22CA1019 Peo v Berumen 04-10-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1019 Pueblo County District Court No. 18CR1286 Honorable Allison P. Ernst, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Francisco Manuel Berumen,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE J. JONES Brown and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 10, 2025
Philip J. Weiser, Attorney General, Brian M. Lanni, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Daniel J. Sequeira, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Francisco Manuel Berumen, appeals the judgment
of conviction entered on jury verdicts finding him guilty of
aggravated motor vehicle theft, vehicular assault, and careless
driving resulting in injury. We affirm.
I. Background
¶2 Berumen fell asleep one morning while driving a Chevy
Trailblazer that he’d stolen the night before. The Trailblazer drifted
into oncoming traffic and collided head-on with G.B.’s car while
G.B. was on her way to church.
¶3 Based on this incident, the People charged Berumen with
aggravated motor vehicle theft, driving under the influence (DUI),
vehicular assault (reckless), vehicular assault (DUI), and careless
driving resulting in injury. After a bifurcated trial, the jury
acquitted Berumen of DUI and vehicular assault (DUI) but found
him guilty of the remaining charges. The district court sentenced
him to a term of two years in community corrections.
II. Discussion
¶4 Berumen contends that the district court erred by (1) refusing
to suppress his statements to the police at the scene of the crash;
(2) admitting irrelevant and prejudicial evidence that G.B. had been
1 on her way to church; (3) allowing the prosecution’s expert witness
to testify outside the scope of his anticipated testimony; and (4)
denying defense counsel’s tendered implicit bias instruction. He
also contends that the cumulative effect of these alleged errors
warrants reversal. We address and reject each of these contentions
in turn.
A. Berumen’s Statements to the Police
1. Additional Facts
¶5 When Corporal Maize arrived at the scene of the crash, he saw
Berumen lying on the sidewalk near bystanders and pleading for
help. Corporal Maize assured Berumen that rescue personnel were
on the way and asked him for his name and date of birth, which
Berumen provided. Corporal Maize then asked Berumen what had
happened, to which Berumen answered that he had fallen asleep
while driving. An ambulance arrived, and emergency medical
technicians (EMTs) began treating both G.B. and Berumen.
Corporal Maize left the EMTs with Berumen and talked to
eyewitnesses about the crash.
¶6 Several minutes later, Corporal Timme approached Berumen
and asked him what had happened. At this point, Berumen — who
2 was now wearing a neck brace — said that he had fallen asleep at
the wheel, hadn’t slept in days, and was homeless. Corporal Timme
asked him who owned the Chevy Trailblazer. Berumen said he
didn’t know and that he’d stolen it from someone because he was
tired of walking and was cold. Corporal Timme also asked Berumen
if he’d taken any illegal drugs, to which Berumen replied that he
had smoked methamphetamine sometime before midnight and had
warrants out for his arrest. As of this point, neither officer had told
Berumen that he was under arrest or was not free to leave. After
EMTs finished treating Berumen, Corporal Timme arrested him.
¶7 Before trial, defense counsel moved to suppress Berumen’s
statements to Corporals Maize and Timme. The district court
denied the motion following an evidentiary hearing. Neither officer
told Berumen during the conversations that he was under arrest or
not free to leave.
2. Standard of Review
¶8 A district court’s ruling on a motion to suppress involves
questions of both fact and law. People v. Davis, 2019 CO 24, ¶ 14.
We defer to the district court’s factual findings if the record
supports them but review its legal conclusions de novo. People v.
3 Cooper, 2016 CO 73, ¶ 7; see People v. Begay, 2014 CO 41, ¶ 9
(whether a suspect is in custody is a legal question we review de
novo (citing People v. Matheny, 46 P.3d 453, 459 (Colo. 2002))).
3. Analysis
¶9 Berumen contends that the district court should have
suppressed his statements to Corporals Maize and Timme because
he made them without the benefit of Miranda warnings and
involuntarily. We disagree.
a. Miranda Warnings
¶ 10 The Fifth Amendment to the United States Constitution
provides that “[n]o person. . . shall be compelled in any criminal
case to be a witness against himself.” U.S. Const. amend. V. “In
order to protect this right, police must provide a suspect in custody
with certain warnings before subjecting him or her to interrogation.”
People v. Holt, 233 P.3d 1194, 1197 (Colo. 2010) (citing Miranda v.
Arizona, 384 U.S. 436, 444-45 (1966)).
¶ 11 Miranda warnings apply only when a suspect is subject to
custodial interrogation. The People don’t contest that Berumen was
interrogated, so we’ll assume he was for the purposes of our
4 Miranda analysis. We therefore focus our inquiry on whether
Berumen was in custody when he made his statements.
