23CA0044 Peo v Martinez-Hernandez 03-26-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0044 Mesa County District Court No. 18CR627 Honorable Gretchen B. Larson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Pedro Martinez-Hernandez,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE WELLING Grove and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 26, 2026
Philip J. Weiser, Attorney General, Lisa K. Michaels, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Lucy H. Deakins, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Pedro Martinez-Hernandez, appeals his judgment
of conviction for two felonies and two traffic infractions after
representing himself at trial. We affirm.
I. Background
¶2 On March 30, 2018, Trooper Christian Bollen was patrolling
Mesa County, Colorado. While on Interstate Highway 70, he
observed the driver of a black minivan do a “double take” when he
saw Trooper Bollen. Trooper Bollen started following the minivan
and observed it travel in the left lane without passing any vehicles
for about three miles. He also observed the vehicle’s right tires
cross over the right, dotted lane line. He initiated a traffic stop of
the vehicle and identified the only occupant as Martinez-Hernandez.
¶3 Martinez-Hernandez said he had flown from New York to Los
Angeles and was driving from Los Angeles to Michigan to see his
son. After confirming that the minivan was a rental car rented
under someone else’s name and seeing that the GPS had the
destination as Bronx, New York, Trooper Bollen had suspicion that
Martinez-Hernandez was carrying drugs in the minivan. He asked
another trooper to come with a drug-sniffing dog. The dog arrived
and alerted to the presence of narcotics in the minivan. After a
1 search of the vehicle, the troopers found about seven kilograms of a
substance wrapped in cellophane behind a rear trunk panel in the
minivan. After field testing, the substance produced a presumptive
positive result for cocaine.
¶4 Martinez-Hernandez was arrested and charged with
possession of cocaine. After further laboratory testing, the
substance turned out to be heroin, and the People amended the
complaint.
¶5 Leading up to his trial, Martinez-Hernandez repeatedly
expressed his dissatisfaction with his four court-appointed
attorneys — first his public defenders and then his alternate
defense counsel (ADC) — leading to three of them withdrawing. He
proceeded pro se at trial. The jury convicted him of possession with
intent to distribute a controlled substance (heroin), possession of a
controlled substance (heroin), improper use of a passing lane, and
improper lane change. The trial court sentenced him to sixteen
years in the custody of the Department of Corrections.
II. Issues on Appeal
¶6 Martinez-Hernandez raises five arguments on appeal. He
contends that (1) the court erred by concluding that he knowingly
2 and intelligently waived his right to counsel; (2) the court erred by
not appointing him advisory counsel; (3) the court erred by
empaneling three biased jurors; (4) the prosecutor committed
several instances of misconduct; and (5) there was insufficient
evidence to convict him because a fabricated video exhibit was
admitted at trial. Martinez-Hernandez also contends that the
cumulative effect of these errors requires reversal. We consider and
reject each contention in turn below.
A. Knowing and Intelligent Waiver of Counsel
¶7 We first address Martinez-Hernandez’s contention that the
trial court erred by accepting Martinez-Hernandez’s waiver of
counsel because he didn’t make it intelligently or knowingly. We
disagree.
1. Additional Facts
¶8 Over the course of the proceedings, four different attorneys
represented Martinez-Hernandez. The first two were public
defenders and the last two were ADC. The second public defender,
Michelle Sages, began representing Martinez-Hernandez after his
first public defender moved away from Mesa County. Thereafter,
there were six hearings about the status of Martinez-Hernandez’s
3 representation that eventually led to Martinez-Hernandez
representing himself at trial. We briefly describe those six hearings.
¶9 First hearing. On January 2, 2019, the trial court held an ex
parte hearing because Martinez-Hernandez said that he no longer
wanted Sages to represent him.1 After first explaining the charges
and possible punishments, the trial court heard from Martinez-
Hernandez and Sages about the conflict between them. In the end,
the court didn’t allow Sages to withdraw. In doing so, the court
explained to Martinez-Hernandez that he didn’t “have a real good
understanding of the criminal justice system; that if [he] were to try
and represent [him]self in this matter, [he] would be a poor
advocate for [him]self and [he] might end up wrongfully convicting
[him]self.”
