Peo v. Tewolde

22CA1267 Peo v Tewolde 08-21-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1267
Arapahoe County District Court No. 19CR1290
Honorable Michelle A. Amico, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Youhannis Kesete Tewolde,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE FREYRE
Gomez and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 21, 2025

Philip J. Weiser, Attorney General, Patrick A. Withers, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kelly A. Corcoran, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Youhannis Kesete Tewolde, appeals his convictions

of vehicular assault, menacing, and third degree assault. We affirm

the judgment.

I. Background

¶2 Late one night in April 2019, Tewolde and the victim got into a

fight in the parking lot of an event center. Two of the victim’s

friends saw the unconscious victim on the ground and Tewolde

standing over him yelling, “I’ll kill him, it’s not done, I’m not done.”

As the friends helped the victim, Tewolde walked to his car and

yelled, “I’ll kill you” multiple times. Shortly thereafter, Tewolde

drove his car into the victim and injured him.

¶3 The state charged Tewolde with attempt to commit first degree

murder, two counts of first degree assault, vehicular assault,

menacing, and two counts of crime of violence sentence enhancers.

A jury found him guilty of vehicular assault, menacing, and third

degree assault, and acquitted him of the remaining charges. The

court sentenced Tewolde to three years of probation.

¶4 On appeal, Tewolde contends that the trial court violated both

his statutory and constitutional speedy trial rights. He also argues

that one of the prosecutor’s peremptory strikes was racially

1
motivated in violation of Batson v. Kentucky, 476 U.S. 79 (1986).

We discern no errors and affirm the judgment.

II. Statutory and Constitutional Speedy Trial

A. Statutory Speedy Trial

¶5 Tewolde’s contention that his speedy trial rights were violated

centers on the first trial setting (October 19, 2020), at which

defense counsel refused to comply with the county’s COVID-19

social distancing restrictions. He argues that he was forced to

choose between his right to a speedy trial and his right to counsel.

Consequently, he asserts that this choice rendered his waiver of

speedy trial involuntary. Alternatively, Tewolde argues that even if

his waiver was valid, the delay should be chargeable to the court

and not him. We address each contention separately.

1. Relevant Facts

¶6 On July 16, 2020, Tewolde pleaded not guilty, making the

statutory speedy trial deadline January 18, 2021. The court set

trial for October 19, 2020.

¶7 As discussed further in Part II.A.3., on October 19, 2020,

defense counsel objected to the seating arrangement mandated by

the COVID-19 social distancing restrictions, so Tewolde waived his

2
speedy trial right, and the court reset the trial to December 14,

2020. The court noted a new speedy trial deadline of April 19,

2021.

¶8 On December 4, 2020, the trial court declared a mistrial due

to COVID-19. Tewolde moved to dismiss for a violation of speedy

trial. He argued that he had not voluntarily waived his right to

speedy trial in October and that the speedy trial deadline remained

January 18, 2020. The court denied the motion and reset trial for

February 1, 2021.

¶9 At the January 26, 2021, readiness conference, the court

again declared a mistrial due to COVID-19 and reset trial for April

19, 2021.

¶ 10 On April 15, 2021, the prosecutor moved for a continuance

due to witness unavailability. The trial court granted the motion

and reset trial for May 24, 2021.

¶ 11 On May 18, 2021, Tewolde asserted his right to a speedy trial

while also requesting substitute counsel. Following a hearing, the

court appointed substitute counsel. New counsel moved to

continue the trial, and Tewolde waived his right to a speedy trial.

3
The court granted the motion, reset the trial for September 27,

2021, and noted a new speedy trial deadline of November 24, 2021.

¶ 12 On September 24, 2021, Tewolde again requested substitute

counsel. The court granted the request, new counsel moved to

continue the trial, and Tewolde waived his speedy trial right. The

court reset the trial for January 10, 2022, and noted a new speedy

trial deadline of March 28, 2022.

¶ 13 On January 4, 2022, the court again declared a mistrial due to

COVID-19. Tewolde objected. Trial was reset for March 14, 2022,

and the trial court calculated a speedy trial deadline of June 6,

2022.

¶ 14 On March 10, 2022, the trial court declared a mistrial on its

own motion because Tewolde’s interpreter was unavailable for the

March 14 trial date. Tewolde’s trial began on April 18, 2022, before

the June deadline.

2. Standard of Review and Applicable Law

¶ 15 We review the trial court’s denial of a motion to dismiss for

violation of the defendant’s speedy trial rights as a mixed question

of law and fact. People v. Curren, 2014 COA 59M, ¶ 13. We will not

disturb the court’s factual findings if they are supported by the

4
record. Id. But we review de novo the court’s application of the

controlling legal standard. Id. We review the court’s decision

whether to declare a mistrial for an abuse of discretion. People v.

Eason, 2022 COA 54, ¶ 29. A court abuses its discretion if its

decision is manifestly arbitrary, unreasonable, or unfair. People v.

DeAtley, 2014 CO 45, ¶ 13.

¶ 16 Section 18-1-405, C.R.S. 2024 guarantees criminal defendants

the right to a speedy trial. People v. Kirby, 2024 COA 20, ¶ 15

(citing People v. McMurtry, 122 P.3d 237, 240 (Colo. 2005)).

Specifically, the statute requires that a defendant be brought to trial

within six months of entering a guilty plea unless the time for trial

is extended or tolled for one of several statutorily specified reasons,

§ 18-1-405(1), including, as relevant here:

• a defense-requested trial continuance resets the six

month deadline, see § 18-1-405(3);

• a mistrial tolls the six-month deadline for up to three

months, see § 18-1-405(6)(e);

• any delay “caused at the instance of the defendant” tolls

the six-month deadline, see § 18-1-405(6)(f); and

5
• a prosecution requested continuance tolls the deadline if,

despite the prosecution’s best efforts, evidence is

unavailable but likely will become available, see

§ 18-1-405(6)(g)(I).