¶ 12 A person is in custody for Miranda purposes if, under the
totality of the circumstances, “a reasonable person in the suspect’s
position would believe himself to be deprived of his freedom of
action to the degree associated with a formal arrest.” Effland v.
People, 240 P.3d 868, 874 (Colo. 2010) (quoting People v. Hankins,
201 P.3d 1215, 1218 (Colo. 2009)); accord Matheny, 46 P.3d at 468.
We consider a wide range of factors, with no single factor being
determinative. Matheny, 46 P.3d at 466. As relevant in this case,
these factors include the location and purpose of the encounter, the
persons present, the words spoken by the officer and defendant, the
officer’s tone of voice and demeanor, and the level of restraint police
placed on the defendant. Id. at 465-66.
¶ 13 We reject Berumen’s assertion that he was in custody at the
scene of the crash due to his injuries and inability to leave. The
balance of factors shows that Berumen wasn’t in custody during his
interactions with Corporals Maize and Timme. The police arrived in
response to a car crash and needed to ask witnesses — including
Berumen — questions to get a sense of what had happened. Both
5 officers used a friendly and conversational tone with Berumen on
the sidewalk several feet away from the crashed vehicles. Corporal
Maize’s questioning didn’t last long, and Berumen wasn’t
restrained. Corporal Maize repeatedly told him that medical help
was on the way; when help arrived, he left Berumen in the care of
the EMTs for assessment and treatment. While Corporal Timme’s
questioning lasted longer, his encounter with Berumen was in
public and his tone was conversational. At no time before Corporal
Timme arrested Berumen did either officer tell him that he was
under arrest or not free to leave. Thus, a reasonable person in
Berumen’s situation would not have believed he was deprived of his
freedom of action to the degree associated with a formal arrest when
he was being questioned by the officers.
¶ 14 Relying on Effland, Berumen argues that he was in custody
because he was “in a largely immobile state for medical reasons
unrelated to police conduct.” Effland, 240 P.3d at 876. But in
Effland, the ununiformed police officers escorted the suspect to the
hospital, closed the door to his hospital room, stationed a
uniformed officer on the other side of the door, and questioned the
suspect despite his repeated attempts to end the questioning and
6 speak to an attorney. Id. at 875. Berumen, on the other hand, was
on the sidewalk in public with witnesses nearby, was treated for
several minutes without a police officer present, and never
requested an end to questioning or to speak to an attorney.
Importantly, the supreme court in Effland weighed “mobility [that]
was limited for medical reasons unrelated to police conduct” against
a finding of custody. Id. Berumen’s injuries limiting his mobility
were the result of his own conduct.
¶ 15 In sum, because Berumen wasn’t in custody when he made
the statements in question, there was no Miranda violation.
b. Voluntariness
¶ 16 Regardless of Berumen’s custodial status, his statements to
the police weren’t admissible for any purpose if they were
involuntary. People v. Coke, 2020 CO 28, ¶ 17; Effland, 240 P.3d at
877. “To be voluntary, a statement must be the product of an
essentially free and unconstrained choice by its maker.” People v.
Ramadon, 2013 CO 68, ¶ 19 (citing People v. Raffaelli, 647 P.2d
230, 234 (Colo. 1982)).
¶ 17 As an initial matter, we agree with the People that this issue
isn’t preserved. Berumen’s counsel included a bare boilerplate
7 assertion in the motion to suppress that “[a]ny and all statements
made by Mr. Berumen were involuntary and their evidentiary use
would violate the right against self incrimination and to due
process[.]” But such a generic motion doesn’t preserve an issue for
appeal. Phillips v. People, 2019 CO 72, ¶ 12 (merely advancing a
“conclusory, boilerplate contention” doesn’t suffice to preserve a
suppression issue for appeal (quoting People v. Samuels, 228 P.3d
229, 238 (Colo. App. 2009))). And Berumen’s counsel didn’t seek a
ruling on this issue by the district court. (Indeed, the issue never
came up at the hearing on the motion.) Thus, we review any error
for plain error. Hagos v. People, 2012 CO 63, ¶ 14 (plain error is
error that is obvious and that so undermined the fundamental
fairness of the trial as to cast serious doubt on reliability of the
judgment of conviction).
¶ 18 Determining whether Berumen’s statements were voluntary
requires a two-step inquiry. Ramadon, ¶ 20. First, there must have
been coercive police conduct. Id. (citing Colorado v. Connelly, 479
U.S. 157, 167 (1986)). Second, that conduct must have played a
significant role in inducing the statements — that is, it must have
been sufficient to overbear the defendant’s will. Id. We review both
8 a “defendant’s ability to resist coercive pressures and the nature of
the police conduct, using a nonexclusive list of factors when making
a voluntariness determination.” Id.
