Peo v. Young

22CA1117 Peo v Young 11-21-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1117
Arapahoe County District Court No. 20CR1935
Honorable Ben L. Leutwyler III, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Samuel Alvin Young,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE LUM
Freyre and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 21, 2024

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Megan A. Ring, Colorado State Public Defender, Leah Scaduto, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant.
¶1 Defendant, Samuel Alvin Young, appeals the judgment of

conviction entered on a jury verdict finding him guilty of four

counts of attempted manslaughter, one count of illegal discharge of

a weapon, and two counts of second degree assault. We affirm.

I. Background

¶2 In July 2020, the death of Elijah McClain sparked mass

protests at the Aurora Municipal Center. The protesters, followed

by officers from the Aurora Police Department (APD), marched from

the Municipal Center onto Interstate 225 (I-225). Protesters and

police officers had blocked off a portion of the interstate, keeping

cars from traveling northbound on I-225. To ensure that cars

would not approach the protesters from behind, protesters parked

their vehicles on the on-ramp and blocked the highway.

¶3 Kyle Faulkison, driving a blue Jeep, maneuvered past the

makeshift barrier and onto the highway. Sebastian Sassi —

following behind protesters in a white pickup truck and concerned

that the blue Jeep would hit someone — swerved his vehicle into

the Jeep, causing a minor crash. Despite the collision, Faulkison

continued down the highway, although at a slower speed than

before the contact with Sassi’s vehicle. Many protesters moved out

1
of Faulkison’s path and to the side of the highway, while others

threw objects at the Jeep to stop it.

¶4 Young was near the middle of the crowd of protesters on the

highway when he fired five bullets at the passing Jeep. The

shooting injured two protesters in the crowd but not Faulkison. At

trial, the prosecution argued, and offered evidence showing, that

sixteen seconds elapsed between the time Sassi swerved into the

Jeep and the time Young started shooting.

¶5 The day after the shooting, Young called APD to identify

himself and offered to speak with the police with an attorney. APD

then issued an arrest warrant for Young. After charging Young, the

prosecution proceeded to trial on four counts of attempted reckless

manslaughter, two counts of first degree assault, and one count of

illegal discharge of a firearm.

¶6 Young didn’t testify, but his attorney argued that Young made

a “split-second” decision to shoot at the Jeep in self-defense and

defense of others. The central dispute at trial was the

reasonableness of Young’s belief that the Jeep posed an imminent

threat to himself or the other protesters and his belief that the

degree of force he used was necessary. After the close of evidence,

2
the jury was instructed on heat of passion and defense of others.

Young was convicted of attempted manslaughter, illegal discharge

of a weapon, and the lesser included offense of second degree

assault (heat of passion). He was sentenced to five years of

probation.

II. Right to Public Trial

¶7 Young contends that the trial court deprived him of his right

to a public trial because it denied his request to provide his

disabled mother with livestreaming access to the first day of the

trial proceedings — resulting in a partial courtroom closure —

without making express findings under Waller v. Georgia, 467 U.S.

39 (1984). We disagree.

A. Additional Facts

¶8 Before trial, Young requested that the court grant his mother

permission to remotely observe the trial via a locked, password-

protected Webex room. Young explained that his mother had

multiple sclerosis and is a wheelchair user. Although the Arapahoe

County District Court was wheelchair accessible, Young asserted

that his mother’s medical condition would have made it difficult or

impossible for her to sit in a courtroom for an extended period of

3
time because she experiences “regular periods where she is unable

to move” and suffers from “extreme stiffness and tightening of the

muscles.” Young also argued that, in light of his mother’s

“significant disability” and “high risk for COVID,” she was entitled

to accommodation under the Americans with Disabilities Act (ADA).

¶9 On the morning of the first day of trial, the court denied the

request, stating that it did not plan to conduct any livestreaming of

the trial and did not want to confer special privileges on Young’s

mother. The court added that since Young’s mother was not a

crime victim, she was not entitled to accommodations under the

Victim Rights Act. The court also stated that granting the request

would create a risk of interruption and improper recording of the

proceedings.

¶ 10 That afternoon, Young again raised the issue of remote access

and objected to the denial of his request, asserting a violation of his

right to a public trial. The court ruled that its decision not to

provide Young’s mother with remote access did not constitute a

courtroom closure and therefore did not implicate Young’s public

trial right. The court and the prosecutor noted for the record that

members of the public and the media were present in the

4
courtroom. The court stated that the decision to be present in

person at the trial was entirely up to Young’s mother.

