Peo v. Wertin

22CA2280 Peo v Wertin 05-15-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2280
Arapahoe County District Court No. 21CR1729
Honorable Ryan J. Stuart, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kevin Lee Wertin,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE BERGER*
J. Jones and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 15, 2025

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Casey J. Mulligan, Alternate Defense Counsel, Boulder, 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. 2024.
¶1 Defendant, Kevin Lee Wertin, appeals the judgment of

conviction entered on a jury verdict finding him guilty of attempted

first degree murder, conspiracy to commit first degree murder, first

degree assault, conspiracy to commit first degree assault, and the

lesser nonincluded offense of disorderly conduct.

¶2 Wertin contends that the district court erred by denying (1) his

request to instruct the jury on the affirmative defenses of

self-defense and defense of others and (2) his motion to suppress

statements that he made to the police during an interrogation. He

also contends that the cumulative effect of these errors deprived

him of a fair trial.

¶3 We address and reject each of these contentions and therefore

affirm the judgment of conviction.

I. Facts and Procedural History

¶4 On July 31, 2021, Emily Strunk called 911 to report that she

had shot someone in the head at her apartment. Upon arriving at

the scene, officers found Strunk outside with “a couple pairs of

brass knuckles” and “one 9mm round of ammunition” in her

pockets. Inside the apartment, officers discovered the

victim — later identified as Strunk’s neighbor and former romantic

1
partner — lying on the floor struggling to breathe and found a gun

on the counter in the bathroom.

¶5 Surveillance footage from Strunk’s apartment complex,

recorded just before the shooting, showed the victim leaving his

adjacent apartment while Wertin entered the hallway from Strunk’s

unit and intercepted the victim as he walked by. Wertin, who was

holding what appeared to be a pair of brass knuckles, followed the

victim to a stairwell where the two had a brief exchange before the

victim turned around with Wertin and followed him back into

Strunk’s apartment. The video further depicts Wertin fighting with

the victim in Strunk’s doorway. Wertin appeared to pull the victim

into Strunk’s apartment while the victim resisted. The two men

struggled on the floor just inside the door of Strunk’s apartment,

while Strunk stood over the two men, pointing a gun at the victim’s

head. Strunk then fired the gun, shooting the victim in the head.

¶6 After the police arrived, the victim was rushed to the hospital

for emergency surgery to remove bullet fragments from his skull.

The victim ultimately survived, with grave disabilities.

2
¶7 Wertin was not at the apartment when the police responded to

Strunk’s 911 call, but Strunk told the police that he was present at

the time of the shooting.

¶8 Wertin was arrested and charged with the crimes of which he

was later convicted. During a custodial interrogation with two

investigators, Wertin claimed that the victim was “terrorizing”

Strunk and Wertin in the lead-up to the incident. He also said that,

at the time he was seen fighting with the victim in the apartment

complex’s surveillance footage, he only used physical force to “keep

[the victim] from breaking in.” However, several text and voice

messages sent between Wertin and Strunk in the days leading up to

the shooting revealed that the two were angry with the victim and

had discussed killing him.

¶9 After a three-day trial, the jury found Wertin guilty of

attempted first degree murder, conspiracy to commit first degree

murder, first degree assault, conspiracy to commit first degree

assault, and the lesser nonincluded offense of disorderly conduct.

The district court sentenced Wertin to forty years in the custody of

the Department of Corrections.

3
II. Affirmative Defenses

¶ 10 Wertin first contends that the district court erred by rejecting

his tendered jury instruction on the affirmative defenses of

self-defense and defense of others and, as a result, allowed the

prosecution to convict him based on a standard of proof lower than

what the law requires. We disagree.

A. Preservation and Standard of Review

¶ 11 Although Wertin initially argued in this court that he

preserved this contention at trial, the People argue, Wertin concedes

in his reply brief, and we agree that he did not.

