dissenting.
While I agree with the majority that the prosecutor's repeated assertion that the defendant lied to the jury was improper, I disagree with the majority's holding that this error was harmless. I believe that there is a reasonable probability that the prosecutor's misconduct contributed to the defendant's conviction, and therefore I respectfully dissent.
Initially, I note that the majority's characterization of the prosecutor's rebuttal closing argument minimizes the egregiousness and the repetitive nature of the prosecutor's numerous violations. See maj. op. at 41. The prosecutor used some form of the word "lie" at least 13 times over the course of the rebuttal. A sampling of the prosecutor's statements include:
And that's how you know this man is lying to you, and that is what he did, he took an oath and he lied.
He lied. Helied.... He's lying to you.
He's lying to you about something else, he's lying to you about them rolling around out there on the concrete.
The lack of evidence proves he is lying to you and [the victim] is telling you the truth.
Again, he's lying to you.
The blood evidence supports the victim and shows the defendant is lying.
This man is guilty, he is guilty as charged. He got up there and tried to give you one of his excuses and he lied to you.
In addition, the prosecutor stated twice that the defendant "was not telling you the truth," and characterized the defendant's testimony as "ridiculous, not true." Further, while the prosecutor purported to remind the jury to consider Crider's two felony convie-tions only for the purpose of weighing eredi-bility, his description of Crider as a "two-time loser" appears to border on improper use of character evidence.
I highlight these statements to make clear that the prosecutor's comments concerning the defendant's testimony as a lie were not isolated but rather permeated the entire re*45buttal argument, which is, of course, the last argument the jury hears before deliberation.
We have previously noted that the prosecutor's obligation to refrain from improper methods in pursuit of a conviction is rooted in the defendant's right to a fair and impartial jury as guaranteed by the United States and Colorado Constitutions. Harris v. People, 888 P.2d 259, 263 (Colo.1995). We have also held that a jury that has been misled by improper argument cannot be considered impartial. Id. at 264. Thus, while I agree with the majority that the weight of precedent from other jurisdictions holds that prosecuto-rial misconduct should not be reviewed under the constitutional harmless error standard, but rather under the general harmless error standard, I would apply the harmless error standard consistent with our earlier case law pronouncements which reflect the need to sanction this type of prosecutorial misconduct in order to ensure an accused's right to a fair and impartial trial.
Further, I disagree with the majority's articulation of the harmless error standard The stan- and its application in this case. dard discussed by the majority improperly and unnecessarily narrows the prism of our analytical appellate review and is applied erroneously here on the issue of provocation.
The majority correctly notes that the question of prejudicial impact must be evaluated on a case-by-case basis and cannot be reduced to a specific set of factors. See maj. op. at 48. However, the majority posits that we must consider "the specific nature of the error committed and the nature of the prejudice or risk of prejudice associated with it." See maj. op. at 48. This language, which is purportedly derived from Golob v. People, 180 P.3d 1006 (Colo.2008), does not actually appear in that case and is, in my view, an inaccurate paraphrase of our holding in that case. The majority adds language to the harmless error standard which unnecessarily narrows the standards already limited deterrent effect on prosecutorial misconduct. See Harris, 888 P.2d at 267 n. 7 ("[E]ven the application of the doctrine of harmless error in cases wherein prosecutors have engaged in improper argument has been criticized as too often rewarding such conduct while purporting to deter it.").
An error is harmless if it "does not affect substantial rights" of the defendant. Crim.P. 52(a). The error may be disregarded "if there is not a reasonable probability that the error contributed to the defendant's conviction." Salcedo v. People, 999 P.2d 833, 841 (Colo.2000) (quotations omitted). Thus, the proper inquiry is "whether the error substantially influenced the verdict or affected the fairness of the trial proceedings," id., and not merely whether there was sufficient evidence to support the verdict without the impropriety. People v. Gaffney, 769 P.2d 1081, 1088 (Colo.1989). If the error leaves the reviewing court "in grave doubt" as to the fairness of the proceedings, the conviction cannot stand. People v. Welsh, 80 P.3d 296, 810 (Colo.2008).
In this case, the jury was instructed to consider both whether Crider acted in self defense and whether he acted under provocation. As to the issue of self defense, I agree that the error was likely harmless. Crider himself admitted that after the two men struggled for the hammer, the victim ended up on the ground, and that he repeatedly struck the victim on the head with the hammer. Eyewitness accounts of Crider's conduct also negate the self-defense argument, at least after the attack continued outside the apartment. Additionally, the physical evidence, including the lack of any serious injury to Crider, negates this claim that the victim struck the first blow with the hammer.
However, as to the issue of provocation, I would conclude that the error was not harmless. First, on the issue of provocation, the credibility of the witnesses' testimony was of paramount importance. The claim went to the jury based on the word of one man against another regarding events that occurred while they were inside the apartment and which cannot be corroborated by physical evidence or eyewitness testimony-a situation in which the jury's assessment of the witnesses' credibility may be the deciding factor. The prejudice of the prosecutor's statements that Crider was lying takes added significance under these circumstances. See Wilson v. People, 743 P.2d 415, 420 (Colo.*461987) (stating that where issue of credibility was of critical significance, prosecutor's characterization of witnesses' testimony as lies has added significance). The jury's decision on the issue of provocation turned on whether the jury chose to believe the testimony of Crider or the victim. In the absence of physical evidence or eyewitness testimony, this decision was not clear cut. Even the trial court noted that neither version of the events made sense. This would indicate that the victim's testimony was something less than compelling. Thus, it is difficult to conclude that the prosecutor's statements did not influence the jury on this matter.
Second, while it is improper for any attorney to characterize witness testimony as a lie, this error carries a greater risk of prejudice when committed by a prosecuting attorney because "the prosecutor represents the State and the People of Colorado," and the jury may "give greater weight to the prosecutor's arguments because of the prestige associated with the office." Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo.2005).
Third, this is not a case where the prosecutor's improper comments were isolated. In Wilson, we held that it was reversible error for the prosecutor to call the defendant and defense witnesses liars eight times in a case that turned on whether to believe the victim or the defendant. 743 P.2d at 421. In that case, there were no contemporaneous objections, and the conviction was reversed under the plain error standard of review-a higher bar than the harmless error standard in this case. Here, by contrast, the prosecutor used a form of the word "lie" at least thirteen times, and he did so in the rebuttal closing argument immediately before the jury left to deliberate. The repeated use of the improper argument at a time when the defendant had no opportunity to respond makes the misconduct particularly egregious.
For all of these reasons, I cannot say there is no reasonable probability that the prosecutor's misconduct in this case did not contribute to the jury's verdict finding no provocation. An error which prevents the jury from fully considering the issue of provocation, which mitigates the penalties for attempted second-degree murder and first-degree assault, is reversible error. See People v. Garcia, 28 P.3d 340 (Colo.2001) (reversing defendant's conviction under plain error standard where trial court gave incorrect jury instruction on provocation). I would therefore reverse the court of appeals. Accordingly, I respectfully dissent.
I am authorized to state that Chief Justice MULLARKEY and Justice MARTINEZ join in this dissent.