¶ 11 Young’s mother was neither physically present nor able to

remotely observe the first day of trial, which included jury selection

and opening statements. On the afternoon of the first day of trial,

Young’s mother filed a motion under the ADA to allow her Webex

viewing capability. The court referred her request to the district’s

ADA coordinator and later granted her motion. Young’s mother had

remote viewing access for the remainder of the trial.

B. Standard of Review

¶ 12 “Because a trial court’s decision to close the courtroom

presents a mixed question of law and fact, we review the court’s

legal conclusions de novo and its findings of fact for clear error.”

People v. Turner, 2022 CO 50, ¶ 19 (citations omitted). “When the

trial court erroneously deprives the defendant of his public trial

right, the error is structural in nature” and requires reversal.

People v. Hassen, 2015 CO 49, ¶ 7.

C. Applicable Law

¶ 13 The United States and the Colorado Constitutions guarantee

criminal defendants the right to a public trial. U.S. Const. amends.

5
VI, XIV; Colo. Const. art. II, § 16. “This right ‘is for the benefit of

the accused; that the public may see he is fairly dealt with and not

unjustly condemned, and that the presence of interested spectators

may keep his triers keenly alive to a sense of their responsibility

and to the importance of their functions.’” People v. Jones, 2020

CO 45, ¶ 16 (quoting Waller, 467 U.S. at 46). The public trial right

furthers the following values: (1) “to ensure a fair trial”; (2) “to

remind the prosecutor and judge of their responsibility to the

accused and the importance of their functions”; (3) “to encourage

witnesses to come forward”; and (4) “to discourage perjury.” People

v. Lujan, 2020 CO 26, ¶ 28 (quoting Peterson v Williams, 85 F.3d

39, 42 (2d Cir. 1996)).

¶ 14 A total or partial closure of a courtroom can violate a

defendant’s right to a public trial. Jones, ¶ 27. The exclusion of

even a single person can, under certain circumstances, constitute a

partial closure that implicates the Sixth Amendment. Id. at ¶ 34.

D. Analysis

¶ 15 The parties agree that there wasn’t a total courtroom closure

in this case. However, Young argues that the failure to initially

provide his mother with remote access to the trial resulted in a

6
partial courtroom closure because she was unable to attend jury

selection and opening statements. And because the trial court

didn’t justify its closure, Young contends that reversal is required.

The People argue that no closure occurred, and if it did, the closure

was trivial. See Lujan, ¶¶ 17, 24 (noting that an improper closure

may be “so trivial as to not violate a defendant’s public trial right”).

We agree with the People’s first argument and do not reach the

second.

¶ 16 Two previous divisions of this court have concluded that the

denial of, or technical difficulties with, remote access did not result

in a partial closure when the courtroom was physically open to the

public. See People v. Gonzalez-Quezada, 2023 COA 124M, ¶ 60

(holding that the exclusion of a single, intrusive, remote observer

didn’t violate the defendant’s public trial right); People v. Sloan,

2024 COA 52M, ¶¶ 2, 18, 22 (holding that defendant’s public trial

right was not violated when the livestream experienced technical

difficulties).

¶ 17 Conversely, divisions of this court have held that a courtroom

closure occurs when certain spectators are excluded from attending

a trial in person, even when Webex or other livestream access is

7
provided. For instance, in People v. Bialas, 2023 COA 50 (cert.

granted Mar. 11, 2024), where the trial court physically excluded

members of the public — including the defendant’s family — from

the courtroom but provided a livestream, a division of this court

concluded that a partial closure warranting reversal had occurred.

Id. at ¶ 15. Another division of this court determined that at least a

partial closure occurred where the trial court restricted public

access to the courtroom and instead created a Webex livestream

which the public could observe remotely or in a designated room

inside the courthouse. People v. Roper, 2024 COA 9, ¶¶ 7, 15 (“[W]e

do not believe the Sixth Amendment permits an unfettered shift to

televised, but otherwise closed, trial proceedings.”).

¶ 18 We agree with the reasoning in Gonzalez-Quezada and Sloan

and follow it here: because Young’s courtroom remained open to the

public, the trial court’s denial of his request to provide his mother

with remote access wasn’t a partial courtroom closure. Likewise,

we agree with Bialas and Roper: remote access without a physically

open courtroom cannot fulfill a defendant’s right to a public trial.

Conversely, denial of remote access doesn’t implicate the

defendant’s public trial right.

