v. Flynn

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
July 11, 2019

2019COA105

No. 16CA1059, People v. Flynn — Constitutional Law — Sixth
Amendment — Right to Counsel; Criminal Law — Counsel of
Choice

In this case, a division of the court of appeals further explores

the trial court’s obligations when addressing a criminal defendant’s

request for a continuance in order to retain counsel of choice. The

division concludes that where the defendant had identified the

attorney he wished to speak to about representation, but no steps

had been taken to retain that attorney, the trial court was not

required to consider the eleven factors set forth in People v. Brown,

2014 CO 25. Instead, the division concludes that the facts of this

case fall closer to People v. Travis, 2019 CO 15, in which the

supreme court did not require explicit findings on any specific

factors. Because the facts were more similar to those in Travis, the
division determines that the trial court did not abuse its discretion

in denying the continuance, and therefore affirms the trial court.

The division also declines to disturb the convictions based on

allegations that the prosecution suppressed evidence in violation of

Brady and that comments made by the trial court during voir dire

lowered the burden of proof and therefore implicated the

defendant’s constitutional rights. Nevertheless, regarding the trial

court’s voir dire comments, the division reiterates the concern that

such extended discussion of the core legal principles, going beyond

the scope of the standard definition in the model jury instructions,

provides little in the way of additional clarity, and runs the risk of

creating structural error.
COLORADO COURT OF APPEALS 2019COA105

Court of Appeals No. 16CA1059
Adams County District Court No. 15CR1862
Honorable Francis C. Wasserman, Judge
Honorable Thomas R. Ensor, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Thomas T. Flynn,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE TOW
Richman and Rothenberg*, JJ., concur

Announced July 11, 2019

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith E. Osborne, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 Defendant, Thomas T. Flynn, appeals his judgment of

conviction entered on jury verdicts finding him guilty of menacing,

vehicular eluding, reckless endangerment, failure to stop at a red

light, and speeding. We affirm.

I. Background

¶2 In 2015, William Garibay was driving home from work when

he noticed a Cadillac driving in front of him in the left lane. When

Garibay’s car approached the Cadillac, the driver of the Cadillac

stepped on his brakes, causing Garibay to brake abruptly. The

Cadillac then moved into the right lane, and its driver started

yelling profanities at Garibay. The driver held a pistol across his

chest and pointed it at Garibay. Garibay called 911, provided the

dispatcher with the Cadillac’s temporary license plate number, and

attempted to follow the vehicle until he lost sight of it.

¶3 Garibay met with a responding police officer and provided a

physical description of the driver, indicating he would be able to

recognize the driver. In the meantime, a police officer located the

Cadillac and gave chase, but the Cadillac driver eluded the officer.

During the investigation, police determined that the temporary tag

was associated not with a Cadillac, but rather with an older model

1
 Buick sedan registered to Flynn’s father. Garibay then identified

Flynn in a photographic array as the driver of the Cadillac. The

police never located the Cadillac or the gun. A jury found Flynn

guilty of menacing, vehicular eluding, reckless endangerment,

failure to stop at a red light, and speeding. Flynn now appeals the

convictions.

II. Analysis

¶4 Flynn contends that a new trial is required because the trial

court erred by (1) denying his motion to continue; (2) determining

that no due process violation resulted from the prosecution’s failure

to disclose certain evidence; and (3) giving instructions to the jury

that lowered the prosecution’s burden of proof. We address and

reject each contention in turn.

A. Motion to Continue

¶5 Flynn first argues that the trial court erred in denying his

motion to continue his trial. Because he sought a continuance to

obtain substitute defense counsel, Flynn argues that the trial

court’s denial of his motion violated his Sixth Amendment rights.

We disagree.

