Background
Deon Miller was subject to a mandatory protection order barring contact with S.H., who had previously allowed him to stay at her home while he was homeless. Shortly after the order entered, Miller contacted S.H. to retrieve personal property. S.H. met him, drove him toward a Denver shelter, returned to Boulder after they forgot his wheelchair, and ultimately took him to a motel.
The State initially charged Miller with felony menacing, violating the protection order, and violating bail-bond conditions. It dismissed the menacing and bail-bond counts before trial. The jury convicted Miller of violating the protection order.
The Court’s Holding
The Colorado Court of Appeals affirmed. It held that the prosecutor did not improperly shift the burden of proof by responding to defense counsel’s argument that the prosecution had not presented motel video footage or testimony from an alleged witness. The prosecutor’s statement that Miller had the same subpoena power was a direct response to the defense argument.
The court also noted that the prosecutor expressly reminded the jury that the People bore the burden to prove every element beyond a reasonable doubt and never argued that Miller bore that burden. In any event, any error would have been harmless because the evidence of the protection-order violation was overwhelming: Miller contacted S.H., and the parties stipulated that he had signed the order.
Key Takeaways
- A prosecutor may respond to defense criticism about missing witnesses or evidence by noting that the defense also could have produced that evidence.
- Such a response does not shift the burden where the prosecutor maintains that the prosecution bears the burden of proof and does not expressly place it on the defendant.
- Evidence about the motel-parking-lot incident was not material to the uncontested facts establishing Miller’s contact with S.H. despite the protection order.
Why It Matters
The decision illustrates the distinction between an improper burden-shifting argument and a permissible rebuttal to a defense claim that the prosecution failed to call witnesses or present particular evidence. Context—including the prosecutor’s express acknowledgment of the People’s burden—controls the analysis.