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People v. Garcia.

2021 COA 80. No. 17CA1910. Criminal Jury Instructions—Universal Malice—Attempted Extreme Indifference Murder—Prosecutorial Misconduct—Burden of Proof.

June 10, 2021

Defendant had an argument with his live-in girlfriend Duran during which he aimed a handgun either at or above her and her sister. Defendant fired the gun three times before running away. Neither Duran nor her sister were shot. A jury convicted defendant of attempted extreme indifference murder and reckless endangerment, which was later merged into his attempted extreme indifference murder conviction.

On appeal, defendant contended that the trial court erred by declining to give a jury instruction defining “universal malice.” Here, the jury expressed no confusion about the court’s instructions, which followed the statutory language and sufficiently explained the meaning of extreme indifference. Therefore, the trial court did not err.

Defendant also argued that the trial court’s explanations of reasonable doubt lowered the prosecution’s burden of proof and required a new trial. However, the jury instructions here accurately informed the jury of the law, and the trial court’s elaboration of reasonable doubt in voir dire, while ill-advised, did not lower the prosecution’s burden of proof when viewed in light of the entire record.

Defendant further argued that the prosecutor committed prosecutorial misconduct by (1) referencing domestic violence during voir dire and opening statement, and (2) improperly invoking sympathy for the victims. The prosecution did not commit misconduct by mentioning domestic violence during opening statements because the charges were captioned as crimes of domestic violence, and evidence of domestic violence was admitted at trial. Further, the prosecutor’s statement to the jury “to do the right thing” in closing argument was brief, part of a summation, and minimally prejudicial.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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