Colorado’s second-highest court determined last week that numerous errors, including prosecutorial misconduct, pervaded a pair of criminal trials, but the missteps were not severe enough to warrant reversal of the defendants’ convictions.

In El Paso County, jurors convicted Daniel Caleb Schwenk of assault and menacing, but could not reach consensus on an attempted murder charge. Schwenk shot and injured the victim in a hotel hallway, but he asserted he acted in self-defense in the context of a hostile relationship with the victim. Schwenk is serving 20 years in prison.

On appeal, Schwenk alleged multiple errors compromised the fairness of his 2021 trial. A three-judge panel agreed some of the conduct he identified was problematic or outright erroneous.

First, during jury selection, the prosecutor used hypothetical examples to discuss the concept of “beyond a reasonable doubt” with potential jurors. Specifically, he asked jurors what they would do if they were about to buy their “perfect house” but encountered a series of increasingly concerning defects. After a juror indicated she would hesitate to buy a house with a severe black mold problem, the prosecutor likened the hesitation to having reasonable doubt.

The appellate panel acknowledged the Colorado Supreme Court in 2022 issued a decision disapproving of a trial judge’s use of the same “dream home” analogy. Among other things, the illustration incorrectly conveyed the burden of proof by making it seem as if the default position was to convict the defendant — or purchase the dream home — unless a severe enough defect surfaced in the prosecution’s case. In reality, defendants are presumed innocent.

“By now, trial courts and prosecutors should all be on notice that using these illustrations is fraught,” warned Judge Terry Fox in the panel’s Aug. 22 opinion.

However, because the Supreme Court has only taken issue so far with trial judges’ use of analogies, the prosecutor’s use of the same illustration did not merit a reversal of Schwenk’s convictions.

Second, Schwenk argued the prosecutor misstated the law when he argued in closing that Schwenk resorted to shooting the victim in the hotel hallway instead of using a “means of escape.”

“He doesn’t make a movement towards this open door,” the prosecutor said. “Moreover, when he fires the shot because he’s supposedly so scared for his own safety, does he hit the first entrance? No.”

The state Supreme Court ruled in 2020, prior to Schwenk’s trial, that prosecutors may not argue defendants have a “duty to retreat” before using defensive force, unless they initiated the confrontation. Although Schwenk’s lawyer did not object to the argument in the moment, the appellate panel concluded the misconduct was obvious enough that District Court Judge Eric Bentley should have intervened on his own.

Yet, the misstatement was “brief and isolated,” wrote Fox, and Bentley did instruct jurors that Schwenk had no obligation to retreat. Therefore, the panel found no reason to reverse the convictions.

Finally, both the prosecution and the defense acknowledged Bentley should have informed the jury that the victim, who was incarcerated and did not testify, had prior felony convictions. The appellate panel agreed the disclosure was warranted because jurors saw the victim’s statements on the responding officer’s body-worn camera video. However, the panel also determined the omission did not affect the key question for the jury: whether Schwenk acted in self-defense.

The panel upheld Schwenk’s convictions. Although the judges did not name him, court records listed Anthony Gioia as the trial prosecutor.

The case is People v. Schwenk.

In Mesa County, jurors convicted Mark Anthony Foster of killing his wife, Roxine. She was operating a tractor when a bullet struck her. Foster was nearby and maintained it was a stray bullet or possibly the work of multiple people who allegedly held grudges against the couple. Foster is serving a life sentence for the murder. He was also convicted of attempting to influence a public servant based on his deceptive statements to law enforcement.

On appeal, Foster argued the prosecution “overwhelmed and confused the jury with inadmissible evidence and argument” in a way that produced an unfair trial.

The allegedly problematic evidence included photos of Foster’s military and law enforcement paraphernalia and testimony that Foster lied about various aspects of his life, including the false claim that he served in the military. The panel agreed the evidence was irrelevant to Roxine’s killing and served only to suggest Foster had bad character generally. However, the appellate judges concluded the mistake was not obvious at the time.

Second, the panel agreed the prosecutor improperly asked jurors to use their “common sense” to determine the bullet was fired from a relatively close range, when the evidence could have supported a different conclusion. The prosecutor also misstated the testimony of a forensic pathologist who conducted the autopsy.

Finally, the prosecutor in closing called Foster an “actor” who was “well capable of delivering performance, reciting lines as if he had memorized them for a play.” The panel agreed the remark amounted to improper commentary on Foster’s character.

“Although we do not condone these numerous errors, we hold that, even when considered in the aggregate, they did not deprive Foster of a fair trial,” wrote Judge Lino S. Lipinsky de Orlov in the Aug. 22 opinion. He elaborated that “overwhelming evidence” supported the guilty verdicts.

“This opinion should not be read to suggest,” Lipinsky cautioned, “that these errors would not cumulatively warrant reversal in the context of another case.”

The panel upheld Foster’s convictions. The panel did not name the trial prosecutor, but court documents identified her as Jennifer Lee Springer.

The case is People v. Foster.