response defense in Colorado

2025In determining admissibility, courts may consider factors such as "the lapse of time between the startling event or condition and the out-ofcourt statement; whether the statement was a response to an inquiry; whether the statement is accompanied by outward signs of excitement or emotional distress; and the declarant's choice of words to describe the startling event or condition." Compan , 121 P.3d at 882. ¶101 Here, we know Marshall-Fields had an opportunity to observe the startling event because Ray's associate, Parish Carter, threatened him directly.

2025In determining admissibility, courts may consider factors such as "the lapse of time between the startling event or condition and the out-ofcourt statement; whether the statement was a response to an inquiry; whether the statement is accompanied by outward signs of excitement or emotional distress; and the declarant's choice of words to describe the startling event or condition." Compan , 121 P.3d at 882 . ¶101 Here, we know Marshall-Fields had an opportunity to observe the startling event because Ray's associate, Parish Carter , threatened him directly.

2025See Collins, 250 P.3d at 678 (holding that prosecutor’s remark was a response to defense counsel’s assertions, as opposed to a personal attack on defense).

2021See Collins , 250 P.3d at 678 (concluding that the prosecution’s description of defense counsel’s theory of reasonable doubt as “absurd” did not denigrate defense counsel because it “was merely a response to defense counsel’s assertions that the jury could not find defendant guilty beyond a reas onable doubt”); Peopl e 41 v. Perea , 126 P.3d 241, 248 (Colo. App. 2005) (concl uding that the prosecution did not denigrate defense counsel with a comment that defense counsel “has misstated the law” because the comm ent was “made as a means of focusing the jury’s attention on relevant evidence”); Al

2026See People v. Nardine, 2016 COA 85, ¶ 53 (holding that comment was not improper expression of personal belief where it was followed by reference to jury instruction on credibility).

2025See People v. Nardine, 2016 COA 85, ¶ 53 (comment on credibility proper when tied to credibility instruction and argument encouraged jury to consider whether testimony was corroborated by other evidence). 17 ¶ 32 Second, the prosecutor never called Freyta-Duran a “liar” or used the word “lie” in her argument.

2026See Roadcap, 78 P.3d at 1114 ; see also People v. Duncan, 2023 COA 122 , ¶ 32 (noting that a prosecutor is allowed to “comment on the lack of evidence confirming [a] defendant’s theory of the case.” (citation omitted)).

2026See Roadcap, 78 P.3d at 1114 ; see also People v. Duncan, 2023 COA 122 , ¶ 32 (noting that a prosecutor is allowed to “comment on the lack of evidence confirming [a] defendant’s theory of the case.” (citation omitted)).

2025Cf. People v. Vasquez , 2022 COA 100, ¶ 68, 521 P.3d 1042, 1055-56 (concluding that it was improper for the prosecutor to call the case "'a tragedy' for the victim and her family," to characterize the trial as "a public reckoning," and to tell the jury it was "the conscience of our community"). ¶151 We therefore conclude that these comments weren't improper.

2025Cf. People v. Vasquez , 2022 COA 100 , ¶ 68 , 521 P.3d 1042 , 1055-56 ( concluding that it was improper for the prosecutor to call the case " 'a tragedy' for the victim and her family," to characterize the trial as "a public reckoning," and to tell the jury it was "the conscience of our community" ) . ¶151 We therefore conclude that these comments weren't improper.

2021See Collins , 250 P.3d at 678 (concluding that the prosecution’s description of defense counsel’s theory of reasonable doubt as “absurd” did not denigrate defense counsel because it “was merely a response to defense counsel’s assertions that the jury could not find defendant guilty beyond a reas onable doubt”); Peopl e 41 v. Perea , 126 P.3d 241, 248 (Colo. App. 2005) (concl uding that the prosecution did not denigrate defense counsel with a comment that defense counsel “has misstated the law” because the comm ent was “made as a means of focusing the jury’s attention on relevant evidence”); Al

2021See Collins , 250 P.3d at 678 (concluding that the prosecution’s description of defense counsel’s theory of reasonable doubt as “absurd” did not denigrate defense counsel because it “was merely a response to defense counsel’s assertions that the jury could not find defendant guilty beyond a reas onable doubt”); Peopl e 41 v. Perea , 126 P.3d 241, 248 (Colo. App. 2005) (concl uding that the prosecution did not denigrate defense counsel with a comment that defense counsel “has misstated the law” because the comm ent was “made as a means of focusing the jury’s attention on relevant evidence”); Al

2021See Collins, 250 P.3d at 678 (The prosecutor’s comment that the defense counsel’s theory of reasonable doubt was “absurd” was not improper but “merely a response to defense counsel’s assertions that the jury could not find defendant guilty beyond a reasonable doubt.”); cf. People v. Serra, 2015 COA 130, ¶ 88 (The prosecutor’s “statements . . . that [the defendant] was making up a story to suit his ‘selfish, narcissistic needs’ were . . . improper” because they “impl[ied] the defendant ha[d] a bad character” and thus distracted the jury’s attention away from the evidence.). ¶ 56 Thus, in this c

2019This response could well have been merely a “rote statement that [counsel] is not objecting . . . .” United States v. Zubia-Torres, 550 F.3d 1202, 1207 (10th Cir. 2008) (cited with approval in Rediger, ¶ 45).

