Background
Evidence at trial showed that Kenneth Blair Lee raced another car on a three-lane highway, weaving through traffic at high speed. Lee lost control of his Cadillac during a rapid lane change and caused a multi-vehicle crash that killed one person and injured two others. Eyewitness testimony, dash-camera footage, and a police crash reconstruction supported the prosecution’s account.
A jury convicted Lee of reckless vehicular homicide, two counts of vehicular assault, reckless driving, speed contest, and operating a vehicle with a radar jamming device. The district court imposed five years in the Department of Corrections for vehicular homicide, concurrent three-year terms for each vehicular-assault conviction, six months in jail for speed contest, and ninety days each for reckless driving and radar jamming.
The Court’s Holding
The Colorado Court of Appeals rejected Lee’s challenge to the proximate-cause instruction, holding that it correctly stated the law and did not improperly combine proximate-cause and intervening-cause principles. The court also declined to reverse based on an investigator’s testimony attributing an incriminating statement to Lee. Lee did not object at trial, and he failed to establish obvious and substantial error, particularly given the overwhelming independent evidence of guilt.
The court held that the prosecutor improperly denigrated Lee’s defense expert as a “hired gun” who sought to confuse the jury and “muddy the waters.” Although the misconduct was obvious under existing precedent, it did not constitute plain error because Lee did not show that it undermined the trial’s fundamental fairness, and the evidence of guilt was overwhelming.
Finally, based on the prosecution’s concession, the court assumed without deciding that reckless driving was a lesser included offense of reckless vehicular homicide. It vacated Lee’s reckless-driving conviction and sentence and remanded for correction of the mittimus to reflect merger into the vehicular-homicide conviction. The court affirmed the judgment in all other respects.
Key Takeaways
- A proximate-cause instruction may explain that a defendant’s conduct need not be the only, nearest, or last cause of an injury, so long as it is a but-for cause operating in a natural and probable sequence.
- Calling a defense expert a “hired gun” and accusing the expert of trying to confuse jurors is improper prosecutorial argument, but an unpreserved claim requires proof of plain error to warrant reversal.
- The court assumed without deciding that reckless driving was a lesser included offense of reckless vehicular homicide and ordered the convictions merged based on the prosecution’s concession.
Why It Matters
The opinion underscores the difficulty of obtaining reversal on unpreserved evidentiary and prosecutorial-misconduct claims: even an obvious improper argument will not justify reversal without a showing that it seriously affected the trial’s fairness and reliability.
It also illustrates the double-jeopardy function of merger. When a lesser offense is treated as included within a greater offense arising from the same conduct, the separate conviction and sentence for the lesser offense must be vacated.