dissenting.
I agree with the majority that the prosecution violated our categorical rule against the use of the word "lie," but disagree with the majority that the prosecution's use of the word in this case constitutes plain error. Here, Wend admitted that she had lied to the police regarding the victim's whereabouts, and her counsel, both during opening and closing statements, repeatedly referred to the fact that she had "lied." Under the cireumstances, the prosecutor's statements did not so undermine the fundamental fairness of the trial as to warrant the "drastic remedy of reversal under the plain error standard." Domingo-Gomez v. People, 125 P.3d 1043, 1055 (Colo.2005). Accordingly, I respectfully dissent from the majority's opinion.
Wend initially told police investigators that after arguing with her on Christmas morning, the victim must have left town because she received a text message from him the next day saying that he was in Las Vegas. Later, she told the police that he might be in Cripple Creek. Finally, she stated that she didn't know where he was, but that she believed he was still alive. Ultimately, however, she admitted that she "(had not] been honest with [police investigators] from the beginning" and that she "shot [the viectim]." In other words, she admitted that she had misled investigators about the fact that she had been in contact with the victim and that, instead, she had shot him.
As the majority points out, the prosecution in this case repeatedly referred to the fact that Wend had lied to police investigators about the victim's whereabouts. Maj. op. at 1092-98; id. at 1099. Importantly, however, her counsel repeatedly referred to her "lies" as well. In opening statement, Wend's counsel stated that:
And she does le to people about what happened to [the victim]. She les because she's afraid of what's going to happen to her if she tells the truth.
(emphases added).
Wend's counsel repeatedly used the term "lie" in his closing as well. After discussing Wend's theory of self-defense, Wend's counsel stated:
Which-which brings us to the les. That's all [the prosecution has] left. And, yes, Jennifer Wend led. Pretty obvious. She led to a number of people. She Hed about what happened, but remember, the fact that Jennifer Wend may have Hed about what happened does not change the fact of what actually happened.
(emphases added).
Later on in the closing argument, Wend's counsel stated:
Oftentimes, once a He is told, it's not gonna come clean until the Ke has brought everything down upon it. And Jennifer Wend told a le, and it did take on a life of its own. She told that lie, and then she felt boxed in. That lis had been told. She didn't think the police were gonna believe her originally, so why are they gonna believe her now that she's told a He? So she continued with if, and continued with i, and continued with i until there was no place left to go but the truth.
(emphases added).
Wend's counsel then addressed her admission that she had misled police about the whereabouts of the victim, stating:
And that's where they got, to the truth. And you can see it right on the videotape. She says, "I haven't been honest with you. I shot him."
At that point, Wend's counsel returned to her explanation for why she misled police investigators.
She told you in the videotape that she figured even if a person got shot accidentally, they're still gonna go to prison. That, in conjunction with the fact that she was worried, she didn't trust the police, that's why she led, ladies and gentlemen. She didn't He because she didn't act in self-defense, she led because she figured whatever happened, it was gonna be the same result.
(emphases added).
Again, Wend's counsel referred to the fact that she had "lied" to various people regarding the victim's whereabouts, but that there *1101were true parts of what she was saying to people:
And everybody knows that oftentimes when a person tells a lis, you can gleam little nuggets of truth from that He.
(emphases added).
Finally, Wend's counsel finished his closing argument by reiterating that she misled the police, stating:
She talks about [the victim] pointing a gun at her. You can see the truth, even if it's only in little bits, in the stories that she's told up until she finally does admit what happened. Ladies and gentlemen, she lied, but that doesn't [ JIchange the fact of what happened [when she acted in self-defense].
(emphasis added).
The majority's plain error analysis focuses almost exclusively on the prosecution's statements in isolation, suggesting that the statements were so "indiscriminate" as to render Wend's trial unfair Maj. op. at 1099. In contrast, while the majority acknowledges defense counsel's use of the word "lie," it finds his statements acceptable, understanding that they were made "only in relation to the interrogation video" and "merely acknowledged the fact that Wend had changed her story." Maj. op. at 1099, 1092. Yet, as we have consistently held, the prosecutor's use of the word "lie" must similarly be evaluated "in the context of the entire trial." Domingo-Gomez, 125 P.3d at 1054; see also Crider v. People, 186 P.3d 39, 43 (Colo.2008) (the prejudicial impact of a prosecutor's statement must be considered "in the totality of the cireumstances, on a case-by-case basis"). In this case, Wend admitted that she "[had not] been honest" with police regarding the victim's whereabouts. Additionally, her counsel repeatedly referred to her "lies" during opening and closing argument. Given this context, the prosecution's references to Wend's "lies" did not render her trial fundamentally unfair.