8
¶ 19 We reject Young’s contention that his mother’s purported

inability to attend the trial due to her medical conditions compels a

different outcome than Gonzalez-Quezada and Sloan. There are

many reasons why attendance in person would be impracticable or

impossible for members of a defendant’s family (or other members

of the public). For instance, an individual may be too ill to attend,

live very far away, have an unavoidable scheduling conflict, or be

unable to attend for financial reasons. We have found no case

either before or after the remote access era holding that an

otherwise open courtroom closes due to an individual’s inability to

attend trial for personal reasons. We decline to hold that a trial

court is constitutionally required to make remote access available to

anyone who — regardless of the reason why — cannot attend trial

in person.

¶ 20 To the extent Young asserts that his mother was entitled to

livestreaming access as a reasonable accommodation for her

disability under the ADA, he doesn’t cite, and we haven’t found, any

authority supporting the notion that a violation of his mother’s

statutory rights under the ADA resulted in a violation of Young’s

constitutional right to a public trial.

9
¶ 21 For these reasons, we conclude that the trial court didn’t err

by declining to provide Young’s mother with remote viewing access

for the first day of trial.

III. Expert Testimony

¶ 22 The trial court precluded expert testimony proffered by Young

because it concluded that (1) the testimony was irrelevant; (2) the

probative value of the testimony was substantially outweighed by its

potential to confuse the issues; (3) the expert wasn’t qualified; (4)

the testimony would invade the province of the jury as to mens rea;

and (5) the testimony wouldn’t be helpful to the jury. Young argues

that all five bases for preclusion were erroneous. Because we affirm

the trial court’s decision on the fifth basis (helpfulness), we need

not examine the others.

A. Additional Facts

¶ 23 Before trial, Young endorsed David Kleiber as an expert in

“Crime Scene Investigation & Shooting Incident Reconstruction,

Force Science & Use of Force, Operability of firearms & Firearms

training.” As relevant here, Young planned to call Kleiber to testify

about the science of reaction times and the delay between a

person’s perception of danger (or the perception that danger has

10
passed) and the person’s ability to initiate action or cease action in

response to their perception. Kleiber’s report referenced three

studies on this topic relating to shooting reaction times in trained

police officers, one of which indicated that police officers could take

“up to 1.5 seconds to react to a cease fire stimulus.”

¶ 24 Young argued that Kleiber’s testimony was relevant to his self-

defense claim and would help the jury to (1) understand that the

“decision point” to start shooting was “when the Jeep was coming at

him, first passed him”; (2) determine the “amount of control” he had

to stop shooting once he had started; and (3) assess whether his

decisions to start shooting or continue shooting were reasonable.

The prosecution moved to exclude Kleiber’s testimony, arguing that

studies on police officers were inapplicable to Young because he

didn’t have law enforcement training.

¶ 25 The parties and the court questioned Kleiber during a pretrial

hearing. At the hearing, Kleiber explained that:

• He would testify that “it takes time for an individual to

identify a threat, to process information, and put that

plan into action. And once that individual has put the

11
plan into action, it takes time to essentially reverse that

as well.”

• While the studies on shooting reaction time were on

police officers, “the articles actually address . . . that

there is a human component that deals with decision-

making” and the ability to react to an identified threat.

• The level of firearms training among civilians was “all

across the board,” with some civilians having a higher

level of training than law enforcement and some having

“zero” training.

• There were “things out there” saying that “most

individuals have a .25 to .30 [second] reaction time,” but

in his personal experience, reaction time is “a very

individual-type thing.”

• He based his reference to the .25 to .30 second reaction

timeframe on a well-regarded firearms trainer, for whom

.25 seconds was the “goal” reaction time.

• Whether a civilian has faster or slower reaction time than

people with law enforcement training is “really very

broadly based on . . . the individuals.”

12
• An individual’s reaction time is based on a number of

factors, including training, experience, and immutable

characteristics, and those factors could generate reaction

times faster or slower than .25 to .30 seconds.

¶ 26 The court concluded that Kleiber’s testimony wouldn’t be

helpful for the jury because the quantifications for reaction time

contained in the articles were limited to trained law enforcement,

and Kleiber would testify that a civilian might have a faster or

slower reaction time.

B. Standard of Review and Applicable Law

¶ 27 A trial court’s decision about the admissibility of expert

testimony is reviewed for abuse of discretion and will not be

overturned unless it is “manifestly erroneous.” People v. Martinez,

74 P.3d 316, 322 (Colo. 2003). This deference recognizes that the

trial court has a “superior opportunity to determine . . . whether the

expert’s opinion will be helpful to the jury.” Id.

¶ 28 CRE 702 provides that if “scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness qualified as an

expert . . . may testify thereto.” For expert testimony to be

13
admissible, “(1) the scientific principles underlying the testimony

must be reasonably reliable; (2) the expert must be qualified to

opine on such matters; (3) the expert testimony must be helpful to

the jury; and (4) the evidence must satisfy CRE 403.” Martinez, 74

P.3d at 322.

