Peo v. Massingill

19CA1278 Peo v Massingill 06-18-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA1278
Mesa County District Court No. 17CR1381
Honorable Gretchen B. Larson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Israel Jerome Massingill,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE KUHN
Fox and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 18, 2026

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

Amy D. Trenary, Alternate Defense Counsel, Broomfield, Colorado, for
Defendant-Appellant
¶1 Defendant, Israel Jerome Massingill, was convicted of first

degree murder, attempted first degree murder, patronizing a

prostituted child, two crime of violence sentence enhancers, and

possession of a controlled substance. He now raises various issues

on appeal. We affirm in part, reverse in part, and remand with

directions.

I. Background

¶2 The jury heard testimony at trial that would have allowed it to

find the following facts. Massingill and one of the minor victims,

A.F., met as high-school students. A.F. had previously had sex with

Massingill for money. One night in July 2017, A.F. and Massingill

exchanged text messages about meeting up. Massingill asked A.F.

if she would have sex with him again. He also said that he would

pay her $60 that he allegedly owed her for previously having sex

with him. As later became relevant, A.F. was consistently using

methamphetamine and was trying to fund her addiction around

this time. When A.F. agreed to meet up with Massingill, her friend,

K.Q., offered to give her a ride.

¶3 When they arrived at Massingill’s house, A.F. texted him that

she was outside. Massingill came outside and stood by the door.

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Then A.F. let K.Q. know that A.F. would need about fifteen minutes

with Massingill. A.F. went inside Massingill’s house and, at some

point, he pointed a gun at her. A.F. told Massingill that she wasn’t

scared of his gun, and he threw the gun onto the couch. A.F. then

asked Massingill for the money he owed her, and he grabbed A.F.

and threw her onto his bed. Massingill then forced A.F. to have sex

with him.

¶4 After the encounter, A.F. put her clothes on and got ready to

leave. Massingill asked whether she wanted “that hundred.” She

said yes and that she had a ride waiting outside that could take

them to an ATM.

¶5 A.F. and Massingill got into K.Q.’s car, and she introduced

them. K.Q. then drove them to an ATM at a City Market. When

they arrived in the City Market parking lot, K.Q. put the car in park

and said that she was “gonna go.” Moments later a gun went off.

A.F.’s ears started ringing, and she “didn’t know what was going

on.” A.F. looked at K.Q. and saw her slumped over the middle

console. A.F. then looked back at Massingill and pleaded for her

life. He shot her three times in the arm, but A.F. managed to spray

Massingill in the face with pepper spray; he then fled.

2
¶6 A.F. called 911 and waited for the police. Officers identified

Massingill and went to his house. Massingill “attempted to flee out

the back of the residence” but was eventually taken into custody.

A.F. was taken to the hospital to be treated for her injuries.

¶7 A jury convicted Massingill of first degree murder, attempted

first degree murder, patronizing a prostituted child, two crime of

violence sentence enhancers, and possession of a controlled

substance. See § 18-3-102(1)(a), C.R.S. 2025; § 18-2-101, C.R.S.

2025; § 18-7-406(1)(a), C.R.S. 2025; § 18-1.3-406(2)(a)(I)(A), (B),

C.R.S. 2025; § 18-18-403.5(1), (2)(c), C.R.S. 2025. The court

sentenced him to an aggregate sentence of life in prison without the

possibility of parole.

II. Analysis

¶8 On appeal, Massingill contends that (1) the record is

insufficient for meaningful appellate review. He also contends that

the trial court erred by (2) refusing to admit evidence that

supported his alternate-suspect defense; (3) limiting his ability to

cross-examine A.F. about a material witness warrant required to

secure her trial testimony; (4) quashing his subpoena for A.F.’s

recorded jail calls; (5) admitting improper expert testimony; and

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(6) failing to give an elemental instruction. Finally, Massingill

contends that (7) cumulative error requires reversal. We address

each contention in turn.

A. The Record

¶9 Massingill contends that he should be granted a new trial

because “[d]espite arduous reconstruction efforts, the trial

transcripts remain so lacking that neither counsel nor this [c]ourt

can intelligently review whatever errors they contain.” We are not

convinced.

1. Additional Background

¶ 10 A For The Record (FTR) recording device was used at

Massingill’s trial. At times during the trial, the FTR failed to record

part of what was being said, and the trial transcript was ultimately

“riddled with omissions.” Massingill filed a motion asking the court

to help him reconstruct the trial transcripts. After numerous status

conferences and extensive efforts by both parties to reconstruct the

trial transcripts, the court approved Massingill’s proposed record

settlement. Even after the settlement, Massingill asserts that the

record still does not fully capture the proceedings below.

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2. Applicable Law and Standard of Review

¶ 11 Section 16-12-101, C.R.S. 2025, grants a defendant the right

to appeal a criminal conviction. Hoang v. People, 2014 CO 27, ¶ 39.

“Due process and equal protection protect a criminal defendant at

trial and on direct appeal.” Id. So, as a general matter, “a criminal

defendant is entitled to a record on appeal which includes a

complete transcript of the proceedings at trial.” People v. Rodriguez,

914 P.2d 230, 300 (Colo. 1996). A defendant seeking “relief on a

due process claim arising from an incomplete record . . . must

always demonstrate specific prejudice resulting from the state of

that record.” Id. at 301.

¶ 12 We review de novo whether the record is sufficient for

appellate review. See Hoang, ¶ 38.

3. The Record Is Sufficient for Appellate Review

¶ 13 First, Massingill argues that there are sixty-one “incomplete

bench conferences” that prejudice him because “they leave his

counsel unable to protect his basic rights” by identifying potential

“winning issues.” He also argues that the issue most affected by

the deficient trial transcripts is A.F.’s cross-examination about the

material witness warrant proceedings, discussed infra Part II.C.