¶ 10 Second hearing. On April 19, 2019, at the trial court’s
request, a different district court judge, Judge Gurley, conducted an
1 Although all six of the hearings addressed, at least to some degree,
Martinez-Hernandez’s dissatisfaction with his court appointed- counsel and, therefore, would have seemed to implicate People v. Bergerud, 223 P.3d 686, 695 (Colo. 2010), neither counsel nor the court ever referred to the hearings as Bergerud hearings or otherwise cited the case. We, therefore, don’t refer to any of the hearings as Bergerud hearings.
4 ex parte hearing because Martinez-Hernandez again said that he
wanted new counsel. Judge Gurley denied his request.
¶ 11 Third hearing. On August 30, 2019, the trial court conducted
another ex parte hearing because Martinez-Hernandez alleged that
there was a conflict between him and Sages. Martinez-Hernandez
explained to the court that he believed Sages was conspiring with
the prosecutor and that, as a result, he didn’t trust her. The court
allowed Sages to withdraw and, after confirming that Martinez-
Hernandez still wanted to be represented by an attorney, appointed
ADC to represent him. ADC Ashley Whitham later entered her
appearance.
¶ 12 Fourth hearing. On February 20, 2020, the trial court
requested that Judge Gurley conduct another ex parte hearing
because Martinez-Hernandez said that he no longer wanted
Whitham to represent him. Judge Gurley denied his request, and
Whitham continued to represent Martinez-Hernandez.
¶ 13 Fifth hearing. On November 4, 2020, Judge Gurley, again at
the trial court’s request, presided over a third ex parte hearing
based on an alleged breakdown in the relationship between
Whitham and Martinez-Hernandez. At this hearing, Martinez-
5 Hernandez requested to proceed pro se. After Judge Gurley
struggled to complete a waiver of counsel advisement under People
v. Arguello, 772 P.2d 87 (Colo. 1989), Judge Gurley found that
Martinez-Hernandez hadn’t made a knowing and intelligent waiver
of counsel. Whitham stayed on as Martinez-Hernandez’s counsel.
But that evening, Whitham filed a motion to withdraw.
¶ 14 At a pretrial readiness conference the next day, Martinez-
Hernandez again stated that he wanted to proceed pro se. The trial
court again denied the request and gave him the choice of
proceeding to trial with Whitham or getting a new attorney and
continuing the jury trial to a later date. The court let him think it
over until the next appearance. On November 10, 2020, the trial
court continued the then-scheduled jury trial due to the COVID-19
pandemic. So the court granted Whitham’s motion to withdraw and
appointed another ADC, Dan Shaffer. Less than a month later,
Shaffer filed a motion to withdraw.
¶ 15 Sixth hearing. On December 7, 2020, the trial court addressed
Shaffer’s motion to withdraw. Martinez-Hernandez again requested
to proceed pro se. The trial court then asked Martinez-Hernandez
6 questions to determine if he was able to knowingly, intelligently,
and voluntarily waive his right to counsel.
¶ 16 At the outset of the inquiry, the trial court displayed the
amended complaint to Martinez-Hernandez. It also read each count
and explained the possible punishments. Then, it displayed the
Colorado Bureau of Investigation (CBI) Forensics Services Division’s
laboratory report, which showed the testing results of the controlled
substance found in the minivan and its weight. After going through
the charges against him and their possible punishments, the court
asked Martinez-Hernandez three times if he understood that if the
jury found him guilty of either count one or count two, he would
face a mandatory prison sentence. After the third time, Martinez-
Hernandez responded that he understood. Similarly, the trial court
informed Martinez-Hernandez two times that he had the right to be
represented by an attorney. After Martinez-Hernandez again didn’t
respond that he understood this right, the trial court informed him
that because he couldn’t “afford an attorney . . . right now,” it had
“appointed Mr. Shaffer to represent you at no cost to you.”
