v. Gutierrez , 2021 COA 110 ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
August 19, 2021
2021COA110
No. 17CA0534, People v. Gutierrez — Crimes — Murder in the
First Degree; Criminal Law — Trials — Separate Trial of Joint
Defendants; Criminal Procedure — Relief From Prejudicial
Joinder
A division of the court of appeals holds that the joint trial of
two defendants charged with first degree murder and conspiracy to
commit murder resulted in reversible prejudice. The evidence
indicated that the victim was shot with four bullets from the same
gun. Interpreting this to mean that there was only one shooter —
and thus, one perpetrator — both defendants moved for severance
on multiple occasions, arguing, among other things, that their
defenses were antagonistic because they both accused each other of
being the sole shooter. The trial court disagreed and tried both
defendants jointly. The division concludes that this was an abuse
of discretion because to believe one defense meant that the jury had
to disbelieve the other.
The division further concludes that the joint proceedings in
this case resulted in reversible prejudice because, in addition to the
presentation of antagonistic defenses, the trial saw the introduction
of voluminous evidence that would likely not have been admissible
in a separate trial — and also required numerous limiting
instructions — and a great deal of damaging evidence introduced
not by the prosecution but by the codefendant.
COLORADO COURT OF APPEALS 2021COA110
Court of Appeals No. 17CA0534
Jefferson County District Court No. 15CR1470
Honorable Todd L. Vriesman, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Andrew George Gutierrez,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division IV
Opinion by JUSTICE MARTINEZ*
Brown and Graham*, JJ., concur
Announced August 19, 2021
Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 After a two-week trial, a jury found defendant, Andrew George
Gutierrez, and his codefendant, John Orlando Sanchez, guilty of
first degree murder and conspiracy to commit murder. The
defendants were tried jointly, despite numerous pretrial motions to
sever. At trial, the prosecution introduced evidence that the victim,
Eric Schnaare, was fatally shot four times with bullets from one
gun. Both defendants and the prosecution regarded this evidence,
considered with the other evidence in the case, as conclusively
proving that there was one shooter. Gutierrez denied shooting
Schnaare and accused Sanchez of being the sole shooter, and
Sanchez similarly denied being the shooter and accused Gutierrez.
¶2 In this case, we conclude that Gutierrez’s defense was
antagonistic to Sanchez’s because the two defenses specifically
contradicted each other and to believe one defense meant that a
jury would have to disbelieve the other. We further conclude that
the joint proceedings in this case resulted in reversible prejudice
because the trial saw the introduction of voluminous evidence that
would likely not have been admissible in a separate trial — and also
required numerous limiting instructions — and a great deal of
damaging evidence introduced not by the prosecution but by the
1
codefendant. The trial court erred by denying Gutierrez’s motions
for severance, so we reverse his convictions and remand for a new,
separate trial.
I. Background
¶3 From the evening of May 13, 2015, through the early morning
of May 14, a group was partying at an apartment in Lakewood. The
group included codefendants Gutierrez and Sanchez and their
families, significant others, and friends. The defendants were
affiliated with the gang “Gallant Knights Insane” or “the GKIs.”
There was some evidence that Gutierrez was the leader of the GKIs.
¶4 The defendants brought guns with them to the party. Not long
after 6 a.m. on May 14, the victim — Schnaare — arrived at the
apartment. Upon entering, Schnaare was fatally shot four times.
After the shooting, the partygoers fled the scene.
¶5 Prior to the party, the Lakewood police had installed a pole
camera outside the apartment as part of an unrelated investigation.
Through pole camera footage, the police identified the partygoers,
including the defendants. After the shooting, Gutierrez went to a
motel with Sanchez’s former girlfriend, Amelia Irizarry. Sanchez,
meanwhile, traded one of his guns for another, which he and
2
Irizarry later hid when they were arrested. Gutierrez was arrested
at the motel after a standoff with the Lakewood police.
¶6 Based on the above, Gutierrez and Sanchez were charged with
first degree murder and conspiracy to commit murder. Ultimately,
the prosecutors argued that the jury could find “either one of these
defendants guilty, either as a principal or as a complicitor.”
