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People v. Hinojos-Mendoza7/28/2005
uired both findings to convict defendant. Moreover, both the People and defendant repeatedly emphasized during closing arguments that the People had the burden of proof, including as to the quantity of the cocaine. See People v. Fichtner, 869 P.2d 539 (Colo. 1994)(counsel's closing argument relevant to impact of instructional error).
The better practice under recent case law would be to include explicit instructions that quantity must be found beyond a reasonable doubt. See, e.g., Lopez v. People, 113 P.3d 713 (Colo. 2005). However, we conclude the instructions here do not so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. See People v. Miller, supra.
Accordingly, we conclude the trial court did not commit plain error in its instructions to the jury.
IV. Prosecutorial Misconduct
Defendant next contends that prosecutorial misconduct during the closing rebuttal violated his right to a fair trial and requires reversal. We disagree.
Because defendant did not object at trial, we review the prosecutor's remarks only for plain error. See People v. Miller, supra. To constitute plain error, prosecutorial misconduct must be "flagrant or glaringly or tremendously improper" and must so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. People v. Salyer, 80 P.3d 831, 839 (Colo. App. 2003).
Prosecutorial misconduct in closing argument rarely constitutes plain error. People v. Gordon, 32 P.3d 575 (Colo. App. 2001). A prosecutor enjoys considerable latitude in replying to opposing counsel's argument. People v. Salyer, supra. In considering whether prosecutorial remarks are improper, we weigh the effect of those remarks on the trial and take into account "defense counsel's opening salvo." People v. Vialpando, 804 P.2d 219, 225 (Colo. App. 1990)(quoting Wilson v. People, 743 P.2d 415 (Colo. 1987)).
Here, defense counsel commented eleven times during closing argument on the prosecutor's failure to subpoena witnesses, including six references to the informant. During his rebuttal argument, the prosecutor responded to defense counsel's repeated references to the absence of the informant by saying: "Has anybody asserted their Fifth Amendment rights? This is all smoke because that's what their case is based on, smoke."
Although the first part of the comment seemingly refers to the informant's assertion of his constitutional rights, the comment is vague. Cf. People v. Ray, 109 P.3d 996 (Colo. App. 2004)(holding the prosecutor's ambiguous remark about defendant's decision not to testify did not implicate his constitutional rights); People v. Rivas, 77 P.3d 882 (Colo. App. 2003)(holding police officer's statements about defendant did not constitute plain error because they were ambiguous, vague, and brief).
Furthermore, even assuming that the prosecutor inappropriately speculated on why the informant did not testify, his comments were not flagrantly, glaringly, or tremendously improper. The remarks were brief, were in direct response to defense counsel's closing argument, and did not relate directly to any elements of the offense. See People v. Sepeda, 196 Colo. 13, 581 P.2d 723 (1978)(prosecutor's comment which did not misstate the elements of the offense or misinterpret the application of the law did not constitute reversible error); People v. Roadcap, 78 P.3d 1108 (Colo. App. 2003)(prosecutor's comment about defendant's "smoke screen" constituted a fair comment on the evidence).
Accordingly, because these comments do not seriously undermine the reliability of th
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