Importantly, our concern with respect to the prosecution's use of the word "lie" and its variants in Domingo-Gomesz and Crider was essentially two-fold: first, the prosecutor's use of the word may convey a personal opinion that could improperly influence the jury and, second, it is such an inflammatory word that it is likely to evoke strong negative emotional reactions against the witness or defendant. Domingo-Gomez, 125 P.3d at 1050 ("The word 'lie' is such a strong expression that it necessarily reflects the personal opinion of the speaker."); Crider, 186 P.3d at 41 (the word "lie" "is prohibited not only because it poses a risk of communicating the lawyer's personal opinion about the veracity of a witness and implying that the lawyer is privy to information not before the jury, but also simply because the word "lie" is an inflammatory term, likely (whether or not actually designed) to evoke strong and negative emotional reactions against the witness").
In the context of this case, however, there is little chanee that the prosecutor's use of the word "lie" implicated these concerns. As to the first, the prosecution's comments were focused on the fact that Wend misled police regarding the whereabouts of the victim. See maj. op. at 1092-98; id. at 1099. Wend in fact admitted that she had misled police, and her counsel repeatedly referred to the fact that she had "Hed" about the victim's whereabouts, expressly stating that "yes, Jennifer Wend lied. Pretty obvious." Where the prosecution characterizes a defendant's admittedly untrue statements as "lies," there is little risk that the jury will construe the prosecutor's characterization as expressing his personal opinion "based either on some greater experience in judging veracity or ... on some greater knowledge of what actually occurred." Crider, 186 P.3d at 48.
As to the second, the inflammatory nature of the word "lie" by the prosecutor was undoubtedly muted when Wend's counsel repeatedly used the word as well. Indeed, it is difficult to see how the prosecution's use of the word "lie" could be "flagrantly, glaringly, or tremendously improper," Domingo-Gomez, 125 P.3d at 1053 (citation omitted), given that Wend's counsel repeatedly characterized Wend's statements as "lies" as well. Here, it appears that Wend's counsel made a strategic decision to directly address the fact that Wend had "lied" about the victim's *1102whereabouts, and offered an explanation for those "lies." Under the cireumstances, it is likely that the failure of Wend's counsel to object to the prosecution's use of the term "lie" "evidences that he perceived no obvious prejudice" to Wend from the statements. Domingo-Gomez, 125 P.3d at 1054.
The majority does not consider whether the context in this case gives rise to these underlying concerns. Instead, it focuses on comparing the factual circumstances here with those in other cases in which prosecutors used the word "lie." Maj. op. at 1098-99 (discussing Domingo-Gomez, 125 P.3d 1043 and Wilson v. People, 743 P.2d 415 (Colo.1987)). But the majority fails to note an important distinction between those cases and the case at bar. In Domingo-Gomez and Wilson, the prosecutor used the word "lie" in summarizing the defendant's and defense witness's testimony on the stand, whereas the use of the word here related to evidence presented regarding Wend's out-of-court statements to police. Given Wend's admission that she "(had not] been honest" with the police and her counsel's repeated references to the fact that she had "lied" during the police investigation, the prosecutor's statements were likely taken by the jury as a comment on the evidence in the case. Cf., Crider, 186 P.3d at 43 (finding prosecutor's use of "lie" and its variants not plain error in part because they were "expressly directed at the irreconcilability of certain of [defendant's] assertions" and photographic evidence from the crime scene).
Finally, the fact that Wend repeatedly misled investigators about the victim's whereabouts, and then ultimately admitted that she "Thad not] been honest" with them and that she had in fact shot the victim, undoubtedly affected the jury's assessment of her argument that she shot the victim in self-defense. Maj. op. at 1098. But given that Wend admitted that she had misled police about the victim's whereabouts, and given the fact that her counsel at trial repeatedly characterized her statements as "lies," I cannot conclude that the prosecution's characterization of her statements as "lies" created the sort of fundamental unfairness that warrants invocation of the "drastic remedy of reversal under the plain error standard." See Domingo-Gomesz, 125 P.3d at 1055.
Accordingly, I would hold that although the prosecutor's statements were improper, they do not warrant reversal in this case. I therefore respectfully dissent from the majority's opinion.
I am authorized to state that JUSTICE COATS joins in this dissent.