¶ 17 Then the trial court asked Martinez-Hernandez why he wanted
to proceed pro se. After hearing Martinez-Hernandez express his
7 dissatisfaction with Shaffer, the trial court proceeded with an
Arguello advisement. The trial court asked if Martinez-Hernandez
had any legal training; he responded that he didn’t. He also told
the court that he went to high school but didn’t graduate.
¶ 18 Ultimately, before granting Martinez-Hernandez’s request to
proceed pro se, the trial court asked him if he understood that
• “criminal law is a complicated area, and an attorney trained
in criminal law would be of great help to [him] in preparing
for [his] case and . . . representing [him] in [his] case”;
• he had the right to remain silent;
• if he decided not to testify at trial, his silence couldn’t be
used against him;
• he had the right to testify at trial;
• he had the right to question witnesses who testified against
him;
• he had the right to have witnesses testify on his behalf; and
• he had the right to represent himself, but by doing so, he
ran a great risk of not properly presenting his case to the
jury.
8 ¶ 19 To each inquiry, Martinez-Hernandez responded that he
understood.
¶ 20 The trial court then asked Martinez-Hernandez if he wanted
advisory counsel; Martinez-Hernandez declined. He confirmed that
he wasn’t under the influence of any alcohol, drugs, or medications;
that he didn’t wish to speak privately with Shaffer before waiving
his right to counsel; and that he did indeed want to represent
himself and waive his right to counsel.
¶ 21 Based on this colloquy, the trial court found that Martinez-
Hernandez had knowingly, intelligently, and voluntarily waived his
right to counsel. The court expressed “serious concerns about Mr.
Martinez-Hernandez’s ability to represent himself at trial” but
observed that he had a “right, an absolute right, to represent
himself if he wants to do so, but must live with the consequences of
that decision.” Martinez-Hernandez, ultimately, represented
himself at trial.
2. Legal Principles and Standard of Review
¶ 22 The United States and Colorado Constitutions guarantee a
criminal defendant the right to the assistance of counsel. See U.S.
Const. amends. VI, XIV; Colo. Const. art. II, § 16. But the Sixth
9 Amendment also provides a defendant with an implicit right to self-
representation. See Faretta v. California, 422 U.S. 806, 832 (1975);
Arguello, 772 P.2d at 92. Before proceeding pro se, however, a
defendant must waive their right to counsel. People v. Lavadie,
2021 CO 42, ¶ 25. “A defendant’s waiver of counsel is effective only
if (1) the defendant is competent to waive the right and (2) the
waiver is made voluntarily, knowingly, and intelligently.” Id. at
¶ 26. Regarding the second prong, whether a waiver is knowing
and intelligent is a separate inquiry from whether a waiver is
voluntary. People v. Davis, 2015 CO 36M, ¶¶ 18-19.
A waiver is knowing and intelligent if the record clearly shows that the defendant understood the nature of the charges, the statutory offenses included within them, the range of allowable punishments, the possible defenses to the charges and circumstances in their mitigation, and all other facts essential to a broad understanding of the whole matter.
Lavadie, ¶ 28 (citing Arguello, 772 P.2d at 94).
¶ 23 The Colorado Supreme Court has suggested a series of
fourteen questions — generally known as an Arguello advisement or
inquiry — that the trial court should ask a defendant, who wants to
proceed pro se, to determine the validity of their waiver. Arguello,
10 772 P.2d at 98. But “‘[a] court’s failure to comply substantially with
this requirement does not automatically render the waiver invalid’ if
the totality of the circumstances supports the validity of the
waiver.” Lavadie, ¶ 36 (quoting Arguello, 772 P.2d at 96). So a trial
court must consider the totality of the circumstances in
determining whether a defendant validly waived his right to
counsel. Id. at ¶¶ 39, 43. A trial court, however, “must indulge
every reasonable presumption against finding a waiver of the right
to counsel.” Id. at ¶ 29.
