ΒΆ 20 In assessing whether the defendant has raised such an inference, the court may consider, among other things, the disproportionate effect of peremptory strikes, a pattern of strikes against jurors in a particular class, and the prosecutor's questions and statements during voir dire. People v. Hogan, 114 P.3d 42, 52 (Colo.App.2004) ; accord Batson, 476 U.S. at 96β97, 106 S.Ct. 1712 ; Craig, 161 P.3d at 654 (the pattern of strikes, number of women on the jury before and after the strikes, and initial responses of both parties to the Batson challenge supported an inference of discrimination). βHowever, a systematic pattern of exclusions is neither necessary nor sufficient for making a prima facie showing.β
ΒΆ 60 βIn determining whether prosecutorial misconduct mandates a new trial, an appellate court must evaluate the severity and frequency of misconduct, any curative measures taken by the trial court to alleviate the misconduct, and the likelihood that the misconduct constituted a material factor leading to the defendant's conviction.β People v. Hogan, 114 P.3d 42, 55 (Colo.App.2004). ΒΆ 61 βOpening statement is limited to the facts that the party intends to prove at trial.
ΒΆ 13 βIn determining whether prosecutorial misconduct mandates a new trial, an appellate court must evaluate the severity and frequency of misconduct, any curative measures taken by the trial court to alleviate the misconduct, and the likelihood that the misconduct constituted a material factor leading to the defendant's conviction.β People v. Hogan, 114 P.3d 42, 55 (Colo.App.2004).B. Analysis
"Arguments made for the obvious purpose of denigrating defense counsel are improper and constitute professional misconduct." People v. Williams, 89 P.3d 492, 494 (Colo. App. 2003) (citing People v. Darbe, 62 P.3d 1006, 1013 (Colo. App. 2002)); see also People v. Hogan, 114 P.3d 42, 56 (Colo. App. 2004) (it was improper to compare defense counsel's strategy to the defendant's strategy in selecting an alleged kidnapping victim); but see People v. Cevallos-Acosta, 140 P.3d 116, 124 (Colo. App. 2005) (trial court did not abuse its discretion in overruling objection to a personal attack where the statements made did not directly denigrate the defense or impugn defense counsel's integrity). However, a prosecutor may comment in rebuttal argument on whether the defendant's theory lacks credibility.
"We review de novo the trial court's legal conclusions on steps one and two of the Batson analysis, deferring to any underlying factual findings, including any predicate credibility determinations. People v. Hogan, 114 P.3d 42, 52 (Colo. App. 2004). However, "the trial court's determination in the third step of the Batson analysis of actual racial discrimination is an issue of fact to which we afford due deference and review only for clear error."
Our sister states that have addressed this question are generally in accord. See, e.g., People v. Hogan, 114 P.3d 42, 49 (Colo.App. 2005) ("The ultimate question as to the constitutionality of pretrial identification procedures is a mixed question of law and fact. Thus, we give deference to the trial court's finding of historical fact . . . but may give different weight to those facts and may reach a different conclusion."), review denied, Docket No. 05SC46, 2005 Colo. LEXIS 597 (Colo.
We conclude that the majority opinion in Sattazahn cannot be read to hold directly or by implication that aggravating circumstances must be included as actual elements of the offense of capital murder for purposes of the statutory elements test under Blockburger. See also People v. Hogan, 114 P.3d 42, 57-58 (Colo.Ct.App. 2004) (non-capital case adopting a similar interpretation of Ring and Sattazahn in response to a double jeopardy challenge). The Blockburger test is satisfied in this case because first degree murder requires proof of a killing but does not require proof of an agreement to commit a killing.
It is well settled that a peremptory challenge "used to strike the only venire member of a cognizable racial group may be sufficient for a prima facie showing of racial discrimination." People v. Hogan , 114 P.3d 42, 52 (Colo. App. 2004) ; see also Valdez , 966 P.2d at 590 ("The prima facie standard is not a high one; ... the defendant must present evidence sufficient to raise an inference that discrimination occurred.") (emphasis added).
With respect to the evidence in the preceding list's first four items, there was no error because, with two exceptions, the court sustained defense counsel's objections and instructed the jury to disregard the testimony. See People v. Hogan , 114 P.3d 42, 55 (Colo. App. 2004). ΒΆ 48
And given the overwhelming evidence of guilt, it was unlikely to have had a material role in Vergari's conviction. See People v. Hogan , 114 P.3d 42, 55 (Colo. App. 2004) (Determining whether misconduct is harmless requires a court to evaluate "the severity and frequency of misconduct, any curative measures taken by the trial court to alleviate the misconduct, and the likelihood that the misconduct constituted a material factor leading to the defendant's conviction.").