Peo v. Britton

21CA1934 Peo v Britton 02-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1934
City and County of Denver District Court No. 20CR3685
Honorable Eric M. Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Lessie Steve Britton,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE SULLIVAN
Freyre and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 20, 2025

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Casey Mark Klekas, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Lessie Steve Britton, appeals the judgment of

conviction entered on jury verdicts finding him guilty of second

degree murder, attempted first degree murder, first degree assault,

and menacing. We affirm.

I. Background

¶2 The jury heard evidence at trial from which it could have

reasonably found the following facts.

¶3 Britton and one of the victims, Fernando Martinez-Briones,

were neighbors who both used the same alleyway to access their

garages. The two had a long-running dispute over Britton’s vehicles

blocking the alleyway.

¶4 In June 2020, Martinez-Briones and one of his sons, E.M.,

were returning home from work but couldn’t access the alleyway

because Britton’s vehicle blocked their path. Martinez-Briones

honked his horn to alert Britton that he was blocking the alleyway.

While Britton wasn’t in his vehicle at the time, he eventually heard

Martinez-Briones’s horn and moved his vehicle to unblock the

alleyway. Britton noticed, however, that the Martinez-Briones

didn’t turn into his garage once the alleyway was clear. Britton

1
then drove to the front of Martinez-Briones’s residence and blocked

his driveway.

¶5 Britton rolled down his vehicle’s window and began to argue

with Martinez-Briones and E.M. as they stood on the sidewalk.

E.M. heard Britton say that he was going to shoot his father,

prompting him to start recording the interaction on his phone.

¶6 Martinez-Briones’s other son, F.M., looked out his bedroom

window and could see Britton’s vehicle and hear yelling. F.M. also

began to record the interaction but then decided to go outside with

his baseball bat. After walking out of the house, however, F.M.

realized that his father, brother, and Britton were “just arguing” so

he dropped the bat on the lawn before approaching Britton’s

vehicle.

¶7 As the argument escalated, Britton and Martinez-Briones

began to hurl racially charged language at each other. Britton

repeatedly demanded to see Martinez-Briones’s green card and

threatened to “find this out” by calling immigration authorities.

Martinez-Briones responded by calling Britton a “[f]ucking black

turkey” and “fucking [N-word].” Hearing the latter, Britton shot

Martinez-Briones, who fell to the ground. E.M.’s recording captured

2
the shooting. As E.M. went to his father’s aid, Britton fired a

second shot, striking E.M. in his right bicep. Britton then pointed

the gun at F.M. but didn’t shoot. F.M. ran inside and called 911.

¶8 After the shooting, Britton drove himself to a police station to

turn himself in. Martinez-Briones and E.M. were transported to the

hospital. Law enforcement officers interviewed E.M. regarding the

shooting while he received treatment. Martinez-Briones eventually

died from his gunshot wound.

¶9 Although the prosecution charged Britton with first degree

murder for killing Martinez-Briones, the jury convicted him of

second degree murder. It also found him guilty of attempted first

degree murder, first degree assault, and menacing.

¶ 10 Britton now appeals. He contends the district court erred by

(1) admitting prejudicial video evidence showing E.M.’s hospital

interviews; (2) failing to instruct the jury on Britton’s right to defend

himself against multiple assailants; (3) failing to correct the

prosecutor’s misconduct during closing argument; and (4) failing to

dismiss a district court judge from the venire. Britton also

contends that the cumulative effect of the court’s errors requires

reversal. We address each argument in turn.

3
II. Admissibility of the Video Interviews

¶ 11 Britton first contends that the district court erred by admitting

three video recordings showing E.M.’s interviews with law

enforcement officers. Specifically, Britton argues that the video

interviews were inadmissible because (1) they constituted hearsay

under CRE 802; and (2) their probative value was substantially

outweighed by their unfair prejudice under CRE 403, they were

needlessly cumulative, and they amounted to improper bolstering.

We perceive no abuse of discretion in the district court’s decision

admitting the videos.

A. Additional Background

¶ 12 E.M. testified during the prosecution’s case-in-chief but

couldn’t recall certain details about the shooting. During the direct

testimony of its next witness, a responding officer, the prosecution

sought to admit three videotaped interviews between law

enforcement and E.M. The videos each showed officers speaking

with E.M. at the hospital while he received treatment for the

gunshot wound to his bicep. In the videos, E.M. appears with blood

on his hands and arms. The prosecutor argued that the videos

were relevant, among other reasons, to show E.M.’s demeanor and

4
mental state at the time and because his “recollection [wa]s

different” and more detailed in the videos.

¶ 13 After initially ruling that the videos were inadmissible, the

district court reversed course and admitted the videos on several

grounds, including as excited utterances under CRE 803(2). The

court explained that “the foundation was laid previously that these

would be excited utterances that he was still — he was in the

hospital after being shot and he was still under the influence of that

wound and of that event.” The court also (1) ruled that E.M.’s

videotaped statements were admissible as prior inconsistent

statements under section 16-10-201, C.R.S. 2024, based on the

supreme court’s direction that a witness’s actual or feigned memory

loss is “tantamount to [a] denial,” Davis v. People, 2013 CO 57, ¶ 7

n.2; and (2) overruled Britton’s CRE 403 objection. The court said,

however, that it would supervise any replays of the videos and

wouldn’t allow the jury to have “full access” during its deliberations.

B. Standard of Review and Applicable Law

¶ 14 We review a district court’s evidentiary rulings for an abuse of

discretion. People v. Hood, 2024 COA 27, ¶ 6. A district court

5
abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair or when it misapplies the law. Id.

¶ 15 Hearsay isn’t admissible unless otherwise allowed by statute

or rule. CRE 802. An “excited utterance,” however, falls within an

exception to the rule against hearsay. CRE 803(2). An excited

utterance is “[a] statement relating to a startling event or condition

made while the declarant was under the stress of excitement

caused by the event or condition.” Id.; see, e.g., People v. Martinez,

18 P.3d 831, 835 (Colo. App. 2000).

¶ 16 Under CRE 403, relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” The district court may

exclude evidence under this rule if, for example, the evidence has

an undue tendency to suggest a decision on an improper basis,

such as “sympathy, hatred, contempt, retribution, or horror.”

