Then, the court reviews whether the other five errors identified by the division
amount to cumulative error.
The supreme court concludes that the prosecutor’s flight comments were
not error and that there was not cumulative error. Accordingly, the supreme court
reverses the judgment of the court of appeals and remands to that court for
consideration of the remaining issues. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203
2022 CO 28
Supreme Court Case No. 20SC343 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 17CA1536
Petitioner:
The People of the State of Colorado,
v.
Respondent:
Yolanda Ursula Vialpando.
Judgment Reversed en banc June 21, 2022
Attorneys for Petitioner: Philip J. Weiser, Attorney General John T. Lee, Senior Assistant Attorney General Denver, Colorado
Attorneys for Respondent: Megan A. Ring, Public Defender Chelsea E. Mowrer, Deputy Public Defender Denver, Colorado CHIEF JUSTICE BOATRIGHT delivered the Opinion of the Court, in which JUSTICE MÁRQUEZ, JUSTICE HOOD, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined. JUSTICE GABRIEL concurred in the judgment.
2 CHIEF JUSTICE BOATRIGHT delivered the Opinion of the Court.
¶1 An eyewitness saw an SUV crash and a woman exit the driver’s-side door
and immediately flee from the vehicle. Inside the SUV, police officers found
several items that belonged to Yolanda Vialpando. The police began investigating
Vialpando, and the eyewitness identified her as the suspect with 75% certainty.
The prosecution charged Vialpando with various crimes connected to the incident,
and the matter proceeded to a jury trial.
¶2 In opening statement, the prosecutor focused on Vialpando’s alleged flight
from the scene after the crash. In closing argument and rebuttal, the prosecutor
again referred to Vialpando’s flight: He described how she fled in the SUV and
then ran away on foot and stated that Vialpando’s “flight continues to this
moment” and “has continued up and to this point.” Defense counsel did not object
to these statements.
¶3 Ultimately, a jury convicted Vialpando as charged. She appealed,
contending, as relevant here, that the prosecutor’s statements in closing argument
about flight were an improper comment on her exercising her Sixth Amendment
right to a jury trial and that the cumulative impact of numerous errors deprived
her of a fair trial. A split division of the court of appeals agreed and reversed her
conviction. People v. Vialpando, 2020 COA 42, ¶ 1, 490 P.3d 648, 652.
3 ¶4 The prosecution petitioned for certiorari review, and we granted it.1 We
now hold that the prosecutor’s comments, made during closing argument and
concerning flight, were not error. Further, we conclude that there was not
cumulative error. Accordingly, we reverse the judgment of the court of appeals
and remand to that court for consideration of the remaining issues.
I. Facts and Procedural History
¶5 Police officers sitting in a parked car outside a motel saw an SUV pull
around the corner of the building, immediately stop, reverse over a curb, and exit
the motel parking lot. Based on this unusual driving, the officers followed the
SUV, ran its plates, and discovered that it was reported as stolen. The officers
activated their emergency lights to make a traffic stop, but the SUV sped off. In
1 We granted certiorari to review the following issues: 1. Whether, where a defendant’s flight established elements for several of the charges, the court of appeals improperly reversed for plain error because it concluded the prosecutor’s closing argument commenting on this flight implicitly asked the jury to punish her for exercising her Sixth Amendment right to a jury trial[.] 2. Whether the court of appeals erred in finding that cumulative error under Howard-Walker v. People, 2019 CO 69[, 443 P.3d 1007], is guided by considering the number of errors against the length of trial, and in concluding that there was cumulative error in this case.
4 response, based on department policy, the officers turned off their emergency
lights and did not pursue the SUV.
¶6 Soon after, the officers saw that the SUV had crashed into another car,
seriously injuring that car’s driver. A witness, R.H., observed the crash from her
car while stopped at a nearby traffic light. R.H. spotted a woman exit the driver’s-
side door of the SUV and run away.
¶7 While investigating the crash, the officers found a purse inside the SUV. The
purse contained several items that belonged to Yolanda Vialpando; namely, her
current identification card, an expired identification card, a credit card, and a
health insurance card. The SUV also contained several pieces of Vialpando’s
clothing.
¶8 Based on these items, the officers began investigating Vialpando. One
officer showed a series of photographs to R.H., who stated with 75% certainty that
Vialpando’s photo matched the woman she saw flee from the SUV. Officers then
arrested Vialpando, and the prosecution charged her with vehicular assault,
vehicular eluding, first degree aggravated motor vehicle theft, and driving under
restraint.
¶9 At trial, R.H. testified that the woman who fled was roughly 5′5″ to 5′6″; was
wearing a lot of makeup; and had long, black, wavy hair. According to R.H., the
woman was in her twenties or thirties, but her makeup “made her look younger.”
5 R.H. testified that she was only 75% certain when she originally identified
Vialpando’s photo from the lineup because the woman whom she saw fleeing
from the crash had a lot of makeup on, whereas Vialpando’s lineup photo depicted
her with less makeup. During trial, when the prosecutor asked R.H. to make an
in-court identification, she said that Vialpando “could be” the woman she saw flee
but she was not 100% certain because Vialpando no longer had long black hair.
