v. Vialpando , 2020 COA 42 ( 2020 )

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
March 19, 2020
2020COA42
No. 17CA1536, People v. Vialpando — Constitutional Law —
Sixth Amendment — Right to Trial by Jury; Criminal Law —
Prosecutorial Misconduct
A division of the court of appeals considers whether a
prosecutor’s statements during closing argument that the
defendant’s “flight continues up to this moment” and that her “flight
has continued up and to this point” were prosecutorial misconduct.
The majority concludes that those comments constituted
prosecutorial misconduct, and further, that this misconduct
requires reversal under the plain error standard.
The majority also concludes that the prosecutor’s comments
on the defendant’s flight in combination with four other instances of
prosecutorial misconduct and one evidentiary error deprived the
defendant of her right to a fair trial under the cumulative error
doctrine. Thus, the defendant’s convictions are reversed.
The dissent concurs with the majority’s analysis regarding
sufficiency of the evidence, suppression of an out-of-court
identification, and the trial court’s reasonable doubt illustration,
but concludes that the prosecutor’s misconduct did not constitute
plain error and would therefore affirm the judgment of conviction.
COLORADO COURT OF APPEALS 2020COA42
Court of Appeals No. 17CA1536
Adams County District Court No. 16CR150
Honorable Sharon Holbrook, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Yolanda Ursula Vialpando,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE BERGER
Lipinsky, J., concurs
Fox, J., concurs in part and dissents in part
Announced March 19, 2020
Philip J. Weiser, Attorney General, Elizabeth Ford Milani, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Yolanda Ursula Vialpando exercised her right to a trial by jury.
That jury convicted her of aggravated motor vehicle theft and other
crimes. During closing arguments, the prosecutor told the jury that
Vialpando’s “flight continues to this moment,” and that her “flight
has continued up and to this point.” These comments punished
Vialpando for exercising her constitutional right to a jury trial. This
was plain error, requiring reversal of her convictions.
¶2 Moreover, this error and five other errors that occurred over
the course of Vialpando’s short three-day trial deprived her of her
right to a fair trial under the cumulative error doctrine.
I. Relevant Facts and Procedural History
¶3 J.A.’s car was stolen from her Denver home.
¶4 Eleven days later, around five p.m., two police officers were
sitting in their police vehicle in the parking lot of a motel. One of
the officers testified that he saw a car, which would later be
identified as J.A.’s, drive around the corner of the motel, reverse
over a curb, and turn around to exit the motel parking lot. As the
officers followed the car, they learned it was stolen. The officer who
was driving testified that he activated his emergency lights to make
a traffic stop, but that the car “increased its speed.” The officer said
1
that he did not pursue the car because of the police’s pursuit
policy. Shortly after deactivating his lights, the officer “heard a loud
bang” and later saw that the stolen car had crashed. Several
witnesses told the officers that they saw a male and female flee the
car after the crash.
¶5 One of the witnesses was R.H. She was in her car, stopped at
a traffic light, when she saw the stolen car crash into another,
injuring the other driver. After the crash, R.H. watched a man leave
the passenger side and a woman exit the driver’s side of the stolen
car. They ran away in different directions. R.H.’s car was two lanes
away from the crash.
¶6 After the crash, the police found a purse in J.A.’s stolen car
that contained Vialpando’s identification card, credit card, medical
insurance card, and “miscellaneous female clothing,” which
Vialpando identified at trial as her clothes.
¶7 Based on the items found in the crashed car, the police began
investigating Vialpando. Two officers went to R.H.’s home for an
out-of-court identification. One of the officers testified that he
showed R.H. a series of photographs, and R.H. identified
Vialpando’s photo thirty seconds later.
2
¶8 Vialpando was charged with vehicular assault, § 18-3-
205(1)(a), C.R.S. 2019; vehicular eluding, § 18-9-116.5, C.R.S.
2019; aggravated motor vehicle theft in the first degree, § 18-4-
409(2), C.R.S. 2019; and driving under restraint, § 42-2-138(1)(a),
C.R.S. 2019.
¶9 At trial, R.H. testified that the fleeing woman was “lighter
skinned” and had a lot of makeup on. R.H. testified further that, at
the time of the crash, the woman was wearing a black and white
striped shirt and skinny black jeans; was in her twenties or thirties;
was slender; had black, wavy, long hair; and was maybe about 5
feet 5 inches or 5 feet 6 inches tall. According to R.H., the woman’s
makeup “made her look younger.”
¶ 10 An officer testified that some of Vialpando’s Facebook photos
showed her with long black hair and wearing “a significant amount
of makeup,” and that she appeared younger than she did at trial.
He also told the jury that Vialpando’s Division of Motor Vehicles
record stated that she was 5 feet 5 inches tall, 155 pounds, with
brown hair and brown eyes, and her Colorado identification
photograph depicted her with “long dark hair.”
3
¶ 11 R.H. explained that, during the out-of-court identification, she
told the officers that several of the women “were definitely not the
person, and one . . . could be.” She told the jury that she selected
Vialpando’s photo from the lineup and told police that “it could
totally be possible” that she was the woman R.H. saw exit the
crashed car. R.H. was “seventy-five percent” certain. When asked
for an in-court identification, R.H. said that Vialpando “could be”
the woman who had fled the stolen, crashed vehicle.
¶ 12 Vialpando explained to the jury that she was robbed of the
personal items that were found in the stolen car — including her
identification card, purse, insurance card, credit card, and clothing.
In fact, Vialpando reported the robbery the day before the car chase
and crash occurred. Testimony from a police officer supported
Vialpando’s account; the officer testified that Vialpando came to the
Denver police station the day before the car chase to report that she
was robbed at gunpoint, and that several personal items had been
stolen.
¶ 13 Vialpando was found guilty as charged and sentenced to four
years in community corrections.
4
II. Analysis
¶ 14 On appeal, Vialpando asserts six claims of error:
 there was insufficient evidence to support her
convictions;
 the prosecutor engaged in seventeen instances of
prosecutorial misconduct;
 the lead investigating police officer impermissibly testified
that she was the “primary suspect”;
 the cumulative effect of the errors deprived her of a fair
trial;
 R.H.’s identification was unreliable, so it should have
been suppressed; and
 the trial court lowered the State’s burden of proof when it
used analogies to describe reasonable doubt.
A. Sufficiency of the Evidence
¶ 15 We first address Vialpando’s sufficiency of the evidence
arguments because a reversal due to insufficient evidence “may
preclude retrial” on double jeopardy grounds. People v. Coahran,
2019 COA 6, ¶ 40 (quoting People v. Marciano, 2014 COA 92M-2,
¶ 42).
5
¶ 16 Vialpando claims that there is insufficient evidence to support
her convictions because the prosecution failed to prove identity.
She also claims that there is insufficient evidence to support her
aggravated motor vehicle theft conviction because the prosecution
failed to prove that she knowingly obtained or exercised control over
the motor vehicle of another without authorization, or that she
obtained or exercised control over the vehicle by threat or
deception. Both of Vialpando’s sufficiency of the evidence
arguments are disproved by the record.
1. The Law
¶ 17 The Attorney General disputes that Vialpando fully preserved
her sufficiency of the evidence claims for appeal. But we review the
sufficiency of the evidence de novo, including sufficiency claims
raised for the first time on appeal, Maestas v. People, 2019 CO 45,
¶ 13, to determine whether the evidence at trial was sufficient “in
quantity and quality to sustain the defendant’s conviction.” Clark v.
People, 232 P.3d 1287, 1291 (Colo. 2010).
¶ 18 The Due Process Clauses of the United States and Colorado
Constitutions require proof of guilt beyond a reasonable doubt on
every element of a crime. People v. Marko, 2015 COA 139, ¶ 233,
6
aff’d, 2018 CO 97. To resolve Vialpando’s sufficiency challenge, we
must determine whether the direct and circumstantial evidence,
when viewed as a whole and in the light most favorable to the
prosecution, is sufficient to support a conclusion by a reasonable
fact finder that Vialpando is guilty of the crimes charged beyond a
reasonable doubt. Clark, 232 P.3d at 1291.
¶ 19 “We do not sit as a thirteenth juror to determine the weight of
the evidence presented to the jury.” Id. at 1293. Instead, we must
give the prosecution the benefit of every reasonable inference that
might fairly be drawn from the evidence, and we recognize that (1)
the jury alone resolves the difficult questions of witness credibility
and the weight to be given to conflicting items of evidence; (2) the
jury is not required to accept or reject a witness’s testimony in its
entirety; (3) an actor’s state of mind is not normally subject to direct
proof and must be inferred from her actions and surrounding
circumstances; and (4) if there is evidence on which to reasonably
infer an element of the crime, the evidence is sufficient to sustain
that element. People v. Kessler, 2018 COA 60, ¶ 12.
¶ 20 As relevant here, a person commits aggravated motor vehicle
theft in the first degree if she “knowingly obtains or exercises
7
control over the motor vehicle of another without authorization or
by threat or deception” and one of eight specified aggravating
factors is shown. § 18-4-409(2). Vialpando was charged with
committing three of the aggravating factors: (1) using a motor
vehicle in the “commission of a crime other than a traffic offense”;
(2) causing “five hundred dollars or more [in] property damage”; and
(3) causing “bodily injury to another person” while exercising
control of the motor vehicle.” § 18-4-409(2)(d)–(f). “The critical
inquiry is whether the defendant exercised dominion over a vehicle
in a manner inconsistent with [her] authority.” People v. Harper,
205 P.3d 452, 455 (Colo. App. 2008).
¶ 21 To commit aggravated motor vehicle theft, a person must
knowingly steal a motor vehicle and use it in the commission of a
crime, “regardless of the mens rea associated with the particular
crime committed.” People v. Marquez, 107 P.3d 993, 997–98 (Colo.