¶ 17 During the COVID-19 public health crisis, our supreme court

amended Crim. P. 24(c)(4) to permit a trial court on its own motion

to “declare a mistrial in a case on the ground that a fair jury pool

cannot be safely assembled in that particular case due to a public

health crisis or limitations brought about by such crisis.”

¶ 18 “[W]hen a trial court declares a mistrial, including under Rule

24(c)(4), the only delays excludable from the computation of time

within which a defendant must be brought to trial are those that

are: (1) reasonable, (2) attributable to the mistrial, and (3) not in

excess of three months.” People v. Sherwood, 2021 CO 61, ¶ 26.

“[T]he entire delay between the mistrial and the new trial date . . .

[is] properly excluded from the speedy trial period.” Id. at ¶ 28.

¶ 19 A defendant may waive a statutory right, and such a waiver

need only be voluntary to be valid. People v. Wiedemer, 852 P.2d

424, 438 (Colo. 1993). A defendant’s waiver is voluntary when it is

not coerced “either physically or psychologically.” People v. Walker,

6
2014 CO 6, ¶ 16 (quoting People v. Mozee, 723 P.2d 117, 121 n.4

(Colo. 1986)).

3. Voluntariness of Waiver

¶ 20 Tewolde first contends that his speedy trial waiver on October

19, 2020, was neither knowing nor voluntary and thus, that speedy

trial expired on January 18, 2021. He argues that the court forced

him into a “constitutionally offensive” choice between two

constitutional rights, rendering any waiver ineffective. We disagree

because the record does not support this contention.

¶ 21 On October 16, 2020, Tri-County Health1 issued an order

stating that individuals participating in gatherings “must follow all

public health laws and orders concerning Face Coverings and must

comply with Social Distancing Requirements whenever possible.”

However, when the parties appeared for trial, defense counsel

requested that he, his paralegal, and Tewolde be permitted to sit at

counsel table. Counsel explained that he would not be able to

proceed to trial with the six-foot distancing requirement and that

such requirement violated Tewolde’s right to a fair trial and effective

1 Tri-County Health was a public health agency that served Adams,

Arapahoe, and Douglas counties.

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assistance of counsel. The court explained that the trial could only

proceed if they followed the order. The following colloquy then

occurred:

COURT: The Court would take as many breaks
as necessary for counsel to communicate with
his client, communicate with his investigator.
I don’t find that taking more breaks to allow
that communication to occur would affect Mr.
Tewolde’s right to a fair trial under the
Constitution. So is the request being made to
continue the trial with a waiver of speedy trial?

DEFENSE COUNSEL: I’m not going to waive
speedy trial, but I’m not going to trial today.

COURT: Then we’ll proceed today, and we’ll
comply with the social distancing guidelines or
be subject to contempt.

DEFENSE COUNSEL: I understand that,
Judge. And I will be held in contempt.

COURT: Pardon me?

DEFENSE COUNSEL: I’ll be in contempt.

COURT: [Defense counsel] are you telling me
that you are not going to comply with the
Court’s order today?

DEFENSE COUNSEL: That’s correct. I’m not
going to comply with the Court’s order.

8
¶ 22 After a brief recess, defense counsel maintained his position

and asked the court to speak with Tewolde regarding speedy trial.

COURT: Mr. Tewolde, we’re in a situation
today that’s difficult. That’s not the result of
any one person in this courtroom, but the
result of a pandemic that no one thought we’d
be facing. You have the right to have trial
today. I can give you that trial today. I have
jurors downstairs waiting to hear your case
today.

I am obligated to follow Tri-County Health’s
orders with respect to social distancing.
Meaning during this trial everybody in this
courtroom will have to maintain six feet of
social distancing. The jurors will be spread six
feet out around the courtroom. We’ve
approved this arrangement with Tri-County
Health. So we can’t make any changes today
to the trial. And we can’t go forward unless we
follow Tri-County Health’s Orders.

You have the right to a speedy trial. You also
have the right to effective assistance of
counsel. And your attorney is saying that he’s
not going to be able to effectively represent you
if he can’t be within six feet of you or your
investigator during the trial consistently.

So you have a choice to make. We can either
go forward to trial today and I would enforce
the social distancing requirements. You could
also request a continuance of your trial to a
date uncertain. I mean, we would give you a
date, but I don’t know what the state of our
global health pandemic will be in, and I don’t

9
know what Tri-County Health’s orders will be
when we’re scheduled for our next trial.

If you request a continuance of the trial, and I
were to grant it, it would require you to waive
your right to a speedy trial. Meaning the
District Attorney would have six months from
today’s date to try your case. It doesn’t mean
that we would set your case out that far. I’d
try to set these cases as quickly as possible.
And I’m aware of the fact that you’ve been in
custody for a long time. So I would try and try
your case sooner, rather than later in that
six-month period. But it would give the
District Attorney the right to – or the ability to
try your case within those six months.

Do you understand the rights that you have
and the choices that – the options that you
have today?

TEWOLDE: Yes. Yes, Your Honor.

COURT: What do you want to do, Mr. Tewolde?

TEWOLDE: I object, but I would do it to get my
attorney from jail. I would waive the speedy
trial to keep him out of jail.

....

COURT: Has anybody forced you, or coerced
you, or put pressure on you to get you to make
this decision?

TEWOLDE: No, Your Honor.

COURT: Are you thinking clearly today.

....

10
TEWOLDE: Yes, Your Honor.

COURT: Are you under the influence of any
drugs, alcohol, or medications which affect
your ability to think clearly?

TEWOLDE: No, Your Honor.

¶ 23 The prosecutor then requested further clarification concerning

the waiver.