2
 1. Additional Facts

¶6 At the pretrial conference, one week before trial, Flynn’s court-

appointed attorney requested a continuance of trial, noting Flynn’s

request to substitute counsel:

MS. LANZEN: The other thing that Mr. Flynn
had noted to me is that it’s his intent to hire
counsel of his choice. He has been working
and saving money to get a retainer to hire an
attorney. It was his hope that he would have
that attorney today. However, he needed a
little more time. He said he was going to go
over to Harvey Steinberg’s office afterwards to
see if he can set up the retainer.
We would ask the Court to vacate the
jury trial.

¶7 The trial court denied this motion, in part because the request

was “very last minute” and there was “no indication that there’s

other counsel who is actually going to enter his or her appearance

in this matter.” The court described the motion as a tactic to delay

trial.

¶8 On the first day of trial, defense counsel renewed her request

for a continuance, again noting that Flynn wanted to hire a private

attorney for trial:

MS. LANZEN: He originally hired an attorney.
That attorney had to withdraw. My office was
appointed. And then after some limited

3
 contact with Mr. Flynn, he had made the
decision to hire an attorney. He just didn’t
have the money. . . .
He said he had contacted Howard –
Harvey Steinberg and wanted to retain him to
represent him at the trial and so wanted me to
ask the Court to continue this so that he could
have the attorney of his choice.

¶9 The court again denied the request. The court noted that

“[h]ad another attorney entered or even been present today, I might

have considered [a continuance].”

2. Standard of Review

¶ 10 “A motion for a continuance falls within ‘the sound discretion

of the trial court.’” People v. Brown, 2014 CO 25, ¶ 19 (quoting

People v. Hampton, 758 P.2d 1344, 1353 (Colo. 1988)). Thus, we

review the trial court’s denial of a motion for a continuance for an

abuse of discretion. Id. In reviewing the trial court’s findings of

fact, we will defer to such findings “so long as [they] are supported

by evidence in the record.” Id. at ¶ 26.

3. Applicable Law

¶ 11 The Sixth Amendment affords criminal defendants the right to

be represented by counsel of their choice. U.S. Const. amend. VI;

see Rodriguez v. Dist. Court, 719 P.2d 699, 705 (Colo. 1986). This

4
 right is entitled to “great deference.” Rodriguez, 719 P.2d at 705.

Nevertheless, the right is not absolute and must in some cases yield

when “fundamental considerations other than a defendant’s interest

in retaining a particular attorney are deemed of controlling

significance.” Id. at 706.

¶ 12 In Brown, the supreme court set forth an eleven-factor test for

trial courts to use when analyzing a request for a continuance to

substitute defense counsel. Under Brown, ¶ 24, a trial court must

consider the following:

1. the defendant’s actions surrounding the
request and apparent motive for making the
request;

2. the availability of chosen counsel;

3. the length of continuance necessary to
accommodate chosen counsel;

4. the potential prejudice of a delay to the
prosecution beyond mere inconvenience;

5. the inconvenience to witnesses;

6. the age of the case, both in the judicial
system and from the date of the offense;

7. the number of continuances already granted
in the case;

8. the timing of the request to continue;

5
 9. the impact of the continuance on the court’s
docket;

10. the victim’s position, if the victims’ rights
act applies; and

11. any other case-specific factors
necessitating or weighing against further
delay.

No one factor is dispositive, “and the weight accorded to each factor

will vary depending on the specific facts at issue in the case.” Id.

¶ 13 Our supreme court has recently made clear that Brown does

not apply in every case, however. In People v. Travis, the court held

that, while Brown is not limited to its facts, it is inapplicable when

“the defendant expresses a general interest in retaining counsel, but

has not identified replacement counsel or taken any steps to retain

any particular lawyer.” 2019 CO 15, ¶ 14. Applying Brown in such

circumstances would require the trial court to speculate about the

availability of unknown counsel and the amount of time unknown

counsel would require preparing for trial. Id. at ¶ 15. Thus, an

analysis pursuant to Brown “would require an unrealistic level of

speculation by the trial court.” Id.

6
 4. Application

¶ 14 Contrary to both parties’ arguments, we need not determine

whether the trial court properly applied Brown’s eleven-factor test.