App. 2004). The culpable mental state “knowingly” applies to the
defendant’s exercise of control over the vehicle and her awareness
of lack of authority. People v. Stellabotte, 2016 COA 106, ¶ 20,
aff’d, 2018 CO 66. A person acts “knowingly”
8
with respect to conduct or to a circumstance
described by a statute defining an offense
when [s]he is aware that h[er] conduct is of
such nature or that such circumstance exists.
A person acts “knowingly” . . . with respect to a
result of h[er] conduct, when [s]he is aware
that h[er] conduct is practically certain to
cause the result.
§ 18-1-501(6), C.R.S. 2019.
2. Application
¶ 22 Giving the prosecution the benefit of every reasonable
inference that might fairly be drawn from the evidence, we conclude
that there is sufficient evidence in the record to allow a reasonable
fact finder to convict Vialpando of the crimes charged.
¶ 23 Vialpando argues that there was insufficient evidence to prove
the charged offenses because the prosecution did not prove identity
— that she was the one who committed the charged crimes.
Specifically, she relies on the fact that J.A. never saw who stole her
car, only R.H. identified her as the woman fleeing from the crashed
vehicle, and R.H.’s initial description of the perpetrator did not
match Vialpando’s appearance in every respect because Vialpando
9
was not in her twenties or thirties, nor did she have long, dark
hair.1
¶ 24 But a jury could reasonably infer that Vialpando was the
person who committed the crimes because (1) J.A. testified that her
vehicle was taken without her consent; (2) R.H. told the jury that
she saw a woman flee — whom she later identified as Vialpando —
from the driver’s side of J.A.’s stolen vehicle; (3) police officers
testified that the driver of J.A.’s stolen vehicle fled the motel parking
lot and sped up, rather than pulling over, after the police activated
their lights; and (4) Vialpando’s identification card and other
belongings were found in J.A.’s stolen vehicle. See People v. Clay,
644 P.2d 81, 82 (Colo. App. 1982) (“A jury can draw reasonable
inferences that arise from the facts of the case.”).
¶ 25 In sum, the evidence was sufficient for the jury to conclude
that Vialpando was driving J.A.’s stolen car, and that Vialpando did
not have authority to do so. Harper, 205 P.3d at 455–56.
¶ 26 While Vialpando testified that her belongings had been stolen
and that she was at the hospital with her mother on December 30,
1At trial, Vialpando had short hair. She testified that she lost her
hair in 2010 because she suffered from lupus.
10
2015, the jury could, and evidently did, reject her testimony. See
Kessler, ¶ 12.
¶ 27 Nor can we conclude that the prosecution presented
insufficient evidence that Vialpando knowingly lacked authority to
exercise control over J.A.’s car. Vialpando relies on the fact that
J.A. did not see who stole her car. However, evidence was
presented that the driver of J.A.’s stolen vehicle (1) did not stop
when the police flashed their lights; (2) fled the stolen vehicle after
crashing it; and (3) was later identified by R.H. as Vialpando.
¶ 28 That J.A. did not see who stole her car does not preclude the
jury from finding that Vialpando was guilty. In Harper, 205 P.3d at
455–56, there was sufficient evidence to support the defendant’s
conviction for first degree aggravated motor vehicle theft despite the
“little evidence to support a finding that [the defendant] stole the
car from its owner” because “the evidence supports a reasonable
inference . . . that [the defendant] exercised dominion over the car
in a manner inconsistent with his authority.” The evidence is
sufficient to support that same inference here.
¶ 29 Also, evidence of flight to avoid arrest is admissible to show a
culpable mental state when the defendant knew that the police were
11
seeking her. See People v. Summitt, 132 P.3d 320, 324 (Colo. 2006).
So, even if Vialpando did not steal the car from J.A.’s home, a
reasonable juror could infer that Vialpando was aware that she
lacked authority to exercise control over the car when she drove
away from the motel and crashed the car. See Kessler, ¶ 12 (“[A]n
actor’s state of mind is normally not subject to direct proof and
must be inferred from his or her actions and the circumstances
surrounding the occurrence . . . .”).
¶ 30 Lastly, we reject Vialpando’s assertion that there was
insufficient evidence to support her aggravated motor vehicle theft
conviction because the prosecution presented no evidence that she
used threats or deception to obtain or exercise control over the car.
The prosecution was required to prove that Vialpando exercised
control over the motor vehicle of another without authorization or
by threat or deception. § 18-4-409(2). Because sufficient evidence
was presented proving that Vialpando knowingly exercised control
over J.A.’s stolen vehicle without authorization, the prosecution was
not also required to prove threat or deception.
12
B. The Prosecutor’s “Flight” Comments
¶ 31 During closing argument, the prosecutor told the jury that
Vialpando “ran” away from the crashed car and that she “ran” away
from the police officers in the motel parking lot. The prosecutor
then said that “although she is seated now, that flight continues to
this moment. But it ends today.” Then, during rebuttal closing, the
prosecutor told the jury that Vialpando’s “flight has continued up
and to this point.”
¶ 32 Vialpando argues that the flight comments constituted
prosecutorial misconduct because they were a direct and critical
comment on her right to a jury trial.
¶ 33 In reviewing a prosecutorial misconduct claim, we first
determine whether the conduct at issue was improper based on the
totality of the circumstances, and if there was misconduct, we
determine whether reversal is required under the applicable
standard. People v. McMinn, 2013 COA 94, ¶ 59.
¶ 34 Because this claim was unpreserved, we review only for plain
error. Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010). “To
constitute plain error, prosecutorial misconduct must be flagrant or
glaringly or tremendously improper, and it must so undermine the
13
fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction.” McMinn, ¶ 58.
¶ 35 Vialpando had a constitutional right to a jury trial. U.S.
Const. amend. VI. Defendants cannot be punished for exercising a
constitutional right. People v. Pollard, 2013 COA 31M, ¶ 25. A
defendant’s exercise of the right to a trial by jury may not be used
by the prosecution to infer guilt. Dunlap v. People, 173 P.3d 1054,
1080 (Colo. 2007); People v. Rodgers, 756 P.2d 980, 983 (Colo.
1988), overruled on other grounds by People v. Miller, 113 P.3d 743
(Colo. 2005). So, it is obviously improper for a prosecutor to tell the
jury that the defendant should be condemned because she had the
temerity to require the State to prove her guilt beyond a reasonable
doubt. Rodgers, 756 P.2d at 983.
¶ 36 But that is precisely what happened here. During closing
argument, the prosecutor said that Vialpando’s “flight continues to
this moment,” and that her “flight has continued up and to this
point.” The prosecutor told the jury that Vialpando was continuing
to run from responsibility by insisting on a jury trial. Neither the
Attorney General nor the dissent provides any other reasonable
meaning for these comments.
14
¶ 37 It was permissible for the prosecutor to argue that fleeing the
crime scene was evidence of guilt. Summitt, 132 P.3d at 324. But,
when Vialpando was sitting in the courtroom, she was not fleeing
from anything; she was facing the jury and engaging in the process
that the United States and Colorado Constitutions demand.
¶ 38 In United States v. Hardy, 37 F.3d 753 (1st Cir. 1994), the
United States Court of Appeals for the First Circuit demonstrated
the seriousness with which courts must view comments that
prejudice defendants’ exercise of their constitutional right to a jury
trial. There, the First Circuit held that the trial court abused its
discretion by not granting a mistrial when the prosecutor argued
that the defendants were “still running and hiding today.” Id. at
757, 759. The First Circuit held that a mistrial was necessary,
despite the fact that the trial court had sustained the defendant’s
objection to the comment and had given the jury an instruction to
disregard the comment. Id. at 757.
¶ 39 The misconduct perceived by the First Circuit in Hardy
involved the right to remain silent under the Fifth Amendment, but
the remark was equally prejudicial to the defendant’s right to a fair
jury trial under the Sixth Amendment. Also similar is the recent
15
Colorado Supreme Court case Howard-Walker v. People, which
concluded that the prosecutor’s remark that was “‘intended’ to
emphasize [the defendant’s] decision to remain silent” was “the
most serious error [that] occurred.” 2019 CO 69, ¶ 44 (citation
omitted).
¶ 40 Thus, while Vialpando testified on her own behalf, that
testimony did nothing to dispel the prejudicial effect of commenting
on her right to a trial by jury. A prosecutor may not use the
invocation of either right to infer the defendant’s guilt. Dunlap, 173
P.3d at 1080. The supreme court has held that “there is ‘no
significant difference between the impropriety of a prosecutor’s
comments on a defendant’s exercise of his right to remain silent
and a prosecutor’s comments on a defendant’s exercise of his
equally fundamental right to a jury trial.’” Rodgers, 756 P.2d at 983
(emphasis added) (quoting People v. Rodgers, 734 P.2d 145, 146
(Colo. App. 1986)). If anything, the right to a jury trial is among the
most basic rights guaranteed to criminal defendants by both the
Colorado and the United States Constitutions.