COURT: And then to clarify, Mr. Tewolde, you
said that you are willing to waive speedy trial
because you don’t want – you’re concerned
that your attorney may go to jail for violating
the Court order? Is that your reason?

TEWOLDE: Yes, Your Honor.

COURT: The Court will find it’s a knowing and
voluntary waiver of the right to a speedy trial,
free from coercion. No one has forced Mr.
Tewolde to waive his right to a speedy trial, or
coerced him. It’s the facts that are present.
And he’s making a choice between a number of
bad options. But I do find it’s a knowing and
voluntary choice that he’s making.

¶ 24 The prosecutor expressed concerns about the validity of

Tewolde’s waiver, and defense counsel asserted that the

constitutional right to effective assistance of counsel “trump[ed]” the

statutory speedy trial right.

¶ 25 The court responded:

11
COURT: Whenever, somebody’s faced with a
choice to waive speedy trial, it’s usually the
result of some reason, whether a witness didn’t
show up and they would like to – the
Defendant would like to have that witness
present for his trial, or isn’t feeling well, or
whatever the reason.

In this case, it’s a unique reason. The reason
is that we can only go to trial, under
Tri-County Health orders, if everybody
maintains six feet of social distancing. It’s
difficult. It’s difficult to try a case that way. I
understand that. And it may be the desire of a
defendant to want to be able to be within six
feet of his attorney, to have his attorney six
feet – within six feet of his paralegal, and that’s
a choice he can make.

His attorney has stated that – in no uncertain
terms, that he will not follow the Court’s order
to maintain social distancing because he does
not believe that he can be effective and to do
so.

I didn’t threaten jail. That’s not – I don’t think
Mr. Tewolde is making a choice, and I want to
make sure. Mr. Tewolde, you’re not making
this choice because you think that I’ve said
that I’m going to put your attorney in jail, if
you don’t make this choice; is that right?

TEWOLDE: Yeah, I want him to represent me,
so – and if he don’t – if he don’t follow the rule,
you’re going to find him in contempt. And I
don’t want him to be in any trouble.

COURT: He may be unavailable. He said that
he’s not going to try this case if he has to
follow the rule. Which means you may not

12
have an attorney able to help you out during
the trial, if we go forward today and he doesn’t
follow that rule.

Now, you have the right, I guess, to go without
an attorney. But you’re telling me that you
want to have [defense counsel] with you during
this trial; is that right?

TEWOLDE: Yes, Your Honor.

COURT: Do I understand you correctly, that
that’s your reason for wanting this
continuance and your willingness to waive
speedy trial, so that [defense counsel] can be
physically present and represent you, and be
helpful during this trial?

TEWOLDE: Yes, Your Honor.

COURT: Again, I find there’s a knowing and
voluntary waiver. It’s a difficult choice for any
defendant to make. He’s making this choice
based upon how the trial would look, if we
were to proceed under the social distancing
guidelines.

¶ 26 We discern no error in the court’s advisement and conclude

that Tewolde’s decision to waive speedy trial so that counsel would

continue to represent him was voluntary. Defense counsel’s refusal

to try the case under the county’s restrictions left Tewolde with two

options. He could either go forward without counsel (and preserve

his speedy trial right) or request a continuance to accommodate

counsel’s concerns, which required him to waive his speedy trial

13
right. Contrary to Tewolde’s contention, it was counsel’s actions,

not the court’s or the prosecutor’s actions, that forced this choice.

Thus, the court’s requirement that Tewolde decide between these

choices was necessary under the circumstances. Moreover, the

record shows that the court provided Tewolde with a lengthy

advisement and clarified the choices he faced. See People v.

Arguello, 772 P.2d 87, 93-96 (Colo. 1989) (to determine whether

waiver is voluntary, the court must undertake a sufficient inquiry);

see also Pazden v. Maurer, 424 F.3d 303, 313 (3d Cir. 2005).

Indeed, Tewolde acknowledged that he understood that a waiver

reset the statutory speedy trial clock, and he responded “no” when

the trial court asked if his decision was the result of coercion.

Based on the lengthy colloquy and the absence of anything in the

record to suggest Tewolde was confused, we conclude that his

wavier was voluntary.

¶ 27 For the same reasons, we reject Tewolde’s assertion that the

delay was chargeable to the trial court rather than the defense. As

previously discussed, it was defense counsel’s refusal to comply

with the county health department guidelines that created the

14
choice about which Tewolde now complains. And the record shows

that the court was willing to proceed with the trial.

¶ 28 We are not persuaded otherwise by Tewolde’s reliance on

People v. Arledge, 938 P.2d 160 (Colo. 1997). In Arledge, the

defendant filed a Motion to Disqualify the trial judge. Id. at 162.

The trial judge originally denied the motion, but five weeks later,

and one business day before trial, the court granted the motion and

obtained the defendant’s speedy trial waiver. Id. The supreme

court concluded that the recusal motion was brought in a timely

manner, and the disqualification issue was later reopened by the

trial judge. Id. at 166. In other words, the defendant did not

actively participate in causing the delay. Id. Thus, the court could

not require a speedy trial waiver, and the delay was chargeable to

the trial court. Id.

¶ 29 In contrast, to Arledge, defense counsel here actively

participated in causing the delay. Therefore, we conclude the delay

is chargeable to the defense and conclude that speedy trial did not

run on January 18, 2021.

¶ 30 Given our conclusion that Tewolde’s waiver on October 19,

2020, was knowing and voluntary, we conclude that at no point

15
between Tewolde’s not guilty plea and the trial did the speedy trial

deadline expire.

• On October 19, 2020, the speedy trial date was April 19,

2021.

• On December 4, 2020, the trial court declared a

COVID-19 mistrial, so speedy was tolled. At this point,

forty-six days had elapsed, and 134 days remained.