Like the defendant in Travis, Flynn’s interest in retaining alternate

counsel was too tenuous to be analyzed by the trial court pursuant

to Brown. The inapplicability of Brown is highlighted by the fact

that at least two factors cannot even begin to be considered here: (1)

the availability of counsel and (2) the length of a continuance

necessary to accommodate counsel. See Travis, ¶ 15. Further,

until the length of the resulting delay is known, the trial court

would be hard-pressed to fully consider other Brown factors, such

as the potential prejudice to the prosecution and the inconvenience

to witnesses.

¶ 15 Although Flynn identified an attorney by name in his requests

for a continuance, there was no indication that this attorney was

available, or willing, to take Flynn’s case.1 Indeed, Flynn only said

he was going to visit the named attorney’s office “to see if he can set

up the retainer.” Cf. Ronquillo v. People, 2017 CO 99, ¶ 36 (the

1We note that this attorney is not the same attorney who had
originally represented him before withdrawing early in the case.

7
 defendant sought to fire retained counsel and proceed with a public

defender, whom he was eligible to retain); Brown, ¶ 33 (newly

retained counsel had already filed an entry of appearance). Flynn’s

nascent desire to retain another attorney was, at best, aspirational.

Under such uncertain circumstances, applying the Brown factors

“would require an unrealistic level of speculation by the trial court.”

Travis, ¶ 15. 2

¶ 16 Because the findings set forth in Brown were not required

here, we review the trial court’s decision to deny the continuance

for a “clear abuse of discretion.” Id. at ¶ 16 (quoting People v. Crow,

789 P.2d 1104, 1106 (Colo. 1990)).

¶ 17 In denying Flynn’s requests for a continuance, the trial court

considered Flynn’s incentive to delay trial — particularly in light of

his attorney’s representations that Flynn had not been in contact

with her during her preparations for trial — and the lack of

evidence indicating that he had taken any steps at all to retain

private counsel. The court also noted that it might have considered

2 Were we to hold otherwise, a defendant could avoid the
application of Travis merely by mentioning by name any attorney,
regardless of whether he or she had taken any steps whatsoever to
retain that attorney.

8
 a continuance if private counsel had filed an entry of appearance, or

even been present to indicate a conditional intent to represent

Flynn. Because nothing suggests the trial court abused its

discretion, we perceive no error.

B. Suppression of Material Evidence

¶ 18 Flynn next argues that the trial court erred in determining

that no due process violation occurred when the prosecution

suppressed exculpatory, material evidence.

1. Additional Facts

¶ 19 At trial, Detective Dean Groff testified as to the efforts he

undertook to locate the Cadillac or connect it to Flynn. Groff

testified that for a couple weeks, he “made special efforts daily” to

drive by Flynn’s house, but never saw the Cadillac in front of the

house. In response to a jury question, Groff also testified that he

checked Division of Motor Vehicles (DMV) records and failed to find

a Cadillac registered to Flynn’s address. Groff did not document

these efforts in any police report, and the information was not

provided to the defense before trial.

¶ 20 During the jury instruction conference, defense counsel

requested that the trial court “instruct the jury that the prosecution

9
 is under legal duty to disclose all potentially exculpatory evidence,

evidence that tends to negate guilt of the defendant, or even just

plain helpful information” and submitted a proposed instruction.

Defense counsel argued that this instruction should be provided

because Groff’s investigatory efforts should have been disclosed

during discovery pursuant to Crim. P. 16 and would have assisted

defense counsel in preparing a defense in this case.

¶ 21 The trial court rejected the instruction but indicated that

counsel could argue the point in closing. The court was hesitant to

characterize the evidence as exculpatory:

THE COURT: The issue that I have got, and I
reviewed this instruction, the issue I have is
the third paragraph where it says Detective
Dean Groff was aware he had researched
records from the [DMV]. My recollection of the
testimony was that he basically took the
information obtained by Officer Lawrence who
did the – who did the DMV search, and used
that in whatever way.
The other concern I have is that I am not
sure just how -- whether his failure to put in a
report that he drove by his house a couple
times once or twice a day looking for this
Cadillac, I don’t know if that is exculpatory at
all or helpful.
I suppose helpful is a subjective word.
The defense may consider it helpful. The
prosecution may consider it to be non-
information. So I am not sure how to

10
 categorize that. I don’t want to state as a
matter of law something that is ambiguous.