¶7 Gutierrez and Sanchez were tried jointly. After a two-week
trial, the jury found both defendants guilty as charged. Gutierrez
was sentenced to life without parole. This appeal followed.
II. Severance and Joinder
¶8 Gutierrez contends, among other things, that the trial court
abused its discretion by repeatedly denying his motions to sever his
trial from Sanchez’s.1 Specifically, Gutierrez argues that he
presented a mutually exclusive, antagonistic defense to Sanchez’s,
and, as a result, he suffered reversible prejudice from a joint
proceeding. We agree.
1 Gutierrez also argues that he should have been granted a separate
trial as a matter of right. Given our disposition, we need not reach
this argument.
3
A. Relevant Principles
¶9 When severance is not mandatory under section 16-7-101,
C.R.S. 2020, the matter is addressed to the trial court’s discretion.
Peltz v. People, 728 P.2d 1271, 1275 (Colo. 1986). We will not
disturb a court’s ruling denying severance absent an abuse of that
discretion and a showing of prejudice to the moving party. Id.¶ 10 Factors that a court may consider when ruling on a motion to
sever that does not trigger mandatory severance include (1) whether
the number of defendants or the complexity of the evidence will
cause the jury to confuse the evidence and law applicable to each
defendant; (2) whether, despite limiting instructions, evidence
admissible against one defendant will improperly be considered
against another; and (3) whether the defenses presented are
antagonistic. People v. Carrillo, 946 P.2d 544, 550-51 (Colo. App.
1997), aff’d on other grounds, 974 P.2d 478 (Colo. 1999).
¶ 11 Although courts around the country disagree regarding “the
amount of antagonism sufficient to require separate trials,” People
v. Maass, 981 P.2d 177, 184 (Colo. App. 1998), Colorado case law
makes clear that defenses are not antagonistic when one defendant
does not base their assertion of innocence on the guilt of the other.
4
Id.; see also People v. Toomer, 43 Colo. App. 182, 185, 604 P.2d
1180, 1183 (1979) (holding that defenses are not antagonistic when
they do not specifically contradict each other); United States v.
McClure, 734 F.2d 484, 488 (10th Cir. 1984) (“[O]ne defendant’s
attempt to cast blame on the other is not in itself a sufficient reason
to require separate trials.”). On the other hand, mutually exclusive
or “irreconcilable defenses” could require severance. Maass, 981
P.2d at 184. That is, “the acceptance of one defense would tend to
preclude the acquittal of the other defendant.” Id.B. Additional Facts and Procedural History
¶ 12 Gutierrez’s counsel moved pretrial to sever the cases, arguing,
among other things, that the defendants would be raising mutually
exclusive and antagonistic defenses. The prosecution filed a written
response arguing that a joint trial would serve judicial economy and
that separate trials would risk inconsistent verdicts. At a March
2016 hearing, the court found that the motion was premature
because the parties had not yet presented their theories of defense.
The court opined, however, that even if the parties did raise
antagonistic defenses, limiting instructions would cure any
prejudice.
5
¶ 13 After subsequent discovery revealed that there was only one
shooter, Gutierrez’s counsel filed a renewed motion for severance.
At a hearing on the renewed motion, Gutierrez’s counsel argued
that it was clear, now, that the defendants would be accusing each
other of being the sole shooter — thus, the defendants would be
prosecuted not only by the State, but also by each other. The court
denied severance on the grounds that any prejudice could be cured
with limiting instructions.
¶ 14 Between this hearing and the trial, the parties deposed John
Paulin, the man who owned the apartment where the shooting took
place. Prior to the deposition, Sanchez’s counsel expressed concern
that the prosecution would elicit a hearsay statement made by
Gutierrez to Paulin that would implicate both defendants in the
shooting. Because Gutierrez was the declarant, Sanchez’s counsel
argued that he should be able to impeach Gutierrez’s statement by
introducing his prior felony convictions. Later in the deposition,
Gutierrez’s counsel agreed with Sanchez’s counsel and added, “I
believe that . . . will force Mr. Gutierrez to make a choice between
his constitutional rights, his right to a fair trial, as well as his right
6
to remain silent, and his right to confront.” Gutierrez’s counsel
then renewed their motion to sever, which was denied.
