warranted when numerous errors, in the aggregate, reveal the absence of a fair trial.

Issue #2

Whether the eight identified errors cumulatively deprived Howard-Walker of a fair trial.

Holding

Yes. The combined prejudice from the eight errors deprived Howard-Walker of a fair trial and required reversal.

Reasoning

The Court accepted, without independently revisiting, the court of appeals’ identification of eight errors: improper testimony that the weapon in the video was real; speculative testimony about what the armed burglar would have done if confronted; testimony that police believed probable cause existed; speculation about why Howard-Walker’s girlfriend became emotional; the detective’s opinion that Howard-Walker was untruthful; failure to instruct on the elements of theft as the predicate offense; failure to define intent; and a prosecutorial comment on Howard-Walker’s failure to testify.

The court of appeals focused on the fact that the errors were brief or fleeting. The supreme court explained that duration is not the controlling question, especially in a trial lasting less than nine hours. The proper inquiry is whether the errors, taken together, denied the defendant a fair trial.

Several errors directly affected contested or essential issues. The detective’s improper testimony that the gun was real and that its holder was prepared to engage a homeowner or police helped establish the deadly-weapon element distinguishing first degree burglary from second degree burglary. Other testimony undermined Howard-Walker’s misidentification defense by suggesting that police had probable cause to arrest him and by explaining that his girlfriend cried because she recognized him, even though she partly recanted her identification at trial.

The detective’s testimony that Howard-Walker was not being truthful was especially prejudicial. Colorado treats one witness’s opinion about another witness’s truthfulness as categorically improper because it invades the jury’s role as the sole evaluator of credibility. By inviting the detective to say that Howard-Walker was untruthful, the prosecution encouraged the jury to defer to the detective’s credibility judgment rather than make its own.

The most serious error was the prosecutor’s closing-argument statement that only one person in the courtroom could explain where the stolen property was and “he won’t.” In context, this was an intentional reference to Howard-Walker’s decision not to testify. It invited the jury to infer guilt from his exercise of the constitutional right to remain silent and was therefore plainly prejudicial.

The instructional omissions were less consequential in isolation because the defense centered on identity, not on whether a theft occurred or whether the burglar acted intentionally. But in a close case, even technical instructional errors can contribute to cumulative prejudice and reduce confidence in the fairness of the trial.

The evidence was not overwhelming. Police never recovered the stolen property, a gun, a backpack, or matching clothing from Howard-Walker. The physical evidence consisted of a common shoeprint, and the identifications had weaknesses: one witness partly recanted, the probation officer had limited contact with Howard-Walker, and the uncle who identified him could have had a financial incentive because of the reward. Although Howard-Walker’s question about identifying the other burglar supported an inference of guilt, it did not overcome the cumulative prejudice from the eight errors.

Issue #3

Whether plain error must be assessed based on the law at the time of trial or at the time of appeal.

Holding

The Court did not decide the question because cumulative error independently required reversal.

Reasoning

Howard-Walker’s certiorari petition also raised whether an unpreserved error should be deemed plain under the law existing at trial or under the law at the time of direct appeal. Because the Court reversed on cumulative-error grounds, it found no need to resolve that separate issue.