¶10 An officer testified that Facebook photos of Vialpando showed her wearing
heavy makeup and a longer hairstyle in the past. Additionally, he told the jury
that Vialpando’s DMV record stated that she was 5′5″ tall, weighed 155 pounds,
and had brown hair and brown eyes.
¶11 Vialpando testified at trial. She stated that the day before the crash,
someone had robbed her at gunpoint and taken the personal items that the police
subsequently found in the stolen SUV. She also testified that she reported the
robbery to police the day that it happened—i.e., the day before the crash—and that
she was at the hospital with her mother on the day of the crash.
¶12 A police officer confirmed that Vialpando reported the robbery the day
before the crash, testifying that she did, in fact, come to the Denver police station
to report that an assailant had taken her ID cards, purse, luggage, and personal
effects.
6 ¶13 From opening statement to closing argument, the prosecutor emphasized
Vialpando’s flight. The prosecutor began his opening statement by remarking:
[T]he defendant ran. The defendant had just crashed a stolen [SUV] . . . at a high rate of speed running through a red light . . . into [the victim]. And as [the victim] was still in her car, still recovering from the shock of being T-boned, the defendant ran. The defendant opened the driver’s-side door and stepped out and fled. Fled the scene.
The prosecutor repeated this theme throughout opening statement, remarking:
“[the SUV] started to run,” “the defendant ran,” “the defendant . . . ran away,” “in
the immediate wake of the defendant fleeing,” and “the defendant who ran.” At
closing argument, the prosecutor began by stating:
Yolanda Vialpando[] ran. A few moments before[,] she had crashed a stolen [SUV] . . . . She 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.
(Emphasis added.) Similarly, the prosecutor ended rebuttal closing with the
following:
The defendant ran that day. She ran from the police, and she ran after she had an accident that left in its wake [the victim] 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” . . . .
(Emphasis added.)
¶14 Defense counsel did not object to these statements. Ultimately, the jury
found Vialpando guilty as charged.
7 ¶15 On appeal, a split division of the court of appeals reversed Vialpando’s
convictions on two independent bases. Vialpando, ¶¶ 1–2, 490 P.3d at 652. First,
the majority held that the prosecutor’s comments evoking flight constituted plain
error because they invited the jury to punish Vialpando for exercising her
constitutional right to a jury trial. Id. at ¶¶ 41, 47, 490 P.3d at 657. Specifically, the
majority held that the prosecutor’s comments during closing—that Vialpando’s
flight “continues to this moment” and “has continued up and to this
point”—suggested that she “was continuing to run from responsibility by insisting
on a jury trial.” Id. at ¶ 36, 490 P.3d at 656. The majority asserted that the
prosecutor’s misconduct unfairly prejudiced Vialpando and was “tremendously
improper.” Id. at ¶ 41, 490 P.3d at 657. The majority further concluded that the
error was plain because, given Vialpando’s uncontroverted testimony that she
reported being robbed before the crash, this was a close case; thus, the comments
“cast serious doubt on the reliability of her convictions.” Id. at ¶¶ 44–47, 490 P.3d
at 657.
¶16 Second, the majority held that even if the prosecutor’s comments on flight
did not constitute plain error, reversal was nevertheless required because of
cumulative error. Id. at ¶ 49, 490 P.3d at 657. The majority identified five
additional errors: The prosecutor (1) made improper analogies to reasonable
doubt during voir dire, (2) improperly expressed his personal belief during
8 opening statements and rebuttal, (3) improperly asked Vialpando to opine on the
veracity of another witness, (4) mischaracterized evidence, and (5) prompted an
officer to improperly opine on Vialpando’s guilt. Id. at ¶¶ 52–66, 490 P.3d at
658–59. Applying the cumulative error test from Howard-Walker v. People, 2019 CO
69, ¶ 25–26, 443 P.3d 1007, 1011–12, the majority concluded that “Vialpando’s trial
was infected with errors” and that because the six errors “occurred over the course
of a relatively short trial” (three days), the errors cumulatively deprived her of a
fair trial. Vialpando, ¶ 70, 490 P.3d at 659–60.
¶17 Judge Fox dissented in relevant part, stating that the prosecutor’s closing
remarks evoking flight, “[w]hile possibly inartful,” were better categorized as
permissible “oratorical embellishment and metaphorical nuance” and, thus, were
not improper. Id. at ¶ 121, 490 P.3d at 667 (Fox, J., concurring in part and
dissenting in part). Regarding cumulative error, Judge Fox concluded that
Vialpando received a fair trial because the prosecutor’s misconduct was limited
and not overly prejudicial and the evidence against Vialpando was strong. Id. at
¶¶ 150–51, 490 P.3d at 671–72.
¶18 We granted certiorari and now reverse.
II. Prosecutor’s Comments on Flight
¶19 In considering whether the prosecutor’s “flight” comments constituted
error, we begin by outlining the appropriate standard of review. Then, we state
9 the test for determining prosecutorial misconduct and the relevant law concerning
the Sixth Amendment right to a jury trial. We then apply the law to the facts of
Vialpando’s case and conclude that the prosecutor’s statements, made during
closing argument and concerning flight, were not error.