2. Standard of Review

¶ 22 A Brady claim presents a mixed question of fact and law.

People v. Bueno, 2018 CO 4, ¶ 20. We review the trial court’s

factual findings for clear error and its legal conclusions de novo. Id.

The standard of reversal for a trial error in resolving an asserted

Brady violation is constitutional harmless error. People v. Mendez,

2017 COA 129, ¶ 35. “Under this standard, reversal is required

unless we are ‘able to declare a belief that [the error] was harmless

beyond a reasonable doubt.’” Id. (alteration in original) (citation

omitted).

3. Applicable Law

¶ 23 In addition to their disclosure obligations under the Rules of

Criminal Procedure, prosecutors have a constitutional duty to

disclose to the defense any material, exculpatory evidence they

possess. U.S. Const. amends. V, XIV; Colo. Const. art. 2, § 25;

Crim. P. 16(I)(a)(2); see also Salazar v. People, 870 P.2d 1215, 1220

(Colo. 1994). The prosecution’s suppression of such evidence

11
 violates a defendant’s due process rights. Brady v. Maryland, 373

U.S. 83, 87 (1963).

¶ 24 To establish such a violation, a defendant must show “(1) the

prosecution suppressed evidence (2) that is exculpatory or favorable

to the defendant and (3) that is material to the case.” Bueno, ¶ 29.

¶ 25 In the event of a due process violation, the court should

fashion a sanction with the goal of “restor[ing] as nearly as possible

the level playing field that existed before the discovery violation.”

People v. Dist. Court, 808 P.2d 831, 837 (Colo. 1991). To determine

the appropriate sanction, the court should consider the reason for

the delay in disclosing discoverable information, any prejudice a

party suffered because of the delay, and the feasibility of curing any

prejudice through a continuance or recess during trial. People v.

Zadra, 2013 COA 140, ¶ 16, aff’d, 2017 CO 18.

4. Application

¶ 26 The first question is whether evidence was suppressed.

Suppression occurs when a prosecutor fails to disclose evidence,

regardless of whether the prosecutor acts in bad faith. Kyles v.

Whitley, 514 U.S. 419, 432 (1995). Groff admitted at trial that he

failed to report his observations as to Flynn’s house and the results

12
 of his search of the DMV records. As a result, neither was disclosed

to the defense during discovery. Therefore, we conclude the

prosecution suppressed this evidence.

¶ 27 We turn now to the second and third prongs: whether the

evidence was exculpatory or favorable to the defense, and whether it

was material.

a. Observations of Flynn’s House

¶ 28 As the trial court aptly noted, it is difficult to characterize the

value of Groff’s observations of Flynn’s house. Although Groff

testified that he never saw the Cadillac at Flynn’s house, he also

testified that he did not know what was in the “large, oversized

garage” on the property. He explained that these observations were

made “in the mornings and then again possibly in the afternoon.”

However, that the vehicle was not seen during these relatively

fleeting moments is of little, if any, import. Because we agree with

the trial court that the value of this evidence is unclear, we perceive

no error in its decision to not treat its suppression as a Brady

violation.

13
 b. DMV Search

¶ 29 The DMV search presents a closer question. Although the trial

court characterized this evidence as simply following up on the

investigation of another officer, this is not dispositive of our

analysis. Exculpatory evidence “tends to mitigate the likelihood of

guilt or the severity of the sentence.” Bueno, ¶ 31. The DMV search

was unable to connect the Cadillac identified by Garibay to Flynn or

his residence. Thus, evidence of this DMV search was exculpatory

because it mitigated, albeit only slightly, the likelihood that Flynn

was the driver of the Cadillac.