• On January 26, 2021, the trial court declared another

COVID-19 related mistrial. This tolled the speedy trial

deadline with 134 days remaining.

• On April 15, 2021, the prosecutor moved to continue.

Speedy trial was tolled with 134 days remaining.

• On May 20, 2021, the trial court substituted counsel,

Tewolde waived speedy trial and counsel moved to

continue. The speedy trial deadline was reset to

November 24, 2021.

• Again, on September 27, 2021, the trial court substituted

counsel, Tewolde waived speedy trial, and counsel moved

to continue. The speedy trial deadline was reset to May

27, 2022.

16
• On January 4, 2022, the trial court declared another

COVID-19 related mistrial. The speedy trial deadline was

tolled. At this point, ninety-nine had days elapsed, and

eighty-one days remained.

• On March 10, 2022, the court declared a mistrial on its

own motion because of Tewolde’s interpreter’s

unavailability. The speedy trial deadline was tolled.

Ninety-nine days had elapsed, and eighty-one days

remained.

• Tewolde went to trial on April 18, 2022.

¶ 31 Accordingly, Tewolde’s statutory speedy trial rights were not

violated.

B. Constitutional Speedy Trial

¶ 32 Tewolde contends that even if his statutory speedy trial rights

were not violated, the significant delay of more than three years

between his not guilty plea and the trial date violated his

constitutional right to a speedy trial. We are not persuaded.

1. Standard of Review and Applicable Law

¶ 33 We generally review the trial court’s legal analysis of the

constitutional right to a speedy trial de novo and its findings of fact

17
for clear error. People v. West, 2019 COA 131, ¶ 27. But here,

Tewolde did not assert his constitutional right to a speedy trial in

the trial court. We therefore review this issue for plain error. See

People v. Jompp, 2018 COA 128, ¶ 14. Plain error is obvious and

substantial and must be so grave that it undermines the

fundamental fairness of the trial court proceedings as to cast

serious doubt on the reliability of the judgment and convictions. Id.

¶ 34 The United States and Colorado Constitutions guarantee all

criminal defendants the right to a speedy trial. U.S. Const. amend.

VI; Colo. Const. art. II, § 16; Moody v. Corsentino, 843 P.2d 1355,

1363 (Colo. 1993). We apply a four-factor balancing test to assess

whether a defendant’s constitutional speedy trial rights were

violated: (1) the length of the delay; (2) the reasons for the delay;

(3) the defendant’s assertion of the right; and (4) the prejudice to

the defendant. Moody, 843 P.2d at 1363 (citing Barker v. Wingo,

407 U.S. 514, 530 (1972)); see also People v. Chavez, 779 P.2d 375,

376 (Colo. 1989) (noting the Barker test also governs the

determination of a speedy trial claim under the Colorado

Constitution). The defendant bears the burden of establishing that

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the defendant’s constitutional speedy trial rights have been denied.

Moody, 843 P.2d at 1363.

2. Application

¶ 35 Concerning the first Barker factor, we conclude that the more

than three-year delay between Tewolde’s not guilty plea and the

trial is presumptively prejudicial and weighs in Tewolde’s favor.

¶ 36 Regarding the second Barker factor, Tewolde contends that the

reasons for the delay were varied. We agree. However, our review

of the record leads us to conclude that most of the delays were

either neutral or attributable to the defense and thus, that this

factor weighs against Tewolde. The court declared COVID-19

mistrials on numerous occasions, and we view the delays

attributable to these mistrials as neutral. See United States v.

Keith, 61 F.4th 839, 853 (10th Cir. 2023) (finding that “COVID-19

[is] a truly neutral justification — not favoring either side”).

¶ 37 Additionally, on two separate occasions, Tewolde requested,

and the court granted, his request for substitute counsel. On both

occasions, Tewolde’s new counsel requested a continuance to

prepare for trial. The delays attributable to these requests weigh

against Tewolde.

19
¶ 38 The remaining delays were due to (1) the unavailability of the

prosecution’s witness, and (2) the unavailability of Tewolde’s

interpreter. Witness unavailability is a valid reason for a delay. See

Barker, 407 U.S. at 531 (a valid reason, such as a missing witness,

should serve to justify appropriate delay). Further, despite the

delay due to Tewolde’s interpreter’s unavailability, Tewolde’s trial

commenced within the speedy trial deadline. Therefore, this factor

weighs against Tewolde.

¶ 39 Concerning the third Barker factor, the record shows that

Tewolde continually asserted his right to a speedy trial, other than

those times where he waived speedy trial to accommodate counsel.

Therefore, this factor weighs in his favor.

¶ 40 Concerning the fourth Barker factor, we conclude that Tewolde

has not shown he was materially prejudiced by the delay.

¶ 41 Prejudice is assessed by weighing three interests that the right

to speedy trial protects: “(i) to prevent oppressive pretrial

incarceration; (ii) to minimize anxiety and concern of the accused;

and (iii) to limit the possibility that the defense will be impaired.”

Moody, 843 P.2d at 1367 (quoting Barker, 407 U.S. at 532). “Of

these, the most serious is the last, because the inability of a

20
defendant adequately to prepare his case skews the fairness of the

entire system.” Barker, 407 U.S. at 532.

¶ 42 Tewolde contends that he was prejudiced by the delay because

(1) he experienced anxiety and concern about his prolonged

incarceration and (2) because his incarceration occurred during the

pandemic, he had particularly limited access to counsel and an

inability to prepare his defense.