¶ 12 Because the arguments that Wertin made at trial in support of

his tendered self-defense and defense of others jury instruction are

materially different from those he now offers on appeal, he did not

preserve this claim of error. As a result, we will reverse only if the

unpreserved instructional error constitutes plain error. See Hagos

v. People, 2012 CO 63, ¶ 14; People v. Sa’ra, 117 P.3d 51, 54 (Colo.

App. 2004) (“Defendant objected to the escape instruction at trial on

grounds different from those he now complains of on appeal.

Therefore, we review his contention for plain error.”).

4
¶ 13 Plain error is an error that is both obvious and substantial.

Hagos, ¶ 14. An error is obvious if the act or omission challenged

on appeal contravenes a clear statutory command, a well-settled

legal principle, or Colorado case law. People v. Walker, 2022 COA

15, ¶ 68. An error is substantial if it so undermines the

fundamental fairness of the trial as to cast serious doubt on the

reliability of the conviction. Id. at ¶ 28.

B. Applicable Law

¶ 14 “Taken together, the Fifth Amendment Due Process Clause

and the Sixth Amendment guarantee of a trial by jury” preclude a

defendant from being convicted unless a jury finds the defendant

“guilty of having committed every element of the crime with which

he has been charged.” Sanchez v. People, 2014 CO 29, ¶ 13.

¶ 15 Affirmative defenses generally “seek to justify, excuse, or

mitigate the commission of the [charged] offense.” People v. Mullins,

209 P.3d 1147, 1149 (Colo. App. 2008). If the evidence presented

at trial properly raises the issue of an affirmative defense, the

affirmative defense “effectively becomes an additional element of the

charged offense, and the trial court must instruct the jury that the

prosecution bears the burden of proving beyond a reasonable doubt

5
that the affirmative defense is inapplicable.” Roberts v. People,

2017 CO 76, ¶ 22; see id. at ¶ 18 (trial courts have a duty to

instruct the jury on all matters of law applicable to the case). When

the jury is instructed on an affirmative defense, “the prosecution

must disprove beyond a reasonable doubt at least one of the

conditions of the affirmative defense.” People v. Harrison, 2020 CO

57, ¶ 34.

¶ 16 A defendant asserting the affirmative defense of self-defense

“admits that his use of force satisfies the elements of the charged

offense” but then contends that “the otherwise unlawful use of

physical force was justified because it was reasonably necessary to

defend himself or another from the victim’s use or imminent use of

force.” People v. Tardif, 2017 COA 136, ¶ 37; see § 18-1-704,

C.R.S. 2024. “[B]ecause self-defense justifies the use of physical

force, it can be an affirmative defense only to crimes of physical

force.” Tardif, ¶ 37. Accordingly, self-defense is not an affirmative

defense to crimes of conspiracy, as none of the elements of the

crime require the use of physical force. Id. at ¶ 38.

¶ 17 Wertin was convicted of the crimes of attempted first degree

murder and first degree assault on a complicity theory. Under this

6
theory, a defendant “is legally accountable as principal for the

behavior of another constituting a criminal offense if, with the

intent to promote or facilitate the commission of the offense, he or

she aids, abets, advises, or encourages the other person in planning

or committing the offense.” § 18-1-603, C.R.S. 2024.

¶ 18 To convict a defendant on a theory of complicity, the

prosecution takes on the added burden of proving that “(1) the

principal committed the crime; (2) the complicitor knew that the

principal intended to commit the crime; and (3) the complicitor,

having the requisite knowledge, aided, abetted, or encouraged the

principal in the commission of the crime.” People v. Theus-Roberts,

2015 COA 32, ¶ 35.

C. The District Court Did Not Commit Plain Error When It Failed
to Sua Sponte Instruct the Jury on Self-Defense as to Strunk’s
Criminal Liability

¶ 19 Wertin contends that, (1) because there was evidence to

support an argument that Strunk used physical force against the

victim to defend herself or others, and (2) because Wertin was

prosecuted under the theory of complicity, he was entitled to an

affirmative defense instruction on self-defense or defense of others

in regard to Strunk’s use of physical force. He argues that, by not

7
giving such an instruction, the district court permitted the jury to

convict Wertin on a lower burden of proof than what the law

requires. We reject this argument.