A. Standard of Review
¶20 Because the prosecutor’s comments did not influence the framework of the
trial and because Vialpando did not contemporaneously object, we review her
prosecutorial misconduct claim for plain error. See Wend v. People, 235 P.3d 1089,
1097 (Colo. 2010). Plain error is error that is “obvious and substantial.” Hagos v.
People, 2012 CO 63, ¶ 18, 288 P.3d 116, 120 (quoting People v. Miller, 113 P.3d 743,
750 (Colo. 2005)).
B. Prosecutorial Misconduct and the Sixth Amendment Right to a Fair Trial by an Impartial Jury
¶21 Whether a prosecutor’s conduct was improper, and thus error, depends on
the totality of the circumstances. Wend, 235 P.3d at 1096. “Factors to consider
when determining the propriety of statements include the language used, the
context in which the statements were made, and the strength of the evidence
supporting the conviction.” Domingo-Gomez v. People, 125 P.3d 1043, 1050 (Colo.
2005). Examples of context include “the nature of the alleged offenses and the
asserted defenses, the issues to be determined, the evidence in the case, and the
10 point in the proceedings at which the remarks were made.” Id. (quoting Harris v.
People, 888 P.2d 259, 266 (Colo. 1995)).
¶22 Vialpando claims that the prosecutor’s comments violated her Sixth
Amendment right to a jury trial. See U.S. Const. amends. V, VI, XIV; Colo. Const.
art. II, §§ 16, 23, 25. “A defendant’s exercise of the . . . [Sixth Amendment] right to
a trial by jury may not be used by the prosecution to [imply] guilt.” Dunlap v.
People, 173 P.3d 1054, 1080 (Colo. 2007); accord People v. Rodgers, 756 P.2d 980, 983
(Colo. 1988), overruled on other grounds by Miller, 113 P.3d at 748. This rule applies
to both direct and indirect implications. See Martinez v. People, 425 P.2d 299, 302
(Colo. 1967). For example, in Rodgers, we held that the prosecutor violated the
defendant’s right to a jury trial when the prosecutor claimed during closing,
“[S]ome attorneys . . . [believe that] if you are guilty, you would want to request a
jury because they just may not convict you and if you are innocent[,] you never
want to request a jury because they just might convict you.” 756 P.2d at 982.
¶23 While a prosecutor may not tell the jury to infer guilt from a defendant’s
exercise of their Sixth Amendment right, a prosecutor may highlight facts in
evidence and draw reasonable inferences. Domingo-Gomez, 125 P.3d at 1048. In
doing so, a prosecutor is permitted to use “oratorical embellishment” and
“metaphoric nuance.” Harris, 888 P.2d at 265–66.
11 C. Application
¶24 Our initial inquiry is whether the prosecutor’s statements, made during
closing argument and concerning flight, were an improper comment on the
defendant’s Sixth Amendment right to a jury trial and, thus, error. To make this
determination, we first consider the language used and the context in which the
statements were made. See Domingo-Gomez, 125 P.3d at 1050.
¶25 During opening statement, closing argument, and rebuttal closing, the
prosecutor stated that the defendant fled from the police officers, both in the SUV
and then later, on foot. In opening, he stated that “the defendant ran. The
defendant opened the driver’s-side door and stepped out and fled. Fled the
scene.” Again, in closing, he remarked that “Vialpando[] ran. A few moments
before[,] she had crashed a stolen [SUV] . . . . She opened the driver’s-side door
and ran . . . . Before that[,] she had run . . . from the officers . . . . The defendant
ran.” Critically, he said during closing that “although she is seated now, that flight
continues to this moment. But it ends today.” Additionally, during rebuttal, the
prosecutor told the jurors that Vialpando’s “flight has continued up and to this
point” and that they should “end her flight by signing ‘guilty.’”
¶26 We conclude that the prosecutor did not impermissibly imply that
Vialpando was guilty because she requested a jury trial. Our determination is
guided by the context in which these statements were made, which includes the
12 evidence in the case and the nature of the alleged offenses. See Domingo-Gomez,
125 P.3d at 1050.
¶27 Here, the prosecution presented evidence that Vialpando drove the stolen
SUV, fled from the police in the motel parking lot, and, after crashing the car, ran
away from the scene on foot. These facts demonstrate movement and flight. In
addition, Vialpando was charged with vehicular eluding, which required the
prosecution to prove that she knowingly eluded a peace officer while being
pursued by said officer. See § 18-9-116.5, C.R.S. (2021). That is, the vehicular
eluding charge implicated her evasion, escape, or flight. Thus, the prosecutor’s
comments were contextually related to the evidence in the case. See
Domingo-Gomez, 125 P.3d at 1048 (“Final argument may properly include the facts
in evidence and any reasonable inferences drawn therefrom.”).