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¶ 14 While Massingill identifies A.F.’s cross-examination as the

specific issue that was affected by the transcripts, he ultimately

makes the general assertion that a new trial is warranted merely

because the missing details of the bench conferences prejudiced his

ability to uncover winning issues. However, as the Rodriguez court

held, a defendant must always “demonstrate specific prejudice

resulting from the state of that record.” 914 P.2d at 301 (emphasis

added). The broad assertion that the bench conferences could have

contained “winning issues” does not sufficiently allege specific

prejudice.

¶ 15 Second, Massingill claims that the number of indecipherable

bench conferences establishes specific prejudice. He asserts these

bench conferences “contain argument and ruling on objections

during A.F.’s testimony, which is at the heart of five issues

presented.”

¶ 16 But as the People point out, this case isn’t meaningfully

different than Hoang. In that case, the defendant alleged numerous

errors in the record: fifty unrecorded bench conferences, omission

of trial testimony, and “approximately sixty [missing] pieces of trial

evidence.” Hoang, ¶ 40. The supreme court ultimately held that

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Hoang did not identify “potential error[s] that may be concealed in

an unrecorded bench conference or other omission in the record,”

and instead he only speculated as to potential appealable claims

contained in the “alleged gaps.” Id. at ¶ 42.

¶ 17 Massingill attempts to distinguish his case from Hoang by

arguing that there were sixty-one indecipherable bench

conferences, versus only two or three that the court ultimately

identified in Hoang. And Massingill claims that the reconstruction

the trial court adopted expressly connects many of the bench

conferences to the issues he presents on appeal. But besides

comparing the number of bench conferences affected in his trial to

those in the Hoang trial, he does not develop an argument to

explain why the number of bench conferences alone prejudiced him.

¶ 18 Ultimately, Massingill’s claim falls short because he can’t

identify any specific prejudice resulting from the unrecorded bench

conferences. While he identifies twelve bench conferences occurring

during A.F.’s testimony, he does not explain why these gaps in the

transcripts are prejudicial to his case. Because he has failed to

demonstrate specific prejudice resulting from the record — as he

must do to prevail — he is not entitled to relief on this basis. See

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Rodriguez, 914 P.2d at 301 (“Rodriguez’[s] bare assertion that the

incomplete record prejudiced counsel’s ability to prepare [his]

appeal does not amount to a showing of specific prejudice, and,

accordingly, Rodriguez is not entitled to relief.”); see also People v.

Whittiker, 181 P.3d 264, 269 (Colo. App. 2006) (holding that “the

transcripts, although flawed, are sufficiently reliable to enable

intelligent review of defendant’s substantive contentions”).

B. Alternate-Suspect Defense

¶ 19 Massingill contends that the trial court abused its

discretion — and violated his constitutional rights — when it

excluded evidence that supported his alternate-suspect defense.

We disagree.

1. Additional Background

¶ 20 Before trial, Massingill disclosed that he was asserting a

general denial to the charge of patronizing a prostituted child and

was defending with consent for the sexual assault charge. For all

other charges, Massingill asserted the affirmative defense of self-

defense.

¶ 21 During trial, the defense questioned A.F. about whether

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• A.F. knew that K.Q. was carrying cash the night K.Q. was

murdered;

• A.F. knew that K.Q. often carried cash;

• A.F. dealt drugs on the side and obtained drugs for other

people; and

• A.F.’s drug use had affected her personal relationships.

¶ 22 The prosecution raised relevance and hearsay objections

throughout this testimony, which the court sustained on multiple

occasions. After a relevance objection to the personal relationships

question, the court excused the jury for lunch and held a bench

conference to discuss the testimony.

¶ 23 During this conference, defense counsel acknowledged that

she understood why the court was sustaining the prosecutor’s

objections. She then said that it was time to reveal the defense

theory that she intended to present during closing argument.

Defense counsel stated that she was “trying to elicit information

about [A.F.’s] denigration [sic] of her relationship with her family

and her friend[s]” because she planned to argue that it was actually

A.F. who shot and killed K.Q., not Massingill. Defense counsel

sought to argue that A.F. “had descended into the pit of

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methamphetamine use to such a degree that she was willing to

burn any bridge that she may have had,” including the one she had

with K.Q.

¶ 24 The prosecutor objected to the alternate-suspect defense

theory given the lack of notice and the defense’s endorsement of a

self-defense affirmative defense. He also cited Crim. P. 16(II)(c),

which obligates the defense to disclose the nature of its defense

thirty-five days before a felony trial.

¶ 25 The next day, the court issued its ruling. It relied on People v.

Elmarr, 2015 CO 53, and the requirement from that case that for

alternate-suspect evidence to be relevant, the defense has to

establish a nonspeculative connection or nexus between the

alternate suspect and the crime charged. The court also noted that

it didn’t necessarily read Elmarr as applying Rule 16(II)(c)’s

disclosure obligation to every alternate-suspect defense theory. The

court then issued a detailed ruling explaining which pieces of the

proffered alternate-suspect evidence would be admitted or excluded.

2. Applicable Law and Standard of Review

¶ 26 Rule 16(II)(c) requires that the defense disclose “the nature of

any defense” no less than thirty-five days before trial. This

10
requirement applies to the identity of any alternate suspect. People

v. Dye, 2024 CO 2, ¶ 49. The admissibility of evidence supporting

an alternate-suspect defense “depends on the strength of the

connection between the alternate suspect and the charged crime.”

Elmarr, ¶ 31. To avoid juror speculation, there must be “reasonable

limits on collateral issues.” Id. Therefore, “alternate suspect

evidence must be sufficiently probative to be admissible; that is, it

must be both relevant (under CRE 401) and its probative value

must not be sufficiently outweighed by the danger of confusion of

the issues or misleading the jury . . . (under CRE 403).” Id.