¶ 15 At a later hearing, the parties re-raised this issue. Both
defendants’ counsel explained that they were being placed in the
untenable position of having to choose between fully confronting
Paulin, or any other witness, and saving their respective clients
from the prejudice of having the codefendant’s counsel impeach on
prior felony convictions. Thus, both Gutierrez and Sanchez moved
to sever, which was again denied.
¶ 16 At the end of the hearing, prior to jury selection, the trial court
gave the prosecution fifteen peremptory challenges, Sanchez eight,
and Gutierrez seven. Later, during jury selection, Gutierrez’s
counsel argued that Gutierrez suffered prejudice because he had
received fewer peremptory challenges than he would have received
at a separate trial, and exhausted them before he could strike a
juror who expressed a fear of retaliation from gang members.
Gutierrez’s counsel made a record that she would have struck the
juror had she been allowed to and, further, Gutierrez would have
received more peremptory challenges had he been given a separate
trial.
7
¶ 17 In her opening statement, Gutierrez’s counsel began by
arguing,
Four bullets from one gun, shot by one person.
That person was not Andrew Gutierrez. And
Andrew Gutierrez was not an accomplice to the
shooting and the murder of Eric Schnaare.
Counsel then asked, “So what happened?” What happened,
counsel later argued, was “John Sanchez [walked] in the door after
Mr. Schnaare. And he immediately . . . starts shooting at Mr.
Schnaare: 1, 2, 3, 4 shots, shoots Mr. Schnaare dead.” Then, in his
opening statement, Sanchez’s counsel argued,
[I]f you look at the evidence in this case, you’re
going to see that John Sanchez didn’t shoot
anyone. If you listen to all the evidence in this
case, you’re going to see that the DA’s theory
that there was a complicity going on here and
there was some sort of agreement or
conspiracy isn’t true. You will see that the
shooter was Andrew Gutierrez.
Sanchez’s counsel then reiterated, “There [are] not two shooters,
there is one shooter, and evidence shows it’s not Mr. Sanchez.”
¶ 18 After opening statements, Sanchez’s counsel again moved for
severance, arguing,
[A]fter [having] now heard openings to the
extent that there was some ruling that we did
not have antagonistic defenses, I think [it is]
8
pretty clear that there are. Both sides opened
that there was one shooter. The prosecution
opened that there was one shooter . . . . [I]n
order for [Sanchez] to be found not guilty, the
jury must find Mr. Gutierrez guilty, and vice
versa.
The court again denied severance, but then gave the following
limiting instruction to the jury:
Although the defendants are being tried
together, you must consider this case against
each defendant separately. Each defendant is
entitled to have their case decided solely on the
evidence and the law that applies to that
defendant.
¶ 19 During trial, Gutierrez’s counsel moved for severance twice
more. The court denied severance both times. In addition, fifteen
separate times during trial, both defendants’ counsel either objected
or else drew the court’s attention to perceived prejudice resulting
from the joint proceedings.
¶ 20 In closing argument, Sanchez’s counsel reminded the jury that
“the physical evidence shows you that there is one shooter.”
Counsel then went on to highlight the incriminating evidence
against Gutierrez and again argued that Gutierrez was the sole
shooter. In Gutierrez’s closing, his counsel began with, “Four shots
from one gun and one shooter. Not Mr. Gutierrez.” His counsel
9
then proceeded to list all of the evidence tending to prove that
Sanchez was the sole shooter. At the end, Gutierrez’s counsel
argued,
The bottom line is, minus the distractions, is
that there were four bullets from one gun and
one shooter. That [two witnesses] both told
you that it was Mr. Sanchez . . . . Mr. Sanchez
is the one who had the motive, and there is
[no] actual evidence, aside of intention to
cause fear in you and dislike for Mr. Gutierrez,
that he actually participated in any way in this
shooting.
C. Analysis
1. The Defenses Were Antagonistic
¶ 21 Gutierrez contends that the trial court abused its discretion by
failing to sever the trials because his and Sanchez’s defenses were
antagonistic. The People contend that Gutierrez’s defense was not
antagonistic to Sanchez’s defense, and even if it was, that alone did
not require severance. For two reasons, we are persuaded that the
defenses were antagonistic.