¶ 24 Whether a defendant validly waived his right to counsel is a
mixed question of law and fact, meaning we defer to the trial court’s
factual findings if supported by the record but review de novo the
legal question of whether the facts establish a valid waiver. Id. at
¶ 22.
¶ 25 An invalid waiver of the right to counsel is a structural error,
requiring automatic reversal. People v. Bergerud, 223 P.3d 686,
696 (Colo. 2010); Hagos v. People, 2012 CO 63, ¶ 10.
3. Analysis
¶ 26 Martinez-Hernandez first contends that the trial court erred
when it found that he knowingly and intelligently waived his right to
11 counsel at the sixth hearing on December 7, 2020. Specifically, he
contends that he didn’t understand (1) the nature of the charges;
(2) the possible punishments; and (3) the requirement to follow the
rules of procedure. He also asserts that he didn’t have (4) a “broad
understanding of the whole matter.” Arguello, 772 P.2d at 94.
¶ 27 As a threshold matter, we note that the trial court specifically
asked Martinez-Hernandez twelve of Arguello’s fourteen questions.
See id. at 98. For the ones involving his rights, Martinez-Hernandez
indicated that he understood each of them, although the trial court
had to repeat the questions for two of them.
¶ 28 As for the remaining two Arguello questions — (1) Do you
understand that if you can’t afford an attorney that one will be
provided to you free of charge? and (2) Do you understand I will
appoint counsel if you want an attorney to represent you? — the
trial court told Martinez-Hernandez, “[Y]ou cannot afford an
attorney to represent you right now. I have appointed Mr. Shaffer
to represent you at no cost to you.” This statement by the trial
court informed Martinez-Hernandez that he had the right to an
attorney if he couldn’t afford one and that one would be provided to
him free of charge, like all four of his attorneys for this case had
12 been, if he requested one. So the record establishes that the trial
court substantially complied with the inquiry required under
Arguello. See Lavadie, ¶ 36.
¶ 29 We now address each of Martinez-Hernandez’s four
contentions in turn. Viewing them in the context of the trial court’s
Arguello advisement and Martinez-Hernandez’s responses, we
conclude that the trial court didn’t err in finding that Martinez-
Hernandez knowingly and intelligently waived his right to counsel.
¶ 30 We address his first and second contentions — that he didn’t
understand the nature of the charges and the possible
punishments — together. During the Arguello advisement, the trial
court displayed the amended complaint to Martinez-Hernandez and
read all five counts to him, including the date the offense occurred,
the description of the offense from the amended complaint, the
punishment range if he was convicted, and any possible fines.
Then, although the court had to repeat the question, Martinez-
Hernandez confirmed that he understood that he would face a
mandatory prison sentence if a jury found him guilty at trial of
count one or count two. Based on the trial court’s detailed
explanation of the then-pending charges and Martinez-Hernandez’s
13 expressed understanding of the mandatory prison sentences for
count one and count two, the record clearly supports the trial
court’s finding that Martinez-Hernandez understood the nature of
the charges and possible punishments.
¶ 31 We next address his third contention that he didn’t
understand the requirement to follow the rules of procedure at trial.
While on December 7 the trial court didn’t specifically inquire into
whether Martinez-Hernandez understood that he would have to
comply with the rules of procedure during trial, Judge Gurly had
previously informed him of this requirement during the November
4, 2020, ex parte hearing. (In denying his request to proceed pro se
on November 4, Judge Gurley found that Martinez-Hernandez
wasn’t familiar with the procedural rules that would apply during
his trial, not that he didn’t understand that they would apply.)
¶ 32 Furthermore, the totality of the circumstances supports the
validity of Martinez-Hernandez’s waiver of counsel. See Arguello,
772 P.2d at 96. The trial court substantially complied with Arguello
14 by asking Martinez-Hernandez the suggested questions.2 Based on
this record, we can’t conclude that the trial court failing to explicitly
ask Martinez-Hernandez whether he understood that rules of
procedure would apply at trial during its December 7 colloquy
rendered his waiver of counsel invalid.
¶ 33 Finally, we reject his fourth contention that the record shows
that he didn’t have a “broad understanding of the whole matter.”