¶ 29 Helpfulness to a jury depends on how well the expert

testimony “fits” a particular case. Id. at 323. “Fit demands more

than simple relevance; it requires that there be a logical relation

between the proffered testimony and the factual issues involved in

the litigation.” Id. The critical question a court must answer in

assessing helpfulness is whether a jury can receive “appreciable

help” from this expert on the subject at hand. People v. Cooper,

2021 CO 69, ¶ 48.

C. Analysis

¶ 30 The trial court didn’t abuse its discretion by concluding that

Kleiber’s testimony would not have been helpful to the jury.

¶ 31 We reject Young’s contention that the jury could have received

“appreciable help,” id., from Kleiber’s testimony about the basic

premise that it takes some unquantified amount of time to react to

14
a particular situation. That concept is familiar to laypeople and

doesn’t require explanation from an expert.

¶ 32 Further, we agree with the trial court that Kleiber couldn’t

have provided any helpful information about how much time Young

might have taken to react to a “fire” or “cease fire” stimulus. Any

time quantifications Klieber may have been able to provide were —

as the trial court correctly noted — based on studies conducted on

trained police officers or on the “goal” reaction time for a firearms

training program. Kleiber would have testified that any particular

civilian’s reaction time could be shorter or longer depending on

their training. And even if there was, as Young argues, a broadly

applicable “human component” to the time quantifications, Kleiber

would also have had to admit that reaction time (1) depended on

other, immutable individual characteristics and (2) was, in his

experience, highly individualized.

¶ 33 In other words, Kleiber would have testified that reaction time

delay could be .25 seconds, .30 seconds, 1.5 seconds, or shorter or

longer than any of those times. While certainty isn’t required, see

Kutzly v. People, 2019 CO 55, ¶ 18, the trial court’s conclusion that

15
such testimony wouldn’t have been helpful isn’t “manifestly

erroneous.” Martinez, 74 P.3d at 322.

IV. Prosecutorial Misconduct

¶ 34 Young contends that the prosecutor committed misconduct in

closing arguments by impermissibly commenting on his right not to

testify at trial. We disagree.

A. Applicable law and standard of review

¶ 35 Every person accused of a crime enjoys the constitutional right

to remain silent. U.S. Const. amends. V, XIV; Colo. Const. art. II, §

18. “[A] prosecutor may not ask a jury to infer guilt from a

defendant’s constitutionally-protected right not to testify.” People v.

Stevenson, 228 P.3d 161, 171 (Colo. App. 2009).

¶ 36 However, a prosecutor may comment on the lack of evidence

to support a defendant’s contentions and may properly respond to

the defendant’s arguments. People v. Gibson, 203 P.3d 571, 577

(Colo. App. 2008); People v. Vialpando, 804 P.2d 219, 225 (Colo.

App. 1990). “A prosecutor has wide latitude to make arguments

based on facts in evidence and reasonable inferences drawn from

those facts.” People v. Strock, 252 P.3d 1148, 1153 (Colo. App.

2010).

16
¶ 37 Reviewing courts consider the following factors in determining

whether a prosecutor’s argument constituted an unconstitutional

reference to a defendant’s failure to testify at trial: (1) “[w]hether the

comment referred specifically to the defendant’s failure to take the

stand or to rebut the evidence against him”; (2) “[w]hether the trial

judge, after objection was made, gave a cautionary instruction to

the jury to disregard the comments or the remarks relating to the

failure of the accused to testify”; (3) “[w]hether the prosecutorial

comments were aggravated or repetitive”; and (4) “[w]hether the

defendant was the only person who could refute the evidence which

caused the comments to be directly pointed at the accused.” People

v. Todd, 538 P.2d 433, 436 (Colo. 1975).

¶ 38 When references to a defendant’s silence are not “intentionally

designed to provoke adverse inferences of guilt in the minds of the

jury,” reversal is not required. People v. Key, 522 P.2d 719, 721

(Colo. 1974); see also People v. Hall, 107 P.3d 1073, 1078 (Colo.

App. 2004) (“To determine whether a prosecutor’s comment on the

defendant’s silence constitutes reversible error, the court should

consider: (1) whether the improper remarks were used as a means

of creating an inference of guilt; and (2) whether the prosecution

17
argued that the defendant's silence constituted an implied

admission of guilt.”).