¶28 In holding otherwise, the division majority relied on two cases—United
States v. Hardy, 37 F.3d 753, 757 (1st Cir. 1994), and Howard-Walker, ¶ 44, 443 P.3d
at 1014–15—which both held that the prosecution improperly commented on the
defendant’s right to remain silent under the Fifth Amendment. We find both cases
inapposite.
¶29 In Hardy, two defendants were arrested after a foot chase with police officers
and later charged with various firearm-related offenses. 37 F.3d at 755–56. During
closing argument, the prosecutor stated that the defendants were running and
13 hiding on the night of the crime and “still running and hiding today.” Id. at 757.
Neither defendant testified. Id. at 758. The First Circuit reasoned that the
prosecutor’s statements “improperly called attention to the failure of [the
defendants] to take the stand and testify at trial.” Id. at 757. On those facts, the
prosecutor’s improper reference to the defendants’ Fifth Amendment right to
silence was unmistakable because it drew direct attention to their absence from
the witness stand. That is, the link between the defendants “running and hiding”
and exercising their Fifth Amendment right to silence was obvious.
Comparatively, any link here between “flight” and the Sixth Amendment right to
a jury trial is less apparent. Moreover, Vialpando testified, and the prosecutor’s
remarks—that Vialpando’s “flight continue[d]”—did not draw a direct line to her
constitutional right to a jury trial.
¶30 Howard-Walker is also distinguishable. There, the defendant (who was
accused of burglary) did not testify, and the prosecutor told the jury, “[T]here is
only one person in this room that could tell you where all of those items are now
and he won’t.” Howard-Walker, ¶ 38, 443 P.3d at 1013. We held that this comment
clearly implied the defendant’s guilt because he exercised his Fifth Amendment
right to remain silent. Id. at ¶ 44, 443 P.3d at 1014–15. But in the case before us,
the prosecutor made no such pronounced insinuations. In context, his statements
did not bring Vialpando’s right to a jury trial to the forefront; rather, they drew on
14 the overall theme of flight and were connected to the facts of the case. Contra
Rodgers, 756 P.2d at 982, 985 (holding that the prosecutor improperly referenced
the defendant’s right to a jury trial when the prosecutor claimed during closing,
“[S]ome attorneys . . . [believe that] if you are guilty, you would want to request a
jury because they just may not convict you and if you are innocent[,] you never
want to request a jury because they just might convict you”).
¶31 We recognize that, as the division majority pointed out, thematic arguments
concerning flight are fraught with peril. But here, based on the vehicular eluding
charge and the flight evidence pervading this case, the prosecutor’s closing
statements about Vialpando’s continued flight at trial are better considered
“oratorical embellishment” and “metaphoric nuance.” See Harris, 888 P.2d at
265–66. Absent this factual context, however, the result might well be different.
Accordingly, we conclude that the prosecutor’s flight comments were not error.
III. Cumulative Error
¶32 We begin this section by discussing the proper standard for reviewing
cumulative error. Then we apply that framework to the facts of Vialpando’s case
and conclude that there was not cumulative error.
¶33 When reviewing for cumulative error, we ask whether “numerous formal
irregularities, each of which in itself might be deemed harmless, may in the
15 aggregate show the absence of a fair trial.” Howard-Walker, ¶ 24, 443 P.3d at 1011
(alteration omitted) (quoting Oaks v. People, 371 P.2d 443, 446 (Colo. 1962)).
Furthermore, although a shorter trial may compound the impact of any errors,
“the question is not whether the errors were ‘brief’ or ‘fleeting’ but whether,
viewed in the aggregate, the errors [cumulatively] deprived the defendant of a fair
trial.” Id. at ¶ 40, 443 P.3d at 1014. We now apply that standard to the facts of this
case.
B. The Five Remaining Errors Identified by the Division
¶34 Having already decided that the prosecutor’s flight comments were not
error, we are left with five remaining errors that the division majority
identified—four instances of prosecutorial misconduct, plus one evidentiary error.
Assuming, without deciding, that the division below correctly identified those
errors, we review whether, together, they constitute cumulative error. We begin
by outlining those five identified errors.
1. Illustrations of Reasonable Doubt
¶35 During voir dire, 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. Vialpando, ¶ 54, 490 P.3d at 658. The
prosecutor then asked a potential juror to pretend that she was on the gameshow
Who Wants to Be a Millionaire? and consider whether she could identify the flag for
16 the million-dollar question. Id. The majority reasoned that analogizing finding
the defendant guilty to submitting an answer on a game show trivialized
reasonable doubt. Id. at ¶ 55, 490 P.3d at 658. Additionally, the majority
concluded that illustrating reasonable doubt with iconic images like the American
flag could cause jurors to associate the standard with easily recognizable objects,
thus easing the State’s burden. Id. at ¶ 56, 490 P.3d at 658.
2. Statements of Personal Belief
¶36 During the prosecutor’s opening statement, he told the jury, “I think you’ll
agree with me at the end of testimony, that the defendant is guilty of the charges,”
and then later said, “I think you’ll agree with me that it was, in fact, the defendant
who ran.” Id. at ¶ 57, 490 P.3d at 658. And during closing argument, the
prosecutor told the jury that he did not need to prove why Vialpando made a false
report—“or what we believe is a false report”—regarding her reported robbery.