¶ 41 We conclude that the prosecutor here, like the prosecutors in
Hardy and Howard-Walker, criticized the defendant for exercising
16
her constitutional right and unfairly prejudiced her in the eyes of
the jury. This misconduct was flagrant, glaring, and tremendously
improper.
¶ 42 The next question is whether this error requires reversal
because it undermined the fundamental fairness of the trial, casting
serious doubt on the reliability of the conviction. McMinn, ¶ 59.
¶ 43 One of the critical determinants of whether unpreserved errors
require reversal is an evaluation of the quantity of the evidence of
guilt. See Howard-Walker, ¶¶ 46–47. Logically, if the evidence is
overwhelming, it is unlikely that even multiple instances of
prosecutorial misconduct affected the jury’s determination of guilt.
But if the case is close, that same prosecutorial misconduct may
well have influenced the verdict, thereby depriving the defendant of
a fair trial. See id. at ¶¶ 46–48. “An improper comment that may
seem insignificant where the evidence is overwhelming can assume
a very different aspect in a close case.” Hardy, 37 F.3d at 759.
¶ 44 The evaluation of the evidence of guilt in this case is not
simple, even though it may appear to be at first glance. Without
more, the discovery of multiple items belonging to Vialpando in the
stolen car after it crashed appears to be strong evidence of guilt.
17
But Vialpando claimed, with record support from the testimony of a
police officer, that she reported the robbery of those items prior to
the chase and crash. The prosecution’s theory was that the alleged
robbery and the police reports were fabricated by Vialpando in an
attempt to explain away the discovery of her personal items in the
car.
¶ 45 But the uncontroverted evidence is that Vialpando made the
police report of the alleged robbery before the chase and crash. To
credit the prosecution’s theory, the jury would have to cast
Vialpando as a master criminal playing three-dimensional chess
with the police, establishing her defense theory before she knew
having one would be necessary. Of course, these factual
determinations were, and are, for the jury.
¶ 46 But if Vialpando was robbed as she alleged, then the strength
of the prosecution’s evidence is reduced. Apart from the evidence
found in the crashed car, the sole evidence linking her to the
robbery is R.H.’s testimony that she was “75% sure” that it was
Vialpando.
¶ 47 Because the evidence of Vialpando’s guilt was not
overwhelming, we conclude that the prosecutor’s flight comments
18
undermined the fundamental fairness of her trial so as to cast
serious doubt on the reliability of her convictions. Thus, she must
be given a new trial.
C. Cumulative Error
¶ 48 Vialpando also argues that the aggregate impact of numerous
errors deprived her of a fair trial. Although we reverse her
convictions based on plain error, we also address her cumulative
error argument because the determination of plain error is a
difficult question on which judges may disagree.
¶ 49 We agree that cumulative error is an independent basis for
reversing Vialpando’s convictions. The prosecutor’s flight
comments, coupled with four other instances of prosecutorial
misconduct and an evidentiary error, deprived her of a fair trial.
¶ 50 When reviewing for cumulative error, a court asks whether the
identified errors, in combination, deprived the defendant of her
constitutional right to a fair trial. Howard-Walker, ¶¶ 24–25. This
“standard governs, regardless of whether any error was preserved or
unpreserved.” Id. at ¶ 26.
¶ 51 “[T]he question is not whether the errors were ‘brief’ or
‘fleeting’ but whether, viewed in the aggregate, the errors deprived
19
the defendant of a fair trial.” Id. at ¶ 40. “[R]eversal is warranted
when numerous errors in the aggregate show the absence of a fair
trial, even if individually the errors were harmless or did not affect
the defendant’s substantial rights.” Id. at ¶ 26.
¶ 52 In addition to the flight comments, we conclude that the
prosecutor engaged in four kinds of prosecutorial misconduct, most
of which were repeated multiple times.
1. Improper Illustrations of Reasonable Doubt
¶ 53 First, during voir dire, the prosecutor attempted to illustrate
the concept of beyond a reasonable doubt, but in doing so, he
improperly trivialized the State’s burden of proof.
¶ 54 The prosecutor asked potential jurors if they could recognize,
“beyond a reasonable doubt,” the American flag in the courtroom
even though it was folded and not entirely visible. They all
responded they could. The prosecutor then asked a potential juror
if she was on the gameshow “Who Wants to be a Millionaire”
whether she could identify the flag for the one-million-dollar
question. The juror responded that it was the United States flag.
¶ 55 This colloquy trivialized reasonable doubt and, thus,
attempted to lower the prosecution’s burden of proof. See People v.
20
Camarigg, 2017 COA 115M, ¶ 45 (noting that reasonable doubt
analogies can be inappropriate when they trivialize the State’s
burden). If the prohibition against “trivializing” reasonable doubt is
to mean anything, then it must apply here, where the prosecutor
analogized finding the defendant guilty to submitting an answer on
a game show. In a similar case, the Washington Court of Appeals
held that the prosecutor’s remark, “[t]o be able to find reason to
doubt, you have to fill in the blank,” was flagrant misconduct.
State v. Johnson, 243 P.3d 936, 939–41 (Wash. Ct. App. 2010).
¶ 56 It is also improper to illustrate reasonable doubt with “iconic
images,” like the American flag. Camarigg, ¶ 47 (citing cases
holding that the use of the Statue of Liberty and Abraham Lincoln
improper because they are iconic images). The danger is that, by
using iconic, easily recognizable images, the jury may conclude that
guilt beyond a reasonable doubt is easy to determine, and thus,
that the reasonable doubt standard is a low burden of proof. These
statements on reasonable doubt were improper.
2. Improper Statements of Personal Belief
¶ 57 Next, during the prosecutor’s opening statement, he told the
jury, “I think you’ll agree with me at the end of testimony, that the
21
defendant is guilty of the charges,” and he later said, “I think you’ll
agree with me that it was, in fact, the defendant who ran.” These
two statements were clearly improper because they expressed
“personal belief as to the guilt of the defendant by the prosecutor.”
Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005).
¶ 58 And during closing argument, the prosecutor improperly
expressed his personal opinion as to Vialpando’s guilt for a third
time by attacking her credibility. He told the jury that he did not
have to prove why Vialpando made a false report “or what we
believe is a false report” regarding Vialpando’s reported robbery.
(Emphasis added.)
3. Improper Questions About the Veracity of Another Witness
¶ 59 It was also improper for the prosecutor to repeatedly ask
Vialpando on cross-examination whether another witness, a police
officer, was “mistaken.” This is because it is categorically improper
to ask a witness to opine on the veracity of another witness, and
this prohibition includes questions asking whether another witness
is mistaken. Liggett v. People, 135 P.3d 725, 732–35 (Colo. 2006).
This improper question was repeated by the prosecutor four times.
22
4. Improper Mischaracterization of the Evidence
¶ 60 Lastly, the prosecutor mischaracterized the evidence in his
closing argument. He asked the jury “why didn’t [Vialpando] go out
and get a new ID?” But Vialpando’s unrebutted testimony was that
she did get a new ID. Prosecutors may not misstate the evidence.
People v. Van Meter, 2018 COA 13, ¶ 24.
¶ 61 Although these errors are less serious than the prosecutor’s
flight comments, “technical errors may have a significance requiring
a reversal in a close case.” Howard-Walker, ¶ 45 (quoting Oaks v.
People, 150 Colo. 64, 67, 371 P.2d 443, 446 (1962)). As discussed
in Part II.B, if the evidence of the items found in the car is explained
away, this is a close case.
5. Improper Testimony Identifying Vialpando as the “Primary
Suspect”
¶ 62 In addition to multiple instances of prosecutorial misconduct,
testimony given by the lead investigating officer constituted
evidentiary error. A witness may not opine that the defendant is
guilty or testify that he or she believes the defendant committed the
crime. People v. Penn, 2016 CO 32, ¶ 31.
23
¶ 63 But here, the lead investigating officer testified that Vialpando
was the “primary suspect.” The Attorney General contends that the
officer’s testimony was permissible both because police officers can
properly explain steps they took in the course of their investigation
and because the testimony dispelled any implication that the
investigation was cursory.
¶ 64 But this testimony did nothing to explain the officer’s
investigation, nor did it bolster the thoroughness of the
investigation. In no way did the testimony dispel any purported
implication that the investigation was not thorough because simply
naming a suspect demonstrates nothing about the thoroughness of
the investigation that led to that conclusion.
¶ 65 Caution is warranted when the course-of-the-investigation
exception is used to admit otherwise inadmissible evidence. People
v. Bobian, 2019 COA 183, ¶ 51 (Berger, J., specially concurring)
(citing United States v. Cass, 127 F.3d 1218, 1223 (10th Cir. 1997)).
We conclude that the exception is inapplicable here.
¶ 66 Thus, the effect of the testimony identifying Vialpando as the
primary suspect could only have been an improper one:
demonstrating the officer’s belief that Vialpando was guilty.
24
Although this was lay testimony, it contained an added degree of
prejudice because the testimony was from the lead investigating
officer in the case. Martinez v. State, 761 So. 2d 1074, 1080 (Fla.
2000) (“[T]here is an increased danger of prejudice when the
investigating officer is allowed to express his or her opinion about
the defendant’s guilt.”).