To begin, the trial court asked questions sufficient to generally
ascertain Martinez-Hernandez’s ability to understand the whole
matter. The court asked whether he had any legal training; how far
he went in school; and whether he was under the influence of any
alcohol, drugs, or medications. Furthermore, the court confirmed
that Martinez-Hernandez understood a variety of rights that he had
at trial, including the right to remain silent, right to cross-examine
witnesses, and the right to call witnesses on his behalf. Moreover,
the exchange between the trial court and Martinez-Hernandez
didn’t consist “merely of pro forma answers to pro forma questions.”
2 We note that inquiring into a defendant’s understanding that the
rules of criminal procedure will apply at trial isn’t one of the fourteen suggested Arguello questions. People v. Arguello, 772 P.2d 87, 98 (Colo. 1989).
15 Id. at 95. Indeed, the trial court showed Martinez-Hernandez the
amended complaint and the CBI laboratory report. Further, the
trial court asked Martinez-Hernandez why he wanted to defend
himself, thereby starting a back-and-forth dialogue between the two
about Martinez-Hernandez’s concerns with his current counsel.
Given this dialogue and the fact that the trial court diligently asked
Martinez-Hernandez the suggested questions from Arguello, the
totality of the circumstances supports the trial court’s conclusion
that Martinez-Hernandez knowingly and intelligently waived his
right to counsel. Accordingly, the trial court didn’t err by accepting
Martinez-Hernandez’s waiver of counsel.
B. Advisory Counsel
¶ 34 Martinez-Hernandez next contends that the trial court erred
by not appointing advisory counsel over his objection. We discern
no error.
¶ 35 The trial court twice offered to appoint advisory counsel for
Martinez-Hernandez. First, on December 7, 2020, before finding
that Martinez-Hernandez had waived his right to counsel, the trial
court explained that it had “the option of appointing what is called
16 advisory counsel. The difference is that you would still represent
yourself, but there would be an attorney present in the courtroom
to advise you if you had questions.” Martinez-Hernandez responded
that he didn’t want the trial court to appoint advisory counsel.
¶ 36 Second, on the morning trial began, the trial court again asked
Martinez-Hernandez if he wanted it to appoint advisory counsel to
assist him during trial. Martinez-Hernandez again declined, but the
trial court went on to explain the difference between counsel and
advisory counsel. Martinez-Hernandez confirmed that he didn’t
want advisory counsel. After he declined advisory counsel for a
third and final time, the trial court reaffirmed its decision to allow
Martinez-Hernandez to represent himself at trial.
¶ 37 At trial, Martinez-Hernandez didn’t conduct voir dire, cross-
examine any of the People’s witnesses, call any witnesses testify on
his behalf, or testify on his own behalf. But he gave an opening
statement and closing argument.
2. Standard of Review and Legal Principles
¶ 38 A trial court may use its discretion to appoint advisory
counsel. People v. Romero, 694 P.2d 1256, 1265 (Colo. 1985). We,
therefore, review a trial court’s decision to not appoint advisory
17 counsel for an abuse of discretion. People v. Waller, 2016 COA 115,
¶ 29.
¶ 39 “While a defendant has the constitutional right to represent
himself, he has no right to the appointment of advisory counsel in
connection with the exercise of his right of self-representation.”
Romero, 694 P.2d at 1265. But “there may be circumstances where
a pro se defendant’s performance reaches such a level of ineptitude
as to demonstrate a fundamental inability to provide any
meaningful representation in his defense.” Id. Factors relevant to
appointing advisory counsel include (1) the factual and legal
complexity of the issues; (2) the defendant’s familiarity with the
criminal trial process; and (3) the defendant’s formal education and
ability to effectively communicate with the court and jury. Id.