¶ 39 Review of prosecutorial misconduct claims entails a two-step

process. We consider whether the prosecutor’s arguments were

improper and then whether any improper statement requires

reversal under the applicable standard. People v. Carter, 2015 COA

24M-2, ¶ 63. To assess whether the prosecutor’s comments were

improper, a reviewing court must consider the totality of the

circumstances, including “the language used, the context in which

the statements were made, and the strength of the evidence

supporting the conviction.” Domingo-Gomez v. People, 125 P.3d

1043, 1050 (Colo. 2005).

¶ 40 Because Young’s arguments are unpreserved, review is limited

to plain error. Id. at 1053. “Plain error occurs only when an error

so undermines the fundamental fairness of the trial itself as to cast

serious doubt on the reliability of the jury’s verdict.” Id. “A

reviewing court should examine alleged improper argument in the

context of the prosecutor’s closing argument as a whole. The fact

that the defendant did not object to the remarks may indicate his

belief that the live argument was not overly damaging.” People v.

18
Villa, 240 P.3d 343, 356 (Colo. App. 2009). “Prosecutorial

misconduct in closing argument rarely constitutes plain error.”

Strock, 252 P.3d at 1152-53. Only misconduct that is “flagrantly,

glaringly, or tremendously improper” warrants reversal under the

plain error standard. Domingo–Gomez, 125 P.3d at 1053 (quoting

People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)).

B. Analysis

¶ 41 Young challenges five of the prosecutor’s comments during

closing argument and rebuttal.

1. “No Evidence” Comment

¶ 42 Young first challenges the following remarks:

So first of all, you have no evidence of this
defendant’s state of mind or observations just
prior to the shooting or during the shooting.
There’s no evidence in the record. Nobody can
tell you what he saw or what he was thinking,
and nobody did tell you that. And the
instructions tell you [that] you cannot base
your verdict on speculation, you can’t guess as
to what he might have saw [sic], guess as to
what he might have thought. You can’t do it.
You can’t speculate facts into existence that
were not testified to during this trial.

¶ 43 We acknowledge that this comment represents a close call

because it refers to a lack of evidence that only Young could

19
provide: evidence about his state of mind. See Todd, 538 P.2d at

436. Nevertheless, we conclude that the above comments were not

obviously improper because they didn’t refer specifically to Young’s

failure to take the stand and didn’t generate any objection. See id.

Instead, they referred to the lack of evidence in the record

supporting Young’s defense of others claim. See People v. Medina,

545 P.2d 702, 703 (Colo. 1976) (“While it is improper to comment

intentionally on a defendant’s failure to testify, it is permissible [for

a prosecutor] to comment on the lack of evidence confirming

defendant’s theory of the case.”).

¶ 44 We aren’t persuaded otherwise by Young’s reliance on Griffin v.

California, 380 U.S. 609 (1965); Howard-Walker v. People, 2019 CO

69; and Montoya v. People, 457 P.2d 397 (Colo. 1969). In those

cases, the prosecutor’s comments were deemed improper because

they explicitly referenced the defendant’s failure or refusal to testify

and insinuated to the jury that the defendant’s withholding of

information implied guilt. Griffin, 380 U.S. at 610-11, 613

(prosecutor stated that the defendant “would know” the

circumstances around the victim’s death, but that the defendant

“ha[d] not seen fit to take the stand and deny or explain . . . if

20
anybody would know, this defendant would know. [The victim] is

dead, she can’t tell you her side of the story. The defendant won’t”);

Howard-Walker, ¶¶ 38, 44, 50 (prosecutor stated, “there is only one

person in this room that could tell you where all of those items are

now and he won’t”); Montoya, 457 P.2d at 430-31 (prosecutor said,

“The defendant did not testify . . . [y]ou are asked to decide what

went on in his mind without hearing it from the very person, the

only person who [really] knows . . . from the person who really

knows, we heard nothing”) (emphasis added). The prosecutor’s

comments here are distinguishable and are not so “flagrantly,

glaringly, or tremendously improper” as to warrant reversal.

Domingo-Gomez, 125 P.3d at 1053.

2. “Defendant’s perspective” Comments

¶ 45 We analyze jointly the second and third comments with which

Young takes issue:

The defense would like you to use other
witnesses as surrogates for the defendant, but
you just can’t because they’re in different
position than he was . . . . They don’t have the
same opportunity that he does to perceive and
react. They don’t work as surrogates for the
defendant’s perspective.

...

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[Witnesses on the on-ramp] have no earthly
clue what the highway looked like at the time,
much less what it looked like to this defendant
at that time . . . . And the ladies in the Wall of
Moms, same thing. They can’t give you the
defendant’s perspective. They can’t tell you
what the road looked like to him at the time
that he’s watching the Jeep not hit anyone,
and deciding whether or not to start shooting.