Whether the alternate-suspect evidence is relevant depends on if

the defense “establishes a non-speculative connection or nexus

between the alternate suspect and the crime charged.” Id. at ¶ 32.

¶ 27 “We review evidentiary rulings for an abuse of discretion. A

[trial] court abuses its discretion when its ruling is manifestly

arbitrary, unreasonable, or unfair, or when it misapplies the law.”

People v. Morse, 2023 COA 27, ¶ 39 (citation omitted). We review de

novo “a defendant’s claim that the government violated their

constitutional right to present a defense.” Rios-Vargas v. People,

2023 CO 35, ¶ 19. “An erroneous evidentiary ruling may . . . rise to

11
the level of constitutional error if it deprived the defendant of any

meaningful opportunity to present a complete defense.” People v.

Conyac, 2014 COA 8M, ¶ 93.

3. The Court Did Not Abuse Its Discretion
or Violate Massingill’s Constitutional Rights

¶ 28 Massingill first contends that while he did not file a pretrial

endorsement of an alternate-suspect defense, the prosecution was

still on notice because A.F. was “their own indispensable witness.”

The People argue that because Massingill failed to disclose his

alternate-suspect defense, the issue is unpreserved.

¶ 29 We are not persuaded that A.F.’s status as the prosecution’s

witness provided notice of Massingill’s alternate-suspect defense.

However, we agree with Massingill that neither the defense nor the

trial court had the benefit of Dye at the time of the trial. Dye

requires that an alternate-suspect defense be disclosed thirty-five

days before trial under Rule 16(c). Dye, ¶ 49. But Dye was decided

five years after Massingill’s trial. And at the time of that trial, there

was no case holding that an alternate-suspect defense had to be

disclosed as “the nature of [a] defense” under Rule 16(II)(c).

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¶ 30 Regardless, the fact that the prosecution’s objection would

have come out differently under later case law doesn’t implicate

preservation as to Massingill’s challenge. “To preserve an issue for

appeal, an appellant, during trial, must raise it in a manner specific

enough that it ‘draws the [trial] court’s attention to the asserted

error.’” Wolven v. Velez, 2024 COA 8, ¶ 8 (alteration in original)

(quoting People v. McFee, 2016 COA 97, ¶ 31). After the trial court

permitted Massingill to pursue his alternate-suspect defense

involving K.Q., it precluded some of his proffered witness testimony.

That was sufficient to preserve his challenge for appeal.

¶ 31 As for the substance of his challenge, Massingill argues that

the trial court abused its discretion when it excluded the alternate-

suspect evidence and prohibited cross-examination about (1) text

messages that A.F. was dealing, trading, and panhandling for

drugs; (2) text messages that A.F. was feeling suicidal and “wished

drugs would take her life”; (3) testimony about whether A.F. had

stolen a former roommate’s gun; and (4) testimony about whether

“K.Q. gave A.F. money for cigarettes on the night of the shooting

and A.F. lied and said she forgot the change at the store.” We

address each piece of evidence in turn.

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¶ 32 The court prohibited text messages between A.F. and a friend

about trading pills for meth and cross-examination about whether

A.F. was dealing, trading, and panhandling for drugs. It

determined that this was prohibited character evidence and

evidence of other bad acts. It also ruled that “the fact that [A.F.]

was dealing drugs doesn’t create a [nonspeculative] connection that

she then murdered [K.Q.]”

¶ 33 CRE 404(a) generally prohibits evidence of a person’s

character to “prov[e] that the person acted in conformity therewith

on a particular occasion.” Rule 404(b)(1) prohibits “[e]vidence of

any other crime, wrong, or act . . . to prove a person’s character in

order to show that on a particular occasion the person acted in

conformity with the character.” And although Rule 404(b)

principles guide the analysis, the “touchstone” of relevance in the

alternate suspect context is whether the evidence establishes a

nonspeculative connection between the alternate suspect and the

crime. Elmarr, ¶¶ 23, 39.

¶ 34 Here, the evidence of selling and trading for drugs that defense

counsel sought to admit constituted prohibited bad acts under Rule

404(a). And the jury had already heard A.F.’s own testimony about

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her struggle with addiction. Moreover, whether A.F. allegedly sold

and traded for drugs did not create a nonspeculative nexus that she

was the one to pull the trigger. That evidence simply does not make

it more likely that she was the one who killed K.Q. Instead, it leads

only to a speculative connection that all drug dealers are violent,

A.F. dealt drugs, and therefore she killed K.Q. This falls outside the

scope of alternate-suspect evidence permitted by Elmarr.

¶ 35 The court also observed that A.F.’s suicidal thoughts and

feelings may have been “the musings of a young woman who was

. . . in the grip of a horrific addiction,” and it concluded that these

thoughts didn’t make it more likely that she killed K.Q. We likewise

fail to see how A.F.’s alleged suicidal thoughts created a nexus

between her and K.Q.’s murder. The proffered testimony did not

detail A.F. wanting to murder K.Q.; instead, A.F.’s thoughts were of

potentially wanting to hurt herself. The evidence of A.F.’s suicidal

thoughts, therefore, did not establish a nonspeculative connection

between her and K.Q.’s murder. See Elmarr, ¶ 23.

¶ 36 Next, the court held that evidence of A.F. stealing a friend’s

shotgun was not relevant because it was more bad acts evidence,

and K.Q. was not murdered with a shotgun. Massingill argues that

15
the evidence “was probative of whether A.F. also robbed K.Q. (and

in the course, killed her).” We disagree. The alleged theft of the

shotgun was not relevant because it was not the gun that killed

K.Q. The proposed chain of relevance relies on the prohibited bad

character inference that because A.F. previously stole something,

she was also more likely to commit a murder. And finally, stealing

a shotgun that was not used to kill K.Q. does not create a

nonspeculative nexus between A.F. and the murder.