¶ 19 Berumen asserts that he made his statements involuntarily
because Corporals Maize and Timme coerced him into answering
their questions and he had no ability to resist their coercive
pressure. But he doesn’t point to any coercive measures the
officers used against him. Each of the following facts weighs
against a finding of involuntariness:
• Berumen wasn’t in custody, and although he couldn’t
physically leave given his injuries, he could have
terminated the interrogation and made no attempt to do
so. See People v. Gennings, 808 P.2d 839, 845 (Colo.
1991) (a defendant free to leave the room at any time isn’t
in custody).
• The police never threatened or promised Berumen
anything, apart from Corporal Maize’s accurate
assurance that medical help was on the way. Cf. People
v. Medina, 25 P.3d 1216, 1226-27 (Colo. 2001) (a police
threat can play a significant role in inducing statements).
9 • Contrary to Berumen’s assertion that the police withheld
medical care until they finished interrogating him,
Corporal Maize merely asked him what had happened
and walked away once EMTs began their treatment.
Corporal Timme arrived after a few minutes, giving EMTs
an opportunity to treat Berumen, and Corporal Timme
didn’t stop EMTs from treating Berumen while he was
questioning him.
• As discussed above, the interrogation was conducted in a
conversational and polite manner. Cf. Ramadon, ¶ 25
(accusatory questioning and threats of repercussions
may be coercive).
• The interrogation was in public with eyewitnesses
standing by. Cf. Effland, 240 P.3d at 876 (officers
coerced Effland by placing themselves between him and
the only exit).
• To the extent Berumen asserts that he was in a
vulnerable state because he’d just crashed the SUV, was
in serious pain, hadn’t slept in days, was homeless, and
was addicted to drugs, there is no indication in the
10 record that the officers took advantage of his vulnerable
state to coerce his statements.
¶ 20 In sum, we conclude that (1) Corporals Maize and Timme
weren’t required to give Berumen Miranda warnings before
questioning him because he wasn’t yet in custody, and (2) Berumen
made his statements voluntarily. Accordingly, the district court
didn’t err by not suppressing his statements.
B. Evidence that G.B. Was on Her Way to Church
¶ 21 Berumen next contends that the district court reversibly erred
by admitting evidence that G.B. was on her way to church when
Berumen crashed into her. We disagree.
¶ 22 Before trial, defense counsel moved to exclude evidence that
G.B. was headed to church when Berumen drove into her car
because that evidence was irrelevant and prejudicial. The
prosecutor sought to admit this evidence as part of the case’s
narrative and because it went to G.B.’s credibility as a witness. The
district court denied defense counsel’s motion, reasoning that the
evidence didn’t necessarily give rise to an inference that G.B. was a
good person. But the court told the prosecutor, “I don’t expect you
11 to highlight that testimony, you know, unduly. You can ask her
where she was going, certainly, but I wouldn’t spend a lot of time.”
¶ 23 At trial, the prosecutor mentioned that G.B. was on her way to
church five times: twice during his opening statement, twice during
G.B.’s testimony, and once during his closing argument.
¶ 24 “Trial courts have broad discretion in determining the
admissibility of evidence based on its relevance, its probative value,
and its prejudicial impact.” People v. Elmarr, 2015 CO 53, ¶ 20.
We review a trial court’s evidentiary ruling for an abuse of that
discretion. Nicholls v. People, 2017 CO 71, ¶ 17. A court abuses its
discretion when its decision is manifestly arbitrary, unreasonable,
or unfair, or is based on a misunderstanding or misapplication of
the law. People v. Thompson, 2017 COA 56, ¶ 91.
¶ 25 Because this evidentiary challenge is preserved, we review any
error for harmlessness. See Hagos, ¶ 12. An error is harmless
unless it “substantially influenced the verdict or affected the
fairness of the trial proceedings.” Id. (quoting Tevlin v. People, 715
P.2d 338, 342 (Colo. 1986)). We consider the entire record and
“review several factors, including the overall strength of the
12 prosecution’s case, the importance of the evidence to the
prosecution’s case, [and] the impact of the improperly admitted
evidence on the jury.” People v. Springsted, 2016 COA 188, ¶ 66
(citing Merritt v. People, 842 P.2d 162, 169 (Colo. 1992)).
¶ 26 Berumen argues that evidence that G.B. was on her way to
church was irrelevant and highly prejudicial because several
potential jurors referenced their Christian backgrounds during voir
dire. But even if we assume, without deciding, that the court erred
by admitting this evidence, we conclude that any error was
harmless for the following four reasons.