¶ 46 Viewed in context, these comments don’t refer to Young’s

exercise of his right to silence. The first comment referred to other

protesters who testified at trial and was part of a longer discussion

establishing that their perspective was different from Young’s

because they were closer to the Jeep when it crashed and continued

to drive down the highway. Therefore, argued the prosecutor, the

jury couldn’t use those witnesses’ perceptions as evidence that

Young’s fear was reasonable because Young was farther away from

the Jeep and had more time to recognize that it wasn’t a threat.

This was a fair comment on inferences the jury could (or couldn’t)

draw from the evidence. Cf. People v. McBride, 228 P.3d 216, 221

(Colo. App. 2009) (noting that a prosecutor may make arguments

based on reasonable inferences that can be drawn from facts in

evidence).

22
¶ 47 The second comment referred to other individuals at the

protest who weren’t called to testify. The prosecutor specified that

this comment was a response to Young’s insinuation during

opening statements that the prosecution didn’t plan to call certain

witnesses who saw what happened on the highway. The response

— that those witnesses couldn’t illuminate Young’s perspective

because they couldn’t see what the highway looked like after the

crash — was a fair response to defense counsel’s argument. People

v. Sanders, 2022 COA 47, ¶ 44 (“[P]rosecutors are afforded

considerable latitude when they are replying to arguments made by

the defense.”).

3. “Opportunity” Comment

¶ 48 During rebuttal closing, the prosecutor argued:

The defendant had the opportunity to see –
after he turned around after the collision, to
see the Jeep, with enough time to make a
reasonable decision, and instead he pulled out
the gun, he aimed at it, he intended to fire at
the Jeep driver, but he hit other victims; that’s
what the facts prove in this case.

There were other people who were afraid from
their positions, understandably. But your
decision on these elements is about the
defendant’s mental state, not other people. And
he had that opportunity. He could have taken

23
many other steps that were less excessive, less
unreasonable, that wouldn’t have injured other
victims, and he didn’t. He could have pulled
the gun and looked at what was happening,
and decided not to fire, he could have just put
it away.

(Emphasis added.)

¶ 49 Young’s briefing quotes the italicized portion of the statement

in isolation and argues that it is an impermissible comment on his

right to silence. Read in context, however, the “opportunity” the

prosecutor referred to wasn’t the opportunity to testify. Instead, the

prosecutor was referring to Young’s chance to see that the Jeep

wasn’t a threat and make a different, “less unreasonable” decision.

While perhaps inartful, the comment wasn’t improper. People v.

Samson, 2012 COA 167, ¶ 30 (“[B]ecause arguments delivered in

the heat of trial are not always perfectly scripted, reviewing courts

accord prosecutors the benefit of the doubt when their remarks are

ambiguous or simply inartful.”).

4. Pre-arrest Conduct

¶ 50 The final statement Young challenges is as follows:

This defendant didn’t go over and tell that
officer what had just happened, tell that officer
about this exceedingly reasonable thing he had
just done, this heroic thing against this threat,

24
this obvious threat to everyone’s lives. Why
not? It’s because he knew what he had done
was not reasonable. He knew it.

¶ 51 This comment wasn’t a reference to Young’s decision not to

testify, but instead discussed his pre-arrest conduct. A prosecutor

may properly comment on such conduct, particularly when it

occurred (as it did here) in a noncustodial setting, without violating

the Fifth Amendment. People v. Coke, 2020 CO 28, ¶¶ 12-14

(stating that the Fifth Amendment right against self-incrimination

only attaches to defendant statements that are testimonial,

incriminating and compelled); People v. Thomas, 2014 COA 64, ¶¶

25-26 (stating that the Fifth Amendment does not apply to conduct

occurring outside custody and interrogation; therefore, admission of

a defendant’s pre-arrest silence in a noncustodial setting did not

violate his right against self-incrimination). Accordingly, this

comment wasn’t improper.

¶ 52 For all these reasons, we discern no prosecutorial misconduct

in closing arguments.

V. Communication Regarding Juror Travel Plans

¶ 53 Young contends that the court erred by holding an ex parte

discussion with the jury about one juror’s travel plans, thereby

25
violating Young’s rights to counsel and to be present. Additionally,

Young argues that the trial court erred by failing to inquire further

about the details of the travel plans during deliberation.

A. Additional Facts

¶ 54 On March 29, the fifth day of trial, a juror who was not an

alternate informed the bailiff that she had a flight at 1:15 p.m. on

April 1. On the record but outside the jury’s presence, the court

decided against releasing the juror at that time, stating, “I think we

have to wait and see how the evidence goes.” Defense counsel

didn’t object. The same day, the trial court told counsel that

another juror had tested positive for COVID-19.