¶ 22 First, despite the People’s assertion to the contrary, Gutierrez
did raise a defense that was mutually exclusive of Sanchez’s. While
it is true that Gutierrez asserted general denial as his stated theory
of defense in required written disclosures to the prosecution, it is
10
clear from counsel’s opening and closing statements and arguments
on motions to sever, as well as the evidence presented at trial, that
Gutierrez did more than simply deny involvement. Bolstered by
undisputed evidence that Schnaare died from four bullets fired from
one gun, Gutierrez’s counsel argued in his opening and closing
statements that not only was Gutierrez unaware of Sanchez’s prior
conflict with the victim and had no involvement with the shooting,
but also that the evidence indicated that Sanchez was the sole
shooter. Further, not only did Gutierrez’s counsel accuse Sanchez
of being the sole shooter in arguments, she put on the testimony of
two eyewitnesses at the party — Edward Yazzie and Anna Neal —
who identified Sanchez as the one who shot Schnaare.2
¶ 23 Second, the fact that the prosecution charged Gutierrez with
conspiracy in addition to first degree murder, and that one
defendant could be complicit with the actions of another, does not
2 We acknowledge that the prosecution also presented Yazzie’s
testimony that Sanchez shot Schnaare. Our focus for the purposes
of whether the defenses were antagonistic, however, is on the
evidence and arguments that Gutierrez, not the prosecution, put
forward.
11
preclude the conclusion that the defenses were antagonistic.3
Relying on People v. Durre, 713 P.2d 1344 (Colo. App. 1985), the
People argue that Gutierrez’s “attempt to make the other look more
culpable” was not antagonistic because that would not be a
mutually exclusive defense to a conspiracy charge. The People’s
reliance on Durre is misplaced. The defendant in Durre appeared to
argue that he was just an accomplice to a robbery and that his
codefendant was more culpable. Id. at 1347. Gutierrez, by
contrast, was not arguing to the jury that he was just an
accomplice and that Sanchez was more culpable. Rather, he was
blaming the entirety of the crime — both the shooting and the
planning of it — on Sanchez. Were the jury to believe Sanchez’s
defense — that Gutierrez was the sole shooter — that would
preclude Gutierrez’s acquittal. Similarly, were the jury to believe
3 The People point to the prosecution’s charging document as
evidence that the very nature of the charges against Gutierrez mean
his defense was not antagonistic. Again, our inquiry is centered on
the defendants’ arguments and evidence, not the prosecution’s. See
United States v. Green, 324 F. Supp. 2d 311, 325 (D. Mass. 2004)
(“The issue is not the position the government takes. The issue is
whether a jury will be able to hear the opposing position — the
defense theory — and reliably consider all positions.”) (emphasis
omitted).
12
Gutierrez’s defense — that Sanchez concocted the shooting and
carried it out by himself — that would preclude Sanchez’s acquittal.
Thus, the acceptance of one defendant’s defense would preclude the
acquittal of the other defendant. See Maass, 981 P.2d at 184 (A
mutually exclusive, antagonistic defense means that “the
acceptance of one defense would tend to preclude the acquittal of
the other defendant.”).
¶ 24 In sum, considering the record before us, we conclude that
Gutierrez put forward a defense antagonistic to Sanchez’s.
2. Gutierrez Suffered Reversible Prejudice
¶ 25 Having concluded that Gutierrez advanced an antagonistic
defense, we now consider whether the joint trial in this case
resulted in reversible prejudice. We conclude, for four reasons, that
it did.
¶ 26 First, one of the concerns regarding the presentation of
antagonistic defenses is that a defendant will, in effect, have to
defend himself against both the prosecution and his codefendant.
People v. Warren, 196 Colo. 75, 78, 582 P.2d 663, 665 (Colo. 1978);
see also State v. Vinal, 504 A.2d 1364, 1368 (Conn. 1986) (noting
that a guilty verdict in these circumstances can be the result of the
13
codefendant’s efforts just as much as the government’s satisfaction
of its burden of proof); Silva v. State, 933 S.W.2d 715, 719 (Tex.