¶ 27 First, the prosecutor’s references to G.B. going to church were
brief and fleeting, and he followed the court’s ruling not to unduly
highlight the fact. He referenced the evidence only to indicate
where G.B. was going when Berumen crashed his car into hers; he
never implied that G.B. was a good person or sympathetic victim
because she had been on her way to church.
¶ 28 Second, the court properly instructed the jurors that they
“must not be influenced by sympathy, bias, or prejudice in reaching
[their] decision,” which cuts against any conclusion that sympathy
13 or prejudice played a role in their verdicts. See Washington v.
People, 2024 CO 26, ¶ 31 (we presume that the jury understood
and followed the district court’s instruction).
¶ 29 Third, the jury acquitted Berumen of DUI and vehicular
assault (DUI), which indicates that it wasn’t persuaded by improper
motivations like sympathy for G.B. See Martin v. People, 738 P.2d
789, 795-96 (Colo. 1987) (the jury’s inability to reach a verdict on a
third count indicated that the jurors didn’t improperly convict on
the other counts).
¶ 30 Finally, substantial, properly admitted evidence supported
Berumen’s convictions. See Washington, ¶ 27. That evidence
included body camera footage of Berumen’s inculpatory statements
and video footage of the crash from a nearby business.
C. Expert Witness Disclosure
¶ 31 Berumen next contends that the district court erred by
allowing the prosecution’s expert witness to testify beyond the scope
of his anticipated testimony without requiring the prosecution to
tender an expert report or summary of the testimony to defense
counsel as required by Crim. P. 16(I)(d)(3). Again, we disagree.
14 1. Additional Facts
¶ 32 Before trial, the prosecution notified Berumen’s attorney that
Dr. Imlay — an emergency room surgeon who had treated G.B.’s
injuries — would testify as an expert witness. At a pretrial hearing,
defense counsel said she expected Dr. Imlay to testify about the
serious bodily injury (SBI) element of the vehicular assault charge
but would object to any testimony beyond the scope of SBI absent a
report under Rule 16(I)(d)(3). The prosecutor indicated he didn’t
plan to go beyond SBI with that witness. The district court said
that Dr. Imlay would not be allowed to testify beyond SBI unless the
prosecution provided defense counsel with a written summary of
Dr. Imlay’s expected testimony.
¶ 33 When Dr. Imlay testified at trial, Berumen’s counsel objected,
contending that his testimony should be limited to “the SBI form
itself,” not “the extent of [G.B.’s] injuries, what the injuries are, [or]
any of that.” Counsel reasoned that she wasn’t on notice of the
content of Dr. Imlay’s expected testimony because the prosecution
hadn’t provided her with a summary. The court concluded that
because the prosecution provided medical records of G.B.’s injuries
15 to Berumen’s counsel during discovery, the prosecutor could ask
about the injuries.
¶ 34 The prosecutor then asked Dr. Imlay whether, if G.B.
“continued to bleed, without going to surgery, the end result would
have been death?” Dr. Imlay answered, “Yes. . . . [S]he was not
going to survive if we didn’t take her back to surgery.”
2. Standard of Review and Applicable Law
¶ 35 We review a district court’s decision to admit expert testimony
for an abuse of discretion. Kutzly v. People, 2019 CO 55, ¶ 8.
¶ 36 District courts have the discretion to “order the prosecution to
disclose underlying facts or data supporting the opinion in that
particular case of an expert endorsed as a witness.” Crim. P.
16(I)(d)(3). The rule allows the court to order a summary of the
“testimony describing the witness’s opinions and the bases and
reasons therefor.” Id.
¶ 37 Berumen argues that the district court erred by allowing Dr.
Imlay to testify about what might have happened if G.B. hadn’t
received medical treatment. We reject this argument.
16 ¶ 38 Dr. Imlay’s testimony about G.B.’s injuries directly related to
the SBI issue that defense counsel conceded was within the proper
scope of his testimony, and for which no additional report or
summary was needed. At the pretrial hearing, counsel said, “I
suspect [Dr. Imlay] is going to testify to SBI, and if that’s the extent
of his testimony, I don’t really have an objection to that.” And, as
the district court pointed out, defense counsel had access to the
medical records to which Dr. Imlay testified. Contrary to Berumen’s
assertion, the district court never limited Dr. Imlay’s testimony to
the SBI form itself.1
¶ 39 Dr. Imlay’s testimony was relevant to the jury’s determination
of whether — as it related to the vehicular assault charge —
Berumen was “the proximate cause of serious bodily injury to
another.” § 18-3-205(1)(a), C.R.S. 2024. Section 18-1-901(3)(p),
C.R.S. 2024, defines serious bodily injury as follows:
“Serious bodily injury” means bodily injury that, either at the time of the actual injury or at a later time, involves a substantial risk of death; a substantial risk of serious permanent disfigurement; a substantial risk of protracted loss or impairment of the function of any part
1 An SBI form is a medical letter from a doctor indicating the extent
of injuries. See generally People v. Vigil, 2021 CO 46, ¶¶ 6-8.