¶ 30 The inquiry must then turn to whether the evidence was

material. In the Brady context, evidence is material if “there is a

reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different. A

‘reasonable probability’ is a probability sufficient to undermine

confidence in the outcome.” Id. at ¶ 32 (quoting United States v.

Bagley, 473 U.S. 667, 682 (1985)).

¶ 31 However, unlike most other Brady cases of which we are

aware — in which the jury never heard about the suppressed

evidence because the suppression was not unearthed until after

14
 trial — the jury here heard testimony about the DMV search at trial

and defense counsel was able to cross-examine Groff about this

evidence. Because the jury heard the suppressed evidence and

returned a guilty verdict, we must conclude that the suppressed

evidence itself was not material.

¶ 32 Flynn nevertheless maintains that defense counsel could have

exploited this evidence had she received advance notice, and her

lost opportunity to do so undermines confidence in the outcome.

We are not persuaded.

¶ 33 Specifically, Flynn argues that counsel was unable to present

documentation from the DMV to substantiate the lack of connection

between Flynn and the Cadillac or the viability of Groff’s DMV

search. But the prosecution did not attempt to undermine the

validity of Groff’s testimony that the DMV search failed to find a

Cadillac registered to Flynn’s address. 3 Thus, we conclude there is

3 Similarly, Flynn argues that he could have called witnesses to
establish that the Cadillac was not in his garage. While this
argument is directed more to the evidence of the failed surveillance
efforts, which we have concluded was neither exculpatory nor
favorable to the defense, we note that, because the prosecution
never disputed the fact that it could not tie the Cadillac to Flynn or
his address, the surveillance evidence was not material either.

15
 no reasonable possibility that the suppression of the DMV search

until trial “might have contributed to the conviction.” Mendez, ¶ 45

(quoting Hagos v. People, 2012 CO 63, ¶ 11).

C. The Trial Court’s Comments During Voir Dire

¶ 34 Flynn lastly argues that the trial court erred in making

comments during voir dire that lowered the prosecution’s burden of

proof. We disagree.

1. Additional Facts

¶ 35 The trial court conducted “a lengthy voir dire, which it

informed the jury would ‘deal[] with all of the fundamental

principles of criminal cases and jury service.” As relevant here, the

trial court used a number of hypotheticals and examples to explain

several legal concepts to the jury.

¶ 36 The court first used a hypothetical to explain the prosecution’s

burden of proof. The court hypothetically accused a juror of

stealing an iPod, then explained that if charges were brought

against the juror, he would be presumed innocent “until the

prosecution’s evidence proves that he is guilty beyond a reasonable

doubt.” The court then read the standard definition of presumption

of innocence to the jury.

16
¶ 37 The court then used hypotheticals to explain reasonable doubt

to the jury. The court distinguished reasonable doubt from any

doubt by questioning the stability of the courthouse and the validity

of a juror’s birth certificate:

THE COURT: . . . I can probably raise some
doubt about whether this building’s going to
stand for another 24 hours by talking about
the cracks that I see in the foundation and
everything. Would you all go running out?
No. Okay? But, you know, that’s a vague
doubt.

....

THE COURT: You know, I can create some
kind of vague, imaginary doubt about
anything, you know. Well, maybe the hospital
was wrong, and maybe your mom got the date
wrong.

THE PROSPECTIVE JUROR: Sure.

THE COURT: But I guarantee you this March
17 you are going to recognize that as your
birthday, aren’t you?

THE PROSPECTIVE JUROR: I am.

THE COURT: Because I haven’t convinced you
beyond a reasonable doubt.

The court then applied the concept of reasonable doubt to criminal

cases.