¶ 40 Martinez-Hernandez argues that because he didn’t
meaningfully participate in trial and his self-representation was so
inept, the court should have appointed advisory counsel over his
objection. The People respond that Martinez-Hernandez’s
performance at trial wasn’t due to an inability to represent himself
but rather was a strategic decision not to participate. We conclude
18 that the trial court didn’t abuse its discretion by not appointing
advisory counsel to assist Martinez-Hernandez at trial over his
objection.3
¶ 41 To begin, we reject Martinez-Hernandez’s contention that his
lack of participation in certain portions of the trial proceedings, by
itself, establishes or is even strongly indicative that he didn’t know
how to participate in the proceedings if he had wanted to. Instead,
such lack of participation is just as indicative of a strategic decision
to stay silent at certain times. In any event, the trial court was in
the best position to make such an assessment. Indeed, by the time
of trial, Martinez-Hernandez had appeared in front of the trial court
for almost three years. The court, therefore, had interacted with
him on numerous occasions and had the “opportunity to evaluate
any potential issues related to [Martinez-Hernandez’s] formal
3 The law is somewhat unclear as to whether a trial court can
appoint advisory counsel over a defendant’s objection. In People v. Romero, 694 P.2d 1256, 1265 (Colo. 1985), the supreme court noted that a trial court may appoint advisory counsel “over the objection of an accused.” But the supreme court later explained that “[a]dvisory counsel may assist a pro se defendant only if and when the defendant requests such assistance.” Downey v. People, 25 P.3d 1200, 1203 (Colo. 2001). We proceed, however, assuming that the trial court had discretion to appoint advisory counsel over Martinez-Hernandez’s objection.
19 education or ability to communicate with the court and jury.”
Waller, ¶ 40.
¶ 42 Moreover, the factual and legal issues at trial weren’t
particularly complex. See Romero, 694 P.2d at 1265. The charges
arose from one traffic stop where troopers searched the vehicle and
found what appeared to be drugs. Indeed, the People only called
four witnesses at trial. We also note that at no time during the
proceedings did any of Martinez-Hernandez’s attorneys or himself
allege or assert that he struggled with his mental health such that it
would affect his ability to represent himself at trial. See Waller,
¶ 40 (concluding that the trial court didn’t abuse its discretion in
not appointing advisory counsel when, among other reasons, no one
had alleged that the defendant “suffered from a limited education or
mental health problems”). Finally, it’s unclear from the record
whether Martinez-Hernandez had previously represented himself at
a criminal trial or had even participated in a criminal trial before.
But even assuming that this factor weighs in favor of appointing
advisory counsel, given the number of other factors that weigh
against appointing advisory counsel, the trial court didn’t abuse its
discretion. See Romero, 694 P.2d at 1266 (concluding that the trial
20 court didn’t abuse its discretion in failing to appoint advisory
counsel “although the defendant might well have fared better if he
had the benefit of advisory counsel”).
¶ 43 And critically, Martinez-Hernandez repeatedly refused to have
the trial court appoint advisory counsel.
¶ 44 For these reasons, we conclude that the trial court didn’t
abuse its discretion by not appointing advisory counsel over
Martinez-Hernandez’s objection.
C. Biased Jurors
¶ 45 Martinez-Hernandez next contends that the trial court erred
by empaneling three biased jurors in violation of his rights to trial
by an impartial jury and to conviction only upon proof beyond a
reasonable doubt. Because this contention was waived, we decline
to consider its merits.
¶ 46 Martinez-Hernandez didn’t move to strike — either for cause
or by a peremptory challenge — any of the allegedly biased jurors.
In fact, he didn’t exercise any of his peremptory challenges. Still,
he argues that the trial court should have excused these jurors sua
sponte.