People v. Dist. Ct., 785 P.2d 141, 147 (Colo. 1990). In reviewing a

district court’s ruling under CRE 403, we afford the evidence its

maximum probative value attributable by a reasonable fact finder

6
and the minimum unfair prejudice that can be reasonably expected.

People v. Gibbens, 905 P.2d 604, 607 (Colo. 1995). The district

court enjoys “broad discretion” in balancing the probative value of

the evidence against the danger of unfair prejudice. Id.

C. Analysis

¶ 17 At the outset, we decline to address Britton’s argument that

the videos constituted inadmissible hearsay. Although Britton

challenges certain grounds that the district court used to admit the

videos, he doesn’t challenge the court’s ruling that E.M.’s

statements on the videos fell within the excited utterance exception

to the hearsay rule. See CRE 803(2). We must therefore conclude

that the district court properly admitted the videos under this

hearsay exception, regardless of whether the court erred on the

grounds urged by Britton. See People v. Archer, 2022 COA 71, ¶ 42

(explaining the appellate court must affirm the trial court’s

admission of evidence where the appellant doesn’t challenge each

alternative ground for admitting the evidence).

¶ 18 Turning to Britton’s CRE 403 argument, we conclude the

district court acted within its broad discretion when admitting the

videos. For one, the videos were probative to help explain E.M.’s

7
lack of recollection at trial and to rebut defense counsel’s attempts

to impeach his credibility. As one example, E.M. testified on cross-

examination that he started recording the incident because he was

afraid of Britton. Defense counsel then attempted to impeach E.M.

by asking whether he recalled telling officers that he wasn’t afraid

of Britton. E.M. responded that he couldn’t recall. One of the

videos shed light on this discrepancy — it showed E.M. telling

officers that he recorded the incident on his phone after Britton

allegedly said, “I’m going to shoot you.” While the video didn’t show

E.M. saying that he was “fearful” or “afraid,” he explained that he

felt recording the interaction was necessary “in case anything

[happened].” See People v. Tyler, 745 P.2d 257, 259 (Colo. App.

1987) (“If the credibility of a witness is at issue, the jury should

8
have access to all the relevant facts, including consistent and

inconsistent statements.”).1

¶ 19 In addition, while Britton argues that the videos were

prejudicial because they depicted E.M.’s overwhelming “suffering

and sorrow,” our review reveals that E.M. was coherent and

responsive to the officer’s questions. E.M. didn’t appear in

significant pain and, although blood can be seen on his hands and

arms, the gunshot wound to his bicep wasn’t visible. See People v.

Villalobos, 159 P.3d 624, 630-31 (Colo. App. 2006) (concluding the

trial court didn’t abuse its discretion in admitting a color

photograph showing the victim’s head wound where the photograph

wasn’t “particularly shocking or inflammatory”). Moreover, while

one of the videos showed E.M. becoming emotional for a few

seconds, we can’t say that brief portion of the video created unfair

1 Britton alternatively disputes whether the entirety of the twenty-

minute-plus videos was admissible under CRE 403. But he never
asked the court to redact those portions that he deemed
objectionable. To the extent Britton asserts that the court’s failure
to redact the videos on its own initiative constituted plain error, we
disagree. Nothing in the videos was so unfairly prejudicial that the
need for redactions should have been obvious to the court absent
defense counsel’s request. See People v. Arzabala, 2012 COA 99,
¶ 88.

9
prejudice that substantially outweighed its probative value. See

People v. Kembel, 2023 CO 5, ¶ 53 (“[T]he fact that evidence is

prejudicial doesn’t render it inadmissible; only unfairly prejudicial

evidence is inadmissible.”).

¶ 20 The district court also mitigated the danger of any unfair

prejudice by ruling that replays of the videos must occur under the

court’s supervision, not in the jury room where jurors could replay

the videos “over and over.” See People v. Jefferson, 2014 COA 77M,

¶¶ 18-19 (identifying “[m]echanisms for controlling the jury’s

consideration of videotaped statements” to prevent “undue

emphasis,” including court supervision of replays), aff’d, 2017 CO

35. Under these circumstances, the district court didn’t abuse its

discretion by overruling Britton’s CRE 403 objection.

¶ 21 We also aren’t persuaded by Britton’s argument that the

district court should have excluded the videos because they were

cumulative of other evidence. As discussed, the videos were

relevant to a material issue — E.M.’s memory and credibility. Thus,

even if the videos were somewhat cumulative, the district court

acted within its discretion by admitting them. See Lira v. People,

445 P.2d 62, 64 (Colo. 1968) (Evidence is admissible, even if

10
cumulative, if “it sheds light on a material inquiry.”) (citation

omitted); see also People v. Salas, 902 P.2d 398, 401 (Colo. App.

1994) (if the evidence is relevant and material, the trial court

doesn’t abuse its discretion by admitting it merely because it may

be cumulative).

¶ 22 We similarly reject Britton’s arguments that the videos

improperly bolstered E.M.’s testimony. Bolstering occurs when a

witness testifies that another witness is telling the truth on a

particular occasion. Venalonzo v. People, 2017 CO 9, ¶ 32; see also

CRE 608(a). None of E.M.’s statements on the videos fit that

description, and Britton points us to no authority in which a court

has held that a victim’s videotaped interview constitutes improper

bolstering.

¶ 23 Accordingly, the district court didn’t abuse its discretion by

admitting the videos.

III. Jury Instructions on Self-Defense

¶ 24 Britton next contends that the district court erred by failing to

instruct the jury that Britton had the right to defend himself

against multiple assailants. We disagree.

11
A. Additional Background

¶ 25 As relevant here, the court provided the jury with two

instructions regarding self-defense: (1) a “deadly physical force in

defense of person” instruction as a defense to the first and second

degree murder counts and (2) a “defense of person” instruction as a

defense to the counts for attempted first degree murder, first degree

assault, and menacing. Defense counsel didn’t request a multiple

assailants instruction. Both instructions generally tracked the

pattern jury instructions in effect at the time. See COLJI-Crim.

H:11-12 (2021). Both instructions twice told the jury, for example,

that it should “consider[] all the evidence” when deciding whether

the prosecution had satisfied its burden of disproving self-defense.