6. Cumulative Effect of the Errors
¶ 67 Under cumulative error review, the ultimate question is
whether the errors deprived the defendant of a fair trial. Howard-
Walker, ¶ 40.
¶ 68 There is no formula or algorithm into which an appellate court
inputs errors, and then the formula spits out the result — harmless
error or reversal. Rather, as the supreme court demonstrated in
Howard-Walker, appellate judges must use careful judgment to
evaluate the errors both individually and cumulatively to reach a
conclusion whether the fairness of the trial was impaired. Not
surprisingly, given this process, judges viewing the same evidence
and acting entirely in good faith may come to different conclusions
regarding harmlessness. Such is the case here.
25
¶ 69 In our view, the teaching of Howard-Walker is that when there
are multiple instances of documented (not just alleged)
prosecutorial misconduct, an appellate court must look long and
hard at whether the defendant received a fair trial because a fair
trial is the only constitutional means of depriving a person of his or
her liberty. U.S. Const. amend. XIV.
¶ 70 From voir dire to closing arguments, Vialpando’s trial was
infected with errors. And like in Howard-Walker, these six
identified errors occurred over the course of a relatively short trial
— here, three days. See Howard-Walker, ¶ 3 (two days). The
prosecutorial misconduct, in combination with the officer’s
improper testimony that Vialpando was the primary suspect,
deprived her of a fair trial.
D. Reliability of R.H.’s Identification
¶ 71 Vialpando next argues that the trial court reversibly erred by
denying her motion to suppress the out-of-court photo
identification. We address this argument because it is likely to
arise on retrial. The trial court’s findings on reliability are
supported by the record, so we conclude that the identification was
properly admitted.
26
1. The Law
¶ 72 The constitutionality of pretrial identification procedures is a
mixed question of law and fact. Bernal v. People, 44 P.3d 184, 190
(Colo. 2002); People v. Martinez, 2015 COA 37, ¶ 9. We defer to the
trial court’s factual findings, but “we may give different weight to
those facts and may reach a different conclusion in light of the legal
standard.” Martinez, ¶ 9.
¶ 73 Vialpando objected to the out-of-court identification, so “if the
district court erred, we apply the constitutional harmless error
standard to determine whether reversal is required.” Id. at ¶ 10.
“Under this standard, the prosecution must show that the error was
harmless beyond a reasonable doubt,” and we reverse if there is a
reasonable possibility that the error contributed to the conviction.
Id.
¶ 74 To determine whether an out-of-court identification is
admissible, we apply a two-part test. Bernal, 44 P.3d at 191. The
defendant must first demonstrate that the identification was
impermissibly suggestive. Id. If the defendant does not carry her
burden, the inquiry is over and the identification is admissible. If
the defendant meets this burden, the prosecution must
27
demonstrate that the identification was nevertheless reliable under
the totality of the circumstances. Id. at 192.
¶ 75 The trial court found, with record support, that the lineup was
impermissibly suggestive, so we proceed to the second part of the
test and review whether the identification was nonetheless reliable.
To determine reliability, courts consider the five Bernal factors: (1)
the witness’s opportunity to view the suspect at the time of the
crime; (2) the witness’s degree of attention; (3) the accuracy of the
witness’s prior description of the suspect; (4) the level of certainty
demonstrated by the witness at the confrontation; and (5) the
length of time between the crime and the confrontation. People v.
Singley, 2015 COA 78M, ¶ 15.
¶ 76 These factors, however, must sufficiently weigh against “the
corrupting effect of the suggestive identification.” Id. (quoting
People v. Borghesi, 66 P.3d 93, 104 (Colo. 2003)). Identification
testimony is admissible when “the totality of the circumstances
does not suggest a very substantial likelihood of misidentification.”
People v. Godinez, 2018 COA 170M, ¶ 58 (quoting Borghesi, 66 P.3d
at 104).
28
2. Application
¶ 77 We conclude that the evidence presented at the suppression
hearing supports the trial court’s reliability finding.
¶ 78 As to the first factor, Vialpando argues that R.H.’s
identification was unreliable because she saw the suspect for less
than a minute after witnessing a highly traumatic event. But the
trial court found, with record support, that
[R.H.] was not . . . the direct victim of any
crime at that point, so she wasn’t in some sort
of fear or otherwise trying to figure out how to
get out of a circumstance. Instead she was
simply a perceiving witness of an unusual
event to have occurred within her proximity.
¶ 79 As to the second Bernal factor, Vialpando asserts that R.H.’s
attention was divided because she watched two people flee the
crash. But R.H. gave a detailed description of the suspect’s
clothing, indicating that R.H. had a high degree of attention. Also,
the trial court found that she was not distracted by “other collateral
matters, she was not listening to the radio, not on the telephone
and was alone in the car.” Thus, the record supports the court’s
finding that “the accident itself focused [R.H.’s] attention as did the
conduct of the occupants of the vehicle.”
29
¶ 80 On the third factor, Vialpando argues that R.H.’s description
was significantly inconsistent with Vialpando’s appearance. But
the record refutes this claim. R.H.’s description of the suspect’s
height and build matched Vialpando’s height and build. And while
Vialpando had short hair at trial, several witnesses identified her as
having long hair, photos presented at trial depicted her with long
hair, and Vialpando acknowledged that she sometimes wore a wig.
(Vialpando also testified that the wig was one of the items that had
been taken from her during the robbery.) Regarding the age
discrepancy, the court acknowledged that R.H.’s estimated age
differed from Vialpando’s age but recognized that an “individual
may have difficulty estimating the age of an individual that they
don’t know, given the fact that people display their age very
differently.” Also, R.H. testified that the suspect was wearing a lot
of makeup, which the court noted could have made the suspect
appear younger than her age.
¶ 81 As to the fourth factor — the level of certainty — Vialpando
points to R.H.’s testimony that it was only “possible” that Vialpando
was the woman she had seen fleeing the crash and that she was
only seventy-five percent certain. But the trial court noted that
30
R.H.’s uncertainty was driven by her desire “to be very certain
about her identification and not overestimate.” The court found
R.H.’s testimony credible, concluding that her identification had “a
high level of certainty.”
¶ 82 Lastly, the court found that the length of time between the
crime and the identification — approximately a week — was not
“unacceptably lengthy” because what R.H. witnessed was “still
relatively fresh in her mind.” We agree. See Bernal, 44 P.3d at 194
(remanding to determine reliability when there was a six-week gap
between the robbery and the photo array).
¶ 83 After weighing these factors against the suggestive
identification procedures, we cannot conclude that the trial court
erred in admitting the identification.
E. Reasonable Doubt Analogies
¶ 84 Finally, we briefly address Vialpando’s claim regarding the
trial court’s reasonable doubt analogies during voir dire.
¶ 85 This case is the most recent installment in what appears to be
a never-ending series of cases involving trial judges’ well-
intentioned but almost always misguided efforts to explain
reasonable doubt with analogies and examples. “Since at least
31
1914, Colorado appellate courts have been discouraging trial courts
from creating their own formulations of reasonable doubt.” People
v. Knobee, 2020 COA 7, ¶ 28. While always admonishing, our
published and unpublished cases have not reversed when analyzing
these problematic statements or instructions that attempt to
further define reasonable doubt, with only one exception.2 Compare
Knobee, 2020 COA 7 (holding that the trial court’s reasonable doubt
instruction constituted structural error requiring reversal), with
People v. Tibbels, 2019 COA 175 (cataloguing, in an appendix,
twenty-three decisions addressing reasonable doubt explanations,
none requiring reversal).
¶ 86 We are hopeful that the Colorado Supreme Court’s recent
decision in Johnson v. People, 2019 CO 17, will put the final nail in
the coffin as to reasonable doubt analogies. There, the supreme
court reasoned that the trial court’s reasonable doubt comments
2 Judge Dailey argued in dissent in People v. Knobee that not all
statements made by a trial court on reasonable doubt are jury
instructions, so not all erroneous statements on reasonable doubt
require reversal under structural error. 2020 COA 7, ¶ 72 (Dailey,
J., concurring in part and dissenting in part). Because we reverse
on other grounds, we do not address whether the trial court’s
statements in this case were jury instructions.
32
were “problematic.” Id. at ¶ 17. The court also noted the United
States Supreme Court’s admonition that attempts to further define
reasonable doubt “do not provide clarity.” Id. at ¶ 13 (citing Holland
v. United States, 348 U.S. 121, 140 (1954)).
¶ 87 Because we reverse Vialpando’s conviction without regard to
the problematic analogies used by the trial court, we do not decide
whether the use of those analogies is a separate ground for reversal,
on the basis of structural error or otherwise. Presumably, given the
uniform rejection of these analogies by this court, the Colorado
Supreme Court, and the United States Supreme Court, a retrial will
not be burdened by such analogies.
III. Conclusion
¶ 88 The judgment of conviction is reversed. The case is remanded
for a new trial.
JUDGE LIPINSKY concurs.
JUDGE FOX concurs in part and dissents in part.
33
JUDGE FOX, concurring in part and dissenting in part.
¶ 89 I agree with the majority’s analysis of the sufficiency of the
evidence challenge, and I need not say more on the subject.