¶ 55 The next day, with parties and counsel present but outside the

jury’s presence, the court announced that it had released the sick

juror and would proceed with the remaining thirteen jurors. When

the issue of the traveling juror was raised again, the court said that

if jury deliberations didn’t begin by the afternoon of the following

day (March 31), the court would consider releasing the traveling

juror. The court then asked the parties for permission to enter the

jury room and inform the members about the sick juror who had

been released. Neither party objected.

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¶ 56 Upon returning from the jury room, the court said,

I explained the situation to our remaining
jurors, and I told them that another juror . . .
has expressed concerns about travel plans on
Friday, that I am not going to excuse that juror
at this time, I’m going to wait and see what our
schedule looks like, what progress we make,
and if I need to excuse that juror at a later
time, I will . . . I asked if any of the jurors had
any questions or concerns, and nobody had
any concerns.

¶ 57 Both the prosecution and defense counsel responded, “Thank

you.” Defense counsel didn’t object or ask for any relief.

¶ 58 Jury deliberations began the morning of March 31 — the day

before the traveling juror’s flight. Later that afternoon, outside the

jury’s presence, the trial court told counsel that because of the

traveling juror’s plans, “I intend to have the jury continue

deliberating tonight, rather than come back tomorrow morning, and

let them go . . . as late as they need this evening in order to reach a

verdict.” However, the court said that if the jury needed to break

for the evening and continue deliberations in the morning, it would

arrange for that.

¶ 59 Defense counsel argued that the timing of deliberations and

the juror’s travel plans could potentially produce a coerced verdict

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and requested that the court get more details from the traveling

juror about their plans.

¶ 60 The court explained that it hadn’t initiated or received any

communication with the jury about the travel plans since

deliberations began and that it was “not inclined” to interrupt

deliberations. Defense counsel repeated his concern but agreed

with the court that whether continued deliberations “convey[ed]

pressure” to the traveling juror was speculative.

¶ 61 The court then tried to clarify defense counsel’s objection and

discern what relief he requested. Counsel clarified that (1) he

believed there was coercion because the juror had previously

communicated her travel plans to the court and (2) he objected to

continued deliberations unless the court questioned the juror

further about their travel. The court did not immediately rule on

the issue, instead saying that it would take a break and return after

a “few minutes.” When the court returned, the jury had reached a

verdict. The court said it would receive the verdict at 5:45 p.m. and

take a recess until then.

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B. Applicable Law

¶ 62 The right to counsel exists at every critical stage of a criminal

proceeding. U.S. Const. amend. VI; Colo. Const. art. II, § 16.

Stages of criminal proceedings have been held to be “critical” where

there exists more than a “minimal risk” that the absence of the

defendant’s counsel might impair the defendant’s right to a fair

trial. Gilbert v. California, 388 U.S. 263, 267 (1967); Sandoval v.

People, 473 P.2d 722, 725 (Colo. 1970). “[A]n impromptu

conference with the jury during its deliberations may constitute a

critical stage of the proceedings even where the discussions are

purportedly confined to ‘scheduling’ matters . . . .” Key v. People,

865 P.2d 822, 825 (Colo. 1994).

¶ 63 “A court may not impose a deadline on deliberations that

prevents the jury from reaching a well-considered verdict.” Martin

v. People, 2014 CO 68, ¶ 25. “[D]iscussing scheduling pressure

with the jury may be coercive if those discussions effectively impose

a deadline for the jury to end its deliberations with a verdict or have

a mistrial declared.” Id.; see also People v. Urrutia, 893 P.2d 1338,

1343 (Colo. App. 1994) (“Discussing scheduling problems with the

jury may . . . be coercive if those scheduling problems create an

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impression that the jury is under a short time limit to reach a

verdict.”).

C. Ex Parte Conversation

1. Preservation and Standard of Review

¶ 64 The parties disagree about whether this issue was preserved.

Young argues that the issue is preserved because he had no

opportunity to object to the court’s ex parte conversation before it

took place. We agree that Young couldn’t have prevented the

conversation about the juror’s travel plans because he didn’t know

that the court would discuss the travel issue with the jury.

Nevertheless, we also agree with the People that Young had the

opportunity to raise an objection to the ex parte communication

and request relief when the court informed the parties about the

conversation immediately after it took place. He did neither.

Instead, he asked the court to question the juror the next day,

during deliberations. To the extent this was a request for relief, it

was too late to preserve any objection. See People v. Richardson,

2018 COA 120, ¶¶ 29-32 (holding that defendant failed to preserve

any error stemming from the trial judge’s wife serving on the jury

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when he failed to timely raise his objection). We therefore conclude

that this issue isn’t preserved.