App. 1996) (reversing because “[the] appellant was forced to defend
himself not only against the State but against his codefendant as
well”). In this case, Gutierrez was confronted with evidence from
both the prosecution and Sanchez. Further, Sanchez’s evidence
more clearly implicated Gutierrez as the sole shooter because the
evidence presented by the prosecution focused more on proof that
Gutierrez masterminded the shooting.
¶ 27 Specifically, Sanchez put forth the following evidence —
independent from the prosecution — that tended to implicate
Gutierrez:
• A detective testified, while footage from the Lakewood police’s
pole camera was played, that Gutierrez could be seen putting
a gun in his waistband after the shooting.
• While describing a still image from the pole camera footage
taken prior to the shooting, another detective testified that
Gutierrez could be seen in the photo with a gun.
14
• Irizarry testified that a police investigator informed her while
she was in jail for the shooting that Gutierrez had threatened
her.
• Another detective testified that, during his interview with
Irizarry, she accused Gutierrez of shooting Schnaare and was
afraid for her life for having done so.
• The same detective testified that, during his interview with
Paulin, Paulin said he was afraid of Gutierrez and called him a
“crazy son-of-a-bitch.”
• Two of the arresting officers testified that a seven-hour
standoff ensued between Gutierrez and the Lakewood police in
which they had to use a negotiator, bullhorns, and projectiles
to get him to surrender to the police.
Also, in her closing, Sanchez’s counsel argued that the standoff
referenced above was proof of Gutierrez’s consciousness of guilt.
¶ 28 Additionally, Sanchez’s counsel attacked Yazzie’s and Neal’s
credibility after they testified that Sanchez was the sole shooter.
Specifically, Sanchez’s counsel attempted to get Neal to testify that
she and Gutierrez went shopping for a gun in the hours leading up
to the shooting. Sanchez’s counsel also asked Yazzie numerous
15
questions about Yazzie’s prior felony convictions and pending
charges. Not only were these attacks detrimental to Gutierrez’s
case, they also largely eliminated the prosecution’s need to impeach
Neal and Yazzie given that the prosecution’s theory was that
Gutierrez ordered the shooting.
¶ 29 Comparatively, the prosecution put on less evidence against
Gutierrez, often undermined the evidence introduced by Sanchez
that Gutierrez was the shooter, or otherwise implicated Sanchez
was the shooter:
• Irizarry, who was the only witness to directly implicate
Gutierrez in the shooting, testified that she had a prior
relationship with Sanchez and that she was in love with him.
Accordingly, it was possible she implicated Gutierrez alone to
protect Sanchez.
• Irizarry also testified that when Gutierrez shot Schnaare, he
did so “western style” with two guns. This was inconsistent
with the undisputed physical evidence and tended to
undermine Irizarry’s credibility.
16
• Irizarry further testified that when she and Gutierrez arrived
at the motel after the shooting, Gutierrez was laughing and
smiling and stated that he “almost cum when he did it.”
• Irizarry told an investigator that Yazzie also shot Schnaare.
But when the investigator later informed her that forensics
had established that there was only one shooter, Irizarry
changed her story and accused Gutierrez alone.
• Another investigator testified that, during his interview with
Paulin, Paulin stated that on the night of the party he heard
Gutierrez and Sanchez having “a discussion about how to get
a job done” and putting “cop killer rounds” or “hollow-points”
in a magazine. Paulin did not specify whether Gutierrez or
Sanchez made these statements.
• Neal testified that she observed Gutierrez and Sanchez having
private conversations on the night of the party.
• During and after the party, Gutierrez posted several photos on
Facebook showing him flashing gang signs and carrying a gun.
¶ 30 The prosecution also introduced Sanchez’s prior statements
made to Dustin Durando, a jail inmate with whom Sanchez shared
a cell after his arrest. Sanchez purportedly told Durando that he (1)
17
was a member of the GKIs; (2) had a conflict with the victim over
his (Sanchez’s) guns; and (3) fatally shot the victim. Prior to
hearing this evidence, the jurors were instructed that they were to
consider it only against Sanchez and not against Gutierrez. Later in
closing argument, however, the prosecutor referenced these
statements as evidence of both Sanchez’s and Gutierrez’s motive for
the shooting (i.e., because the victim had a conflict with Sanchez, a
member of Gutierrez’s gang, the victim had a conflict with the whole
gang).