Likewise, I concur with the majority’s analysis concerning
Vialpando’s identification challenges and her attack on the trial
court’s efforts to explain reasonable doubt. While I agree with
significant portions of the majority’s opinion, I cannot sign on to the
portion of the opinion that finds reversible cumulative error. I also
would not conclude that the prosecutor’s “flight” comments
punished Vialpando for exercising a constitutional right. In my
view, the majority asks too much of the trial judges whose primary
and rightful role is to neutrally administer justice, not to insert
themselves into a trial with competent counsel on each side.
Because, in my view, any error does not warrant reversal, I would
affirm the judgment of conviction.
¶ 90 The majority fairly sets out the procedural history and the
operative facts. Accordingly, I will not repeat those here except as
necessary to explain my reasoning.
34
I. Prosecutorial Misconduct
¶ 91 Vialpando contends that the trial court reversibly erred by
allowing the prosecutor to commit misconduct during voir dire,
opening remarks, closing and rebuttal closing remarks, and her
cross-examination. I conclude that any asserted misconduct does
not warrant reversal.
A. Additional Background
¶ 92 During voir dire, the prosecutor used two analogies to
question potential jurors about the reasonable doubt standard.
First, the prosecutor pointed to a folded United States flag that was
behind the trial judge, asking a potential juror to explain how he
could tell it was a United States flag. The following colloquy
occurred:
[Prosecutor]: You said it’s an American flag.
How can you tell?
[Potential Juror]: Because of the stars and the
stipes and the color. . . . I don’t know how
many stars are on it.
....
[Prosecutor]: Isn’t it possible that just to trick
[potential juror] I snuck in here last night and
I got a different flag and I put it up there
behind the judge and carefully arranged it . . .
35
so I could trick somebody? . . . [D]oes that
mesh with your common sense?
[Potential Juror]: No.
[Prosecutor]: Okay. Would you say that that is
speculative?
[Potential Juror]: Yes.
[Prosecutor]: All right. . . . If you were on Who
Wants to be a Millionaire and the final
question for $1 million is, What is that object?
What would your answer be?
[Potential Juror]: A United States flag.
[Prosecutor]: Even though you can’t see every
little bit of that flag?
[Potential Juror]: Yes.
[Prosecutor]: Now, is that based on your own
reason and common sense?
[Potential Juror]: Yes.
....
[Prosecutor]: Would you believe that that flag
is an American flag beyond a reasonable
doubt?
[Potential Juror]: Yes.
¶ 93 During the prosecutor’s opening remarks, he stated, regarding
the evidence against Vialpando, that “I think you’ll agree with me at
the end of testimony — that the defendant is guilty of the charges,”
36
and that “at the end of [the evidence presentation] I think you’ll
agree with me that it was, in fact, the defendant who ran.”
¶ 94 During Vialpando’s cross-examination, the following colloquy
occurred:
[Prosecutor]: So if the Denver police officer had
written that [Vialpando was transient] in his
report, he would be mistaken?
[Vialpando]: I didn’t become homeless until
after this, when I had to stay and testify or do
what I had to do to get this resolved.
....
[Prosecutor]: So if the Denver police officer had
noted that you had long brown hair in his
report, he would be mistaken?
[Vialpando]: Well, I did have hair, but it’s in my
luggage, and I can wear it, so stolen. But I
didn’t have hair that day.
....
[Prosecutor]: So my question was, though,
when you went down to the police station, if
the Denver police officer had written that you
had long brown hair, you would be mistaken?
Or he would be mistaken?
[Vialpando]: Yeah. . . .
....
[Prosecutor]: I would just like you to answer
my question. If the officer wrote that you had
37
long brown hair in his report, he would be
mistaken?
[Vialpando]: Could be.
¶ 95 The prosecutor later began his closing arguments with the
following statement:
Yolanda Vialpando, ran. A few moments
before she had crashed a stolen 2006 Mercury
Mariner . . . [s]he opened the driver’s-side door
and ran. . . . Before that she had run . . . from
the officers. . . . The defendant ran. And
although she is seated now, that flight
continues to this moment. But it ends today.
¶ 96 He similarly ended rebuttal closing:
The defendant ran that day. She ran from the
police, and she ran after she had an accident
that left in its wake [E.H.] severely injured and
in pain to this day. And that flight has
continued up and to this point. And it ends
with you. It ends when you go back to the jury
deliberation room and you take out the most
powerful tool in this courtroom, a pen, and you
end her flight by signing “guilty[.]”
¶ 97 In reference to R.H.’s trial testimony, the prosecutor stated
that R.H. was able to
identify [Vialpando] today . . . she was able to
identify her facial features, her body structure,
. . . [s]he was able . . . to point the finger and
say, yeah . . . that’s her. I’m not 100 percent
sure because she was wearing makeup, but,
yeah, that’s who I saw get out of the car.
38
¶ 98 During defense counsel’s closing statements, the trial court
reminded jurors that “opening statements and closing arguments
are not evidence. The closing arguments, as I told you earlier, are
what the attorneys themselves think the evidence has shown. And
so I want to remind you that it is not evidence that you can
consider other than for their argument.”
¶ 99 During rebuttal closing, the prosecutor began with an analogy:
So far this reminds me of a story of a game
warden who was tasked in a small town of
policing a fishing pond. And so he went down
there one day at about dusk, saw a guy
walking away from that pond with . . . buckets
full of fish. And people don’t typically have
licenses, and so he goes up to him and he
says, excuse me, sir, do you have a license for
those fish? And he says, well, no, sir. These
are my pet fish. And the game warden says,
what do you mean, your pet fish?
He says, well, I have my pet fish and I take
them down to the lake every night and I dump
them out into the lake and I let them swim
around a little bit, and then I whistle and they
jump back into the bucket and we go home.
And the game warden says, well, I don’t believe
that. But he’s intrigued at this point so he
figures he’s got to go see this for himself. So
he says, all right. You take me down to the
lake and you show me. He says, all right.
So they go down to the shore of the lake. The
man, he dumps the fish into the lake, and they
39
swim away. They wait there for a minute. The
game warden says, well?
The guy says, well, what?
Well, call them back.
Call who back?
The fish.
What fish?
Now, members of the jury, this is a “what fish”
type of case where you have an identification
based on a witness with no stake in this case
from a six-pack lineup, that saw that person
get out of the car and identify her in court
today. And if you believe her it’s a guilty
verdict. Stacked up against a “what fish” from
the defendant, Ms. Vialpando.
¶ 100 Regarding Vialpando’s testimony that she was robbed, the
prosecutor stated,
Now, I’m not saying she has some kind of
magic crystal ball. I’m not saying that she
didn’t make that report. But what’s important
isn’t whether she made the report, what’s
important is whether or not she was robbed.
Because if she wasn’t robbed, she still has
those items on her for when she left them in
the car the next day. Because let’s face it,
there are lots of reasons people might make a
police report. We heard the officer testify from
Denver, the star witness for the defense, that
there’s a lot —
40
¶ 101 Defense counsel objected to the “star witness” characterization
of Officer Iverson, and the court reminded the jurors that “this is
not evidence, you are to consider it as argument.”
¶ 102 The prosecutor continued,
You can go on and on and on for all the other
reasons that she might have made this up to
the officers, but the bottom line is it’s a red
herring. It’s a “what fish” story. And the only
thing we need to look at is the story itself for
us to figure out that it doesn’t make sense. . . .
And then we have, for lack of a better word, a
cartoonish version of a robbery. A man stops
you and says “stick ’em up” with a ski mask
on? No details beyond that? Nothing to
corroborate it?
And then, quote, “I proceeded to walk west,” is
what she said. And then when [defense
counsel] pressed her on that, said, Well, why
didn’t you run? She testified, Well, I don’t
know why I didn’t run. And had to be
prompted, Well wasn’t your foot hurting? Oh,
yeah, my foot was hurting. My foot was
injured. That’s why I didn’t run.
I think we all saw what happened yesterday
during her testimony. But that wasn’t the only
prompting that Ms. Vialpando was receiving as
she was testifying. I’m asking you to use your
own common sense when that was occurring.
¶ 103 Regarding Vialpando’s Denver robbery police report, the
prosecutor told the jury, “I don’t have to explain to you why the
41
defendant made that report. It’s not my burden to do that.”
Defense counsel objected, and the court again reminded jurors that
closing statements “are argument. You have already received all of
the evidence that you may properly consider.” The prosecutor
continued,
I don’t have the burden to prove to you why
she did what she did as far as that false report
— or what we believe is a false report. What
the evidence has showed is a false report.
What I do have to show is that she was driving
that car. And [R.H.] is the person to look to for
that. The fact is that her purse and that all of
her items were found in that car and not the
car that she said the person who reputatively
robbed her was driving.
B. Preservation and Standard of Review
¶ 104 In reviewing a prosecutorial misconduct claim, we first
determine whether the conduct at issue was improper based on the
totality of the circumstances, and if there was misconduct, we next
determine whether the misconduct warrants reversal under the
applicable reversal standard. People v. Galvan, 2019 COA 68, ¶ 57
(cert. granted Jan. 13, 2020).