¶ 20 As noted above, Wertin concedes in his reply brief that plain

error review applies to his claim that the court erred by not

instructing the jury that Strunk (not Wertin) was entitled to a

self-defense or defense of others affirmative defense instruction.

¶ 21 This concession permits us to sidestep the perhaps difficult

issues that would have been presented had this claimed error been

preserved. In other words, even if we assume, without deciding,

that the court had erred in failing to give, sua sponte, an affirmative

defense instruction as to Strunk’s shooting of the victim, it did not

commit plain error by failing to do so.

¶ 22 A division of this court has rejected the proposition that a

defendant charged with conspiracy is entitled to a self-defense

instruction. Tardif, ¶ 38. Wertin concedes in his reply brief that

“the affirmative defenses of self-defense and defense of others are

inapplicable to the offense of conspiracy.”

¶ 23 But the complicity theory of criminal liability is materially

different than the theory of criminal conspiracy. Wertin’s argument

8
is essentially as follows: To convict on a complicity theory, the jury

must find that the principal committed the offense of which the

defendant is accused of being complicit. Theus-Roberts, ¶ 35. If the

government does not disprove an affirmative defense as to which

the principal actor is entitled, such as self-defense, the principal

arguably has not committed the offense, and an essential element of

complicity liability is negated.

¶ 24 But Wertin does not cite, nor are we aware of, any authority

that requires a self-defense instruction as to the actions of the

principal, not the complicitor. The absence of any authoritative

case law, a statute governing the situation, or generally accepted

legal principles clearly applying to this situation is fatal to finding

obviousness and thus plain error. See Walker, ¶ 68.

¶ 25 Not only is there no authority that would support a finding of

obviousness, but the only published Colorado case on point, People

v. McCoy, 944 P.2d 584 (Colo. App. 1996), also at least suggests

that no such affirmative defense instruction is necessary or

appropriate. In McCoy, the division said, “Under the circumstances

here, it is no defense to the crime charged under a complicity theory

9
or to the crime of conspiracy that the person with whom the

defendant acted is legally not responsible for the crime.” Id. at 588.

¶ 26 Admittedly, as Wertin contends, the facts of McCoy are

distinguishable from those presented in this case. And the McCoy

division did not suggest when its rule would not apply. But, viewed

through the lens of plain error review, McCoy provides no support

for a finding of plain error here. If anything, McCoy casts

substantial doubt on whether a trial court’s failure to give a

self-defense instruction as to the principal’s conduct constitutes

error, much less plain error.

¶ 27 Accordingly, we conclude that the district court did not

commit plain error by failing to sua sponte instruct the jury that

Strunk’s criminal liability was subject to a self-defense or defense of

others instruction.

¶ 28 Wertin’s related argument that he was entitled to a theory of

defense instruction that encapsulated his affirmative defense of

self-defense is equally unavailing. See People v. Garcia, 28 P.3d

340, 347 (Colo. 2001). Once again, the grounds he offered for the

instruction at trial are materially different from those he argues

here.

10
¶ 29 In essence, Wertin claims that the district court erred by not

providing a theory of the case instruction that his attorney did not

request. However, because Wertin’s theory of defense at trial was

different than that argued on appeal, the district court did not err

by failing to sua sponte give the jury a theory of defense instruction

not requested by his counsel. See Hansen v. State Farm Mut. Auto.

Ins. Co., 957 P.2d 1380, 1384 (Colo. 1998) (the court’s general duty

to instruct the jury does not require it to craft theory of the case

instructions that are not supported by competent evidence in the

record and are not requested by defense counsel).

III. Suppression of Evidence

¶ 30 Wertin next contends that the district court erred by denying

his motion to suppress certain statements that he made to the

police during a custodial interrogation after he allegedly invoked his

right to counsel. We disagree.