Id. at ¶ 58, 490 P.3d at 658. The majority reasoned that in each of these three
statements, the prosecutor improperly expressed his personal belief that
Vialpando was guilty. Id. at ¶¶ 57–58, 490 P.3d at 658.
3. Questions About the Veracity of Another Witness
¶37 During his cross-examination of Vialpando, the prosecutor asked four
different times whether another witness, a police officer, was “mistaken.” Id. at
¶ 59, 490 P.3d at 658. The majority reasoned that the prosecutor repeatedly asked
17 Vialpando to opine on the veracity of another witness, which is categorically
improper under Liggett v. People, 135 P.3d 725, 732–35 (Colo. 2006). Vialpando, ¶ 59,
490 P.3d at 658.
4. Mischaracterization of the Evidence
¶38 During closing, the prosecutor asked the jury, “why didn’t [Vialpando] go
out and get a new ID?” even though Vialpando’s unrebutted testimony was that
she did get a new ID. Id. at ¶ 60, 490 P.3d at 658–59. The majority concluded that
this statement mischaracterized the evidence. Id.
5. Testimony Identifying Vialpando as the “Primary Suspect”
¶39 During his testimony, the lead investigating officer stated that Vialpando
was the “primary suspect.” Id. at ¶ 63, 490 P.3d at 659. The majority reasoned that
this was improper because a witness may not opine on a defendant’s guilt and,
here, that was the only inference that could be drawn from this testimony. Id. at
¶¶ 62, 66, 490 P.3d at 659. The majority rejected the arguments that the officer’s
testimony was a proper explanation of the steps the police took in the course of
their investigation and that the testimony dispelled any implication that the
investigation was cursory. Id. at ¶¶ 63–65, 490 P.3d at 659.
C. Whether These Errors Cumulatively Warrant Reversal
¶40 We now consider whether the cumulative effect of these five errors deprived
Vialpando of a fair trial.
18 ¶41 Turning first to the prosecutor’s illustrations of reasonable doubt, we ask
whether they prejudiced the defendant. The majority stated that the prosecutor’s
references to the American flag and the gameshow trivialized reasonable doubt
and lowered the burden of proof by making it seem easy to ascertain. We
recognize that analogies like these are perilous and unhelpful. See Tibbels v. People,
2022 CO 1, ¶ 25, 501 P.3d 792, 797. Nevertheless, the trial court instructed the jury
multiple times that they must follow only the instructions given by the court and
not comments by the attorneys, and we presume that the jury followed the court’s
instructions.2 See Johnson v. People, 2019 CO 17, ¶¶ 14, 16, 436 P.3d 529, 533.
Moreover, as Judge Fox’s dissent points out, the prosecutor’s analogies were brief
and isolated, and he did not raise them again in closing. See Vialpando, ¶ 114,
490 P.3d at 666 (Fox, J., concurring in part and dissenting in part). Taking these
considerations together, on these facts, the prosecutor’s illustrations of reasonable
doubt did not lower the burden of proof and were not prejudicial.
2 We do not decide today whether the trial court’s use of reasonable doubt analogies during voir dire is a separate ground for reversal. That question is not before us. See Vialpando, ¶ 87, 490 P.3d at 661–62 (“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.”).
19 ¶42 Next, we address the prosecutor’s statements of personal belief as to
Vialpando’s guilt. A prosecutor may not offer a personal opinion about the
defendant’s guilt. See Domingo-Gomez, 125 P.3d at 1049. Moreover, we recognize
that the prosecutor is a government official, and as such, his opinion might carry
more weight with the jury, enflaming the overall impropriety. See Wilson v. People,
743 P.2d 415, 418–19 (Colo. 1987). Nevertheless, assuming these are improper
personal opinions, as Judge Fox’s dissent points out, the prosecutor’s statements
were a small part of his argument, which was otherwise a generally fair summary.
See Vialpando, ¶ 117, 490 P.3d at 666 (Fox, J., concurring in part and dissenting in
part). Furthermore, the prosecutor’s comments were brief and inconspicuous, and
they were largely tied to his arguments about the evidence. Last, the trial court
gave proper instructions on credibility and the presumption of innocence, which
helped to ameliorate any prejudice associated with the prosecutor’s comments.
See People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010). Overall, the prosecutor’s
statements demonstrating his personal belief as to Vialpando’s guilt were
minimally prejudicial.
¶43 Of all the errors, the most significant occurred during the prosecutor’s cross-
examination of Vialpando, when he asked four different times whether another
witness, a police officer, was “mistaken.” See Liggett, 135 P.3d at 732 (“[A]sking a
witness to opine on the veracity of another witness is prejudicial, argumentative,
20 and ultimately invades the province of the fact-finder.”). These types of questions
are categorically improper because they distort the trial process. Id. at 730–32.
Here, the prosecutor asked, and Vialpando answered, these categorically
improper questions, which invaded the province of the jury. As a result, the
prosecutor’s comments about whether the police officer was mistaken were
inherently prejudicial.