¶ 105 “Whether a prosecutor committed misconduct is an issue
within the trial court’s discretion.” People v. Van Meter, 2018 COA
42
 13, ¶ 25. Accordingly, we ask not “whether we would have reached
a different result but, rather, whether the trial court’s decision fell
within a range of reasonable options.” Id. (quoting People v. Rhea,
2014 COA 60, ¶ 58).
¶ 106 Vialpando’s attorney generally failed to contemporaneously
object to the prosecutor’s statements that she challenges on appeal
except for the prosecutor’s characterization of Iverson as her “star
witness” and the prosecutor’s statement that it was not his burden
to explain why Vialpando filed a robbery report. I review these two
preserved contentions for harmless error, reversing only if the error
affected Vialpando’s substantial rights, meaning the error
“substantially influenced the verdict or affected the fairness of the
trial proceedings.” Hagos v. People, 2012 CO 63, ¶ 12 (quoting
Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)).
¶ 107 I review Vialpando’s other, unpreserved contentions for plain
error, reversing only for an “obvious and substantial” error. Hagos,
¶ 14. It is rare for prosecutorial misconduct in closing argument to
be so egregious that it constitutes plain error. Rhea, ¶ 43.
43
C. Law and Analysis
¶ 108 Claims of improper argument are assessed “in the context of
the argument as a whole and in light of the evidence before the
jury.” Van Meter, ¶ 24 (citation omitted). During closing remarks,
prosecutors have wide latitude in the language and style they
choose to employ, especially in responding to an argument by
defense counsel. Domingo-Gomez v. People, 125 P.3d 1043, 1048
(Colo. 2005); People v. Perea, 126 P.3d 241, 247 (Colo. App. 2005).
A prosecutor “may employ rhetorical devices and engage in
oratorical embellishment and metaphorical nuance, so long as he or
she does not thereby induce the jury to determine guilt on the basis
of passion or prejudice, attempt to inject irrelevant issues into the
case, or accomplish some other improper purpose.” Van Meter,
¶ 24 (quoting People v. Allee, 77 P.3d 831, 837 (Colo. App. 2003)).
Additionally, “because arguments delivered in the heat of trial are
not always perfectly scripted, reviewing courts accord prosecutors
the benefit of the doubt when their remarks are ambiguous or
simply inartful.” People v. Samson, 2012 COA 167, ¶ 30.
¶ 109 However, a prosecutor may not misstate the evidence or the
law. Van Meter, ¶ 24. Nor may a prosecutor denigrate defense
44
counsel or imply that defense counsel has presented the
defendant’s case in bad faith. People v. Collins, 250 P.3d 668, 678
(Colo. App. 2010). But, a prosecutor may comment on the strength
of the defense’s theories, or the absence of evidence to support a
defendant’s contentions, and, in doing so, does not shift the burden
to the defense. People v. Serra, 2015 COA 130, ¶ 88; People v.
Estes, 2012 COA 41, ¶ 28.
¶ 110 On cross-examination, a prosecutor may ask “non-prejudicial
questions that highlight the discrepancies and later emphasize any
conflicting accounts by juxtaposing them in closing argument.”
Liggett v. People, 135 P.3d 725, 732 (Colo. 2006). However, when a
prosecutor asks a witness to opine on the veracity of another
witness, such questioning invades the province of the fact finder
and is categorically improper. Id. And “were they lying” type
questions — including asking a defendant whether another witness
was “mistaken” — are improper. People v. Koper, 2018 COA 137,
¶ 32. But, under the plain error standard, even when a prosecutor
asks a defendant if another witness “made up” something, to be an
“obvious” error, the error must also be “substantial”; and reversal is
45
warranted only if the error was “seriously prejudicial.” People v.
Kessler, 2018 COA 60, ¶¶ 47-48.
¶ 111 When determining whether a prosecutor’s statements were
improper and whether reversal is warranted, we may consider the
language used, the context of the statements, whether a statement
improperly expressed the prosecutor’s personal opinion, whether
the statement was an acceptable comment on the credibility of
witnesses, the strength of the evidence, whether the evidence is
conflicting or inconclusive, whether the prosecutor improperly
appealed to the jurors’ sentiments, whether the misconduct was
repeated, and any other relevant factors. People v. Walters, 148
P.3d 331, 335 (Colo. App. 2006); see also People v. Strock, 252 P.3d
1148, 1153 (Colo. App. 2010) (“To determine whether prosecutorial
misconduct requires reversal, we must evaluate the severity and
frequency of the 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.”). And we may “consider a lack of contemporaneous
objection by the defendant” as demonstrating the defense’s belief
“that the live argument, despite its appearance in a cold record, was
46
not overly damaging.” Walters, 148 P.3d at 334 (quoting Domingo-
Gomez, 125 P.3d at 1054). We also focus on the cumulative effect
of a prosecutor’s statements, looking to the language used, the
nature of the misconduct, the degree of prejudice to the defendant,
the surrounding context, and the strength of the evidence against
the defendant. People v. Nardine, 2016 COA 85, ¶ 65.
1. Voir Dire Reasonable Doubt Illustration
¶ 112 Vialpando first contends that the prosecutor’s use of the folded
American flag during voir dire and asking jurors if they would
identify it as an American flag on the gameshow “Who Wants To Be
a Millionaire?” was improper. Specifically, she argues that it
impermissibly (1) quantified the prosecution’s burden of proof by
suggesting that the jurors’ ability to recognize the flag — where only
a portion of it was visible — equaled proof beyond a reasonable
doubt, and (2) trivialized the burden of proof by comparing the
reasonable doubt standard to a trivia question for money.
¶ 113 Assuming the challenged conduct was improper, the trial
court did not commit plain error absent a contemporaneous
objection. See Van Meter, ¶ 32 (holding that the prosecutor’s puzzle
analogy during voir dire was improper but not plain error); People v.
47
Carter, 2015 COA 24M-2, ¶ 58 (assuming that allowing the use of a
puzzle analogy was improper and concluding that it was not
obvious under plain error review); Walters, 148 P.3d at 334; see
also Rhea, ¶ 43.
¶ 114 First, the trial court properly instructed the jury multiple
times on the proper meaning of reasonable doubt, and I presume
the jury followed the court’s instructions. See People v. Tibbels,
2019 COA 175, ¶ 39. Second, the prosecutor’s use of the flag and
gameshow analogy was relatively brief and isolated. See Van Meter,
¶ 33; Carter, ¶ 60. Indeed, the prosecutor did not reference the
analogy in closing arguments. See Van Meter, ¶ 31 (holding that
the prosecutor’s use of a puzzle analogy during voir dire was
improper but not plain error where the prosecutor also showed the
image during closing arguments). And third, the prosecutor’s
reasonable doubt illustrations, when taken in context, were not an
attempt to present inadmissible factual matter or to argue the
prosecution’s case to the jury. See People v. Krueger, 2012 COA 80,
¶ 50 (“A prosecutor engages in prosecutorial misconduct during voir
dire when she misstates the law or ‘intentionally use[s] the voir dire
to present factual matter which the prosecutor knows will not be
48
admissible at trial or to argue the prosecution’s case to the jury.’”
(quoting People v. Adams, 708 P.2d 813, 815 (Colo. App. 1985))).
¶ 115 Accordingly, any error was neither obvious nor substantial,
and given the strength of the evidence against Vialpando, see
Walters, 148 P.3d at 335, I cannot conclude that the prosecutor’s
reasonable doubt analogies so undermined the fundamental
fairness of the trial as to cast serious doubt on the reliability of the
judgment of conviction, see Hagos, ¶ 14.
2. Opening Statement
¶ 116 Vialpando next asserts that the prosecutor’s remark during
opening statements that he believed that she was guilty of the
charges was an improper expression of his personal opinion of
Vialpando’s guilt. See Krueger, ¶ 50 (“[A] prosecutor may not . . .
offer a personal opinion as to the defendant’s guilt.”).
¶ 117 Assuming the prosecutor’s remark was improper, it did not
amount to plain error. The comments made up a small part of the
prosecutor’s opening argument, during which the prosecutor
generally fairly summarized the evidence and provided evidence-
based reasons why the jury should find Vialpando guilty. See Van
Meter, ¶ 24. Vialpando’s counsel did not object to the statement.
49
See Walters, 148 P.3d at 334. Further, the trial court provided the
jury with proper credibility and presumption of innocence
instructions. See Strock, 252 P.3d at 1153. Thus, while the
statement may have been inartful, see Samson, ¶ 30, I cannot
conclude that it so undermined the trial’s fundamental fairness as
to cast serious doubt on the reliability of the verdicts, see People v.
Wilson, 2014 COA 114, ¶ 56; see also Rhea, ¶ 43.
3. Vialpando’s Cross-examination
¶ 118 Vialpando argues that the prosecutor’s questions during her
cross-examination, asking whether other witnesses were “mistaken”
in their testimony, improperly required her to comment on witness
veracity. I agree that asking Vialpando if other witnesses were
“mistaken” was improper, see Koper, ¶ 32, but conclude that it did
not amount to plain error, see id. at ¶¶ 47-48.
¶ 119 While the statements were obviously improper, and the trial
court should have stepped in, the error was not substantial. The
prosecutor did not comment on Vialpando’s credibility or that of the
other witnesses, and defense counsel did not object. See Walters,
148 P.3d at 334-35. The prosecutor’s improper line of questioning
was also limited. See Kessler, ¶¶ 47-52 (holding that the
50
prosecutor asking the defendant whether a detective “made up”
something was not a “substantial” error where the question was
only a small part of the defendant’s testimony, the question was
less damaging than explicitly asking if defendant thought the officer
was “lying,” and the evidence against defendant was strong); cf.