A. Relevant Facts

¶ 31 Wertin was arrested and interrogated by the police. At the

beginning of the interrogation, an officer advised Wertin of his

rights under Miranda v. Arizona, 384 U.S. 436 (1966). Roughly

11
halfway through the lengthy interrogation, the following exchange

took place:

INVESTIGATOR: Alright. So we’ve (laugh),
we’ve just made a big jump, from you guys
are . . . .

WERTIN: That’s all I’m gonna say —

INVESTIGATOR: Well, hear me out . . . we’ve
made this jump, from, you’re in the hallway —

WERTIN: That’s all I’m gonna say.

INVESTIGATOR: To, she shoots him.

WERTIN: That’s fine . . . I want a lawyer,
‘cause (sniff) . . . I didn’t expect all that to
happen, I thought it would just be a fight, that
situation, that’s a huge . . . from or something
like that, man.

INVESTIGATOR: Kevin, when you went
outside, did you know [the victim] was out
there?

WERTIN: Huh-uh.

The interrogation continued for another forty-five minutes. The

entire interrogation was audio- and video-recorded.

¶ 32 Wertin moved to suppress all statements he made to the police

after he allegedly asserted his right to counsel. At a hearing on

Wertin’s motion, the investigators who interrogated Wertin testified

12
that they did not hear his request for counsel during the

interrogation. The district court credited the investigators’

testimony and specifically found that “law enforcement, in fact, did

not hear the statement.”

¶ 33 In further support of its order denying the motion to suppress,

the court said, “[G]iven that it was such a quiet request for a

lawyer . . . and that Mr. Wertin kept asking — kept answering

questions after, . . . that request for an attorney was not an

unequivocal request on the part of Mr. Wertin.” The court

explained that “a request for an attorney has to be loud enough for

law enforcement to hear” and that Wertin’s whispered and

mumbled request did not meet that standard.

¶ 34 In light of the district court’s ruling, the prosecution

introduced the entire recording of Wertin’s interrogation at trial,

including his statements after his claimed invocation of the right to

counsel.

B. Applicable Law and Standard of Review

¶ 35 The Supreme Court’s holding in Miranda established that “an

accused has the right under the Fifth Amendment to the United

States Constitution to have an attorney present during custodial

13
interrogation.” People v. Kutlak, 2016 CO 1, ¶ 14 (citing Miranda,

384 U.S. at 444, 469-73). While the accused must be informed of

this right before law enforcement initiates custodial questioning,

see Miranda, 384 U.S. at 467-68, police officers are free to question

the accused if the accused knowingly and voluntarily waives his

right to counsel after receiving the required Miranda warnings.

Kutlak, ¶ 14 (citing Davis v. United States, 512 U.S. 452, 458

(1994)).

¶ 36 In Edwards v. Arizona, the Supreme Court further held that if

an accused invokes his right to have counsel present during

custodial interrogation, he “is not subject to further interrogation by

the authorities until counsel has been made available to him,

unless the accused himself initiates further communication,

exchanges, or conversations with the police.” 451 U.S. 477, 484-85

(1981); see Kutlak, ¶ 14. The applicability of the Edwards rule,

however, “hinges on whether the accused actually invoked his right

to counsel, which is an objective inquiry.” Kutlak, ¶ 15.

¶ 37 At a minimum, the invocation of the Miranda right to counsel

requires “some statement that can reasonably be construed to be

an expression of a desire for the assistance of an attorney.” Davis,

14
512 U.S. at 459 (quoting McNeil v. Wisconsin, 501 U.S. 171, 178

(1991)). In determining that the accused sufficiently invoked his

right to counsel, the court must find that the accused

“unambiguously request[ed] counsel,” meaning “he . . . articulate[d]

his desire to have counsel present sufficiently clearly that a

reasonable police officer in the circumstances would understand

the statement to be a request for an attorney.” Id.; see Kutlak, ¶ 24.