See id.

¶ 26 Consistent with the pattern instructions, both instructions

also directed the jury to consider the reasonableness of Britton’s

beliefs at the time of the shooting. Specifically, the district court’s

deadly physical force instruction read in part as follows:

Mr. Britton was legally authorized to use
deadly physical force upon another person
without first retreating if:

12
1. he used that deadly physical force in order
to defend himself from what he reasonably
believed to be the use or imminent use of
unlawful physical force by that other person,
and

2. he reasonably believed a lesser degree of
force was inadequate, and

3. he had a reasonable ground to believe, and
did believe, that he was in imminent danger of
being killed or of receiving great bodily injury.

¶ 27 Similarly, the district court’s defense of person instruction

read in part as follows:

The defendant was legally authorized to use
physical force upon another person without
first retreating if:

1. he used that physical force in order to
defend himself from what he reasonably
believed to be the use or imminent use of
unlawful force by that other person, and

2. he used a degree of force which he
reasonably believed to be necessary for that
purpose.

B. Standard of Review and Applicable Law

¶ 28 Britton concedes that he didn’t request a multiple assailants

instruction, thus limiting our review to plain error. Plain error is

error that is both obvious and substantial. Hagos v. People, 2012

CO 63, ¶ 14. An error is obvious if it contravenes (1) a statute; (2) a

13
well-settled legal principle; or (3) Colorado case law. People v.

Pollard, 2013 COA 31M, ¶ 40. 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. Hoggard v. People, 2020

CO 54, ¶ 13.

¶ 29 We review a district court’s decision to give or not give a jury

instruction for an abuse of discretion but review de novo whether

the instruction accurately stated the law. People v. Carter, 2015

COA 24M-2, ¶ 39. So long as the instructions accurately state the

law, the district court has broad discretion in formulating jury

instructions. Id.

¶ 30 A district court need not give a multiple assailants instruction

in every case involving both multiple assailants and self-defense.

Riley v. People, 266 P.3d 1089, 1094 (Colo. 2011). Rather, the jury

must consider the totality of the circumstances — including the

number of people reasonably appearing to be threatening the

defendant — when evaluating whether the defendant (1) reasonably

believed self-defense was necessary and (2) used reasonable force to

repel the apparent danger. Id. (citing People v. Jones, 675 P.2d 9,

14 (Colo. 1984)). “The purpose of this rule is to ensure that the jury

14
understands that it may consider all relevant evidence when

assessing the reasonableness of the defendant’s actions.” Riley,

266 P.3d at 1094; accord People v. Roberts-Bicking, 2021 COA 12,

¶¶ 27-28 (trial court’s error in denying the defendant’s multiple

assailants instruction was cured by the court’s supplemental

instruction requiring the jury to consider “the totality of the

circumstances”).

C. Analysis

¶ 31 We discern no error, let alone plain error, in the district court’s

omission of a multiple assailants instruction. The court’s

instructions on deadly physical force and defense of person both

instructed the jury, twice, to “consider[] all the evidence” in

determining whether the prosecution had satisfied its burden of

disproving these defenses. The court’s instructions also told the

jury to consider whether Britton used the degree of force that he

“reasonably believed” was necessary and whether he had

“reasonable ground” to believe that he was in imminent danger of

being killed or receiving great bodily injury. See Riley, 266 P.3d at

1094 (upholding instruction using similar “reasonable belief”

language). By doing so, the court satisfied Riley’s requirement to

15
direct the jury to consider the totality of the circumstances, which

necessarily included the number of assailants who reasonably

appeared to threaten Britton. See id.

¶ 32 But even if we assumed that the district court’s omission of a

multiple assailants instruction constituted error, it didn’t so

undermine the fundamental fairness of the trial as to cast serious

doubt on the reliability of the conviction. The court’s two self-

defense instructions encompassed all charges against Britton: first

and second degree murder based on Britton’s fatal shooting of

Martinez-Briones, as well as the counts for the attempted murder

and assault of E.M. and menacing of F.M. Given these instructions,

the jury would have understood that it should consider all three

victims’ actions when evaluating the totality of the circumstances.

See People v. Trujillo, 83 P.3d 642, 645 (Colo. 2004) (reviewing court

must consider jury instructions as a whole).

¶ 33 We aren’t convinced otherwise by Britton’s reliance on pre-

Riley decisions from divisions of this court suggesting that the

pattern jury instructions for self-defense are insufficient. See, e.g.,

People v. Manzanares, 942 P.2d 1235, 1240 (Colo. App. 1996);

People v. Beasley, 778 P.2d 304, 307 (Colo. App. 1989). Riley

16
abrogated these cases by clarifying that a specific multiple

assailants instruction isn’t necessarily required so long as the

district court “direct[s] the jury to consider the totality of the

circumstances during its deliberations on reasonableness.” 266

P.3d at 1094; see also Roberts-Bicking, ¶¶ 20-21 (recognizing Riley

abrogated Manzanares and Beasley)

¶ 34 Accordingly, the district court didn’t err by failing to provide a

multiple assailants jury instruction.

IV. Prosecutorial Misconduct

¶ 35 Britton next contends that several instances of prosecutorial

misconduct during closing argument require reversal. We aren’t

persuaded.

A. Standard of Review and Applicable Law

¶ 36 “Whether a prosecutor’s statements constitute misconduct is

generally a matter left to the trial court’s discretion.” Domingo-

Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). We won’t

disturb the district court’s rulings regarding such statements

absent an abuse of that discretion. People v. Strock, 252 P.3d 1148,

1152 (Colo. App. 2010).

17
¶ 37 With one exception noted below, all of Britton’s claims of

prosecutorial misconduct are unpreserved, limiting our review to

plain error. See People v. Leyba, 2019 COA 144, ¶ 55, aff’d, 2021

CO 54. Similar to the jury instruction context, reversal under this

high standard requires that the prosecutorial misconduct be

obvious and so undermine the fundamental fairness of the trial as

to cast serious doubt on the reliability of the judgment of

conviction. People v. Walker, 2022 COA 15, ¶ 28. To constitute

plain error, the misconduct must be flagrant or glaring or

tremendously improper. People v. Weinreich, 98 P.3d 920, 924

(Colo. App. 2004), aff’d, 119 P.3d 1073 (Colo. 2005). Prosecutorial

misconduct in closing argument rarely constitutes plain error. Id.

