People v. Payne

461 P.3d 630

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Cameron Scott PAYNE, Defendant-Appellant.

Court of Appeals No. 18CA0283

Colorado Court of Appeals, Division VII.

Announced November 14, 2019

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE FOX

¶1 Defendant, Cameron Scott Payne, appeals the judgment of conviction entered on jury verdicts finding him guilty of resisting arrest, disorderly conduct, and second degree assault while lawfully confined or in custody. Payne asserts that the trial court erred by (1) allowing lay witness testimony that usurped the jury’s role; (2) failing to provide a definitional jury instruction on "lawfully confined or in custody"; (3) allowing the prosecutor to give a rebuttal closing statement after waiving initial closing remarks; and (4) tolerating prosecutorial misconduct when the prosecutor misstated the law in rebuttal closing. Because none of Payne’s contentions of error warrant reversal, we affirm the judgment of conviction.

I. Background

¶2 In May 2015, two Grand Junction police officers patrolling the downtown area heard a man screaming and cursing in the street. When the officers approached the man, later identified as Payne, he aggressively turned toward the officers and ignored their commands to stop. The officers placed him in handcuffs, called for backup, and were escorting Payne out of the street and toward their police car when he kicked one of the officers in the groin. A jury found Payne guilty of all charges except for second degree assault, bodily injury on a peace officer.¹

II. Lay Witness Testimony

¶3 Payne contends that the trial court reversibly erred by admitting lay witness testimony that he was "lawfully confined or in custody," thereby usurping the jury’s role to decide whether he was confined or in custody. We disagree.

A. Additional Background

¶4 At trial, Officer Jason Evans testified as a lay witness for the prosecution. In discussing Payne’s arrest, the following colloquy occurred:

[Prosecutor]: Was ... Payne, compliant when you instructed him to stop and then had to go and put handcuffs on him?

[Officer Evans]: No, ma’am.

[Prosecutor]: At this point did you consider that he was lawfully confined or in custody?

[Officer Evans]: At that point he was not free to leave.

[Prosecutor]: Did you consider that he was lawfully confined or in custody?

[Officer Evans]: Yes, ma’am.

B. Preservation and Standard of Review

¶5 We review a trial court’s decision to admit testimony for an abuse of discretion. People v. Robles-Sierra , 2018 COA 28, ¶ 23, ––– P.3d ––––. An abuse of discretion occurs when a trial court’s ruling is manifestly arbitrary, unreasonable, or unfair, or if it misapplies the law. People v. Casias , 2012 COA 117, ¶ 29, 312 P.3d 208.

¶6 Because Payne did not preserve this issue for appeal, we apply plain error review. Hagos v. People , 2012 CO 63, ¶ 14, 288 P.3d 116. Thus, we reverse only if any error was obvious and substantial, meaning the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Id.

C. Law and Analysis

¶7 A testifying witness may not usurp the jury’s factfinding role. Robles-Sierra , ¶ 24. However, CRE 704 provides that opinion testimony that is "otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." In determining whether witness testimony usurped the function of the jury, we may consider whether (1) the witness opined that the defendant committed or likely committed the crime; (2) the testimony was clarified on cross-examination; (3) the expert’s testimony usurped the trial court’s function by expressing an opinion on the applicable law or legal standard; and (4) the jury was properly instructed on the law and that it could accept or reject the witness’ opinion. People v. Rector , 248 P.3d 1196, 1203 (Colo. 2011). Payne does not challenge the third factor.

¶8 While the second degree assault statute, section 18-3-203(1)(f), C.R.S. 2019, does not define "lawfully confined or in custody," the terms have distinct meanings under Colorado law. See People v. Olinger , 39 Colo. App. 491, 493, 566 P.2d 1367, 1368 (1977) ("It is apparent that the legislature intended the word ‘confined’ to have a meaning different from and to be more restrictive than ‘custody[.]’ "). A person is confined when detained in an institution. Id. A person is in custody for section 18-3-203(1)(f) purposes when a police officer has "applied a level of physical control over the person being detained so as reasonably to ensure that the person does not leave." People v. Rawson , 97 P.3d 315, 323 (Colo. App. 2004) ; see also People in Interest of D.S.L. , 134 P.3d 522, 525 (Colo. App. 2006) (To be deemed to be in custody under section 18-3-203(1)(f), "[a]ll that is required is that the ‘peace officer must have applied a level of physical control over the person being detained so as reasonably to ensure that the person does not leave.’ " (quoting Rawson , 97 P.3d at 323 )); People v. Ortega , 899 P.2d 236, 238 (Colo. App. 1994) (concluding that a formal arrest was not required; handcuffing the defendant to a wall was sufficient to establish that he was in custody for purposes of section 18-3-203(1)(f) ).

