dissenting.
T 47 I respectfully dissent.
48 A defendant is not entitled to a perfect trial, only a fair one. This is because, despite the hard work and good intentions of the principals in the courtroom-the trial Judge, prosecutor, defense counsel, and members of the jury-errors regularly occur. On appeal, we must determine whether these errors had a prejudicial effect on the trial. We do this by viewing the errors in the context of the trial as a whole and the strength of the prosecution's evidence. In some cases, the weight of the prosecution's evidence is so strong that we can conclude the errors could not have reasonably affected the verdict. I am unable to reach that conclusion here.
149 This case arose from a minor neighborhood incident. According to the prosecution's evidence, around 7 p.m. in July 2009, a seven-year-old boy was riding his bicycle near his house and passed very close to his neighbor, Luciano Briones, while Briones was exiting his car. Briones inadvertently touched the boy on his back as the boy rode past, but the boy apparently reported to his father that Briones had intentionally "hit him," and the father called the police. Briones, a Hispanic, lives with his wife and two daughters Neither he nor his wife speaks English.
11 50 Later that same day, the boy's eleven- or twelve-year-old brother went to the Briones' home to talk about the incident. Briones testified at trial through an interpreter that he "didn't pay any attention to [the older brother] because he was a little boy."
151 Defendant is an African-American who apparently does not speak or 'understand Spanish. At the time of this incident, he was living with his girlfriend a few houses from the Briones residence, and he was very friendly with the family of the boy involved in the incident. When defendant heard about the incident from the boy's family, he became very upset and around 11:80 p.m. that night, he walked to the Briones' home and demanded to know why Briones had hit the boy. Briones, his wife, and his thirteen-year-old daughter stood at the front door of their house with defendant while the daughter attempted to interpret for her parents.
152 Briones kept telling defendant-through his daughter-that it was just an accident, but defendant could not understand him. Briones and his daughter then went outside the house to talk further with defendant when Briones' brother-who also speaks no Emglish-pulled up in a van at Briones' home. Two of the brother's coworkers were also in the van, and all three men got out. An altercation then occurred which resulted in the charges lodged against defendant.
11 53 Apparently, defendant initially left the Briones' yard because the prosecutor asked Briones, "When you had the conversation with [defendant], how did the conversation end, or what happened next in the conversation?"
Briones: Well, [defendant] finally turned around and left. He left by the hallway of the house, and then we were just looking to see if he was going to take off.
*198And my brother had just arrived from work, and he was parked in his van in the driveway. So these men was [sic] saying that my brother was trying to hit [defendant], but I don't understand why he was saying that because my brother never got out of his car.
So [defendant] was insisting on coming back to the front yard where I was. And to be able to stop him from coming, my brother got out of the car and he was standing in front of him.
Prosecutor: How many people were outside at this point?
Briones: It was my wife, my daughter ..., my brother, myself, and two [of his brother's] coworkers.
{54 According to Briones, defendant punched the brother in the face, Briones pulled at defendant's shirt, defendant pulled out a gun and pointed it at them, and then he ran home. Defendant denied that he had a gun, and despite a search by the police of the area and the yard of defendant's house, no gun was found.
T55 The prosecution called defendant's former girlfriend as a witness. She testified that, at the time of the incident, defendant had been living with her, but they had had an argument before that night. She stated that defendant did not carry a gun, and that the police had searched her backyard and garbage after the incident.
T56 Briones brother and his thirteen, year-old daughter also testified at trial. The daughter stated that, after the initial conversation between defendant and her father, "[Djefendant left our house ... and we didn't see him anymore." She continued, "And then he came back, and he was trying to get in the yard, and that's when he saw my uncle in the-in the van, and he came back to try to start a discussion with them."
1 57 The prosecutor asked, "What was [defendant] saying, or what was he doing? She answered:
[Defendant] said something about ... hitting him with the door of the van.
[Defendant] was trying to get in the yard and telling my uncle to move because he was between the fence and the-the van, so he couldn't get in the house.... [My father] went to go put his hand in between [defendant] and my uncle so they-so they wouldn't start punching.... [Ajnd that's when [defendant] punched my uncle. And then my dad grabbed him by the shirt so-so he wouldn't go in the yard. And that's when he stood back and pulled the gun out.
[ 58 The other witnesses who testified did not see the actual incident.
€ 59 The prosecutor's case thus turned on the credibility of Briones, his daughter, and his brother. Arguably, their credibility was undermined by the testimony of the investigating officers, who interviewed the three witnesses while they were all together, rather than separating them for questioning. Also, at the time they were questioned, Briones had not been cleared of the accusation that he had struck the neighbor's young son while he was on his bicycle.
T60 I conclude the following four plain errors occurred during this trial.
I. Voir Dire Error by the Court
{61 When the jury selection began, the trial court conducted a lengthy oral discourse with the jurors that lasted for approximately seventy pages of the reporter's transcript. The court did not ask individual jurors about their backgrounds or interests but sought to educate them regarding basic principles of law. However, in doing so, the trial court made an improper and confusing statement regarding the presumption of innocence by telling the jurors, "Obviously, [defendant] 'did something' to put himself in his current position." As the majority has explained, this type of colloquy ran the risk of suggesting to prospective jurors that the charges were warranted, implying that "where there's smoke, there's fire."
62 As the majority has noted, the type of statement made by the trial court here has been disapproved by this and other courts because it is contrary to the requirement that jurors presume the innocence of the accused throughout the trial and until the verdict is reached. See State v. Drayton, 293 S.C. 417, 361 S.E.2d 329, 333 (1987) (disap*199proving of trial court's remarks to the jury, "A lot of times people say, 'Well, where there's smoke, there's fire' You hear these things everyday"; concluding such comments were "imprudent" and "should be avoided in the future").