¶ 65 Because the issue is unpreserved, we review it for plain error.

Hagos v. People, 2012 CO 63, ¶ 14. “Plain error is obvious and

substantial.” Id. We reverse under the plain error standard only if

the error “so undermined the fundamental fairness of the trial itself

so as to cast serious doubt on the reliability of the . . . conviction.”

Id. (citation omitted).

2. Analysis

¶ 66 Assuming, without deciding, that the court erred by

communicating ex parte with the jury about the traveling juror’s

flight, any error doesn’t merit reversal.

¶ 67 Young contends that the court’s discussion created a

possibility that the traveling juror might feel coerced to reach a

quick verdict in order to make her flight, and counsel needed to be

present to assess the juror’s reaction and decide whether to ask

that she be excused or move for a mistrial. But while scheduling

discussions may be coercive if they “effectively impose a deadline”

for the jury to reach a verdict, Martin, ¶ 25, we perceive nothing

about the court’s conversation that could be seen as coercive or

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that suggested that the jury had to adhere to any particular

schedule. To the contrary, the court simply informed the jurors

that it would “wait and see what our schedule looks like” and that it

would excuse the traveling juror if necessary. The court did not

suggest that either the trial schedule or the juror’s travel plans

would need to be altered, set a deadline on deliberations, or

otherwise suggest that it would need to take action to accommodate

the juror’s concerns. Accordingly, Young’s and his counsel’s

absence from this discussion did not “so undermine[] the

fundamental fairness of the trial itself so as to cast serious doubt

on the reliability of the . . . conviction.” Hagos, ¶ 14.

D. Juror Coercion

1. Standard of Review

¶ 68 Initially, we agree with the People that we review for an abuse

of discretion a trial court’s decision regarding whether to question

jurors during deliberations about possible pressure to reach a

verdict. Cf. Gibbons v. People, 2014 CO 67, ¶¶ 12, 31 (noting that

trial courts have discretion about whether to give supplemental

instructions or declare a mistrial when faced with a possible

deadlock because “[t]he trial judge has eyes and ears on the

32
situation as it unfolds” and “[a]ddressing the fluid dynamics” in that

situation is “a quintessential trial court responsibility”).

2. Analysis

¶ 69 The parties disagree about whether the court ruled on Young’s

request to question the juror. We need not resolve this dispute,

however, because even assuming that the court denied the request,

we perceive no abuse of discretion.

¶ 70 Relying on Key, 865 P.2d at 823-27, Young argues that the

court was required to question the juror to ensure that there wasn’t

a coerced verdict because the traveling juror’s flight might have

induced her to sacrifice her honestly held beliefs for the sake of her

travel plans. However, Key is distinguishable. In that case, the

trial court interrupted deliberations to discuss the jurors’ schedules

shortly before the winter holidays. Id. at 824. The court suggested

that the jury return to deliberate on New Year’s Eve, creating

significant scheduling conflicts for two jurors. Id. The Colorado

Supreme Court concluded that the court’s scheduling decision

created the equivalent of an improper “time-fuse” instruction for the

jurors with the conflicts. Id. at 825.

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¶ 71 For the reasons discussed above, the trial court’s ex parte,

predeliberation conversation with the jurors about the traveling

juror is distinguishable because it did not suggest a schedule or

deadline of any kind. Moreover, the court had not received any

communication from the jury during deliberations indicating that

the traveling juror had further concerns about missing her flight.

As defense counsel acknowledged, any concern about coercion was

“speculation.” If anything, Key counsels against interrupting

deliberations to discuss scheduling conflicts, and we agree with the

trial court that questioning the juror about her travel plans under

these circumstances may have drawn unnecessary attention to the

issue.

¶ 72 Finally, we reject Young’s assertion that it was coercive to

continue to allow the jury to deliberate past regular business hours

without questioning the traveling juror. Again, the court had not

received any communication from the jury indicating it was

concerned about the hour or needed a break. Young doesn’t cite,

and we haven’t found, any case indicating that the court is required

to inquire about possible time pressure that members of the jury

might feel during deliberations. Additionally, the record reflects

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that, if the jury deliberated past business hours, it wasn’t long.

After the court announced that the verdict had been reached, it said

that the verdict would be read at 5:45 p.m. and that it would recess

until that time.

¶ 73 Under these circumstances, the court didn’t abuse its

discretion by declining to interrupt deliberations to discuss the

traveling jurors’ schedule.

VI. Disposition

¶ 74 The judgment is affirmed.

JUDGE FREYRE and JUDGE GROVE concur.

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