¶ 38 To make this determination, the Colorado Supreme Court

directs trial courts to consider the totality of the circumstances,

including such factors as (1) the words spoken by the interrogating

officer; (2) the words used by the accused in referring to counsel;

(3) the officer’s response to the accused’s reference to counsel;

(4) the speech patterns of the accused; (5) the demeanor and tone of

the interrogating officer; (6) the accused’s behavior during

interrogation; and (7) the accused’s youth, criminal history,

background, nervousness or distress, and feelings of intimidation or

powerlessness. Kutlak, ¶ 24. Critically, “unless the suspect’s

statement is an unambiguous and unequivocal request for counsel,

the officers have no obligation to stop questioning him.” Id. at ¶ 17.

15
¶ 39 A district court’s ruling on a motion to suppress evidence

presents a mixed question of fact and law. People v. Kessler, 2018

COA 60, ¶ 16. We defer to the district court’s factual findings if

they are supported by competent evidence in the record, but we

review the legal effect of those facts de novo. Perez v. People, 231

P.3d 957, 960 (Colo. 2010).

C. The District Court Did Not Err by Denying Wertin’s Motion to
Suppress

¶ 40 Wertin contends that the “totality of circumstances show that

[he] invoked his right to counsel,” and as a result, the district court

erred by admitting the statements he made after he invoked his

right to counsel.

¶ 41 Because a district court’s ruling on a motion to suppress

evidence presents a mixed question of fact and law, on review, we

defer to the district court’s factual findings if they are supported by

competent evidence in the record. Perez, 231 P.3d at 960. The

district court made explicit findings that the two investigators who

interrogated Wertin “in fact, did not hear the statement.” “[G]iven

that it was such a quiet request for a lawyer,” the district court

16
concluded that Wertin’s “request for an attorney was not an

unequivocal request on the part of Mr. Wertin.”

¶ 42 While the district court did not explicitly ground its ruling in

the objective standard and factors articulated by the Supreme

Court and Colorado case law, the court implicitly applied the law

set down by those courts, when it found that Wertin’s “quiet” and

mumbled request for counsel was not an unequivocal request for

counsel.

¶ 43 The district court’s factual finding that the investigators “in

fact, did not hear” Wertin’s invocation for counsel is supported by

the record and we must defer to that finding. See People v.

Minjarez, 81 P.3d 348, 353 (Colo. 2003) (“[W]e will defer to a trial

court’s findings of historical fact and credibility findings so long as

they are supported by competent evidence in the record.”).

¶ 44 While Wertin’s statement, “I want a lawyer,” facially appears to

be a request for counsel, even facially clear statements must be

articulated “sufficiently clearly that a reasonable police officer in the

circumstances would understand the statement to be a request for

an attorney.” Davis, 512 U.S. at 459. As the district court observed

and our independent review of the recording confirms, Wertin

17
repeatedly mumbled his words, and many of his statements —

including the claimed invocation of the right to counsel — are

barely discernible, even after multiple viewings (much less in real

time).

¶ 45 Based on our own evaluation of the recording as well as the

district court’s factual findings, we conclude that the district court

did not err when it ruled that Wertin did not sufficiently invoke his

right to counsel. Thus, the district court properly denied Wertin’s

motion to suppress.

IV. Cumulative Error

¶ 46 Wertin contends that the district court committed multiple

errors, entitling him to reversal based on the cumulative error

doctrine.

¶ 47 “For reversal to occur based on cumulative error, a reviewing

court must identify multiple errors that collectively prejudice the

substantial rights of the defendant, even if any single error does

not. Stated simply, cumulative error involves cumulative

prejudice.” Howard-Walker v. People, 2019 CO 69, ¶ 25 (citation

omitted).

18
¶ 48 We have implicitly assumed one error but found it not

obvious. Cumulative error requires multiple errors, so even if there

was a single error, it was insufficient to implicate the cumulative

error doctrine. Therefore, there was no cumulative error.

V. Disposition

¶ 49 The judgment of conviction is affirmed.

JUDGE J. JONES and JUDGE YUN concur.

19