¶ 43 While we recognize the impact of Tewolde’s lengthy

incarceration and the unusual circumstances under which they

occurred, we note that Tewolde did not explain how the delay

caused him any more anxiety or concern than the average criminal

defendant, and that he failed to provide any specific examples of

how his anxiety, concern, or distress resulted in prejudice. See

People v. Valles, 2013 COA 84, ¶ 50, cert. granted on other grounds,

judgment vacated, and case remanded, No. 13SC551, 2015 WL

4999239 (Colo. Aug. 24, 2015) (unpublished order); see also People

v. Nelson, 2014 COA 165, ¶ 41 (noting that the defendant

“presented no evidence or offer of proof to establish any such

anxiety or concern beyond that normally to be expected from the

fact of a criminal prosecution”). Moreover, Tewolde does not specify

21
how long he lacked access to counsel, how his limited access to the

law library impacted his defense given that he was represented by

counsel, or how his defense would have changed had his pretrial

detention been shorter. Under these circumstances, we conclude

this factor weighs against Tewolde.

¶ 44 Weighing all of the factors, we discern no violation of Tewolde’s

constitutional right to a speedy trial.

III. Batson Challenge

¶ 45 Tewolde next contends the trial court erroneously denied his

Batson challenge to G.Y. We are not persuaded.

A. Additional Facts

¶ 46 G.Y.’s juror questionnaire asked whether there was any reason

she could not be a fair and impartial juror, and G.Y. responded,

“lack of sleep yes.”

The prosecutor asked G.Y. about her answer.

PROSECUTOR: [G.Y.], I’m going to come back
to you. You indicated that you maybe have a
lack of sleep and that might affect your ability
to serve as a juror?

G.Y.: Yes. Circling back to that, I work with a
nursing facility and I work overnights and so I
came straight from there to here to serve my
jury trial.

22
PROSECUTOR: Thank you for coming, that
must be hard. Think that that would affect
your ability to pay attention to the trial?

G.Y.: Well, I had extra coffee, so I think I
should be good to go.

¶ 47 Later in voir dire, the prosecutor discussed the elements of the

charges and in particular, the deadly weapon element. He asked

another prospective juror if they thought a car could be a deadly

weapon, and the juror responded affirmatively. The prosecutor

then asked G.Y. her thoughts.

G.Y.: I disagree.

PROSECUTOR: Why?

G.Y.: I think a weapon becomes a weapon
when held by someone with ill-intention.

PROSECUTOR: Let’s talk about ill-intention a
little bit.

Crimes have – or at least the crimes in this
case – have both a mental state and a physical
action associated with it. So when we talk
about a mental state, we’re talking about
somebody acting intentionally or knowingly or
recklessly or with negligence, right, those are –
the criminal legal world that we’re in.

How do you know if someone acted
intentionally or how you said, it was
ill-intentioned?

23
G.Y.: You have concrete evidence. There will
always be a form of evidence to speak for itself,
whether it’s witnesses saying this is what I saw
or whether it’s whatever was used with
ill-intention. You’ll have that presenting
against the person with ill-intentions.

PROSECUTOR: Okay. So you mentioned that
you didn’t think that like a car, vehicle, could
be a deadly weapon?

G.Y.: My words exactly were it could if – it
could be providing that the person using it had
ill-intentions.

PROSECUTOR: Okay. And can you think of
some examples as to how that would be?

G.Y.: Let’s say a couple gets in a fight in their
apartment and one of them has to be
hospitalized and now you’re in court having a
court case for a completely different reason.
One of the couple could say, I used this
weapon as self-defense versus the other could
say, I used this weapon for this and this
purpose.

So then it’s up to the – their attorney, their
lawyer, to find hard evidence pinpointing
whether that person, what they’re saying is
true or not.

¶ 48 Finally, the prosecutor asked:

PROSECUTOR: Is there anybody here that just
says, I don’t trust police officers, never will?
No matter what they say, I’m not listening to
it? Does anybody fall in that category? Show
of hands. I see no hands.

24
Go ahead, [G.Y.].

G.Y.: Not following that, but I have had
incidents where I didn’t feel like I was treated
fairly when pulled over. So maybe it would
make me a little skittish, but that wouldn’t
sway my opinion of choosing whether the
person being tried is guilty or not.

PROSECUTOR: Okay. So you’d be able to set
those personal experiences aside?

G.Y.: Yes.

¶ 49 Later, defense counsel discussed the burden of proof.

DEFENSE COUNSEL: [G.Y.] do you believe
that it is fair that the District Attorney’s Office
has the burden of proof?

G.Y.: In terms of?

DEFENSE COUNSEL: In a criminal case, all
evidence has to come from them. It’s their job
to try to prove to a jury beyond a reasonable
doubt as to whether he’s guilty or not, do you
think it’s fair that it comes from them?

G.Y.: I personally think that both parties
should have the right to prove otherwise.

DEFENSE COUNSEL: Okay. How do you
prove you’re innocent?

G.Y.: Well, if you’re representing the person
being tried, then you’re going to look for hard,
concrete evidence pointing to his innocence.
And so that’s why I’m saying that both parties,
whoever is representing them, should have to
prove their innocence.

25
DEFENSE COUNSEL: So let’s say the
prosecution provides all their evidence, okay,
and they say, we’re done, here’s all the
evidence that we have, ladies and gentlemen,
all right, and Mr. Tewolde and I don’t do
anything. If they have given you proof beyond
a reasonable doubt, what’s your verdict?

G.Y.: Well, if you’re just sitting there and not
doing anything, then how can you be a voice
for yourself and that person being tried doesn’t
get their own voice, you’re not going to be the
voice – I’m not hearing their voice being
represented by you, so I’m saying both parties
–

DEFENSE COUNSEL: And I hear you. You
should be in philosophy school. And the
conversation is awesome.

Legally speaking, though, it is the District
Attorney’s job to prove a case beyond a
reasonable doubt, period, because they’re
doing the charging, that’s their job. They
brought the charges, okay.

So if I accuse you of – or if I accuse you or I
accuse somebody of doing something, it’s my
job, does that make sense? Does that seem
fair to you or are you still struggling with both
sides?