¶ 31 The evidence the prosecution put on against Gutierrez was not
overwhelming, as the People argue. Importantly, the evidence
Sanchez put on added significantly to the overall weight of the
evidence against Gutierrez.
¶ 32 Because Gutierrez had to defend himself against two accusers,
only one of which had the burden of proof beyond a reasonable
doubt, we conclude that Gutierrez suffered prejudice from the joint
jury trial. See United States v. Romanello, 726 F.2d 173, 182 (5th
Cir. 1984).
¶ 33 Our second reason for concluding that the prejudice suffered
was reversible is that the joint trial at times prevented Gutierrez
18
from fully confronting the witnesses against him, and thus from
presenting a complete defense. The prosecution sought to
introduce Sanchez’s statements on multiple occasions. One way in
which Gutierrez hoped to impeach the credibility of those
statements was to introduce Sanchez’s prior convictions under CRE
806. To be sure, Gutierrez was not necessarily prevented from
introducing this evidence. However, as Sanchez’s counsel explained
in pretrial proceedings, doing so would have resulted in Sanchez’s
counsel introducing Gutierrez’s prior convictions as well. Thus,
Gutierrez was faced with a prejudicial Hobson’s choice between
impeaching the credibility of his codefendant’s statements and
opening the door to his own convictions. Though this situation, as
grounds for reversal, has not been addressed in Colorado, we find
other jurisdictions’ discussions persuasive. See Silva, 933 S.W.2d
at 719 (concluding that the defendant’s inability to introduce
impeachment evidence was a factor supporting reversal); United
States v. Sherlock, 962 F.2d 1349, 1360 n.4 (9th Cir. 1989) (same).
¶ 34 Furthermore, on two separate occasions, Gutierrez’s counsel
was prevented from going into the details of Sanchez and
Schnaare’s prior conflict. Specifically, Gutierrez’s counsel sought to
19
introduce the fact that Sanchez and Schnaare were involved in a
prior robbery in which Schnaare was supposed to “kill the guys and
he didn’t, so that’s why [Schnaare] kept [Sanchez’s] guns.”
Relatedly, Gutierrez’s counsel was also not allowed to elicit from
Yazzie that he and Sanchez were once cellmates and that Yazzie
was actually closer with Sanchez than Gutierrez, his own brother.4
The court, based on a pretrial ruling limiting this testimony under
CRE 404(b), instructed the jury not to consider any of this evidence
because it touched on Sanchez’s prior criminal history.
¶ 35 Gutierrez’s counsel considered this evidence important
because it helped show Sanchez’s motive for the shooting and
bolstered Yazzie’s credibility as Sanchez’s accuser.5 Apparently the
4 The relevance is the tendency to show that Yazzie — who
implicated Sanchez as the sole shooter — did not have a motive to
lie to protect his brother because he was actually closer with
Sanchez.
5 The People’s argument that this evidence would have bolstered the
prosecution’s case is unpersuasive. For one thing, that argument
depends on the People’s assertion that Gutierrez did not argue
Sanchez was the sole shooter, but instead only denied involvement.
Gutierrez did argue that Sanchez was the sole shooter; thus the
excluded evidence would have tended to prove Sanchez was the sole
shooter because he had a motive. Regardless, the fact that the
evidence might have strengthened the prosecution’s case is also
irrelevant. See Green, 324 F. Supp. 2d at 325.
20
jury was also concerned about Yazzie’s motives. Four times, the
jury asked questions of witnesses who could provide more details of
the nature of Sanchez and Schnaare’s relationship. Each time, the
court declined to ask the jurors’ questions due to Sanchez’s
counsel’s objection. Though we cannot know for sure whether the
excluded evidence would have been admissible at a separate trial,
we can say that Gutierrez’s inability to present a complete defense
in this regard was another example of the prejudicial effect of the
joint proceeding.
¶ 36 We pause briefly to address the People’s reliance on Zafiro v.
United States, 506 U.S. 534 (1993). Interpreting Fed. R. Crim. P.
