An Arapahoe County prospector misstated the law to a jury, prompting the Court of Appeals to label her actions misconduct and order a new trial for the defendant.

Kenneth Michael Kaminga stood trial in 2018 for the killings of Aaron Williams and Javier Gaytan in Aurora. Kaminga told his girlfriend, “I murdered two people tonight,” and reported the shootings to the police himself. At trial, he argued self-defense and intoxication. 

The Court of Appeals determined on Thursday that Kaminga’s jury correctly received an instruction that, if jurors found him so intoxicated that he did not act with a specific intent to kill, they should convict him of second-degree murder, rather than first-degree murder. The latter, the most serious class of felony crimes, carries a maximum sentence of life in prison.

During closing arguments, the unnamed prosecutor told the jury it should first consider whether Kaminga was guilty of first-degree murder before considering the lesser offense.

“Ladies and gentlemen, we are not asking you to convict him of second degree murder. We are asking you to convict him of what he did, first degree murder,” she said. “And to be clear, you only get to that second degree murder, if you find we did not prove [first-degree murder] beyond a reasonable doubt.”

Kaminga’s attorney objected on the grounds that jurors could consider the offenses in either order. District Court Judge Patricia Herron told the lawyers she was “not going to make a fuss in front of the jury about that,” and allowed the prosecutor to continue without clarifying that the jury did not have to consider first-degree murder first.

The prosecutor then repeated the incorrect statement: “We’re not yet to second degree murder unless you find that he has not committed first degree murder.” 

A three-judge appeals panel reversed Kaminga’s two convictions based on the error.

“Colorado is a ‘soft transition’ state, meaning that a jury need not acquit a defendant of a greater offense before considering a lesser,” wrote Judge Christina F. Gomez in the panel’s Dec. 2 opinion.

The court rejected the government’s representation that the prosecutor was merely suggesting how the jury should approach the two offenses. The jury could have believed Kaminga’s intoxication, or an otherwise hasty or impulsive reaction unrelated to the alcohol, was to blame for the killings. In that case, Gomez elaborated, the criteria for second-degree murder would have been appropriate to consider independently of the more serious offense.

“It’s possible that the jury would have convicted Kaminga of first degree murder – and would have rejected the lesser offense of second degree murder – regardless of the prosecutor’s misstatements, given the evidence supporting those convictions,” she wrote. “But there remains a reasonable possibility that the misstatements led the jury to reject the alternative option of convicting Kaminga of second degree murder without considering first degree murder, simply because it felt it didn’t have that choice.”

Although Herron did read an instruction to the jury that it may acquit Kaminga of the greater offense while convicting him of the lesser, the instruction did not specifically correct the prosecutor’s directive to look at first-degree murder first.

A spokesperson for the 18th Judicial District Attorney’s Office declined to identify the prosecutor.

The panel also determined that Kaminga’s confession in police custody was not the product of coercing him to waive his right against self-incrimination. Kaminga argued the fact that officers held him for six hours overnight, restrained, without food or sleep, amounted to coercion.

“It’s unclear why Kaminga’s hands weren’t swabbed for gunshot residue earlier in the night, so that he could be placed in a holding cell rather than being left handcuffed in an interrogation room,” Gomez acknowledged, but added the court found no indication it was a purposeful tactic to get Kaminga to talk. 

The case is People v. Kaminga.