¶ 37 The court next ruled that evidence that K.Q. gave A.F. money

to buy cigarettes and that A.F. lied about leaving the change on the

counter was “just character evidence” that didn’t make it more

likely that A.F. killed K.Q. Massingill argues that evidence that

“A.F. stole money from K.Q. that same night was highly probative of

whether she did so again in a manner that escalated to K.Q.’s

death.” Again, we are not convinced. This is also prohibited

character evidence. Moreover, as the court found, the fact that A.F.

lied about keeping the change from a cigarette purchase does not

establish that A.F. later pulled the trigger and killed K.Q. See

Elmarr, ¶ 23.

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¶ 38 Therefore, the court did not abuse its discretion when it

excluded alternate-suspect evidence that did not create a nexus

between A.F. and K.Q.’s murder. See Morse, ¶ 39.

¶ 39 Finally, Massingill contends that the trial court’s evidentiary

rulings violated his constitutional rights to due process, to present

a complete defense, and to confront witnesses against him. While

the court limited some areas of inquiry in the alternate-suspect

evidence that Massingill could present, it also allowed Massingill to

present other evidence supporting his alternate-suspect defense.

For example, the court allowed the defense to cross-examine A.F.

about how her relationship with family deteriorated, whether A.F.

lied to doctors and nurses about the last time she used

methamphetamine on the night of the murder, A.F.’s familiarity

with guns, and anything related to who actually pulled the trigger.

Consequently, the court allowed Massingill a meaningful

opportunity to present an alternate-suspect defense, while also

excluding inadmissible alternate-suspect evidence under Elmarr.

As a result, we can’t say that Massingill was denied “any

meaningful opportunity to present a complete defense” or that he

was “denied virtually his only means of effectively testing significant

17
prosecution evidence.” Conyac, ¶ 93. Likewise, the trial court has

wide latitude to place limits on cross-examination, even in the

confrontation context. See People v. Carter, 2015 COA 24M-2, ¶ 33.

Given our analysis above, we are not persuaded that the proposed

cross-examination would have left the jury with “a significantly

different impression” of A.F.’s credibility. Id. at ¶ 31 (quoting

Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)).

¶ 40 Accordingly, we also perceive no errors of constitutional

dimension in the trial court’s rulings.

C. Material Witness Warrant

¶ 41 Massingill contends that his rights to confrontation and a

complete defense were violated when the trial court “severely

limit[ed] his ability to cross-examine the alternate suspect about the

material witness warrant required to secure her trial testimony.”

1. Additional Background

¶ 42 Before trial, the prosecution filed a motion in limine for a

pretrial ruling on admissibility. It moved to admit certain

statements that A.F. had made because, although the prosecution

and defense had made “efforts to locate her [and] serve her with a

subpoena for the upcoming trial,” they anticipated that A.F. would

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not be present at the trial. This is because she was “on the run

with a warrant active for a probation violation in [an unrelated]

juvenile case.” Given the uncertainty of A.F.’s attendance at trial,

the prosecution filed a proposed certificate and warrant “requesting

that [A.F.] be brought immediately before [the court]” because she

was a material witness and so the prosecution could guarantee her

attendance at Massingill’s trial. The court imposed a $10,000 bond

with pretrial services and a GPS ankle monitor.

¶ 43 Almost two months later, A.F. violated the terms and

conditions of her bond by removing the GPS monitor. On the

prosecution’s request, the court modified A.F.’s bond to $10,000

cash or surety bond, with a new GPS ankle monitor, in the event

that A.F. was released from custody on the unrelated juvenile case.

¶ 44 On the first morning of trial, the court held a brief motions

hearing before the jury was brought in. During this hearing,

defense counsel asked the court if she could cross-examine A.F.

about the fact that A.F. was still in custody due to the material

witness bond. The court ruled that the defense would not be

permitted to cross-examine A.F. about her custody status. The

court further explained that A.F. would be in custody regardless of

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the material witness bond because she was serving a sentence for

the unrelated juvenile case. The court then concluded that it would

permit “limited cross-examination” on A.F.’s reluctance to testify

and indicated it would make a further order after A.F.’s direct

examination.

¶ 45 After A.F.’s direct testimony, the court noted that A.F.’s

willingness to testify was relevant to her credibility as the only other

person who witnessed K.Q.’s murder. It clarified that the defense

could not cross-examine A.F. about the “court process” — in other

words, that a warrant was issued and a bond set to secure A.F. as a

witness. However, the court allowed the defense to examine A.F.

about whether she wanted to be at trial, whether a GPS monitor

was placed on her, and whether she had cut that monitor off.

2. Applicable Law and Standard of Review

¶ 46 The United States and Colorado Constitutions guarantee “[t]he

right to confront and cross-examine witnesses.” People v. Houser,

2013 COA 11, ¶ 58. While a trial court has “wide latitude to

reasonably limit cross-examination, [it] must ‘allow broad cross-

examination of a prosecution witness with respect to the witness’[s]

motive for testifying, especially . . . where [her] testimony against

20
the defendant might be influenced by a promise of, or hope or

expectation of, immunity or leniency.’” Id. (alterations in original)

(citation omitted) (quoting People v. King, 498 P.2d 1142, 1144-45

(Colo. 1972)). “A confrontation violation occurs if the defendant

‘was prohibited from engaging in otherwise appropriate cross-

examination designed to show a prototypical form of bias on the

part of the witness,’ which leaves the jury with a ‘significantly

different impression of the witness’s credibility.’” Id. at ¶ 59

(quoting Kinney v. People, 187 P.3d 548, 559 (Colo. 2008)).