¶44 The next error that the majority identified concerned the prosecutor
misstating the evidence by asking the jury, “why didn’t [Vialpando] go out and
get a new ID?” even though Vialpando’s unrebutted testimony was that she did
get a new ID. Undeniably, prosecutors may not misstate the evidence. See
Domingo-Gomez, 125 P.3d at 1048–49. But even assuming that the prosecutor
misstated the evidence, the trial court repeatedly instructed the jury that closing
arguments were not evidence, which makes it less likely that the jury was
improperly influenced. Additionally, this fact was not significant, and the jury
was capable of remembering that Vialpando testified to the contrary. Taking these
factors together, the prosecutor’s comments during closing about Vialpando
getting a new ID were not unduly prejudicial.
¶45 Finally, we turn to the officer’s testimony identifying Vialpando as the
primary suspect. The majority identified this as error because a witness may not
opine on a defendant’s guilt, and here, that was the only inference that could be
21 drawn. See People v. Penn, 2016 CO 32, ¶ 31, 379 P.3d 298, 305. But as the dissent
points out, the prosecutor did not dwell on the officer’s statement, nor did either
party revisit it during closing. See Vialpando, ¶ 147, 490 P.3d at 671 (Fox, J.,
concurring in part and dissenting in part). Additionally, Vialpando’s counsel had
the opportunity to cross-examine the officer to clarify his testimony. Thus, we find
the officer’s testimony to be mildly prejudicial.
¶46 Overall, we hold that the cumulative effect of these errors on Vialpando’s
trial was slight, especially considering the other evidence against Vialpando that
was available to the jury: Vialpando’s belongings were found in the stolen vehicle,
an eyewitness identified her, and a reasonable juror could find that Vialpando’s
robbery defense was not credible. True, these errors took place over a short, three-
day trial; however, when viewed in the aggregate and against the backdrop of
other evidence, they did not deprive Vialpando of a fair trial. Accordingly, we
conclude that there was not cumulative error.
IV. Conclusion
¶47 We conclude that the division erred by determining that the prosecutor’s
flight comments were plain error. Additionally, we conclude that there was not
cumulative error. Accordingly, we reverse the judgment of the court of appeals
and remand the case to that court for consideration of the remaining issues.
JUSTICE GABRIEL concurred in the judgment.
22 JUSTICE GABRIEL, concurring in the judgment.
¶48 The majority concludes that the prosecution’s arguments to the jury that
defendant Yolanda Vialpando was continuing to flee by sitting at counsel table
during trial were mere “oratorical embellishment” and “metaphoric nuance” and
did not impermissibly imply that Vialpando was guilty because she was exercising
her right to a jury trial. Maj. op. ¶¶ 26, 31 (quoting Harris v. People, 888 P.2d 259,
265–66 (Colo. 1995)). I do not agree. In my view, the prosecution’s argument could
only be interpreted as faulting Vialpando for exercising her constitutional right to
a jury trial, and because flight is evidence of consciousness of guilt, the prosecution
was essentially telling the jury that Vialpando’s exercise of her constitutional
rights somehow evinced her guilt.
¶49 Accordingly, unlike the majority, I believe that the prosecution’s argument
was improper and that we should expressly disapprove it. The more difficult
question for me is whether the error here was plain. Given the demanding
standard for establishing plain error, particularly in cases of alleged prosecutorial
misconduct, I cannot say that it was. Nor can I conclude that this error, when
considered together with the other apparent errors in this case, establishes
reversible cumulative error.
¶50 I therefore concur in the majority’s judgment.
1 I. Factual Background
¶51 I agree with the majority’s recitation of the pertinent facts and will not repeat
those facts here. Because the prosecution’s arguments to the jury regarding
Vialpando’s alleged flight are central to my analysis, however, I will note them
again.
¶52 In its closing argument, the prosecution asserted, “And although she is
seated now, [Vialpando’s] flight continues to this moment. But it ends today.”
¶53 Then, during rebuttal argument, the prosecution doubled down on this
flight theme:
The defendant ran that day. She ran from the police, and she ran after she had an accident that left in its wake [a victim] 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” for Count 1, 2, 3, and 4.
(Emphasis added.) II. Analysis
¶54 I begin by addressing Vialpando’s contention regarding the prosecution’s
above-quoted arguments to the jury as to her alleged flight during trial. I then
briefly address Vialpando’s assertion of reversible cumulative error.
2 A. Prosecution’s Arguments on Vialpando’s Alleged Flight
¶55 Vialpando contends that the prosecution’s above-quoted arguments
regarding her alleged flight during trial amounted to an improper comment on
her Sixth Amendment right to trial. Because Vialpando did not object to these
arguments, our review is for plain error. See People v. Miller, 113 P.3d 743, 745
(Colo. 2005). Plain error addresses error that was obvious and substantial and that
so undermined the fundamental fairness of the trial itself as to cast serious doubt
on the reliability of the judgment of conviction. Id. at 750. In the context of plain
error review of alleged prosecutorial misconduct, we will reverse only when the
misconduct was “flagrantly, glaringly, or tremendously improper.”
Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila,
944 P.2d 673, 676 (Colo. App. 1997)). Recognizing the demanding nature of this
standard, we have observed that prosecutorial misconduct in closing argument
rarely is so egregious as to constitute plain error. People v. Constant, 645 P.2d 843,
847 (Colo. 1982).
¶56 We have long recognized that criminal defendants may not be penalized for
exercising their Fifth Amendment right to remain silent. People v. Rodgers, 756 P.2d
980, 983 (Colo. 1988), overruled on other grounds by Miller, 113 P.3d at 749. We have
also long recognized that “[b]ecause a defendant’s constitutional right to remain
silent cannot be used against him to draw an inference of guilt, it follows that a
3 defendant’s exercise of his constitutional right to a trial by jury cannot be used
against him to create an inference of guilt.” Id.; accord Dunlap v. People, 173 P.3d
1054, 1080 (Colo. 2007). Accordingly, we have opined that “it is impermissible for
a prosecutor to make comments ‘which ha[ve] the effect of creating an inference
of guilt by reference’ to the defendant’s exercise of his right to a trial by jury.”
Rodgers, 756 P.2d at 983 (alteration in original) (quoting People v. Ortega, 597 P.2d
1034, 1036 (Colo. 1979)). In so stating, we saw no significant difference between a
prosecutor’s improper comments on a defendant’s exercise of the right to remain
silent and a prosecutor’s comments on a defendant’s exercise of the equally
fundamental right to a jury trial. Id.
¶57 Lastly, as pertinent here, we have observed that evidence of flight and
concealment can be admissible to show consciousness of guilt. People v. Summitt,
132 P.3d 320, 324 (Colo. 2006).
¶58 Applying the foregoing settled principles to the case now before us, I believe
that the prosecution’s arguments that Vialpando was continuing to flee by sitting
at counsel table during trial could have only one meaning: by exercising her
fundamental rights to a jury trial and to have the prosecution prove her guilt
beyond a reasonable doubt, Vialpando was fleeing, and her continuing flight was
evidence of her guilt.
4 ¶59 In my view, the above-described precedents make clear that such an
argument was improper, and cases from other jurisdictions support my
conclusion.
¶60 For example, in United States v. Hardy, 37 F.3d 753, 754 (1st Cir. 1994), the
defendants were charged with a number of firearms-related offenses. They
exercised their Fifth Amendment right not to testify, and thereafter, in closing
argument, the prosecutor asserted:
[T]hey were running and hiding, running from the police and hiding the evidence from the police. They’re still running and hiding today. The time has come for them to stop running and stop hiding. The time has come for them to be held accountable for the wrongful acts that they committed on the night of April 18th, 1991 in Boston. That time is now and only you can hold them accountable.
Id. at 757.
¶61 The defendants in Hardy contended that the foregoing argument constituted
an improper comment on the exercise of their Fifth Amendment rights, and the
First Circuit ultimately agreed:
The prosecutor’s comment during his closing set up an analogy between what the defendants were allegedly doing on the night of the crime—running and hiding—and what the prosecutor believed they were doing during the trial—running and hiding. Of course, the defendants were not literally running from the trial or hiding during the trial. Rather, they were both in custody and were sitting silently during each day of the proceeding. Neither defendant testified on his own behalf. The natural and necessary implication of the prosecutor’s remark was therefore that the defendants were running from the evidence presented against them, and hiding behind their right to
5 silence during the trial. The prosecutor’s comment therefore violated the Fifth Amendment.
Id. at 757–58.
¶62 Although Hardy involved the Fifth Amendment right against
self-incrimination and the present case involves the Sixth Amendment right to a
jury trial, I believe that the same analysis that the court employed in Hardy applies
here. Specifically, the prosecution’s comments in closing and rebuttal argument
in this case set up an analogy between what Vialpando had done during the
alleged crime (i.e., fleeing from the police) and what the prosecution said she was
doing during the trial (i.e., continuing to flee). But she was not fleeing from
anything at trial. She was sitting at counsel table exercising her constitutional right
to a trial at which the prosecution would be required to prove her guilt beyond a
reasonable doubt. In my view, the necessary implication of the prosecution’s
argument was that Vialpando should be faulted—and, because flight evinces
consciousness of guilt, an inference of guilt should apply—merely because she had
exercised her constitutional right to a jury trial. As we have long made clear,
however, just as criminal defendants cannot be penalized for exercising their Fifth
Amendment right to remain silent, they cannot be penalized for exercising their
Sixth Amendment right to a trial by jury. See Dunlap, 173 P.3d at 1080; Rodgers,
756 P.2d at 983.
6 ¶63 Gabriel v. State, 254 So. 3d 558 (Fla. Dist. Ct. App. 2018), is also instructive.
There, a co-defendant conceded his guilt, but the defendant did not. Id. at 561.
The prosecutor then argued in closing, “[W]e’re all here because [the defendant]
refuses to take responsibility for his own actions on May 7, 2015. That’s why we
are here.” Id. The prosecutor then contrasted the defendant’s conduct with that
of his co-defendant, who did take responsibility. Id. The court reversed the
defendant’s conviction, concluding that the prosecutor’s comments “denigrate[d]
the fundamental principles of the right to jury trial and presumption of
innocence.” Id. at 564–65.
