22CA0448 Peo v Muniz 10-24-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0448 Adams County District Court No. 21CR670 Honorable Priscilla J. Loew, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Steven Ray Muniz,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE PAWAR Tow and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 24, 2024
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Mark G. Walta, Alternate Defense Counsel, Littleton, Colorado, for Defendant- Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Steven Ray Muniz, appeals the judgment of
conviction entered after a jury found him guilty of two counts of
first degree murder. We affirm.
I. Background
¶2 This case arises from a shooting that occurred outside a bar
whose regular customers include members of the North Side Mafia
(NSM) gang. The evidence presented at trial showed that Muniz, a
respected member of NSM, was at the bar with family members and
friends, some of whom were also NSM-affiliated, including Robert
Manzanares. Three security guards, including Bogdan Tocarciuc,
were on duty. The bar was equipped with a video surveillance
system that monitored portions of the bar’s interior and exterior.
¶3 One of the victims, William Keith Ames, arrived at the bar with
Marcos Garfio and other friends and family members. After some
time, one of Muniz’s friends, Brandon Johns, began conversing with
Garfio and the conversation became animated. While details were
disputed at trial, surveillance video showed Muniz approach with a
group of individuals and punch Garfio.
¶4 Security escorted Garfio out of the bar. Ames exited a few
seconds later, followed by Muniz and several others. The
1 disagreement escalated once outside, and one of the security
guards deployed pepper spray. According to video surveillance and
audio taken from a nearby doorbell camera, five seconds after the
pepper spray was deployed, Muniz fired four shots. Two bullets hit
Ames and two hit Jessica Ybarra, another bar patron who
happened to be in the line of fire. Both victims died from their
injuries.
¶5 Tocarciuc ran after Muniz with his gun drawn. Another shot
was fired from Muniz’s vicinity in Tocarciuc’s direction, missing
him. Muniz then left the scene with Manzanares.
¶6 The prosecution charged Muniz with two counts of first degree
murder with intent after deliberation, two counts of first degree
murder with extreme indifference, and one count of attempted first
degree murder. At trial, it presented evidence that all five shots
were fired from a handgun with an extended magazine, and Muniz
was captured on video holding the handgun. Muniz testified that
he shot Ames in self-defense or defense of others after seeing Ames
cock a gun and point it at a group of people, including Muniz’s
friends and family. He testified that the last shot, toward
Tocarciuc, happened accidentally when he tried to unload the gun.
2 ¶7 The jury found Muniz guilty of all four counts of first degree
murder and not guilty of attempted murder.
¶8 On appeal, Muniz argues that law enforcement and the
prosecution collectively deprived him of a fair trial by destroying
material evidence and engaging in prosecutorial misconduct. He
further asserts that the trial court improperly admitted evidence of
gang affiliation, made unfair evidentiary rulings, and placed
unreasonable time restrictions on his ability to present a defense.
Finally, Muniz argues that cumulative error warrants a new trial.
II. Destruction of Evidence
A. Applicable Law
¶9 To establish a due process violation based on the state’s
failure to preserve potentially exculpatory evidence, the defendant
must prove that (1) the state suppressed or destroyed the evidence;
(2) the evidence had an exculpatory value that was apparent before
it was destroyed; and (3) he was unable to obtain comparable
evidence by other reasonably available means. People v. Eason,
2022 COA 54, ¶ 37. Exculpatory evidence is evidence tending to
establish a defendant’s innocence. Black’s Law Dictionary 698
(12th ed. 2024). It includes evidence that “bears on the credibility
3 of a witness the prosecution intends to call at trial.” People v.
Braunthal, 31 P.3d 167, 174 (Colo. 2001).
¶ 10 Alternatively, if the evidence in question wasn’t apparently
exculpatory, but only potentially useful, a defendant may establish
a due process violation if he shows that the state acted in bad faith.
Eason, ¶ 38.
¶ 11 In evaluating a due process claim based on destruction of
evidence, we review the trial court’s factual findings for clear error
and its legal conclusions de novo. See People v. Abdu, 215 P.3d
1265, 1270 (Colo. App. 2009).