¶ 38 When reviewing claims of prosecutorial misconduct, we

conduct a two-step analysis. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine whether the prosecutor’s conduct

was improper based on the totality of the circumstances. Id.

Second, if the comments were improper, we evaluate whether they

warrant reversal according to the proper standard of review. Id.

¶ 39 In conducting this analysis, we consider the prosecutor’s

questionable comments in context of the argument as a whole and

18
in light of the evidence before the jury. People v. Samson, 2012

COA 167, ¶ 30. A prosecutor is permitted to comment on the

admitted evidence and the reasonable inferences that can be drawn

from the evidence, employ rhetorical devices, and engage in

oratorical embellishment and metaphorical nuance. Id. at ¶ 31.

And because arguments delivered in the heat of trial aren’t always

perfectly scripted, we give the prosecutor the benefit of the doubt

when their remarks are ambiguous or simply inartful. Id. at ¶ 30.

However, closing arguments can’t be used to mislead or unduly

influence the jury. Domingo-Gomez, 125 P.3d at 1049. A

prosecutor may not, for example, intentionally misstate the

evidence, attempt to inflame the jurors’ passions, or offer a personal

opinion as to the defendant’s guilt. See id.

B. “Baiting” Comments and Misleading the Jury Regarding Heat
of Passion and the Duty to Retreat

¶ 40 Britton contends that the prosecutor’s theme during closing

argument that Britton “baited” Martinez-Briones to use the N-word

wasn’t based in fact, misled the jury about his heat of passion

defense, and wrongfully suggested that Britton had a duty to

retreat.

19
¶ 41 During closing, the prosecutor stated repeatedly that Britton

provoked and “baited” the victims. The following comments are

illustrative:

• “[Britton] wasn’t processing that awful word. He baited

[Martinez-Briones] to use it.”

• “[Y]ou can see in that video [Britton] baiting and

continuing to try to instigate and escalate things.”

• “[Britton] was in control and baiting them as he started

to call them — threatened to call ICE, threatened to call

for their green card.”

¶ 42 Contrary to Britton’s argument, the evidence permitted the

jury to draw the inference that Britton goaded the victims into

escalating the confrontation. The record shows that Britton drove

to the front of the victims’ house, blocked their driveway, threatened

to “find out” the victims’ immigration status, and demanded to see

Martinez-Briones’s green card. Given this evidence, we can’t say

that the prosecutor’s use of “baiting” wasn’t tethered to the facts.

See Samson, ¶ 31 (prosecutor may comment on the reasonable

inferences that can be drawn from the evidence).

20
¶ 43 Next, Britton contends that the prosecutor misled the jury

regarding his heat of passion defense by arguing (1) “[w]e have a

highly provoking word,” not a “highly provoking act”; (2) Britton’s

claim of self-defense is incompatible with heat of passion because it

necessarily meant he was “calculated” and “deliberate”; (3) heat of

passion doesn’t apply to E.M.’s acts; and (4) “a long interaction

cannot give rise to [a] heat of passion defense.”

¶ 44 We fail to see how these arguments misled the jury. As to

Britton’s first contention, we note that the district court’s heat of

passion jury instruction correctly tracked Colorado law by requiring

a “serious and highly provoking act” by the victim, not merely highly

provoking words. § 18-3-103(3)(b), C.R.S. 2024 (emphasis added);

accord United States v. Frady, 456 U.S. 152, 174 (1982) (An

instruction saying, “Mere words . . . no matter how insulting,

offensive or abusive, are not adequate to induce [sic] a homicide

although committed in passion, provoked . . . from murder to

manslaughter” was sufficient.) (alteration in original). We can

hardly fault the prosecutor for making arguments that hewed

closely to the jury instruction’s language, particularly when the

prosecutor candidly acknowledged that Martinez-Briones’s use of

21
the N-word was “contentious, hateful,” and “one of the worst words

you can use.”

¶ 45 As to Britton’s remaining heat of passion contentions, the

prosecutor was free to argue that Britton’s actions failed to satisfy

the requirements for a heat of passion defense, including the

requirement that the defendant acted upon a “sudden heat of

passion.” § 18-3-103(3)(b) (emphasis added); see Samson, ¶ 31.

¶ 46 By way of example, the video of the Britton’s initial gunshot

that killed Martinez-Briones showed that the preceding verbal

argument lasted at least one and a half minutes. And a detective

testified based on surveillance footage that ten seconds elapsed

between Britton’s initial shot and his second shot that wounded

E.M. According to E.M., he was on the ground applying pressure to

his father’s wound when Britton fired the second shot that struck

his bicep. From this, the prosecutor could reasonably argue that

Britton fired both shots after deliberation following a lengthy verbal

argument that gradually escalated. See People v. Sepulveda, 65

P.3d 1002, 1007 (Colo. 2003) (“[C]umulative provocation is an

insufficient basis for a heat of passion instruction.”). While Britton

could reasonably urge the jury to draw the opposite inference —

22
that he suddenly snapped upon being called the N-word — the

prosecutor didn’t mislead the jury by arguing that Britton failed to

establish his heat of passion defense.

¶ 47 Britton also argues that the prosecutor’s “baiting” theme

improperly implied that Britton had a duty to retreat. He points to

the prosecutor’s following remarks:

• Britton “decided not to drive away but get closer to them,

to get more in their face.”

• “Only one man was sitting in that car with nothing in

front of him, nothing behind him, and nothing on his

driver’s side preventing him from leaving.”

• “[Britton] was not surrounded. He was not about to be

beaten up. He was in control that entire time. When he

chose not to leave, he chose to goat [sic] them.”

¶ 48 Only initial aggressors must retreat before using force in self-

defense. Cassels v. People, 92 P.3d 951, 956 (Colo. 2004). As a

result, a prosecutor can’t argue that a defendant is barred from

asserting self-defense when an unused avenue of retreat remains

available, “even if offered only to attack the reasonableness of a

defendant’s use of force.” People v. Monroe, 2020 CO 67, ¶ 29.