14, which is substantively identical to our rule, the Supreme Court
held that “[m]utually antagonistic defenses are not prejudicial per
se.” Zafiro, 506 U.S. at 538; see also Crim. P. 14. It explained that
Fed. R. Crim. P. 14 “does not require severance even if prejudice is
shown; rather, it leaves the tailoring of the relief to be granted, if
any, to the district court’s sound discretion.” Zafiro, 506 U.S. at
538-39. It then went a step further:
[W]hen defendants properly have been joined
. . . a district court should grant severance . . .
only if there is a serious risk that a joint trial
21
would compromise a specific trial right of one
of the defendants, or prevent the jury from
making a reliable judgment about guilt or
innocence.
Id. at 539.
¶ 37 Zafiro was decided after many of the Colorado cases on
antagonistic defenses, and although it is not controlling, it does
provide guidance. It would appear, however, that Gutierrez’s case
would satisfy the Zafiro test. As we have explained, Gutierrez was
denied a specific trial right (the right to present a complete defense),
and we are not convinced that the jury made a finding of guilt
based on the prosecution’s efforts alone. Furthermore, in Zafiro the
Court was not so much concerned with the precise contours of
antagonistic defenses, but rather with when the prejudice stemming
from a joint proceeding would require reversal. Thus, Zafiro does
not change the result we reach today.
¶ 38 Third, during jury selection, Gutierrez received only seven
peremptory challenges and was denied an eighth when confronted
with a potential juror who expressed concern over retaliation given
that the case involved gangs. The People are correct that the
supreme court has concluded the denial of extra peremptory
22
challenges, by itself, does not require severance. People v. Lesney,
855 P.2d 1364, 1366 (Colo. 1993). We are not, however, dealing
with an argument for severance based on a lack of peremptory
challenges alone. Rather, we may consider this fact in conjunction
with the examples of prejudice already discussed. See Eder v.
People, 179 Colo. 122, 125, 498 P.2d 945, 946 (1972) (finding no
single example of prejudice dispositive but reversing based on the
cumulative effect).
¶ 39 Last, we conclude that the number of limiting instructions
given in this case defeats any curative effect they may have had on
the prejudice resulting from a joint trial. The People argue, relying
on Zafiro, that limiting instructions cured any prejudice resulting
from the joint proceeding. But here, the jury heard differing
iterations of five limiting instructions twenty-one times throughout
the course of a two-week trial. We need not decide today just how
many limiting instructions are too many. What we can say is that,
after instructing the jury to limit its consideration of the evidence
twenty-one times, any curative power a limiting instruction may
have had was lost. See Bruton v. United States, 391 U.S. 123, 135
(1968) (“[T]here are some contexts in which the risk that the jury
23
will not, or cannot, follow instructions is so great, and the
consequences of failure so vital to the defendant, that the practical
and human limitations of the jury system cannot be ignored.”);
State v. Zadeh, 226 A.3d 463, 478 (Md. 2020) (ten limiting
instructions in a joint trial is a factor indicating prejudice).
¶ 40 Sanchez’s counsel summed this case up quite nicely in a
pretrial hearing:
[T]he prosecution has blamed two people for
one murder involving what the physical
evidence seems to show was one gun involved.
They’re throwing the gun in the middle of the
room and saying: You guys get a trial
together, you figure it out and figure out
what’s going on.
This gladiator-style trial is not one that we can condone. It is quite
clear from counsel’s arguments and the evidence presented at trial
that Gutierrez’s defense was antagonistic to Sanchez’s. Further,
the prejudice resulting from a joint trial under these circumstances
was made clear to the court on multiple occasions. While any one
of the instances of prejudice described above might not be sufficient
by itself to warrant reversal, we hold that their cumulative effect
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does so and requires a new, separate trial. See Eder, 179 Colo. at
125, 498 P.2d at 946.
III. Remaining Contentions
¶ 41 Because we conclude that Gutierrez’s first claim of error
warrants reversal, we need not reach his other claims, which might
not recur on retrial and, even if they did, might arise under different
circumstances.
IV. Conclusion
¶ 42 We reverse Gutierrez’s convictions and remand for a new trial.
JUDGE BROWN and JUDGE GRAHAM concur.
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