¶ 47 We review de novo a possible confrontation violation. People v.

Hernandez, 2021 CO 45, ¶ 18.

3. The Trial Court’s Restrictions on Cross-Examination
Did Not Violate Massingill’s Confrontation Rights

¶ 48 Massingill argues that the “jury was left with a fundamental

misunderstanding of [A.F.’s] credibility, bias, motive, and interest”

because the court limited cross-examination. But defense counsel

was permitted to cross-examine A.F. in these areas. The court

allowed defense counsel to ask A.F. if she wanted to be at the trial,

whether a GPS monitor was placed on her, and whether she had

cut it off. These questions allowed defense counsel to explore A.F.’s

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credibility, bias, motive, and state of mind. The court only limited

defense counsel from getting into the unnecessary procedural

background about the material witness warrant.

¶ 49 Given this scope of cross-examination, Massingill doesn’t

explain how the jury would have been left with a “significantly

different impression” of A.F.’s credibility. Houser, ¶ 59 (quoting

Kinney, 187 P.3d at 559). As the trial court pointed out, A.F. would

have been in custody regardless of the bond, so her custody status

couldn’t reflect on her credibility. And Massingill was able to

explore his main point: that A.F. was less credible as a purported

victim because she didn’t want to be at the trial. Given these facts,

we cannot say that Massingill’s confrontation right was violated.

See id.

D. Subpoena Duces Tecum

¶ 50 Massingill contends that the trial court erred when it granted

a motion to quash his subpoena duces tecum filed by the Mesa

County Sheriff’s Office (MCSO).

1. Additional Background

¶ 51 In November 2018, Massingill served a subpoena duces tecum

on the MCSO for all of A.F.’s jail calls from August 2018 to the date

22
of the subpoena. The MCSO complied and provided Massingill with

the recorded jail calls. Then in December, Massingill submitted a

Rule 16 discovery request to the prosecution for A.F.’s jail calls from

October 2018 to the date of the request. The prosecution

responded that it was not in possession of the call recordings and

recommended that Massingill contact the MCSO with his request.

In February 2019, Massingill then served another subpoena duces

tecum on the MCSO for all of A.F.’s jail calls from December 2018

to the date of that request. The MCSO moved to quash the

subpoena because there were 150 calls “that would be responsive to

the subpoena,” and it would take about five hours to review the

calls.

¶ 52 The trial court granted the MCSO’s motion to quash. It ruled

that the prosecution was not obligated to disclose the jail calls

because the calls were not in the prosecution’s possession and the

calls were “apparently recorded for jail security purposes.” The

court also found that employees of the jail did not “regularly report”

to the District Attorney’s Office. Then the court concluded that it

could not find that “any statements that [A.F.] made in a telephone

23
call to some unknown individual are automatically ‘statements’ that

are subject to the mandatory disclosure provisions of Rule 16.”

¶ 53 Next, the court ruled that Massingill didn’t meet his burden

under People v. Spykstra, 234 P.3d 662 (Colo. 2010), and therefore

it was appropriate to quash the subpoena under Crim. P. 17(c).

¶ 54 Lastly, the court concluded that Massingill should have filed a

request under the Colorado Criminal Justice Records Act (CCJRA)

to obtain the call recordings but that he failed to do so. In his

response to the motion to quash, Massingill had asked the court to

find that the MCSO did not conduct a “proper balancing test” even

though he hadn’t filed a CCJRA request. The court ruled that

because Massingill hadn’t filed the CCJRA request, A.F. didn’t have

notice that Massingill wanted “copies of telephone conversations

that may be privileged or may contain confidential . . . information.”

The court then denied the request on those grounds as well.

2. Applicable Law and Standard of Review

¶ 55 Rule 16(I)(a)(1) obligates prosecutors to make certain material

and information within their possession or control available to the

defense. This obligation extends to “material and information in the

possession or control of members of his or her staff and of any

24
others who have participated in the investigation or evaluation of

the case and who either regularly report, or with reference to the

particular case have reported, to his or her office.” Crim. P.

16(I)(a)(3).

¶ 56 Rule 17(c) “is the means by which the prosecution and

defendant may compel third parties to produce evidence for use at

trial.” Spykstra, 234 P.3d at 668. Rule 17(c) permits a party to use

a subpoena duces tecum, which “requires in-court production.” Id.

This method protects third parties from unreasonable searches and

seizures. Id. Rule 17(c) also allows the court to “quash or modify

the subpoena if compliance would be unreasonable or oppressive.”

When a third party challenges a subpoena, the court turns to the

Spykstra factors to evaluate the challenge. A party must

demonstrate the following factors to avoid the subpoena duces

tecum being quashed:

(1) A reasonable likelihood that subpoenaed
materials exist, by setting forth a specific
factual basis;

(2) That the materials are evidentiary and
relevant;

25
(3) That the materials are not otherwise
procurable reasonably in advance of trial by
the exercise of due diligence;

(4) That the party cannot properly prepare for
trial without such production and
inspection in advance of trial and that the
failure to obtain such inspection may tend
unreasonably to delay the trial; and

(5) That the application is made in good faith
and is not intended as a general fishing
expedition.

Spykstra, 234 P.3d at 669.