23
Based on this holding from Monroe, which the supreme court

announced shortly before the trial in this case, the district court’s

failure to correct the prosecutor’s above remarks — suggesting that

Britton should have retreated by driving away — constitutes

obvious error. See Scott v. People, 2017 CO 16, ¶ 16 (error is

obvious if it contravenes Colorado case law).

¶ 49 Nonetheless, we conclude that reversal isn’t required because

the prosecutor’s comments didn’t so undermine the fundamental

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

conviction. See Walker, ¶ 28. The prosecution’s closing argument,

including rebuttal, spanned approximately thirty-one pages of

transcript. Conversely, the prosecutor’s improper statements

amounted to only eleven lines of text. See People v. Salazar, 2023

COA 102, ¶ 52 (prosecutor’s improper comments didn’t constitute

plain error, among other reasons, because they were “fleeting” when

viewed within context of closing argument as a whole). Defense

counsel’s failure to object also suggests that counsel believed the

prosecutor’s comments weren’t overly damaging. See Domingo-

Gomez, 125 P.3d at 1054.

24
¶ 50 Moreover, the district court correctly instructed the jury in

both self-defense instructions that Britton was authorized to use

physical force upon another person “without first retreating” if the

prosecution failed to disprove the elements of self-defense. And the

court told the jury that it must follow the rules of law it provided,

even if the attorneys commented on the rules. Absent evidence to

the contrary, we must assume the jury heeded the court’s

instructions. People v. Villa, 240 P.3d 343, 352 (Colo. App. 2009).

¶ 51 Given all of this, we conclude the district court’s failure to sua

sponte correct the prosecution’s comments suggesting that Britton

had a duty to retreat doesn’t warrant the “drastic remedy” of

reversal under the plain error standard. Domingo-Gomez, 125 P.3d

at 1055.

C. Appeal to Sympathy and Inflaming the Passions of the Jury

¶ 52 Britton contends that the prosecutor committed misconduct

and inflamed the passions of the jury by referring to “extremely

emotional” aspects of the case.

¶ 53 Britton points, for example, to the prosecutor’s remark that

“[t]here’s a lot of sadness in this case.” But he acknowledges that

the prosecutor made this comment while highlighting the court’s

25
instruction that sympathy, bias, and prejudice must not influence

the jury’s decision. See Crim. P. 30 (counsel may comment on the

jury instructions during argument).

¶ 54 Even so, Britton asserts that the prosecutor went further by

reminding the jury about E.M.’s request at the hospital to provide

officers with additional information about Britton pointing a gun at

his brother, commenting on E.M.’s “robotic” yet “[u]nderstandabl[e]”

demeanor, and discussing E.M.’s embarrassment from his

disfigurement and partial loss of use of his right arm.

¶ 55 These comments weren’t improper when considered in the

context of the prosecutor’s argument as a whole. See Samson, ¶ 30.

A prosecutor is allowed to urge the jury to draw reasonable

inferences regarding a witness’s demeanor and credibility. People v.

Constant, 645 P.2d 843, 846 (Colo. 1982). Moreover, the prosecutor

made her comment about E.M.’s request to provide additional

information regarding his brother while summarizing the evidence

showing that Britton pointed a gun at F.M., thus committing

menacing. See § 18-3-206, C.R.S. 2024. Similarly, the prosecutor

referred to E.M.’s disfigurement and accompanying embarrassment

to establish that he suffered serious bodily injury — an essential

26
element of first degree assault. See § 18-3-202(1)(a), C.R.S. 2024.

While the prosecutor’s comments touched on E.M.’s trauma, they

were properly “anchored in the evidence, not in emotion” and didn’t

ask the jury to “do justice” for the victims regardless of whether the

jury believed the prosecution’s evidence. Salazar, ¶ 51.

D. Other Crimes, Denigrating Defense Counsel, and Offering
Personal Opinions

¶ 56 We also reject Britton’s contentions that the prosecutor

committed misconduct by (1) suggesting that Britton committed

other crimes by operating an illegal mechanic’s business in the

alleyway; (2) calling Britton’s self-defense claim “laughable,” thereby

denigrating defense counsel; and (3) injecting her personal opinion

about Britton’s behavior.

¶ 57 Contrary to Britton’s suggestion, the prosecutor didn’t

mention Britton’s allegedly illegal mechanic’s business to

improperly suggest that Britton had bad character or acted in

conformity with that character on a particular occasion. See CRE

404(b). Rather, the prosecutor said that the legality of Britton’s

business was “not an issue,” “not an element here,” and “not a

matter you have to resolve to decide this case.” Viewed in context,

27
the prosecutor’s comments were merely an attempt to “draw the

jury’s focus to relevant evidence” and away from irrelevant evidence.

People v. Serra, 2015 COA 130, ¶ 89.

¶ 58 Nor do we discern any misconduct in the prosecutor’s

characterization of Britton’s self-defense claim as “laughable.” The

prosecutor said, “[I]t’s laughable in the face of [the] video; that the

defendant was scared. He didn’t look scared at all. He didn’t look

like he was in fear.” Considering the statements together, they

served as a comment on the evidence and the strength of Britton’s

theory of the case, not as a personal attack on defense counsel. See

People v. Iversen, 2013 COA 40, ¶¶ 37-38 (rejecting a similar

challenge to the prosecutor’s use of “laughable”).

¶ 59 We also don’t interpret any of the prosecutor’s remarks as

offering her own personal opinion about Britton’s guilt. The

prosecutor said: (1) “I just want to walk you through the

prosecution’s belief as to each of the verdict forms”; (2) Britton’s

behavior on the video “is textbook behavior of knowingly”; and

(3) “[Y]ou should automatically, after consideration, reject” reckless

manslaughter. In her first statement, the prosecutor prefaced the

term “belief” with “the prosecution’s belief,” making clear that she

28
wasn’t conveying her own personal opinion as to Britton’s guilt but

simply expressing the prosecution’s position that the evidence was

sufficient to support convictions on the charged counts. See People

v. Seller, 2022 COA 102, ¶ 26, aff’d on other grounds, 2024 CO 64.