Koper, ¶ 45 (holding that the prosecutor asking the defendant
whether another witness was lying constituted plain error because
“[a]lmost the entirety” of the prosecutor’s cross-examination
consisted of “impermissible questions”). Lastly, I cannot conclude
that the error was substantial because it does not undermine my
confidence in the jury’s verdicts. See People v. McBride, 228 P.3d
216, 224 (Colo. App. 2009) (holding that although the prosecutor’s
statements were obvious error, they did not constitute plain error
because the conduct “was not sufficient to undermine our
confidence” in the verdict).
4. Closing and Rebuttal Remarks
¶ 120 Vialpando first argues that the prosecutor’s flight remarks
during closing and rebuttal were improper because they used
Vialpando’s exercise of her right to a jury trial to create an inference
51
of guilt and undermined her presumption of innocence, thereby
lowering the prosecution’s burden of proof. I disagree.
¶ 121 While possibly inartful, see Samson, ¶ 30, the prosecutor’s
flight remarks were merely examples of oratorical embellishment
and metaphorical nuance, see Van Meter, ¶ 24. The prosecutor was
not attempting to inject irrelevant issues into the case but rather
was highlighting his argument, based on evidence presented, that
Vialpando fled from the police on December 30, 2015, in the motel
parking lot and after the car crash. See id. Moreover, I cannot
conclude that the prosecutor lowered the burden of proof given that
the jury was properly instructed that closing statements were not
evidence and that the prosecution had to prove every element
beyond a reasonable doubt. See Strock, 252 P.3d at 1153.
¶ 122 This case differs from United States v. Hardy, 37 F.3d 753 (1st
Cir. 1994) — on which the majority relies heavily — in several
significant ways. First, in Hardy neither of the two defendants
testified, and the only possible connotation of the running and
hiding statement was “that the defendants were running from the
evidence presented against them, and hiding behind their right to
silence during the trial.” Id. at 758. Here, unlike in Hardy,
52
Vialpando did testify, so the prosecutor’s statement that her “flight
continues to this moment” was not an improper comment on
Vialpando’s exercise of her Fifth Amendment right to silence or
Sixth Amendment right to a jury trial. Rather, the prosecutor’s
language is better understood, in context, as arguing that the
evidence at trial established that Vialpando first ran away from
police in the stolen car after officers spotted the stolen car in the
motel parking lot and, later, ran away from the stolen car after she
crashed it. Second, in Hardy, the defense counsel objected
promptly and moved for a mistrial. Here, in contrast, there was no
contemporaneous objection on this basis, which perhaps
underscores the unimportance counsel attached to the now alleged
impropriety at trial. See Walters, 148 P.3d at 334; see also United
States v. Stark, 507 F.3d 512, 519-20 (7th Cir. 2007)
(distinguishing Hardy and concluding that, viewed in context, the
use of “hiding” in the prosecution’s closing was not plain error).
Finally, the evidence implicating the defendants in Hardy was not
particularly strong. 37 F.3d at 759. The evidence against
Vialpando in this case, by contrast, was significantly stronger: R.H.
53
gave eyewitness testimony and Vialpando’s belongings were found
in J.A.’s stolen vehicle.
¶ 123 Although the Hardy decision does not control here — and I do
not find it particularly persuasive in Vialpando’s case —
prosecutors should recognize the hazard involved in using words
like “run” and “flight” to characterize a defendant’s trial strategy,
especially in a case where she does not testify. Accordingly, skilled
and disciplined prosecutors should “resist the temptation to use
rhetorical cliches that threaten mistrials or reversals on appeal.”
Commonwealth v. Coyne, 686 N.E.2d 1321, 1325 (Mass. App. Ct.
1997).
¶ 124 Second, Vialpando argues that the prosecutor’s references to
her defense theory as a “red herring” and the “what fish” story
improperly suggested to the jury that Vialpando’s defense was not
asserted in good faith. She also contends that the prosecutor’s
reference to Iverson as the defense’s “star witness” was meant to
suggest that she made a false report to the Denver police; thus, she
contends that these veracity comments constituted improper bad
character arguments. I disagree.
54
¶ 125 Given the prosecutor’s wide latitude in responding to defense
counsel’s arguments in rebuttal closing, see Domingo-Gomez, 125
P.3d at 1048; Perea, 126 P.3d at 247, including the use of oratorical
embellishment and metaphorical nuance, see Van Meter, ¶ 24, I
conclude that the challenged statements were not improper.
Rather, the prosecutor was using these metaphors to argue, based
on reasonable inferences from the evidence presented, that
Vialpando’s defense theory was weak, pointing to the lack of
evidence to support her robbery theory. See Serra, ¶ 88; Estes,
¶ 28; Walters, 148 P.3d at 334 (A prosecutor “may refer to the
strength and significance of the evidence, conflicting evidence, and
reasonable inferences that may be drawn from the evidence.”); see
also Strock, 252 P.3d at 1155 (“[T]he prosecutor’s comments on the
lack of evidence to support Strock’s defense theory that he was not
driving at the time of the accident did not improperly shift the
burden of proof to Strock. Thus, we conclude there was no error,
much less plain error.”).
¶ 126 Third, Vialpando argues that the prosecutor’s statement
during closing that defense counsel was “prompting” Vialpando to
testify a certain way suggested that she engaged in unethical
55
conduct and implied that defense counsel did not have a good faith
belief in Vialpando’s innocence. I again disagree.
¶ 127 When viewed in context, see Van Meter, ¶ 24, the prosecutor’s
statement was not meant to denigrate Vialpando or her counsel.
Rather, it was an attempt to refocus the jury’s attention on relevant
evidence and to encourage the jury to reject Vialpando’s defense
theory that she had been robbed. See Serra, ¶ 89 (recognizing that
while “[r]eferences to a defendant’s or defense counsel’s diversionary
tactics” may be improper when used to denigrate the defendant or
defense counsel, such references are not “improper if, viewed in
context, they are attempts to draw the jury’s focus to relevant
evidence”); see also Wilson, ¶ 52 (“Counsel may also properly
comment on how well and in what manner a witness’s testimony
measures up to the tests of credibility on which the jury is
instructed.”).
¶ 128 Nor do I agree that the prosecutor’s “prompting” statement
was an improper attempt to imply that Vialpando’s counsel did not
have a good faith belief in her client’s innocence. Cf. People v.
Jones, 832 P.2d 1036, 1038-39 (Colo. App. 1991) (holding that the
prosecutor’s statements that “defense counsel should, or did, know
56
the true facts concerning defendant’s presence upon the premises
and that she should concede the accuracy of the prosecution’s
testimony” improperly implied to the jurors that opposing counsel
did not have a good faith belief in her client’s innocence).
Accordingly, the challenged comment was merely another attempt
by the prosecutor to highlight relevant evidence; it was not an
attempt to divert the jury’s attention away from the facts of the case
or make an improper emotional appeal. See Carter, ¶ 72; cf.
Nardine, ¶ 67 (holding that the prosecutor’s misconduct constituted
plain error where he “repeatedly diverted the jurors’ attention from
the facts of the case,” “appealed to community sentiment,” and
“made an emotional appeal to their religious convictions” by
“mischaracteriz[ing] and denigrat[ing] the defense theory”).
¶ 129 Fourth, Vialpando asserts that the prosecutor impermissibly
shifted the burden of proof by stating that it was not his burden to
explain why Vialpando filed the Denver police report, implying that
the defense had the burden to prove that her report was not false.
Although the prosecutor’s statement may have been inartful, see
Samson, ¶ 30, it was also harmless given that the court repeatedly
properly instructed the jury — orally and in writing — on the
57
prosecution’s burden of proof and Vialpando’s presumption of
innocence, see Hagos, ¶ 12.
¶ 130 Fifth, Vialpando contends that the prosecutor misstated the
law on vehicular eluding and aggravated motor vehicle theft. I
disagree.
¶ 131 When reviewing the vehicular eluding charge during closing,
the prosecutor stated,
Eluded or attempted to elude. When you pull
away from the officers, when you run the stop
lights, it doesn’t matter necessarily if they are
pursuing you, that you are eluding or
attempting to elude that police officer.
¶ 132 While possibly inartful, see Samson, ¶ 30, the prosecutor did
not misstate the law. Rather, when viewed in context, see Walters,
148 P.3d at 335, the prosecutor was attempting to explain that a
defendant need not get away from the police in order to commit
vehicular eluding, see § 18-9-116.5, C.R.S. 2019. The prosecutor
followed the challenged statement by stating “that’s clearly what
that driving behavior indicates, going on through the on ramp,” and
noting that while J.A.’s stolen vehicle “didn’t get very far,” the driver
was nonetheless attempting to elude the police.
58
¶ 133 Regarding the aggravated motor vehicle theft charge, the
prosecutor stated,
The defendant does not necessarily need to be
the person who stole the car. I want you to
read that instruction very closely. She doesn’t
necessarily have to be the person who took the
car from [J.A.’s] driveway on December 19. All
that we would have to show is that she
exercised control over the motor vehicle of
another without authorization. Who knows
who owns the car that you’re driving? Well,
you should know. A reasonable person should
know who owns that car. It was clearly a
stolen vehicle.
¶ 134 I also conclude that the prosecutor did not misstate the law on
aggravated motor vehicle theft. Vialpando misstates the record in
arguing that the prosecutor’s statement misled the jury to believe
that the prosecution was not required to prove that Vialpando
knowingly exercised control over the car without authorization.
