April 21, 2019

Colorado Court of Appeals: Prosecutor “Channeling” Victim in Opening Statement was Error but Not Plain

The Colorado Court of Appeals issued its opinion in People v. Manyik on Thursday, March 24, 2016.

Prosecutorial Misconduct—Amended Information—Crim.P. 7(e)—Jury Instruction—Mistaken Belief—Hearsay.

Adams was romantically involved with Manyik and lived in his house. Adams remained in contact and continued to socialize with the victim, with whom she previously had been in a relationship. Adams invited the victim to Manyik’s house and told victim that Manyik was out of town on a hunting trip. When the victim arrived, Manyik shot and killed him.

Manyik was convicted of second-degree murder, aggravated robbery, and tampering with physical evidence.

Manyik raised five arguments on appeal. First, he argued that the prosecutor’s “channeling” (a technique by which a lawyer speaks to the jury in the first person as though he is the injured or deceased person) constituted prosecutorial misconduct and required reversal of his convictions. Although the prosecutor’s opening statement was impermissible, under the limited circumstances of this case it was not plain error and did not require reversal of Manyik’s convictions.

Second, Manyik argued that the trial court erred in allowing the prosecution to amend the aggravated robbery charge during trial. Because the amended information charged a different offense and subjected Manyik to mandatory sentencing for a crime of violence, while the original charge did not, Crim.P. 7(e) precluded the amendment. Manyik’s conviction for aggravated robbery was reversed and the case was remanded for a new trial on that charge.

Third, Manyik argued that the court erred in rejecting his tendered jury instruction about evaluating statements he made to police officers. The tendered instruction emphasized only selective evidence that was favorable to Manyik and thus was improper. The trial court did not err in rejecting Manyik’s proposed jury instruction on this issue.

Fourth, Manyik contended that the court’s jury instruction on the defense of mistaken belief of fact was incorrect. The language of the instruction given was almost identical to that in the relevant statute, CRS § 18-1- 504(1)(c). Additionally, defense counsel’s argument about Manyik’s mistaken belief made the jury aware of his mistake of fact defense. Therefore, the given instruction was proper.

Lastly, Manyik argued that the court erred in excluding evidence of recorded statements he made during telephone conversations with family members when he was at the police station. Because the statements contained impermissible hearsay, the court did not err in excluding them.

The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

Summary and full case available here, courtesy of The Colorado Lawyer.

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