2019In contrast, here the court specifically asked, “Counsel, any objection to the self-defense instruction and its applicability to both first, second and third degree assault?” See People v. Perez-Rodriguez, 2017 COA 77, ¶ 28 (“Assuming that the statement ‘no objection’ was the response to an inquiry about specific language or a specific instruction, the circumstances might support deliberate conduct.”). ¶ 40 Second, in both cases, defense counsel gave a generic — “satisfied” and “acceptable” — response, equally applicable to all of the tendered instructions.

2011McDougall v. Corcoran, 153 Ariz. 157 , 735 P.2d 767, 770 (1987) ("It strikes us as elemental fairness to allow the State to comment upon the defense's failure to adduce potentially exculpatory evidence to which defendant had access when ' defendant is attacking the accuracy of the State's evidence."); People v. Leonard, 40 Cal.4th 1370 , 58 Cal.Rptr.3d 368 , 157 P.3d 973, 1002 (2007) (holding that the prosecution's argument that the defense's expert did not testify about a critical fact relating to ownership of a gun despite having been called to testify about the crime scenes did not shift th

2011McDougall v. Corcoran, 153 Ariz. 157 , 735 P.2d 767, 770 (1987) ("It strikes us as elemental fairness to allow the State to comment upon the defense's failure to adduce potentially exculpatory evidence to which defendant had access when ' defendant is attacking the accuracy of the State's evidence."); People v. Leonard, 40 Cal.4th 1370 , 58 Cal.Rptr.3d 368 , 157 P.3d 973, 1002 (2007) (holding that the prosecution's argument that the defense's expert did not testify about a critical fact relating to ownership of a gun despite having been called to testify about the crime scenes did not shift th

2011McDougall v. Corcoran, 153 Ariz. 157 , 735 P.2d 767, 770 (1987) ("It strikes us as elemental fairness to allow the State to comment upon the defense's failure to adduce potentially exculpatory evidence to which defendant had access when ' defendant is attacking the accuracy of the State's evidence."); People v. Leonard, 40 Cal.4th 1370 , 58 Cal.Rptr.3d 368 , 157 P.3d 973, 1002 (2007) (holding that the prosecution's argument that the defense's expert did not testify about a critical fact relating to ownership of a gun despite having been called to testify about the crime scenes did not shift th

2011See, eg., United States v. Palmer, 37 F.3d 1080, 1086 (5th Cir.1994) (prosecutor's comments about subpoena power of defendant did not shift the burden of proof but were a response to defense counsel's argument); State ex rel.

2011McDougall v. Corcoran, 153 Ariz. 157 , 735 P.2d 767, 770 (1987) ("It strikes us as elemental fairness to allow the State to comment upon the defense's failure to adduce potentially exculpatory evidence to which defendant had access when ' defendant is attacking the accuracy of the State's evidence."); People v. Leonard, 40 Cal.4th 1370 , 58 Cal.Rptr.3d 368 , 157 P.3d 973, 1002 (2007) (holding that the prosecution's argument that the defense's expert did not testify about a critical fact relating to ownership of a gun despite having been called to testify about the crime scenes did not shift th

2011McDougall v. Corcoran, 153 Ariz. 157 , 735 P.2d 767, 770 (1987) ("It strikes us as elemental fairness to allow the State to comment upon the defense's failure to adduce potentially exculpatory evidence to which defendant had access when ' defendant is attacking the accuracy of the State's evidence."); People v. Leonard, 40 Cal.4th 1370 , 58 Cal.Rptr.3d 368 , 157 P.3d 973, 1002 (2007) (holding that the prosecution's argument that the defense's expert did not testify about a critical fact relating to ownership of a gun despite having been called to testify about the crime scenes did not shift th

2011McDougall v. Corcoran, 153 Ariz. 157 , 735 P.2d 767, 770 (1987) ("It strikes us as elemental fairness to allow the State to comment upon the defense's failure to adduce potentially exculpatory evidence to which defendant had access when ' defendant is attacking the accuracy of the State's evidence."); People v. Leonard, 40 Cal.4th 1370 , 58 Cal.Rptr.3d 368 , 157 P.3d 973, 1002 (2007) (holding that the prosecution's argument that the defense's expert did not testify about a critical fact relating to ownership of a gun despite having been called to testify about the crime scenes did not shift th

2011McDougall v. Corcoran, 153 Ariz. 157 , 735 P.2d 767, 770 (1987) ("It strikes us as elemental fairness to allow the State to comment upon the defense's failure to adduce potentially exculpatory evidence to which defendant had access when ' defendant is attacking the accuracy of the State's evidence."); People v. Leonard, 40 Cal.4th 1370 , 58 Cal.Rptr.3d 368 , 157 P.3d 973, 1002 (2007) (holding that the prosecution's argument that the defense's expert did not testify about a critical fact relating to ownership of a gun despite having been called to testify about the crime scenes did not shift th

2005Since "the trial court is in a preferred position to determine whether a particular event causes sufficient excitement in the declarant," it is afforded wide discretion "to render a statement admissible as an excited utterance." People in Interest of O.E.P., 654 P.2d 312, 319 (Colo.1982); e.g., People v. Martinez, 83 P.3d 1174, 1177 (Colo.App.2003).

2005W.C.L. v. People, 685 P.2d 176, 180 (Colo.1984) (citing cases).

2005Several factors aid this inquiry: the lapse of time between the startling event or condition and the out-of-court statement; whether the statement was a response to an inquiry; whether the statement is accompanied by outward signs of excitement or emotional distress; and the declarant's choice of words to describe the startling event or condition. *883 W.C.L. v. People, 685 P.2d 176, 180 (Colo.1984) (citing cases).