¶ 57 “We review a district court’s decision to quash a subpoena for

an abuse of discretion. A court abuses its discretion when its

ruling is manifestly arbitrary, unreasonable, or unfair, or if it

misconstrues or misapplies the law.” People v. Cline, 2022 COA

135, ¶ 14 (citations omitted). We review a trial court’s “resolution of

discovery issues, including its decision whether to review . . .

records in camera,” for an abuse of discretion. People v. Herrera,

2012 COA 13, ¶ 10.

3. The Trial Court Did Not Abuse Its Discretion When
It Quashed Massingill’s Subpoena Duces Tecum

¶ 58 Massingill argues that the recorded jail calls were discoverable

for numerous reasons under Rule 16, they should have been made

available with the subpoena duces tecum under Rule 17, and the

26
trial court should have reviewed the records in camera before

quashing the subpoena. Accordingly, he asks us to reverse the

court’s order quashing the subpoena.

a. Rule 16

¶ 59 First, Massingill claims that the “premise” that recorded jail

calls are only used for security purposes “defies credulity” because

“[p]rosecutors routinely rely on jailhouse phone calls as trial

evidence.” Rule 16(I)(a)(3) extends disclosure obligations to

individuals who “either regularly report, or . . . have reported, to

[the prosecution].” Massingill is correct that jail calls can be

recorded for a number of purposes and that not all of those

purposes are for security. But as we detail below, A.F.’s jail calls

were not being monitored or surveilled. According to the MCSO’s

unchallenged account, they were being routinely recorded for

security purposes like all other calls in the jail.

¶ 60 Second, Massingill argues that the calls were discoverable

because Rule 16 obligations extend to “any law enforcement agency

‘that participated in the investigation . . . of the case.’” See Crim. P.

16(I)(a)(3). While this argument accurately states the provision of

Rule 16, it does not inevitably mean that A.F.’s jail calls are subject

27
to disclosure under the rule. As the People point out, A.F. was in

custody in the jail for an unrelated case and, “to the extent she had

to stay in custody due to the material witness warrant, that warrant

was tethered to the prosecution’s concerns surrounding her

addiction and evasive behavior.” The fact that A.F. happened to be

in custody does not mean that the jail was investigating her, either

generally or in connection with this case. A.F. was in custody for

an unrelated juvenile case and to guarantee her presence at trial.

The fact that the MCSO was holding A.F. does not mean that it was

investigating her.

¶ 61 Third, Massingill argues that A.F.’s jail calls were electronic

surveillance and were therefore subject to Rule 16(I)(a)(1)(VI), which

requires the prosecution to disclose “[a]ll tapes and transcripts of

any electronic surveillance (including wiretaps) of conversations

involving the accused, any codefendant or witness in the case.”

Massingill asserts that the calls were electronic surveillance

because they were the “interception and recording of oral

communications.” But we see nothing in the record supporting the

theory that A.F.’s jail calls were being surveilled or “intercepted.”

As noted above, according to the MCSO, A.F.’s jail calls — along

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with all the jail calls in general — were being recorded for security

purposes. And while all jail calls were recorded for jail security

purposes, the record at the hearing indicated that A.F.’s jail calls

were not under surveillance. Because A.F.’s jail calls were not

subject to electronic surveillance, they were not discoverable under

this provision of Rule 16. Accordingly, the prosecution did not have

an obligation to disclose the recordings.

¶ 62 Fourth, Massingill argues that Rule 16 also mandates

disclosure of information “which tends to negate the guilt of the

accused as to the offense charged.” Crim. P. 16(I)(a)(2). He argues

that “[n]either the prosecution nor [the] MCSO asserted that the

recorded calls don’t contain statements that either negate

Massingill’s guilt or bear on A.F.’s credibility.”

¶ 63 It is true that Brady v. Maryland, 373 U.S. 83, 87 (1963), held

that “suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is

material either to guilt or to punishment.” However, as far as we

can tell, Massingill only speculates that A.F.’s jail calls could

contain evidence favorable to Massingill. Neither the prosecution

nor the MCSO indicated that the jail calls contained statements

29
that negated Massingill’s guilt. Nor does Massingill advance any

basis upon which we could conclude that the jail calls contained

exculpatory statements. Accordingly, the prosecution wasn’t

required to review the jail calls for potential exculpatory evidence

under these circumstances. See People v. Williams, 2019 COA 32,

¶ 32 (“[T]he state has no duty to have evidence tested on the

speculative basis that it might have some unspecified use for

exculpatory purposes.” (quoting People v. Apodaca, 998 P.2d 25, 30

(Colo. App. 1999))).

¶ 64 Finally, Massingill argues that even if the Rule 16(I)(a)

discovery request did not extend to the MCSO, disclosure was

required under Rule 16(I)(c)(1) because the jail calls were “in the

possession or control of other governmental personnel.” He also

claims that the prosecution “refused to make any efforts to obtain

the calls from [the] MCSO.”

¶ 65 Rule 16(I)(c)(1) requires that

[u]pon the defense’s request and designation of
material or information which would be
discoverable if in the possession or control of
the prosecuting attorney and which is in the
possession or control of other governmental
personnel, the prosecuting attorney shall use

30
diligent good faith efforts to cause such
material to be made available to the defense.

¶ 66 Because the jail calls were not discoverable under Rule 16 in

the first place, the prosecution had no obligation to use “diligent

efforts” to obtain the calls from the MCSO under Rule 16(I)(c)(1).

¶ 67 Therefore, the trial court did not err when it quashed

Massingill’s subpoena for A.F.’s jail calls.

b. Rule 17

¶ 68 Massingill next argues that his subpoena for the records was

authorized under Rule 17 because they were “in the possession or

control of other governmental personnel” within the meaning of

Rule 16(I)(c)(1). He argues that even if the prosecution didn’t have

to disclose the records under Rule 16, he still should have been

able to obtain them under Rule 17. And he further argues that the

Spykstra test does not apply in this case because “Massingill’s

subpoena was issued to a government entity, not a third party.”

¶ 69 Rule 17(c) is designed to protect third parties from

unreasonable searches and seizures through the use of subpoenas.