G.Y.: Can you rephrase it in a more simpler
term for me? I’m not really understanding.

DEFENSE COUNSEL: Welcome to my life. So
the District Attorney’s Office, the government,
brought the charges, right, they’re – they’ve
brought charges against Mr. Tewolde, right,
and so it is their job, they’re doing – old lawyer

26
that I used to work with, doing the accusing,
you got to do the proving. So if they’re doing
the accusing, they’ve got to do the proving.
Does that make sense?

G.Y.: Yes.

DEFENSE COUNSEL: Are you comfortable
with that idea?

G.Y.: Now I am speaking for the fact that
they’re accusing the person being tried of
something, then they have to prove whether
guilty or not?

DEFENSE COUNSEL: Thank you.

¶ 50 The prosecutor exercised a peremptory challenge on G.Y., and

the defense counsel raised a Batson challenge.

¶ 51 When the trial court asked for the prosecutor’s race-neutral

reason, he responded:

PROSECUTOR: Your Honor, I want to first
begin with what we know from the
questionnaire and then how that was
expanded upon with questioning of the witness
– or the juror – during voir dire as well as some
of her responses or lack thereof to both
parties.

She did mention in her questionnaire that she
has been suffering from lack of sleep. She is a
– she works at an advanced-age nursing home
as an assistant and said that she works nights
and that she had not slept last night and came
straight from work after a night shift.

27
She was asked about that and is displaying
clear visual clues, droopy eyes, slow speech,
that she is tired, but did mention that she’s
perked up right now by caffeine, which of
course is not an ideal way for a person to be
alert and attentive during a criminal trial.

She also responded first to questions from [the
prosecutor] specific to what a deadly weapon
is. A question was asked in the form of her
fellow jurors who said that really anything
could be used as a deadly weapon.

We then moved on to [G.Y.] who said that she
decidedly disagreed that specifically an item
only becomes a weapon – or rather in her
words, a weapon becomes a weapon when a
person holds it or possesses it with ill-intent.

There’s a multitude of problems the People see
with that. First of all, it’s not our burden to
apply the mens rea to just the definition of
deadly weapon. The finding of a deadly
weapon is separate and apart from that and
it’s something that this juror has already
displayed is difficult for her to reconcile in a
way that would raise the People’s burden. Of
course intent is part of our burden, but not as
it relates to just the definition of a deadly
weapon.

Additionally, when questioned on – or by
[defense counsel] [G.Y.] seemed to really
struggle with the concept of the presumption
of innocence and beyond a reasonable doubt
and who the burden of proof applies to.

Specifically, it was a journey to get her to a
position where she seemed to grasp at least
partially the idea that the Defense does not

28
have a burden of proof and that they [must
not] prove the innocence of the defendant.

In doing that, her confusion around the
burden gives the People concern for how she
may deliberate, how she may understand her
role as a juror, and if she will be able to be
assistive and fair to the – to really either party,
but especially the People if she was confused
about the burden.

The final thing that she had discussed, at one
point we had – [the prosecutor] had offered the
entire panel, including those not sitting in the
jury box, an opportunity to voice if they had
any negative opinions specific to police officers.

This witness, or excuse me, this juror did raise
her hand. She was the only person, as I recall
it, that did raise her hand to answer that
question and noted that she feels she’s been
treated unfairly in the past and would have
difficulty trusting a police officer. She
specifically said she’s a little skittish about
police.

A lot of the People’s witnesses in this case are
police officers and it would be unfair to the
People if there was any members of a fair and
impartial jury that started a police officer at a
lower sense of credibility than any other
witness just by virtue of their occupation and
before giving them a chance to speak and
make an assessment of this where credibility
based on the totality of the circumstances, the
testimony they give, whether or not this is
corroborated by other witnesses, et cetera.

So that being said, the People have four or five
legitimate concerns about [G.Y.]’s likelihood to

29
be a fair and impartial juror and that accounts
for 100 percent of the People’s rationale and
motivation for utilizing a peremptory challenge
on her.

Her perception of race, ethnicity, national
origin, is not something that came into the
People’s consideration in any way, shape or
form.

¶ 52 Defense counsel then responded:

DEFENSE COUNSEL: First of all, Your Honor,
as it relates to the questionnaire, it’s pretty
bare-boned as it relates to the questionnaire.
Some of it was kind of entertaining in the
sense that she said that she was broke, but
they were answered honestly and openly.

Regarding the lack of sleep, counsel asked her
how she was doing. She was – said, I’m doing
okay, I have coffee, I’m okay. Asked how, you
know, never indicated that there would be a
problem. And she’s not shy about talking, so
she never indicated that there was a problem.

The other part of it, Your Honor, counsel’s
perception about droopy eyes and all that, I
don’t see. I can tell you she has not ever
closed her eyes, she has not ever gotten – gone
to sleep. She’s looked down. Even right now
she’s playing on her phone looks like, but she’s
looked down, but never given any sort of
indication, except being attentive, and she
answers the questions that are being asked of
her.

Regarding the deadly weapon discussion, Your
Honor, the definition of a deadly weapon in
layperson’s terms is pretty darn close to what

30
she’s talking about. A deadly weapon, unless
it’s a gun or a bludgeon, I don’t have the
instruction in front of me, the instruction – but
basically the instructions themselves talk
about the manner in which they are used.

And I apologize, I don’t have the definitions off
the top of my head as it relates to the COLJI
instructions, but it does discuss that the
deadly weapon is also in the manner in which
it was used. So that’s exactly what she’s
talking about. It doesn’t change their burden,
it is what the – my reading of the definition
talks about.

Struggled with the presumption of innocence,
a journey to get there. That’s not uncommon.
[Juror H] had the same exact – same journey.
She just talked about it in different ways in
terms of how she’ll deliberate. She’s
thoughtful, she answers the questions, she
listens and she answers appropriately.