And the prosecutor properly buttressed her final two statements

with descriptions of the evidence that the prosecution alleged

proved that Britton acted knowingly. See id. at ¶ 24 (prosecutor’s

use of phrases to “summarize the evidence presented” and draw

reasonable inferences from that evidence didn’t convey her personal

opinion); see also Samson, ¶ 31 (prosecutor may employ oratorical

embellishment).

E. Misstatement of Facts

¶ 60 Britton contends that the prosecutor committed misconduct

by misstating several facts during closing argument. He challenges

six specific statements. We address each in turn.

¶ 61 “Final argument may properly include the facts in evidence

and any reasonable inferences drawn therefrom.” Domingo-Gomez,

125 P.3d at 1048.

29
1. Statement 1

¶ 62 In the first challenged statement, the prosecutor said,

“Because I can. That’s the defendant’s mentality. That’s why he

shot . . . Martinez-Briones. Because I can.” In the video of the

shooting, Britton can be heard saying, “Because I can,” in response

to Martinez-Briones yelling, “Stay away from the fucking street,”

and “I’m tired of your fucking shit.” Based on this evidence, the

prosecutor could reasonably urge the jury to infer that Britton’s

cavalier mentality towards the alleyway dispute pervaded the entire

interaction, including the shooting. See Samson, ¶ 31.

2. Statements 2 and 3

¶ 63 In the second challenged statement, the prosecutor said, “Vile

words, but very clear that nobody else had any weapon there, and

nobody was a real threat to [Britton].” And in the third she said,

“And this here, this bat, the defense admitted, doesn’t have to do

with anything. The defendant never said he saw that bat. The bat

was dropped. Nobody ever saw it. Another distraction from the

compelling evidence that you have here.”

¶ 64 Britton argues that these statements inaccurately implied that

none of the victims possessed weapons during the dispute, even

30
though F.M. testified that he grabbed a baseball bat as he walked

out of his house. But F.M. also testified that he dropped the bat on

the front lawn as he made his way towards Britton’s vehicle

because he saw that Britton and his father “were just arguing.”

F.M.’s testimony is consistent with other evidence. The video of the

shooting briefly shows F.M. standing near his father with only a

phone in his left hand. Further, Britton testified that he saw F.M.

standing behind his vehicle with a “silver thing” in his hand. The

bat that defense counsel admitted into evidence was black and lime

green.

¶ 65 Given this evidence, the prosecutor’s statements didn’t

constitute a misstatement of the facts in evidence. See Domingo-

Gomez, 125 P.3d at 1048.

3. Statement 4

¶ 66 Britton argues that the fourth statement, “[Britton] knows how

to kill,” wrongfully implied that he had experience killing people.

But Britton omits important context from the prosecutor’s two

immediately preceding statements: “Again, [Britton] admitted he’s

armed. He’s shot since he was 9.” See Samson, ¶ 30 (the court

evaluates alleged prosecutorial misconduct in the context of the

31
argument as a whole). And Britton himself testified that he

previously served in the military, received training on how to use

guns, had carried a gun for twenty-two years, and learned to shoot

when he was nine years old. Based on this testimony, the

prosecutor could reasonably ask the jury to find that Britton

possessed the gun skills necessary to shoot and kill someone.

4. Statement 5

¶ 67 In Britton’s fifth challenged statement, the prosecutor asked,

“Was [Britton] trying to ensure that . . . Martinez-Briones was dead,

or was he trying to kill [E.M.], a person that he now knows has

recorded the incident?” Britton argues that this statement is

nothing more than speculation that he shot E.M. to destroy the

video evidence. But again, Britton leaves out important context.

Immediately before this statement, the prosecutor asked

rhetorically, “What was [Britton] trying to do? That’s another thing

we don’t have to prove is why.” Considered together, these

statements didn’t constitute misconduct. A prosecutor may

properly provide guidance to jurors during closing argument

regarding evidence and issues that are red herrings or otherwise

unessential to the elements of the offense. See Domingo-Gomez,

32
125 P.3d at 1048 (Counsel may “point to different pieces of evidence

and explain their significance within the case.”).

¶ 68 In any event, a defendant’s motive, while not an essential

element, may be relevant to show their intent at the time of the

alleged offense. See, e.g., People v. Villanueva, 2016 COA 70, ¶ 55.

Here, the prosecution elicited evidence that E.M. posed no danger to

Britton but rather was on the ground tending to his father’s wound

when Britton shot him in the bicep. The prosecutor could therefore

reasonably ask the jury to infer that Britton shot E.M. either in

retaliation for recording the incident or as part of an attempt to

destroy the video evidence, not in self-defense. See Samson, ¶ 31.

5. Statement 6

¶ 69 Lastly, Britton challenges a sixth statement in which the

prosecutor said, “One thing I want you to think about is that

testimony that you heard from the defendant. I knew I was wrong.

He knew he was not justified, didn’t have any regret or remorse.

Instead, what you hear is, oh, he didn’t just look like he was

Mexican, he was Mexican, and I know he was illegal.”

¶ 70 Britton argues that the prosecutor made this statement to

exploit Britton’s remorse and argue that he expressly admitted his

33
guilt. Unlike his challenges to the prosecutor’s other statements,

Britton preserved this argument through a timely objection.

¶ 71 Britton testified that he voluntarily drove to the police station

to turn himself in after the shooting because he “knew [he] was

wrong,” and “[t]here was no doubt about that.” When asked on

cross-examination whether he requested to see the victims’ green

cards because they were Mexican, Britton responded, “No. They are

Mexicans,” and “[t]hey didn’t look like nothing. . . . I called them —

that’s what they were. They were Mexicans.” Britton also testified

that individuals born in other countries “don’t earn the right to call

me the [N-word].”

¶ 72 Because Britton voluntarily testified, we perceive no

misconduct in the prosecutor’s comments. When a defendant

chooses to testify, the prosecutor is permitted in closing argument

to urge the jury to draw reasonable inferences from their testimony,

just like that of any other witness. See People v. Rogers, 68 P.3d

486, 492 (Colo. App. 2002) (“A defendant cannot have it both ways.