B. Additional Facts
¶ 12 As part of their investigation, police took possession of the
bar’s video surveillance system. They successfully recovered twenty
minutes of video capturing some of the altercation inside the bar
and some of what occurred outside immediately before and after the
shooting, but they received an error message when they attempted
to download the video in its entirety. They then disassembled the
system and attempted to extract data from the hard drive, but no
additional footage was available. When they attempted to access
4 the system’s contents a few months later, they discovered that all of
the data was missing or inaccessible.
¶ 13 Before trial, Muniz moved to dismiss the charges based on the
state’s failure to preserve the entirety of the surveillance video.
Following a hearing, the trial court issued a written order finding
that “while law enforcement knew there was exculpatory
information on the videos,” they attempted to preserve the entire
contents of the video surveillance system and did not intend to
destroy any evidence. Because Muniz did not establish bad faith,
the court denied Muniz’s motion.
C. Discussion
¶ 14 Muniz argues the trial court erred by considering whether the
police acted in bad faith after determining the lost surveillance
video was apparently exculpatory. He further asserts that his due
process rights were violated because the lost video would have
conclusively established whether Ames and Garfio were searched
when they arrived at the bar and what the searches yielded. We are
not persuaded.
¶ 15 As an initial matter, it is unclear from the record whether the
unavailable portions of video were lost as a result of state action.
5 The trial court did not make specific findings on this point, and the
parties do not argue in their briefs whether the first element of a
due process violation was met. See Eason, ¶ 37. Because this
issue was not presented to us and we may decide this issue on
other grounds, we assume without deciding that the state destroyed
the evidence.
¶ 16 Regarding the second element — whether the evidence had an
exculpatory value that was apparent before it was destroyed —
Muniz argues that we must defer to the trial court’s finding that
“law enforcement knew there was exculpatory and relevant
information on the videos.” We disagree.
¶ 17 To the extent this is a factual finding, we conclude it is
unsupported by the record. The investigating detective testified at
the hearing that he did not know if the surveillance system “picked
up anything else in relationship to this or any other crime” and did
not “know what it would have shown.” We see no other evidence in
the record suggesting that police knew the unavailable portions of
video evidence were exculpatory. Because the court’s finding to the
contrary is without support in the record, we conclude it was clearly
erroneous. See Martinez v. People, 2024 CO 6M, ¶ 34.
6 ¶ 18 To the extent the trial court’s finding that the lost evidence
had an apparently exculpatory value was a legal conclusion, we
disagree. Muniz argues that police knew the entire video was
exculpatory because it showed patrons arriving at the bar and
would have shown whether or not Ames and Garfio were searched.
But evidence of a search did not tend to establish Muniz’s
innocence. At most, the video of Ames and Garfio arriving at the
bar would have shown (1) that they were patted down and found to
be unarmed or (2) that they were not patted down and therefore
might have been armed. That is, even if the video showed Ames and
Garfio were not subjected to a pat-down, it would not illustrate that
they were necessarily armed.1 Muniz’s argument that the video
would have established whether Ames and Garfio were armed is
therefore speculative.
¶ 19 Moreover, whether Ames and Garfio were armed inside the bar
had no bearing — let alone an apparently exculpatory one — on
1 Indeed, Ames’s uncle testified that Ames typically kept his gun “on
his hip in the holster” but left it in the car because security was frisking patrons at the bar. Muniz also testified that he pulled “an item” (which he would not identify as a gun) out of Garfio’s waistband.
7 whether Muniz acted in self-defense when he shot Ames later in the
parking lot. See Castillo v. People, 2018 CO 62, ¶ 38 (self-defense
using deadly physical force requires a reasonable belief that such
force was necessary to prevent an imminent risk of deadly harm).
We therefore conclude it was not reasonably foreseeable to police
that the footage was exculpatory. See Braunthal, 31 P.3d at 172.
¶ 20 If the video was only potentially useful to the defense, the trial
court properly determined that Muniz failed to establish bad faith.