Spykstra, 234 P.3d at 668. Therefore, a defendant must satisfy the

five-factor Spykstra test to defeat a motion to quash a subpoena.

31
Id. at 669. While it is true, as Massingill argues, that government

entities do not have constitutional rights, that question only

governs a portion of the analysis. And there is nothing in the rule

or Spykstra excluding government entities as third parties entitled

to the rule’s protection.

¶ 70 Moreover, Massingill doesn’t address the trial court’s

reasoning for denying his request under Rule 17. The court ruled

that Massingill had failed to carry his burden of showing that the

request was not a general fishing expedition. A subpoena duces

tecum cannot be used as a general fishing expedition. Id.; see also

People v. Baltazar, 241 P.3d 941, 944 (Colo. 2010) (“Both [the

Colorado Supreme Court] and the United States Supreme Court

have emphasized that their respective rules permit subpoenas only

for the production of ‘evidence’ — not as an investigative tool.”).

Given this record — over 150 subpoenaed calls with no showing of

any specific evidentiary value — we perceive no abuse of the trial

court’s discretion when it granted the MCSO’s motion to quash

under Rule 17.

32
c. Review of Records In Camera

¶ 71 Finally, Massingill argues that regardless of whether the trial

court should have permitted the records to be subpoenaed under

Rule 16 or Rule 17, it abused its discretion by quashing the

subpoena rather than reviewing the call recordings in camera. He

asks that we remand the case to the trial court so that it can screen

the records for privileged or confidential information. This, he

argues, would then allow him “to demonstrate a reasonable

probability that, had the calls been disclosed before trial, the result

would have been different.”

¶ 72 Disclosure to a criminal defendant of confidential information

requires that a trial court conduct an in camera review. Herrera,

¶ 14. After the in camera review, the trial court “must then

determine what discoverable information in the records, if any,

must be disclosed to the defendant.” Id. However, as we

determined above, A.F.’s jail calls were not discoverable under Rule

16 and were not accessible through subpoena under Rule 17. It

follows that the court did not abuse its discretion by not conducting

an in camera review because Massingill did not show an entitlement

to access the jail call recordings in the first place.

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E. Possession of a Controlled
Substance Conviction

¶ 73 Massingill contends that the possession of a controlled

substance conviction for count 12 must be reversed because the

court improperly admitted expert testimony and did not give an

elemental instruction to the jury on that count. Massingill did not

raise an objection on either ground during his trial. We agree as to

his latter claim.

1. Standard of Review and Applicable Law

¶ 74 “We review unpreserved trial errors for plain error.” People v.

Hamilton, 2019 COA 101, ¶ 14. “Plain error is obvious and

substantial[,] . . . [and review for plain error] permit[s] an appellate

court to correct ‘particularly egregious errors.’” Hagos v. People,

2012 CO 63, ¶ 14 (quoting Wilson v. People, 743 P.2d 415, 420

(Colo. 1987)).

¶ 75 To rise to the level of plain error, the error “must be so clear-

cut, so obvious, that a trial judge should be able to avoid it without

benefit of objection.” People v. Pollard, 2013 COA 31M, ¶ 39. An

error is ordinarily this obvious if it violates “(1) a clear statutory

command; (2) a well-settled legal principle; or (3) Colorado case

34
law.” Scott v. People, 2017 CO 16, ¶ 16 (quoting Pollard, ¶ 40). An

error is substantial, warranting reversal, “only if [it] ‘so undermined

the fundamental fairness of the trial itself so as to cast serious

doubt on the reliability of the judgment of conviction.’” Hagos, ¶ 14

(quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).

¶ 76 A trial court has “a duty to instruct the jury properly on all of

the elements of the offenses charged.” People v. Bastin, 937 P.2d

761, 764 (Colo. App. 1996). If a jury is not properly instructed on a

charge, then it cannot decide that charge. People v. Wambolt, 2018

COA 88, ¶ 38.

2. Massingill Did Not Waive His
Instructional Challenge

¶ 77 Massingill contends that the trial court plainly erred when it

failed to properly instruct the jury on the elements of the possession

charge. The People respond that Massingill’s contention “should be

rejected as waived or invited” because he conceded guilt for the

possession charge during opening statements and “strategically

used that concession to successfully argue against additional

charges relating to sexual assault.”

35
¶ 78 A waiver is an “intentional relinquishment of a known right or

privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (quoting Dep’t of

Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)). A forfeiture,

however, is “the failure to make [a] timely assertion of a right.” Id.

at ¶ 40 (quoting United States v. Olano, 507 U.S. 725, 733 (1993)).

This distinction is important because a waiver “extinguishes error,

and therefore appellate review, but a forfeiture does not.” Id. We

review forfeited errors for plain error. Id.

¶ 79 The People cite People v. Garcia, 2025 COA 98, in support of

their claim that Massingill waived his right to appeal this issue by

conceding to the possession charge. A division of this court held in

Garcia that “when defense counsel tells the jury to find the

defendant guilty of one of the charged offenses during closing

argument, the defendant has waived the ability to claim on appeal

that there was insufficient evidence to support a conviction for that

offense.” Id. at ¶ 1. Put another way, the division said that this

move “is akin to defense counsel stating that there was sufficient

evidence to convict [the defendant] of [that offense].” Id. at ¶ 23.

¶ 80 But in this case, defense counsel did not concede guilt during

closing argument. Instead, during his opening statement, defense

36
counsel said, “We admit to you count 12, possession of Xanax. And

Israel Massingill was drunk that night. He was high on Xanax, and

the District Attorney has charged him with the possession of the

Xanax. So the complaint charges Israel Massingill with patronizing

a prostituted child . . . . We admit that.” The Garcia division made

clear that a concession of this sort during opening statement does

not, without more, amount to waiver. Id. at ¶ 24 n.3.