21 ¶ 47 We conclude that by failing to exercise any peremptory strikes,
Martinez-Hernandez waived any challenge to the trial court’s failure
to excuse allegedly biased jurors. Recently, a division of this court
concluded that a defendant who failed to exercise all his peremptory
challenges waived appellate review of a claim that the trial court
erred by denying the defendant’s for-cause challenge to an allegedly
biased juror. People v. Vergari, 2022 COA 95, ¶ 13. The division
reasoned that having unexercised opportunities to remove an
allegedly bias juror is a “‘classic example’ of an intentional
relinquishment of a known right.” Id. (citation omitted); see also
Hammond v. Peden, 278 S.W.2d 96, 98 (Ark. 1955) (“[I]f a litigant
fails to exhaust his peremptory challenges he waives any error
committe[d] by the court in failing to excuse a challenged juror.”);
Jordan v. United States, 295 F.2d 355, 356 (10th Cir. 1961) (“By his
failure to exercise any challenge for cause and by his use of only
half of his peremptory challenges, the defendant has waived the
right to complain that he was not tried by an impartial jury.”). If a
defendant waives review of a preserved for-cause challenge by
failing to exercise all of his peremptory challenges, then certainly
Martinez-Hernandez waived an unpreserved for-cause challenge by
22 failing to exercise any peremptory challenges at all. Accordingly, we
decline to address this contention.
D. Prosecutorial Misconduct
¶ 48 Martinez-Hernandez next contends reversal is required
because of prosecutorial misconduct. We aren’t persuaded.
1. Legal Principles and Standard of Review
¶ 49 When reviewing claims of prosecutorial misconduct, we engage
in a two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.
2010). First, we determine whether the prosecutor’s challenged
conduct was improper based on the totality of the circumstances
and, second, whether such conduct warrants reversal applying the
appropriate standard of reversal. Id.
¶ 50 If the defendant contemporaneously objected at trial and the
error isn’t of constitutional magnitude, we review for harmless
error. Id. at 1097. But if the defendant fails to contemporaneously
object to the prosecutor’s alleged misconduct — whether the
misconduct implicates a constitutional right or not — then we
review for plain error. Id.; see Hagos, ¶ 14. Prosecutorial
misconduct constitutes plain error if it’s “‘flagrant or glaringly or
tremendously improper’ and so undermine[s] the fundamental
23 fairness of the trial as to cast serious doubt on the reliability of the
judgment of conviction.” People v. Carian, 2017 COA 106, ¶ 52
(quoting People v. Cevallos-Acosta, 140 P.3d 116, 122 (Colo. App.
2005)).
2. Analysis
¶ 51 Martinez-Hernandez contends that the prosecutor engaged in
two instances of misconduct. We address both below.
a. Statements During Voir Dire
¶ 52 First, Martinez-Hernandez contends that the prosecutor
misrepresented the law, undermined the presumption of innocence,
and lowered the burden of proof when he told the jury panel during
voir dire, “Well smoke is good circumstantial evidence of fire, right?”
The parties agree that this issue isn’t preserved and should,
therefore, be reviewed for plain error.
¶ 53 During voir dire, the prosecutor explained to the jury panel the
difference between circumstantial evidence and direct evidence. He
then asked the panel, “[I]n the instance that you were persuaded by
the facts that were presented, could everyone judge the situation of
guilty?” One of the jurors responded, “I still have this thought that
where there’s smoke, there’s fire, so . . . I don’t know if I would be
24 able to.” In response, the prosecutor said, “Okay. Well smoke is
good circumstantial evidence of fire, right?” The prosecutor then
explained, “But it’s not . . . everything, right? Can you . . . hear
from witnesses, could you heard [sic] from a firefighter, could you
do those different things and then make a determination based on
that?”
¶ 54 Viewing the prosecutor’s statements in the context of his
discussion about circumstantial evidence and direct evidence, we
aren’t persuaded that the prosecutor engaged in misconduct by
misstating the law. The juror initially said, “[W]here there is smoke
there is fire,” and the prosecutor connected that statement to the
ongoing conversation about circumstantial evidence, while
clarifying immediately after that the smoke was “not . . . everything”
needed to prove there was a fire. In doing so, we aren’t persuaded
that the prosecutor misstated the law, undermined the presumption
of innocence, or lowered the burden of proof. Accordingly, we
discern no misconduct. And to the extent that the prosecutor’s
comment could have been construed as a misstatement of the law,
we note that the trial court properly instructed the jurors on the
burden of proof, told them they may not be influenced by bias or
25 prejudice, and informed them they must follow the law as it
instructed them. Thus, we discern no basis for reversal.