Rather, taken in context, the prosecutor was arguing that
Vialpando knew she lacked authority to drive J.A.’s vehicle. See
Van Meter, ¶ 24; Walters, 148 P.3d at 335. And as with the
vehicular eluding charge, the jury was properly instructed on the
elements of aggravated motor vehicle theft. See Strock, 252 P.3d at
1153.
59
¶ 135 Lastly, Vialpando argues that the prosecutor misstated the
evidence by (1) stating that R.H. identified Vialpando’s “facial
features” and that she pointed at Vialpando during trial and said
that “that’s who I saw get out of the car”; (2) posing several
rhetorical questions regarding Vialpando’s actions by asking if
Vialpando was robbed, why did she not attempt to get a
replacement identification or health insurance card or replace her
debit card; and (3) stating that Vialpando made “further denials”
about her 1997 felony convictions.
¶ 136 While prosecutors may not misstate the evidence, see Van
Meter, ¶ 24, I am not aware of any Colorado law that requires a
prosecutor to repeat witness testimony verbatim rather than
summarize evidence in closing. And I reject Vialpando’s assertion
that the prosecution’s rhetorical questions, referencing her defense
theory, misstated the evidence. Rather, it was mere oratorical
embellishment, see id., where the prosecutor was free to comment
on the strength of Vialpando’s defense theory. See Serra, ¶ 88;
Estes, ¶ 28. Nor did the prosecutor misstate the evidence when he
stated that Vialpando denied her prior trespass conviction.
Vialpando acknowledged that such a conviction was “possible,” but
60
she also testified that she did not remember being convicted of
trespass.
¶ 137 Given the wide latitude granted prosecutors during closing,
see Domingo-Gomez, 125 P.3d at 1048; Perea, 126 P.3d at 247, the
benefit of the doubt afforded them when their comments are
ambiguous, see Samson, ¶ 30, and the fact that the jury was
repeatedly instructed that closing arguments were not evidence, I
cannot conclude that the prosecutor misstated the evidence.
II. Lay Witness Testimony
¶ 138 Vialpando next contends that the trial court reversibly erred
by admitting lay witness testimony from Thornton Police Officer
John Milstead that Vialpando was the primary suspect, thereby
usurping the jury’s role to decide whether Vialpando was guilty of
the charged crimes. I disagree.
A. Additional Background
¶ 139 At trial, Milstead testified as a lay witness for the prosecution.
In discussing Vialpando’s arrest, the following colloquy occurred:
[Prosecutor]: Based on all of the information
that you had received, Officer, the hard
evidence that you collected and the witness
statements that you had received, did you
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identify the person who — that you believed
had committed this offense?
[Milstead]: Based on the facts, yes.
[Prosecutor]: And who is that person?
[Milstead]: The defendant.
¶ 140 Defense counsel objected, arguing such a response invaded
the province of the jury, and the court sustained the objection. The
prosecutor then asked Milstead whether he had identified “a
primary suspect,” to which he replied that he had and identified
Vialpando. Defense counsel did not object.
B. Preservation and Standard of Review
¶ 141 We review a trial court’s decision to admit testimony for an
abuse of discretion. People v. Robles-Sierra, 2018 COA 28, ¶ 23.
An abuse of discretion occurs when a trial court’s ruling is
manifestly arbitrary, unreasonable, or unfair, or if it misapplies the
law. People v. Casias, 2012 COA 117, ¶ 29.
¶ 142 Because Vialpando did not preserve this issue for appeal, I
apply plain error review. Hagos, ¶ 14. Thus, reversal is warranted
only if any error was obvious and substantial, meaning the error so
undermined the fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the judgment of conviction. Id.
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C. Law and Analysis
¶ 143 CRE 701 governs the admission of lay witness testimony and
provides that testimony is proper if it is “(a) rationally based on the
perception of the witness, (b) helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue, and (c)
not based on scientific, technical, or other specialized knowledge
within the scope of Rule 702.”
¶ 144 A testifying witness may not usurp the jury’s factfinding role.
Robles-Sierra, ¶ 24. However, CRE 704 provides that opinion
testimony that is “otherwise admissible is not objectionable because
it embraces an ultimate issue to be decided by the trier of fact.” In
determining whether witness testimony usurped the function of the
jury, it is useful to consider whether (1) the witness opined that the
defendant committed or likely committed the crime; (2) the
testimony was clarified on cross-examination; (3) the expert’s
testimony usurped the trial court’s function by expressing an
opinion on the applicable law or legal standard; and (4) the jury was
properly instructed on the law and that it could accept or reject the
witness’ opinion. People v. Rector, 248 P.3d 1196, 1203 (Colo.
2011). Further, while a witness cannot testify as to his belief that
63
the defendant committed the charged crime, “police officers may
testify about the reasons they took certain investigative steps, even
where this testimony touches upon prohibited subjects.” People v.
Penn, 2016 CO 32, ¶¶ 31-32.
¶ 145 Vialpando argues that Milstead’s testimony that she was the
primary suspect demonstrated his belief that she was guilty of the
charged crimes, improperly usurping the jury’s function. I disagree
with the majority that the effect of Milstead’s testimony identifying
Vialpando as a suspect could only have been an improper one.
¶ 146 Milstead’s statement responded to the prosecutor’s question
regarding the then subject of the investigation. See id. It is not
clear that the officer’s testimony amounted to an opinion that
Vialpando was guilty of the charged crimes as opposed to explaining
the course of his investigation. See id. at ¶¶ 29, 33 (holding that an
officer’s statement that he had “reason to arrest” the defendant
merely “provided context for his action and simply explained . . . the
next step in his investigation”).
¶ 147 Nor can I conclude that Milstead’s testimony amounted to
plain error. See Hagos, ¶ 14. The prosecutor did not dwell on his
statement, nor did either party revisit this testimony during closing
64
argument. See Penn, ¶ 33. Further, Vialpando’s counsel had the
opportunity to clarify Milstead’s testimony on cross-examination
when, through questioning, the officer admitted that R.H. was not
one hundred percent certain regarding her identification and that a
witness told police that the man exiting J.A.’s stolen vehicle may
have been the driver. And, the jury was properly instructed that it
was not bound by the testimony of witnesses but could believe all,
part, or none of their testimony. See Rector, 248 P.3d at 1203
(holding that an expert’s testimony on an ultimate issue did not
constitute plain error where “the jury was properly instructed on
the law and its ability to accept or reject the expert witness
testimony”); People v. Rivera, 56 P.3d 1155, 1164 (Colo. App. 2002)
(Even if a “witness opines with respect to an ultimate issue, the jury
retains its authority to determine the facts from the evidence and
accept or reject such opinions.”).
III. Cumulative Error
¶ 148 Vialpando last argues that the asserted errors, when analyzed
in the aggregate, require reversal because they undermined the
fundamental fairness of the proceedings. I disagree.
65
¶ 149 Under the doctrine of cumulative error, reversal is required
when numerous errors “collectively prejudice the substantial rights
of the defendant.” Howard-Walker v. People, 2019 CO 69, ¶ 25. A
conviction will not be reversed unless the cumulative effect of any
errors created “cumulative prejudice” and “substantially affected
the fairness of the trial proceedings and the integrity of the fact-
finding process.” Id. at ¶¶ 24-25 (citation omitted).
¶ 150 I have found no errors save for the court allowing the
prosecutor’s reasonable doubt voir dire illustration, the prosecutor’s
brief statement during opening remarks about Vialpando’s guilt,
and the prosecutor cross-examining Vialpando as to whether other
witnesses were mistaken. Even considered in the aggregate, the
prosecutor’s misconduct here does not rise to the level of plain
error. See Domingo-Gomez, 125 P.3d at 1054 (holding that no plain
error occurred where the prosecutor stated that “defense witnesses
lied and made up their stories” and defense counsel failed to make
a contemporaneous objection); People v. Ujaama, 2012 COA 36,
¶¶ 73-74 (holding that the prosecutor’s statement during closing
did not constitute plain error where he undermined defendant’s
presumption of innocence and improperly gave his personal opinion
66
on the case by stating that the defendant had “shattered his
presumption of innocence,” and that the “only way to obtain justice
in this courtroom, to seek what [the jury] . . . sought when [it] took
that oath as jurors, is to find [defendant] guilty of the murder that
he committed”) (alterations in original).
¶ 151 Because (1) the prosecutor’s misconduct does not carry
different weight under a cumulative error analysis; (2) the
misconduct was not overly prejudicial; and (3) the evidence against
Vialpando was strong — R.H. gave eyewitness testimony and
Vialpando’s belongings were found in J.A.’s stolen vehicle — I
conclude that Vialpando was not deprived of a fair trial. Cf.
Nardine, ¶ 68 (holding that the prosecutor’s misconduct warranted
reversal because it was “particularly prejudicial” in a case that
“depended almost entirely on the jurors’ assessment of [the victim’s]
credibility, as there was no eyewitness or physical evidence to
corroborate her claims”); Walters, 148 P.3d at 335 (Prosecutorial
misconduct rarely requires reversal but may be warranted “when
the evidence against a defendant is conflicting and inconclusive and
the prosecutor continually appeals to the jurors’ sentiments.”).
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IV. Conclusion
¶ 152 For all of the foregoing reasons, I would affirm the judgment of
conviction.
68