17
¶ 38 The trial court also compared the prosecution’s burden of

proof to “beyond a shadow of a doubt,” a higher burden popularized

by a television show:

THE COURT: . . . [Perry Mason] was a very
imposing man played by Raymond Burr. He
was in the courtroom, a defense attorney, and
he would always, at the close of evidence in the
trial, he would approach the jury and say,
ladies and gentlemen of the jury, the
prosecutor has failed to prove this case beyond
a shadow of a doubt. Oh, did that sound good.
Okay? There is no such thing, okay? Not in
any -- not in civil law, not in criminal law. We
don’t have proof beyond a shadow of a doubt,
okay?
Again, going back, it’s proof beyond a
reasonable doubt, and that is the -- one of the
highest burdens of proof in American
jurisprudence, okay? It’s proof beyond a
reasonable doubt.

Defense counsel did not object.

2. Standard of Review

¶ 39 We review de novo whether the trial court properly instructed

the jury on the burden of proof. People v. Robles, 302 P.3d 269,

280 (Colo. App. 2011), aff’d, 2013 CO 24. In most cases, we review

unpreserved issues for plain error. People v. Baca, 2015 COA 153,

¶ 12. Thus, reversal is warranted “only if the error was obvious and

‘so undermined the fundamental fairness of the trial itself so as to

18
 cast serious doubt on the reliability of the judgment of conviction.’”

Id. (citations omitted). However, “[a]n instruction that lowers the

prosecution’s burden of proof below reasonable doubt constitutes

structural error and requires automatic reversal.” Johnson v.

People, 2019 CO 17, ¶ 8 (citing Sullivan v. Louisiana, 508 U.S. 275,

281-82 (1993)).

3. Law and Application

¶ 40 “To be valid, a reasonable doubt instruction must instruct the

jury that it may return a guilty verdict only if sufficient proof has

been submitted to satisfy the standard.” People v. Munoz, 240 P.3d

311, 316 (Colo. App. 2009). The instruction must “apprise[] the

jury of the necessity that the defendant’s guilt be proved beyond a

reasonable doubt, and no particular form is required.” Id.

¶ 41 Trial courts are instructed to explain to prospective jurors “in

plain and clear language . . . [g]eneral legal principles applicable to

the case including the presumption of innocence, burden of proof,

definition of reasonable doubt, elements of charged offenses and

other matters that jurors will be required to consider and apply in

deciding the issues.” Crim. P. 24(a)(2)(v). To that end, the model

jury instructions provide introductory comments to be read to the

19
 jury, which explain the standard definitions of these basic

principles. COLJI-Crim. B:01 (2018).

¶ 42 Well-intentioned trial courts, seeking to provide additional

clarity to prospective jurors, sometimes feel the urge to go beyond

these instructions and either insert their own supplemental

instructions or attempt to add “flesh to the bones” of the standard

instructions by providing examples and hypotheticals. Divisions of

this court have repeatedly expressed disapproval of the practice,

because such instructions run the risk of confusing the jurors and

may even lower the burden of proof or diminish the presumption of

innocence. See, e.g., People v. Boyd, 2015 COA 109, aff’d, 2017 CO

2; People v. Estes, 2012 COA 41; People v. Gomez-Garcia, 224 P.3d

1019 (Colo. App. 2009); People v. Sherman, 45 P.3d 774 (Colo. App.

2001).

¶ 43 Our supreme court has recently added its voice to this

cautionary chorus: “[F]urther attempts by courts or parties to define

‘reasonable doubt’ do not provide clarity.” Johnson, ¶ 13 (citing

Holland v. United States, 348 U.S. 121, 140 (1954)). In Johnson,

the trial court had attempted to explain “hesitate to act” in the

context of “reasonable doubt.” Id. at ¶ 4. The trial court explained

20
 that engaging in deliberations was not the same as hesitating to act,

but that hesitating meant: “You just have to hesitate. It’s not there.

You can’t find her guilty because the quality or quantity of evidence

just doesn’t let you.” Id. at ¶ 17. The supreme court characterized

the instruction as “indecipherable” and “unintelligible.” Id.

However, it concluded that the instruction, albeit confusing, “did

not lower the prosecution’s burden in violation of due process.” Id.

at ¶ 18. 4

¶ 44 Indeed, particularly because an inarticulate attempt to do so

— if it takes the form of an instruction 5 — may result in automatic

reversal, deviating from or expounding on the standard instructions

in this area is undeniably risky, in that it exposes the conviction to

a challenge that the comments lowered the burden of proof.