¶ 55 In a footnote, Martinez-Hernandez also contends that the
prosecutor undermined the burden of proof in the following
conversation with Juror T:
[PROSECUTOR]: [I]n the instance that you were persuaded by the facts that were presented, could everyone judge the situation of guilty? What do you think, [Juror T]?
[JUROR T]: (Unintelligible) and I have to see the evidence.
[PROSECUTOR]: Okay.
[JUROR T]: And their character and see what happened.
[PROSECUTOR]: All right, that’s correct.
(Emphasis added.)
¶ 56 As noted above, the jurors were properly instructed on the law,
including that they may not be influenced by bias or prejudice.
Also, looking at the context of Juror T’s reference to character, it’s
unclear what type of character trait or who she was referring to.
But ultimately, Martinez-Hernandez doesn’t explain how the
prosecutor’s statement undermined the prosecution’s burden of
proof, and so we decline to consider this undeveloped contention
26 further. See People v. Cuellar, 2023 COA 20, ¶ 44 (declining to
address undeveloped argument).
b. Alleged Late Disclosure
¶ 57 Second, Martinez-Hernandez contends that the prosecutor
committed reversible misconduct by failing to timely disclose
discovery to Martinez-Hernandez before his trial. Specifically, he
contends that the prosecutor had an obligation to ensure that
Martinez-Hernandez had access to the discovery after he changed
attorneys and eventually when he represented himself. He
contends that the prosecutor should have known that there were
issues with his prior attorney giving him access to the discovery;
therefore, when he became pro se, the prosecutor should have
known that Martinez-Hernandez didn’t have the discovery and
should have ensured that it was provided to him. The parties agree
that this issue isn’t preserved and is, therefore, reviewed for plain
error.
¶ 58 On the morning trial began, Martinez-Hernandez explained to
the court that he had just received the discovery from the People
only four days prior. The prosecutor confirmed this but said that
he had assumed that Martinez-Hernandez’s prior attorneys had
27 given him the discovery. Multiple times that morning, the trial
court offered to continue the trial so that Martinez-Hernandez had
more time to review the discovery, but Martinez-Hernandez refused
each time.4
¶ 59 Martinez-Hernandez doesn’t cite anything to support his
contention that the prosecutor had a continuing obligation to make
sure he had access to the discovery after he became pro se. And
the prosecutor confirmed that the district attorney’s office had given
the discovery to each of Martinez-Hernandez’s prior counsel.
Therefore, we discern no misconduct by the prosecutor in failing to
timely ensure that a pro se defendant had the discovery before trial
when they had disclosed the discovery to the defendant’s prior
counsel.
E. The Video
¶ 60 Martinez-Hernandez next asserts that the jury had insufficient
evidence to convict him because it relied on a fabricated video. He
4 Martinez-Hernandez doesn’t contend on appeal that the trial court
plainly erred by not continuing the trial. Nor do the People contend that his insistence to proceed waived this claim of alleged prosecutorial misconduct. Thus, we don’t address either of these issues.
28 also asserts that the prosecutor committed misconduct by showing
the allegedly fabricated video to the jury. The trial court admitted a
redacted video exhibit at trial that purported to show the traffic
stop. Trooper Bollen testified at trial that the video accurately
reflected the traffic stop. Martinez-Hernandez doesn’t offer any
support for his contention that the video is fabricated other than
the fact that he doesn’t appear in the video and that the license
plate shown in the video is unreadable. But these two assertions do
not establish that the video was fabricated, and so this claim fails.
See McCoy v. People, 2019 CO 44, ¶ 63.
F. Cumulative Error
¶ 61 Because we haven’t identified any errors — much less multiple
errors — there can be no cumulative error. See People v. Jones,
2025 COA 43, ¶ 56 (cert. granted May 1, 2025); People v. Grant,
2021 COA 53, ¶ 76.
III. Disposition
¶ 62 The judgment is affirmed.
JUDGE GROVE and JUDGE JOHNSON concur.