Regarding the negative aspect to police officers,
she was asked – she said she’s had incidents
where she’s not treated fairly. And I will tell
you, Your Honor, I don’t know many
African-American people that don’t have some
negative interaction with police officers. I’m
not saying that all police officers interact
negatively with African-American people, but I
do not know – that is not an uncommon
answer from African-Americans.

However, the most important part of that is
what she says is it wouldn’t sway me. Those
were her words, but that wouldn’t sway. That
was her word, swayed. And she was not asked
anything further about that so she never
indicated she would hold those personal

31
experiences against the government or against
the individual witnesses, law enforcement
witnesses.

¶ 53 The trial court found:

COURT: The Court would note that the record
was made that Mr. Tewolde’s descent is
African-American, [G.Y.]’s African-American by
everyone’s observations here in the courtroom.
And the only other African-American
individual on the panel appears to be, by my
observations, [Juror K] who is not yet in the
position to have any peremptory challenge
exercised.

The People asked the Court to make a prima
facie showing first. So what is required with
respect to a Trial Court’s three-step
determination is first the objecting party must
make a prima facie showing that the striking
party exercised a peremptory challenge on a
discriminatory basis.

The Court found a sufficient prima facie
showing, given [G.Y.]’s of African-American
descent, so is Mr. Tewolde, but notably as
soon as she was in the position to be struck,
she was – the People exercised a peremptory
challenge.

So the Court did ask the People to set forth
their race-neutral reason or reasons for
exercising the peremptory strike.

The People started with the first reason being –
standing on the questionnaire filled out by
[G.Y.], pointing out that for question number
10 on the questionnaire, it asked, do you
believe there’s any reason why you cannot be a

32
fair and impartial juror? She wrote, lack of
sleep, yes. And drew an arrow into her
questionnaire for, if yes, please give your
reasons.

So her questionnaire purports to indicate that
may be a reason why she cannot be a fair and
impartial juror is lack of sleep.

The People noted that their first reason for
exercising their peremptory strike on [G.Y.]
was with respect to that lack of sleep and
concern about her ability to pay attention or
observe during the course of the trial.

The People also made note that her objections
were she had droopy eyes during the course of
the jury selection process.

And [prosecutor], I wrote down droopy eyes.
Were those observations that you made in
support of the fact that [G.Y.] was – the People
were concerned about her ability to pay
attention?

¶ 54 The prosecutor answered, “I also mentioned slowed in speech.”

The court then continued:

COURT: Okay. Unfortunately, not a lot was
asked about – of [G.Y.] with respect to what
was on the questionnaire, but the People did
address this in their questioning of [G.Y.] and
asked about that and [G.Y.] indicated that she
has some type of nursing job or nursing
assistant, so she works overnights. So she
came here after working overnight.

So the Court does not know if her work
schedule will remain the rest of the week. This

33
trial is scheduled to span for several days, but
we are scheduled to start this afternoon. So
proceeding with opening statements and at
least getting to one witness.

The People offered a second reason associated
with the exercise of their peremptory challenge
which was that they believed that [G.Y.]
attached – or associated intent with a
definition of a deadly weapon and that they
need not prove intent with respect to the
actual definition of a deadly weapon.

Her description of the – of what a weapon was
appeared to the Court to comport with what
the People indicated they had concern about
how she defined deadly weapon as related to
their ultimate burden of proof.

The People then offered a basis that [G.Y.] may
have difficulty with respect to the ultimate
burden of proof, that their description was that
it was a journey for her to get there and they
had concern for her understanding of the
burden of proof in terms of ultimate
deliberations if she were a seated juror.

....

The final basis upon which the peremptory
was exercised was a concern about the fact
that [G.Y.] had prior negative experience or
experiences with police officers and there
would be several police officers that would be
testifying.

The People indicated that she was a bit skittish
about police. She indicated during her
questioning that she had had incidents where
she was not treated fairly by police.

34
The Court’s recollection was it was in relation
to when she was – time when she may have
been pulled over, but that she could set her
personal experiences aside.

....

[Defense counsel] pointed out that she believed
that [G.Y.] was engaged and paying attention
during the proceedings, that she had stated –
accurately stated a definition of burden of
proof associated with a deadly weapon, that
she did come around to understanding an
ultimate burden of proof, and that prior she
indicated that she could set aside prior
negative experiences with police.

She also pointed out that there is a female
currently still on the panel who had at least a
similar issue with respect to what the People
characterized as a journey in terms of getting
the burden of proof, that’s [Juror H], but we’re
only on the People’s second peremptory.

So really the – what the case law appears to
direct the Court to do is decide the ultimate
question as to whether there has been the
establishment of purposeful discrimination.

The Trial Court’s three-step ruling should be
based on its evaluation of the prosecutor’s
credibility and the plausibility of the
explanations.

And with respect to the ability to pay attention
and the ability to understand the burden of
proof, or something that would be offered
associated with the People’s burden of proof,
the Court finds those are race-neutral reasons
for exercising the peremptory.

35
The explanation must be related to the
particular case being tried, so the ability to pay
attention is, especially in light of the fact that
we are proceeding with the trial today, it need
not be persuasive or even plausible, as long as
[it] does not deny equal protection. That
comes from People v. Licona-Ortega . . . 2022
COA 27, and they’re quoting to People v.
Rodriguez, 2015 CO 55.

There are race-neutral reasons which the
People have expressed concern, and the People
appear credible to the Court in terms of their
business bases upon which they wish to
excuse [G.Y.]. So I’ll permit the peremptory.

B. Standard of Review and Applicable Law

¶ 55 The Equal Protection Clause of the Fourteenth Amendment

forbids a challenge to a potential juror based solely on race.