4 In a further peal of the cautionary bell, though our supreme court
found some of the instruction “logical and not legally infirm,” it
nevertheless disapproved of the entire instruction. Johnson v.
People, 2019 CO 17, ¶ 17 & n.2.
5 We do not believe that every comment made by a trial court to the

jury panel during voir dire is automatically an instruction. See
People v. Boyd, 2015 COA 109, ¶ 12 (opining that the court’s
comments during voir dire discussions were not an instruction),
aff’d, 2017 CO 2. But see People v. Carter, 2015 COA 24M-2, ¶ 54
(characterizing the trial court’s use in voir dire of a puzzle analogy
as an “instruction on the beyond a reasonable doubt standard”).

21
¶ 45 Flynn argues precisely that. In particular, he identifies both

published and unpublished cases from this court that repeatedly

disapprove of certain comments made by the same trial court judge

during voir dire in other cases. See People v. Ramos, 2012 COA

191; Estes, 2012 COA 41. 6 The comments in those cases “risked

inviting the jurors to assume that defendant had a bad character or

to discard the possibility that he may have been arrested and

charged through mistake or inadvertence.” Estes, ¶ 11.

¶ 46 But the comments made here were analogous to those in Estes

and Ramos only in the sense that they involved extended efforts to

supplement the standard jury instructions. Unlike the comments

in those cases, the trial court’s discussion in this case did not

suggest to the jury that Flynn “did something” that resulted in him

being charged, nor did they “improperly align[] the court with the

prosecution.” Estes, ¶ 10. Nor did the comments suggest that the

6 The People object to Flynn’s “citation” to unpublished opinions.
However, the unpublished opinions were cited in one of the
published opinions on which Flynn relies, People v. Estes, 2012
COA 41, ¶ 8. Flynn does not discuss the details of any of the
unpublished cases and does not argue that any of them should be
given precedential weight. Thus, we discern no violation of this
court’s policy prohibiting citation to unpublished cases.

22
 prosecution’s evidence appeared to be “too good to be true.” Ramos,

¶ 43. We decline to find error merely because the same judicial

officer erred in the past.

¶ 47 Flynn’s reliance on Sherman is also misplaced. There, the trial

court gave an instruction that essentially redefined reasonable

doubt, stating that it was “a doubt for which you could give a

reason. It’s a rational, objective statement of why you feel that

something hasn’t been proven, or why you have a doubt.” 45 P.3d

at 777. This instruction was fundamentally inconsistent with the

beyond a reasonable doubt instruction because there is no support

for the suggestion that a juror must be able to articulate why he or

she has a doubt. Here, in contrast, the trial court did not add any

requirements to the definition of reasonable doubt.

¶ 48 Flynn’s reliance on Jones v. State, 656 So. 2d 489 (Fla. Dist.

Ct. App. 1995), is equally unavailing. There, the Fourth District

Court of Appeal of Florida found error where the trial court told

jurors they did not have to have “an absolute certainty of the

Defendant’s guilt,” but did not otherwise give a proper definition of

reasonable doubt. Id. at 490-91. Here, the trial court repeatedly

referred the jury to the standard definition of reasonable doubt.

23
¶ 49 In contrast to the cases relied upon by Flynn, we find the

analysis in Johnson to be more helpful. As in that case, each of the

hypotheticals here was discussed verbally, and only once. None

was mentioned again at any time during the proceedings. The trial

court read the correct definitions of beyond a reasonable doubt and

presumption of innocence contemporaneously with the discussions.

Indeed, the trial court repeatedly referred back to the appropriate

standard definition of reasonable doubt. And at the conclusion of

trial, the correct instructions were again read to the jury. Thus, we

conclude the comments did not lower the burden of proof.

III. Conclusion

¶ 50 The judgment is affirmed.

JUDGE RICHMAN and JUDGE ROTHENBERG concur.

24