If he talks, what he says or omits is to be judged on its merits or

demerits.” (quoting United States v. Goldman, 563 F.2d 501, 503

(1st Cir. 1977))). The prosecutor therefore could reasonably argue,

34
based on Britton’s testimony, that (1) he drove to the police station

because he knew he was wrong to shoot Martinez-Briones and

E.M.; and (2) he harbored resentment towards the victims, rather

than remorse, due to their immigration status and Martinez-

Briones calling him the N-word.

F. References to Racially Charged Language

¶ 73 Britton contends that the prosecutor committed misconduct

by (1) saying Britton was the “first to throw” a racial slur despite no

evidence to that effect and (2) equating Martinez-Briones’s use of

the N-word with Britton’s statements about the victim’s immigration

status.

¶ 74 At a threshold matter, we note that the record confirms that

both Britton and the victims used racially charged language during

their argument. But there is at least some evidence from the video

suggesting that Britton was the first to inject the issue of race into

the dispute.2 Britton said, “Let me find out,” and “We’re going to

find this out,” near the beginning of the video, which Martinez-

2 We use the term “race” here expansively to encompass biases

based on race, ethnicity, and national origin, while acknowledging
that Britton’s comments were primarily based on the victims’
national origin. See People v. Ojeda, 2022 CO 7, ¶ 1 n.1.

35
Briones clearly interpreted as a threat that Britton would call

immigration authorities. Martinez-Briones subsequently yelled at

Britton, “You started first — you started first.”

¶ 75 Even assuming, however, that Britton didn’t intend his initial

statements to convey a racially charged threat, the prosecutor’s

comment that Britton was the “first to throw” a racial slur wasn’t so

egregious that it undermined the fundamental fairness of the trial

as to cast serious doubt on the reliability of the conviction. See

Walker, ¶ 28. Britton repeatedly demanded that Martinez-Briones

provide his green card and said, “Let me check you out,” implying

that he wanted to verify Martinez-Briones’s immigration status.

When coupled with Britton’s own testimony about the victims’

immigration statuses, the prosecutor could reasonably argue that

Britton acted out of anger and racial animus rather than self-

defense. Under these circumstances, we fail to see how the

prosecutor’s isolated comment that Britton instigated the racially

charged insults, even if incorrect, might cast doubt on the reliability

of the conviction. See People v. Raehal, 971 P.2d 256, 259 (Colo.

App. 1998) (concluding error wasn’t plain where the prosecutor’s

“improper remark was not repeated”).

36
¶ 76 We also aren’t persuaded that the prosecutor committed

misconduct by equating Britton’s green card remarks with

Martinez-Briones’s use of the N-word. The prosecutor asked the

jury, “Why is a man asking another man about his green card other

than to make them feel less than. That is a hurtful thing to do. . . .

[I]t is just as deplorable to use the N word.”

¶ 77 We recognize, and don’t mean to understate, the highly

offensive nature of the word used by Martinez-Briones and its

unique ability to evoke “a history of racial violence, brutality, and

subordination.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116

(9th Cir. 2004). The prosecutor conceded as much, calling the word

hateful, contentious, and one of the “worst words” a person can

use. But Britton’s demands for Martinez-Briones’s green card were

also reprehensible. And while the prosecutor’s attempt to compare

one racist insult to another may have been perilous and inartful,

counsel is permitted to comment on the evidence admitted at trial,

including the defendant’s own words. See Samson, ¶ 31; cf. Rogers,

68 P.3d at 492.

¶ 78 Accordingly, we reject Britton’s contentions that the

prosecutor committed reversible misconduct.

37
V. Refusal to Dismiss a Judge from the Venire

¶ 79 Britton next contends that the district court erred during jury

selection by refusing to dismiss another district court judge from

the venire after the parties mutually agreed that the court should

dismiss her. We disagree.

¶ 80 During jury selection, the parties approached the bench and

informed the court that “the parties were in agreement” that it

should release the judge from the venire. The court responded that

the judge hadn’t “claim[ed] hardship” and that the parties’

agreement to release her didn’t constitute a challenge for cause.

Defense counsel never challenged the judge for cause but rather

elected to exercise a peremptory strike to excuse her.

¶ 81 We review a district court’s decision to release or not release a

potential juror from the venire for an abuse of discretion. Cf. People

v. Clemens, 2017 CO 89, ¶ 13 (appellate court reviews the district

court’s ruling on a challenge for cause for an abuse of discretion).

¶ 82 To the extent Britton contends that the district court should

have dismissed the judge for cause, we conclude Britton waived this

claim. Waiver is “the intentional relinquishment of a known right or

privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (citation omitted). A

38
waiver may be implied when the defendant “engages in conduct that

manifests an intent to relinquish a right or privilege or acts

inconsistently with its assertion.” Forgette v. People, 2023 CO 4,

¶ 28. Waiver extinguishes error, including appellate review of the

alleged error. Id. at ¶ 30; see also Crim P. 24(b)(2) (challenges to

the “qualifications and competency of the prospective jurors” are

waived if not raised before the jurors are sworn); Richardson v.

People, 2020 CO 46, ¶¶ 25-26, 30 (defendant waived challenge to

judge’s wife serving on jury by deliberately choosing not to

challenge her).

¶ 83 Defense counsel never challenged the judge for cause, even

after the district court informed the parties that it didn’t view their

mutual agreement as a proper challenge for cause. Defense counsel

also demonstrated that she understood the court’s ruling by saying,

“[S]ometimes there’s agreements that a person may not be a proper

fit,” but “[i]t’s not always challenged for cause statutorily.” After the

court declined to excuse the judge based on the parties’ agreement,

defense counsel opted to excuse her by exercising a peremptory

strike. Thus, because Britton was aware of the opportunity to

39
challenge the judge for cause but never did so, we conclude Britton

waived his claim. See id.

¶ 84 To the extent that Britton argues that the district court should

have accepted the parties’ mutual agreement to excuse the judge,

we aren’t persuaded. During the jury selection process, counsel

may attempt to excuse a prospective juror by either challenging the

juror for cause, § 16-10-103, C.R.S. 2024, or exercising a

peremptory challenge, § 16-10-104, C.R.S. 2024. No third option

exists, and we decline to judicially create one based on the parties’

mutual agreement in this case. Doing so would undermine citizens’

ability to serve on a jury when they are otherwise statutorily

eligible. Cf. Powers v. Ohio, 499 U.S. 400, 407 (1991) (“[W]ith the

exception of voting, for most citizens the honor and privilege of jury

duty is their most significant opportunity to participate in the

democratic process.”).