Batson, 476 U.S. at 89; see also People v. Wilson, 2015 CO 54M,

¶ 10 n.4. When a party raises a Batson challenge, the trial court

engages in a three-step analysis to assess the claim of racial

discrimination. Wilson, ¶ 10.

¶ 56 First, the opponent of the peremptory strike must allege a

prima facie case showing that the striking party excused the

potential juror based on race. Id. As long as the totality of the

relevant circumstances raises an inference of racial motivation, the

36
objecting party has satisfied the step-one burden. Batson, 476 U.S.

at 96; accord Valdez v. People, 966 P.2d 587, 589 (Colo. 1998).

¶ 57 Second, the burden shifts to the striking party to provide a

race-neutral explanation for excusing the potential juror. Wilson,

¶ 10. The striking party need only provide any race-neutral

justification for the strike, regardless of implausibility or

persuasiveness. People v. Ojeda, 2022 CO 7, ¶ 24. The opponent is

then given the opportunity to rebut the striking party’s explanation.

Wilson, ¶ 10.

¶ 58 Third, the trial court must decide the ultimate question:

whether the objecting party has established purposeful

discrimination. Ojeda, ¶ 27. In doing so, the court must assess the

striking party’s actual subjective intent and the plausibility of its

nondiscriminatory explanation. Id.; Wilson, ¶ 10. The trial court’s

task at step three of a Batson analysis is to determine whether the

objecting party proved that the striking party exercised peremptory

challenges with discriminatory animus. People v. Rodriguez, 2015

CO 55, ¶ 12. The decisive question at step three is whether

counsel’s race-neutral explanation should be believed. People v.

Collins, 187 P.3d 1178, 1182 (Colo. App. 2008). “In assessing the

37
credibility of the proponent of the strike, the court may consider a

number of factors, including the proponent’s demeanor, how

reasonable or improbable the proponent’s explanations are, and

whether the proffered rationale has some basis in accepted trial

strategy. Id. The ultimate burden of persuasion rests with the

opponent of the strike, Purkett v. Elem, 514 U.S. 765, 767 (1995),

and, for a Batson challenge to succeed, the court must find by a

preponderance of the evidence that one or more potential jurors

were excluded because of race, Valdez, 966 P.2d at 590.

¶ 59 The standard of review for a Batson challenge depends on

which step of the analysis is challenged on appeal. People v. Friend,

2014 COA 123M, ¶ 8, aff’d in part and rev’d in part, 2018 CO 90.

We review steps one and two de novo. Rodriguez, ¶ 13. The court’s

ruling at step three, however, is a factual finding to which “an

appellate court should defer, reviewing only for clear error.” Id.; see

also People v. Beauvais, 2017 CO 34, ¶ 32. We accord the trial

court’s ruling “great deference and will only reverse under

‘exceptional circumstances.’” Beauvais, ¶ 25 (quoting Snyder v.

Louisiana, 552 U.S. 472, 477 (2008)).

38
C. Analysis

¶ 60 Tewolde challenges only the trial court’s step three findings.

We discern no clear error and conclude that the record supports the

trial court’s findings.

¶ 61 Our supreme court has instructed that “an appellate court

conducting a clear error review should defer to a trial court’s

ultimate Batson ruling so long as the record reflects that the trial

court weighed all of the pertinent circumstances and supports the

court’s conclusion as to whether the objecting party proved

purposeful discrimination by a preponderance of the evidence.”

Beauvais, ¶ 63.

¶ 62 Here, during its detailed ruling, the trial court weighed all the

pertinent circumstances, including the prosecutor’s reasoning

behind the strike and defense counsel’s rebuttal. Moreover, each of

the prosector’s race-neutral reasons has record support.

• G.Y. indicated on her juror questionnaire and during voir

dire that she worked nights, which could affect her ability

to be fair and impartial.

39
• G.Y. stated that she did not believe a car could be a

deadly weapon because she thought a weapon “becomes

a weapon when held by someone with ill-intention.”

• G.Y. told defense counsel that “both parties . . . should

have to prove guilt or innocence.”

• G.Y. expressed feeling “skittish” around police officers

because she was treated unfairly during traffic stops.

¶ 63 The trial court found the prosecutor to be credible. We defer

to the trial court’s credibility finding. See id. at ¶ 25 (the trial court

is in a far better position than a reviewing court to make credibility

determinations).

¶ 64 Tewolde argues that G.Y. repeatedly committed to being fair,

remaining alert, and following the law. However, “[w]hen evidence

in the record supports a trial court’s factual findings, those findings

will not normally be disturbed on appeal. . . . Any inference or

conclusions drawn by a trial court from such evidence are entitled

to similar deference.” Assocs. of San Lazaro v. San Lazaro Park

Props., 864 P.2d 111, 115 (Colo. 1993). As previously described,

the prosecutor’s race-neutral reasons enjoy record support and

40
Tewolde’s emphasis on G.Y.’s other statements does not negate this

fact.

¶ 65 Finally, we reject Tewolde’s contention that one of the

prosecutor’s stated reasons for striking G.Y. — that she had been

treated unfairly by police — was tied to race and would have a

discriminatory impact on black jurors. Our supreme court recently

addressed this issue in People v. Johnson, 2024 CO 35. Like the

prosecutor in Johnson, the prosecutor here did not tie G.Y.’s

perceived distrust of law enforcement to her race. Id. at ¶ 43. The

prosecutor’s explanation was based on G.Y.’s personal experience

and how it might affect G.Y.’s ability to consider testimony from

police officers. As the supreme court concluded in Johnson, this

type of individualized reason is facially race-neutral. Id. at ¶ 44.

¶ 66 Because the court’s findings are supported by the record and

were based on its consideration of all the pertinent circumstances,

we discern no error.

IV. Disposition

¶ 67 The judgment is affirmed.

JUDGE GOMEZ and JUDGE MEIRINK concur.

41