¶9 Payne argues that Officer Evans’ testimony that Payne was not free to leave and that he was "lawfully confined or in custody" improperly usurped the jury’s role. He asserts that allowing the testimony constituted reversible error because the testimony expressed a legal opinion, Payne’s counsel did not clarify the opinion on cross-examination, and the jury was never given a definition for "lawfully confined or in custody."

¶10 Although Payne’s counsel cross-examined Officer Evans, he did not clarify Officer Evans’ testimony that Payne was in custody after he was handcuffed. However, Officer Evans’ testimony fell short of stating that Payne committed second degree assault while lawfully confined or in custody. See Rector , 248 P.3d at 1203. Rather, he stated that, in his opinion, Payne was not free to leave and was in custody after he was handcuffed, addressing one element of Payne’s second degree assault charge. See CRE 704 ; see also Ortega , 899 P.2d at 238. While the jury was not given an instructional definition for "lawfully confined or in custody," that alone does not render Officer Evans’ testimony improper, especially given its brevity. See People v. Rivera , 56 P.3d 1155, 1164 (Colo. App. 2002) (Even if a "witness opines with respect to an ultimate issue, the jury retains its authority to determine the facts from the evidence and accept or reject such opinions."). And the jurors were properly instructed that they were the "sole judges of the credibility of each witness and the weight to be given to the witness’ testimony," and that they were free to "believe all of the testimony of a witness, part of it, or none of it." See Rector , 248 P.3d at 1203 ("[T]he jury was properly instructed on the law and its ability to accept or reject" testimony.).

¶11 Whether Payne was in custody for purposes of committing second degree assault was a factual determination for the jury to decide. See People v. Armstrong , 720 P.2d 165, 169 (Colo. 1986) ("It is for the trier of fact to determine after the evidence has been presented at trial whether, under the totality of the circumstances, [the defendant] may be guilty of ... second degree assault[.]"). Officer Evans’ description of Payne’s arrest was useful for the jury to determine whether Payne was in custody at the time of the charged assault.

¶12 Accordingly, the trial court did not abuse its discretion by allowing Officer Evans’ testimony, and thus we perceive no plain error. See Hagos , ¶ 14 ; Rector , 248 P.3d at 1203.

III. Jury Instruction

¶13 Payne next argues that the trial court erred by failing to give a jury instruction defining "lawfully confined or in custody." We disagree.

A. Additional Background

¶14 Before closing arguments, the trial court instructed the jury on the presumption of Payne’s innocence and that the prosecution had to prove every element of each charged crime beyond a reasonable doubt. Regarding the second degree assault charge, lawfully confined or in custody, the trial court stated that the prosecution had to prove each of the following elements beyond a reasonable doubt:

(1) that the Defendant, (2) in the state of Colorado, at or about the date and place charged, (3) knowingly and violently, (4) while lawfully confined or in custody, (5) applied physical force against the person of a peace officer engaged in the performance of his duties (6) and the Defendant knew or should have reasonably known that the victim was a peace officer engaged in the performance of his duties.²

¶15 Although the jury was provided with some definitions — for terms such as "voluntary act" and "bodily injury" — the jury was not given a definition for "lawfully confined or in custody." Payne’s counsel had no objections or requests regarding the jury instructions.

B. Standard of Review, Preservation, and Applicable Law

¶16 We review de novo whether jury instructions accurately informed the jury of the relevant governing law, People v. Carbajal , 2014 CO 60, ¶ 10, 328 P.3d 104, but a trial court has substantial discretion in formulating jury instructions if "they are correct statements of the law and fairly and adequately cover the issues presented," People v. Nerud , 2015 COA 27, ¶ 35, 360 P.3d 201 (citation omitted). Thus, we review a trial court’s decision to give, or not to give, a particular jury instruction for an abuse of discretion. Day v. Johnson , 255 P.3d 1064, 1067 (Colo. 2011).

¶ 17 The parties agree that this issue was not preserved...