17 or organ of the body; or breaks, fractures, a penetrating knife or penetrating gunshot wound, or burns of the second or third degree.
Therefore, we conclude that the prosecutor’s question whether
G.B.’s injuries, if left untreated, would have resulted in her death
was within the scope of Dr. Imlay’s anticipated SBI testimony.
D. Implicit Bias Instruction
¶ 40 Berumen contends that the district court erred by rejecting
defense counsel’s tendered implicit bias jury instruction. We
disagree.
¶ 41 Berumen’s counsel tendered an implicit bias jury instruction
that he contends would have addressed “bias against homeless
drug users” and “the fact that the victim. . . was headed towards
church.” That proposed instruction read as follows:
Growing scientific research indicates each one of us has “implicit biases” or hidden feelings, perceptions, fears and stereotypes, in our subconscious. These hidden thoughts often impact how we remember what we see and hear and how we make important decisions. While it is difficult to control one’s subconscious thoughts, being aware of these hidden biases can help counteract them. As a result, I ask you to recognize that all of us may be affected by implicit biases in the decisions
18 we make. Because you are making very important decisions in this case, I strongly encourage you to critically evaluate the evidence and resist any urge to reach a verdict influenced by stereotypes, generalizations, or implicit biases.
¶ 42 The district court rejected the instruction because it wasn’t a
standard instruction, and the bias issue was sufficiently addressed
by the COLJI-Crim. E:01 (2020) “instruction that sympathy and
prejudice cannot affect your decision as a juror.”
¶ 43 “We review jury instructions de novo, as a whole, to determine
whether they accurately informed the jury of the governing law.”
People v. Toro-Ospina, 2023 COA 45, ¶ 41 (citing Riley v. People,
266 P.3d 1089, 1092 (Colo. 2011)). But we review a district court’s
decision whether to give a particular instruction for an abuse of
discretion. Id.
¶ 44 Berumen argues that defense counsel’s tendered jury
instruction was necessary because the jurors harbored implicit bias
against him as a Hispanic man who was homeless and addicted to
drugs. We disagree.
19 ¶ 45 A division of this court addressed a similar implicit bias
instruction in Toro-Ospina. The division determined that the
district court wasn’t required to inform the jury about implicit bias
after the defendant testified with the help of a translator in his
native language. Id. at ¶¶ 44-48. The division reasoned that it was
within the district court’s discretion to choose whether to provide
the instruction because neither the General Assembly nor the
Colorado Supreme Court has required one. Id. at ¶ 47; see also
Vigil v. People, 2019 CO 105, ¶ 14 (a district court doesn’t abuse its
discretion if its decision falls “within a range of reasonable
options”).2
¶ 46 We agree with the division’s reasoning in Toro-Ospina.
Moreover, Berumen’s tendered instruction was more problematic
than the instruction in Toro-Ospina, which read, “Unconscious
biases are stereotypes, attitudes, or preferences that people may
consciously reject but may be expressed without conscious
awareness, control, or intention. Like conscious bias, unconscious
2 After Berumen’s trial, an optional implicit bias instruction was
added to the model instructions. COLJI-Crim. B:01, E:01 cmts. 2 and 11 (2024).
20 bias can affect how we evaluate information and make decisions.”
Toro-Ospina, ¶ 42. Berumen’s proposed instruction referenced
scientific research that hadn’t been introduced at trial, and it
implied that the court was seeking a personal favor by instructing
the jury, “I strongly encourage you . . . .” And contrary to
Berumen’s assertion, the fact the prospective jurors didn’t discuss
unconscious bias during voir dire (as it was in Toro-Ospina) didn’t
require the district court to instruct the jury on the topic.
E. Cumulative Error
¶ 47 Because we’ve identified only one possible error, the
cumulative error doctrine isn’t implicated. See People v. Thames,
2019 COA 124, ¶ 69 (“[A] single error is insufficient to reverse under
the cumulative error standard.”).
III. Disposition
¶ 48 The judgment is affirmed.
JUDGE BROWN and JUDGE YUN concur.