¶64 Although the prosecution’s comments in the present case were not as
blatant as the prosecutor’s statements in Gabriel, I believe that the principles
enunciated in that case apply with equal force here. The obvious implication of
the prosecution’s comments in this case was that by not taking responsibility and
conceding her guilt, Vialpando was somehow continuing to flee. Vialpando,
however, had no obligation to concede her guilt, and she had every right to put
the prosecution to its proof. Accordingly, the prosecution’s comments improperly
denigrated Vialpando’s fundamental right to a trial by jury. See also State v. Snow,
144 P.3d 729, 740–41 (Kan. 2006) (concluding that the prosecutor’s argument in
closing that “the defendant wants his jury trial, he’s had his jury trial, and its [sic]
time to put an end to this nonsense” (1) improperly inferred that the defendant
7 should have acceded to the state’s evidence and waived his right to a trial because
of the purported strength of the state’s case and (2) implied that the defendant had
wasted the prosecutor’s and the jury’s time because he had exercised his
constitutional rights), disapproved on other grounds by State v. Guder, 267 P.3d 751,
754 (Kan. 2012).
¶65 For these reasons, unlike the majority, I would conclude that the
prosecution’s arguments were improper, and I would unequivocally disapprove
them. Although to be sure, a prosecutor “need not abandon effective debate
techniques or eschew metaphoric nuance in accepting the restrictions inherent in
the prosecutorial function,” Harris, 888 P.2d at 265–66, a prosecutor’s license to
embellish oratorically does not permit her to make an argument suggesting that a
defendant’s exercise of the right to trial by jury somehow evinced the defendant’s
guilt.
¶66 The more difficult question for me is whether the prosecution’s comments
rose to the level of plain error. As noted above, the standard for plain error in the
context of a prosecutorial misconduct claim is a demanding one. A defendant
asserting plain error in this context must show that the prosecutor’s misconduct
was “flagrantly, glaringly, or tremendously improper,” Domingo-Gomez, 125 P.3d
at 1053, and we have observed that prosecutorial misconduct in closing argument
rarely is so egregious as to satisfy this standard, Constant, 645 P.2d at 847.
8 ¶67 Applying these principles here, I cannot say that the prosecution’s remarks
rose to the level of plain error. Unquestionably, Vialpando’s flight from the police
was a theme in this case. Moreover, the prosecution’s comments did not expressly
reference Vialpando’s right to a jury trial. And we have noted that the lack of an
objection to a prosecutor’s argument may indicate defense counsel’s belief that the
live argument was not overly damaging, despite its appearance in a cold record.
People v. Rodriguez, 794 P.2d 965, 972 (Colo. 1990).
¶68 For these reasons, although I see the issue as close, I perceive no reversible
plain error in the prosecution’s improper comments regarding Vialpando’s
alleged flight during trial.
B. Cumulative Error
¶69 The question remains whether Vialpando’s conviction must be reversed
based on the cumulative error doctrine.
¶70 In Howard-Walker v. People, 2019 CO 69, ¶ 26, 443 P.3d 1007, 1012, we
clarified the governing standard for cumulative error: “[R]egardless of whether
any error was preserved or unpreserved . . . , reversal 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.”
9 ¶71 Here, Vialpando has alleged six separate errors, five of which raised
substantial questions of prosecutorial misconduct, including the prosecution’s
arguments as to Vialpando’s alleged flight during trial. The majority assumes
without deciding that the division below correctly identified five of these errors
(i.e., the five alleged errors other than the prosecution’s flight comments) but
concludes that the cumulative effect of these errors were “slight” and did not
deprive Vialpando of a fair trial. Maj. op. ¶¶ 34, 46.
¶72 My view that the prosecution’s flight arguments were improper makes the
cumulative error issue far closer for me. This is especially true given that (1) this
trial was short (thereby magnifying the effect of the constellation of errors); (2) the
identification of Vialpando by the prosecution’s principal identification witness
was questionable at best (she was only 75% certain of her initial photo
identification, and at trial, she testified that Vialpando “could be” the woman that
she saw flee); and (3) much of the prosecutorial conduct at issue violated
well-settled principles of law. Nonetheless, for the reasons set forth by the
majority, maj. op. ¶¶ 32–46, and because the evidence supported a proper
argument that Vialpando had, in fact, fled from the police, I cannot say that the
errors that occurred in this case affected Vialpando’s substantial rights and denied
her a fair trial.
10 III. Conclusion
¶73 For all of these reasons, although I believe that the prosecution’s arguments
regarding Vialpando’s alleged flight while sitting at trial were improper and
denigrated her Sixth Amendment right to a jury trial, I cannot say that this
misconduct rose to the level of plain error. Nor can I conclude, on the record
before us, that this misconduct, even when considered together with the other
errors at trial, was sufficient to establish cumulative error requiring the reversal of
Vialpando’s conviction.
¶74 Accordingly, I concur in the majority’s judgment, albeit not in all of its
reasoning.