¶ 81 Moreover, at the close of evidence, the defense didn’t concede

the charge. Instead, defense counsel moved for a judgment of

acquittal for, among other counts, the possession charge.

Specifically, defense counsel argued,

Count 12, Your Honor, you saw the testimony,
you saw the, the evidence, the baggie. It was
basically residue. However, I understand that
the law allows residue to be considered, if it’s
a quantifiable amount, for possession. The
law allows that. I, but where . . . the bag was
found was within a handlebar grip found
within Mr. Massingill’s bedroom. So part of
possession requires knowing, dominion, and
control. So possession, then, requires that Mr.
Massingill, 1, knew there was that little baggie
in the basement, 2, knew that it was in a
handlebar grip that was not on a bicycle, Your
Honor, 3, knew that it contained alprazolam.
There has not been sufficient and substantial
evidence to prove to the Court the knowledge

37
requirement that is necessary for count 12,
Your Honor. Thank you very much.

Garcia permits defense counsel to “pivot” between opening

statement and closing argument, just as defense counsel did here.

Id.

¶ 82 Likewise, during closing argument, defense counsel admitted

guilt to patronizing a prostituted child. Counsel told the jury,

“[W]e’ve already admitted to you that Israel Massingill is guilty of

patronizing a prostituted child.” But defense counsel made no such

admission of guilt as to the possession charge. Based on the

motion for judgment of acquittal and closing argument, both made

after the jury heard the evidence, we can’t say that Massingill

conceded that there was sufficient evidence for the jury to find that

he knowingly possessed the baggie of Xanax.

¶ 83 Moreover, Massingill doesn’t argue sufficiency of the evidence

on appeal. Instead, he argues that he was entitled to an elemental

instruction. We see no indication on this record that he

intentionally waived that issue. Indeed, while defense counsel

conceded guilt to the patronizing a prostituted child charge in

closing argument, the parties still included an elemental instruction

38
for that charge in the jury instructions. But the possession charge

appears to have been simply overlooked during the jury instruction

conference. Indeed, while the court listed all the charges in the jury

instructions, and provided verdict forms for all the charges, it

omitted the elemental instruction solely for the possession charge.

The error appears to have been inadvertent, which makes it a

forfeiture. See Rediger, ¶¶ 43-44 (noting that with no evidence that

the defendant knew of a discrepancy in the jury instructions, the

supreme court “conclude[d] that neglect, not intent, explains [the

defendant’s] lack of an objection”). We therefore review this

forfeited error for plain error. Id. at ¶ 40.

3. The Trial Court Plainly Erred When It Failed to Properly
Instruct the Jury on the Possession Charge

¶ 84 Massingill contends that the trial court’s failure to instruct the

jury on the possession charge was plain error because it violates

well-settled law. We agree.

¶ 85 Plain error is obvious when it violates “a well-settled legal

principle.” Scott, ¶ 16 (quoting Pollard, ¶ 40). And it is a

well-settled principle that “[t]he jury cannot decide a charge on

which it was not instructed.” Wamboldt, ¶ 38. The People concede

39
that the omission of the elemental instruction was obvious, and we

agree. The trial court erred by failing to instruct the jury on the

possession charge.

¶ 86 The People, however, argue that while the error may have been

obvious, it was not substantial and did not “cast serious doubt on

the reliability of the judgment of conviction.” They argue that the

facts clearly supported defense counsel’s concession during opening

statements and that the elements of possession were contained in

the verdict form.

¶ 87 As to the elements, that argument is not right. Notably,

“knowingly” — the very element Massingill specifically challenged in

his motion for judgment of acquittal — did not appear in the verdict

form.

¶ 88 Further, “[d]ue process under both the state and federal

constitutions requires that the prosecution prove beyond a

reasonable doubt every fact necessary to constitute the charged

offense.” Cooper v. People, 973 P.2d 1234, 1242 (Colo. 1999). This

is why “the trial court must properly instruct the jury on every

essential element of the charged offense.” Id. While the People say

that “the facts clearly supported” Massingill’s concession from

40
opening statements, they don’t identify those facts with any

specificity. Further, we conclude this record doesn’t overcome the

instructional error. Without an elemental instruction, the jury had

no way of knowing whether the prosecution had met its burden on

the possession charge. Thus, the omission of an elemental

instruction under these facts “so undermined the fundamental

fairness of the trial itself so as to cast serious doubt on the

reliability of the judgment of conviction” for that count. Hagos, ¶ 14

(quoting Miller, 113 P.3d at 750).

¶ 89 Accordingly, we reverse the conviction on count 12, possession

of a Schedule III, IV, or V controlled substance, and remand the

case for a new trial on that count.

¶ 90 Given that we reverse this conviction, and the fact that the

evidence is unlikely to unfold in the same way on remand, we

decline to address Massingill’s challenge to the expert testimony

identifying the alprazolam in the baggie. See People v. Gulyas, 2022

COA 34, ¶ 29.

F. Cumulative Error

¶ 91 Finally, Massingill contends that the cumulative effect of these

alleged errors prejudiced him and deprived him of a fair trial.

41
¶ 92 The cumulative error doctrine applies 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)).

We have identified only the trial court’s plain instructional error for

the possession charge, not multiple errors. Because we determine

that the trial court did not commit multiple errors, the cumulative

error doctrine does not apply. See id. at ¶ 25. We therefore reject

Massingill’s last contention.

III. Disposition

¶ 93 The judgment of conviction on count 12, possession of a

Schedule III, IV, or V controlled substance, is reversed, and the case

is remanded for a new trial on that count and any further

proceedings consistent with this opinion that the trial court may

find necessary. The remainder of the judgment is affirmed.

JUDGE FOX and JUDGE SULLIVAN concur.

42