¶ 85 Accordingly, the district court didn’t abuse its discretion by

declining to excuse the judge from the venire based on the parties’

agreement.

40
VI. Speaking Spanish at Sentencing

¶ 86 Britton next contends that the district court erred by speaking

Spanish for a portion of the sentencing hearing, thus violating both

his right to be present and his right to due process. We discern no

plain error requiring reversal.

A. Additional Background

¶ 87 During sentencing, the district court spoke in Spanish at three

different points. Britton asserts that the court spoke in Spanish to

the victims and their family, and the People agree with that

interpretation of the transcript. But the transcript doesn’t indicate

what was said or whether the court was merely translating what it

had just spoken in English into Spanish. The transcript says only

“Spanish-Speaking.” The court spoke in English, however, when

speaking directly to Britton and when explaining the reasons for its

sentence.

¶ 88 Britton didn’t object or request an interpreter. Nor did defense

counsel on appeal request to settle the record to determine what the

court had said in Spanish. See C.A.R. 10(g)(1).

41
B. Standard of Review and Applicable Law

¶ 89 “A defendant has a right to be present at every critical stage of

a criminal trial.” People v. Wingfield, 2014 COA 173, ¶ 17. This

includes sentencing. People v. Hernandez, 2019 COA 111, ¶¶ 22,

24; see also Crim. P. 43(a) (“The defendant shall be present” at the

“imposition of sentence.”). A defendant’s inability to understand the

language spoken by the court may abridge their right to be present.

See People v. James, 937 P.2d 781, 783 (Colo. App. 1996). The

appointment of an interpreter is therefore “crucial to safeguarding

the fundamental fairness of the trial.” People v. Avila, 797 P.2d

804, 806 (Colo. App. 1990). Without it, the trial proceedings

become “but a ‘babble of voices’ and [the] defendant is but an

‘insensible object’ who passively observes in complete

incomprehension.” Id. at 805 (quoting United States ex rel. Negron

v. New York, 434 F.2d 386, 388-89 (2d Cir. 1970)).

¶ 90 We review de novo whether the district court violated a

defendant’s constitutional right to be present. Wingfield, ¶ 13.

However, because Britton didn’t object or request an interpreter, we

will reverse only if Britton demonstrates plain error. See People v.

Chavez, 2012 COA 61, ¶ 13.

42
C. Analysis

¶ 91 The People don’t defend the district court’s actions but rather

argue that its decision to speak in Spanish didn’t rise to plain error.

Given the People’s position, we will assume without deciding that

the court erred by speaking in Spanish during sentencing and

proceed to evaluate whether the error amounted to an obvious error

that so undermined the fundamental fairness of the proceeding as

to cast doubt on the reliability of the convictions. See People v.

Vigil, 251 P.3d 442, 447 (Colo. App. 2010) (“[W]e need not decide

whether the court actually erred if it is clear that the alleged error

was not obvious.”); see also Galvan v. People, 2020 CO 82, ¶ 45

(summarizing party presentation principle).

¶ 92 Even giving Britton the benefit of this assumption, however,

we don’t perceive plain error that warrants reversal. As to the

obviousness of the error, Britton point us to no Colorado case law,

and we’ve located none, holding that a trial court errs when it

speaks to victims or their family in their native language during a

portion of the sentencing hearing while still speaking in English

when imposing its sentence and providing its reasoning. See Scott,

¶ 17 (“[A]n error is generally not obvious when nothing in Colorado

43
statutory or prior case law would have alerted the trial court to the

error.”).

¶ 93 We also fail to see how the district court’s decision to speak in

Spanish to the victims and their family so undermined the fairness

of the proceeding as to cast doubt on the reliability of the

conviction. The court spoke in English both when speaking directly

to Britton and when providing its reasons for its sentence. See

People v. Watkins, 613 P.2d 633, 637 (Colo. 1980) (sentencing court

must state “the basic reasons” for its sentence, although the

“reasons need not be lengthy”).

¶ 94 While the record before us doesn’t reveal whether the court

provided additional reasoning for its sentence when it spoke in

Spanish, the burden fell to Britton to supply an adequate record for

our review, including by seeking to settle the record in the district

court if necessary. See C.A.R. 10(g)(1); People v. Duran, 2015 COA

141, ¶ 12. Absent such a record, we decline to presume that the

court provided additional reasoning for its sentence in Spanish.

See LePage v. People, 2014 CO 13, ¶¶ 15-16 (“According to the

presumption of regularity, appellate courts presume that the trial

judge did not commit error absent affirmative evidence otherwise,”

44
and “[t]he effect of this presumption is that the party asserting error

must affirmatively show that it occurred.”).

¶ 95 Accordingly, the district court didn’t plainly err when it spoke

in Spanish to the victims and their family during a portion of the

sentencing hearing.

VII. Cumulative Error

¶ 96 Britton contends that the cumulative effect of the district

court’s errors requires reversal. The cumulative error doctrine

requires reversal when “the cumulative effect of [multiple] errors

and defects substantially affected the fairness of the trial

proceedings and the integrity of the fact-finding process.” Howard-

Walker v. People, 2019 CO 69, ¶ 24 (alteration in original) (quoting

People v. Lucero, 615 P.2d 660, 666 (Colo. 1980)).

¶ 97 We have found one error in the district court’s failure to

correct a misstatement during the prosecutor’s closing argument

and assumed one other possible error during sentencing for

purposes of our plain error analysis, finding both nonprejudicial.

We conclude that these errors, either alone or together, didn’t

substantially affect the fairness of Britton’s proceedings or the

integrity of the factfinding process. See People v. Vialpando, 2022

45
CO 28, ¶¶ 40-46 (finding five errors viewed in the aggregate didn’t

constitute cumulative error that deprived the defendant of a fair

trial).

VIII. Disposition

¶ 98 We affirm the judgment.

JUDGE FREYRE and JUDGE SCHOCK concur.

46