T 63 Guthmiller v. Weber, 804 N.W.2d 400, 403 (S.D.2011), involved a situation very similar to the one in this case. There, defense counsel asked the jurors during voir dire: "Does anybody feel that ... where there's smoke there's fire? If someone has been charged with a crime that necessarily means that, you know, he's done something?" The trial judge interjected:
Well, [counsel], that's not right. The police in South Dakota don't just go out on the street and round people up and bring them in here, so something had to be done. The question is will you make the State prove beyond a reasonable doubt that the Defendant is guilty or not[?]
Id.
164 The South Dakota Supreme Court disapproved the trial court's remark, explaining:
[TThe judge insinuated that [the defendant] must have done something wrong or the police would not have arrested him. This comment was clearly improper. In jury trials, judges must not weigh in on the evidence, pass on the credibility of witnesses, or otherwise give their personal impressions to the jurors. Regardless of the judge's reason for the comment, it was an accusatory remark against [the defendant].
Id. at 405 (footnote omitted).
165 I agree with the majority that the comment made in this case also constituted plain error.
IL Prosecutor's Error During Opening Statement
" 66 During the prosecutor's opening statement, he told the jury that defendant's statement to the police when he was arrested was a "made up" story. Unlike the majority, I conclude this statement also constituted plain error.
67 Although the prosecutor did not explicitly state that defendant had "lied to the police" he implied that defendant had done so. Such statements have been repeatedly disapproved by the Colorado Supreme Court. See Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo.2005) ("[A] prosecutor cannot communicate [his or] her opinion on the truth or falsity of witness testimony. ...").
III. Prosecutor's Errors During Closing Argument
1 68 After the presentation of evidence and the court's instructions, counsel made their closing arguments to the jury. The prosecutor made two erroneous statements regarding the law governing this case, and I conclude both of them constituted plain error.
T 69 First, he stated: "Ladies and gentlemen, this trial started and when it started, you were told that you have the presumption of innocence. This presumption of innocence, ofter the evidence has come in, that cloak, the presumption of innocence is now gone." (Emphasis added.) This statement incorrectly recited the law regarding the presumption of innocence.
T 70 In People v. McBride, 228 P.3d 216, 223 (Colo.App.2009), the prosecutor told the Jury, "[As defendant] sits here today, he sits here in front of you a guilty man. That presumption of innocence that we had when we started this case is gone." He told the Jurors not to begin their deliberations at "not guilty" because, "You're about 10 miles from not guilty before you even start deliberating." Id. A division of this court disapproved these arguments because a defendant "retains a presumption of innocence throughout the trial process" and it is only discharged when the jury returns a guilty verdict. Id. at 223-34 (quoting Martinez v. Court of Appeal, 528 U.S. 152, 162, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000)). Thus, I agree with the majority's characterization of this statement as plain error.
171 However, I depart from the majority with respect to its analysis of the second alleged error. This occurred when the prosecutor in this case told the jury during closing argument that "there's not an affirmative defense in this case that applies." This *200statement was inaccurate because the trial court had previously ruled that defendant was entitled to a self-defense instruction and had given the jury such an instruction.
T72 It was undisputed that the incident arose from a confrontation that involved defendant, Briones, his brother, and two other men; that defendant was alleged to have pointed a gun at them; that the gun was not fired; and that defendant ran immediately to his own home. Thus, even if the jury found that defendant had used extremely poor judgment and had pointed a gun at the four men, it also could have found that defendant reasonably believed the other men were threatening him with physical violence and preventing him from safely leaving the Briones' home and that defendant used the degree of force which he reasonably believed mecessary for the purpose of escaping the danger. See § 18-1-704(1), C.R.S.2011.
173 The court correctly instructed the jury that defendant was "not required to retreat in order to claim the right to employ force in his defense" and that his use of physical force was justifiable if "he [withdrew] from the encounter." Briones and his daughter both testified that, after their initial discussion with defendant outside the house, defendant left the Briones yard just as Briones' brother was pulling up in his van, and the brother and his two co-workers got out.
T74 Although the situation then became chaotic and heated, there nevertheless was evidence that defendant initially withdrew from the encounter. Hence, the jury could have found that defendant was trying to return home when Briones' brother arrived in his van and a confrontation occurred.
T 75 For these reasons, I conclude that the prosecutor's erroneous statement regarding the applicability of self-defense in this case constituted plain error and also resulted in substantial prejudice to defendant in presenting his defense. See People v. Anderson, 991 P.2d 319, 321 (Colo.App.1999) ("It is improper for counsel to misstate or misinterpret the law during closing argument.").
T 76 As a division of this court explained in People v. Allee, 77 P.3d 831, 835 (Colo.App.2003), when discussing plain error, "[clonten-tions of improper argument must be evaluated in the context of the argument as a whole and in light of the evidence before the jury."
177 Here, the jury instructions given by the trial court at the end of the case aceu-rately recited the law regarding the presumption of innocence, the burden of proof, and the applicability of self-defense.
{78 However, these instructions followed misleading and erroneous statements about core principles of law that were made by the court and the prosecutor at the beginning of the trial and were made again by the prosecutor at the conclusion of the trial.
T79 I conclude these errors "so undermined the fundamental fairness of the trial itself ... as to cast serious doubt on the reliability of the judgment of conviction." People v. Miller, 113 P.3d 743, 750 (Colo.2005) (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo.2003)). Accordingly, I would reverse defendant's convictions and remand the case for a new trial.