See Eason, ¶ 38; see also People v. Dyer, 2019 COA 161, ¶ 39 (we
may affirm a lower court’s decision on any ground supported by the
record). At the hearing on Muniz’s motion to dismiss, the
investigating detective testified that he attempted to download the
entirety of the surveillance video from the night of the incident, but
“[i]t was providing errors.” He testified that, in an attempt to
problem solve, he “ended up taking a 20-minute time frame” to
cover the most relevant time frame and was “100% surprised” to
discover there were no other videos on the system when he went
back to conduct a more thorough review. He further testified that
he sought multiple forms of assistance to attempt to fix the
problem. Because this testimony supports the trial court’s
8 conclusion that law enforcement did not act in bad faith, Muniz is
not entitled to relief.2
III. Prosecutorial Misconduct
A. Standards of Review and Reversal
¶ 21 Reviewing a claim of prosecutorial misconduct involves a two-
step inquiry. People v. Rhea, 2014 COA 60, ¶ 40. We first
determine whether misconduct occurred based on the totality of the
circumstances. Id. If we conclude it did, we determine whether it
warrants reversal according to the proper standard of review. Id.
¶ 22 We review a preserved claim of prosecutorial misconduct for
an abuse of discretion and “will only reverse if there is a reasonable
probability that the error contributed to the defendant’s conviction.”
People v. Monroe, 2018 COA 110, ¶ 11, aff’d, 2020 CO 67.
2 We reach this conclusion because Muniz has not established that
the evidence was apparently exculpatory or that police acted in bad faith. But we note that Muniz does not argue in his opening brief — let alone establish — that “he was unable to obtain comparable evidence by other reasonably available means.” People v. Eason, 2022 COA 54, ¶ 37; see also People v. Braunthal, 31 P.3d 167, 173 (Colo. 2001) (all three elements must be met). Nor does he challenge the trial court’s finding that, while he could not “obtain comparable video evidence,” he could conduct “other means of investigation, including witness interviews [of] the people who were [there] that night and what they saw.” (Emphasis added.)
9 ¶ 23 We review unpreserved claims of prosecutorial misconduct for
plain error, and we will not reverse unless the misconduct was
obvious and substantial, casting serious doubt on the reliability of
the judgment of conviction. Hagos v. People, 2012 CO 63, ¶ 14.
B. Preserved Arguments
1. Applicable Law
¶ 24 During closing argument, a prosecutor has wide latitude to
comment on the strength and significance of the evidence, as well
as conflicts in that evidence, and to argue all reasonable inferences
that may be drawn from evidence in the record. Rhea, ¶ 46.
However, a prosecutor may not intentionally misstate or
misinterpret the law, refer to facts not in evidence, or make
arguments that are calculated to appeal to the jury’s prejudices. Id.
at ¶ 47; see also People v. Cuellar, 2023 COA 20, ¶ 66. Nor may a
prosecutor suggest that the defense has presented its case in bad
faith or make remarks for the purpose denigrating defense counsel.
People v. McMinn, 2013 COA 94, ¶ 62.
2. Additional Facts
¶ 25 Muniz objected to the following statements by the prosecutor
during closing argument:
10 • “The surveillance video is critical for you for purposes of
analyzing Mr. Muniz’s fantastic tale of how he rescued a bar
full of people.”
• The following statements referring to defense counsel’s
attempt to admit evidence under an exception to the
prohibition against hearsay: “[T]hat isn’t evidence. That
was something to try to get you to take the guy who was
dealing drugs and link them up with Mr. Ames. It’s a smear
attempt at a dead man.”3
• “You heard that Mr. Muniz is a shotcaller . . . . [H]e’s the
shotcaller of that gang . . . .”
3. Discussion
¶ 26 Muniz argues that he is entitled to a new trial because these
comments belittled him, denigrated defense counsel, and
mischaracterized the evidence. We are not persuaded.
3 This comment referred to the prosecutor’s objection to hearsay
when Muniz testified that a man named Alexander Moore — who had drugs in his car — told him he was friends with Ames. Defense counsel argued that the statement was offered for its effect on the listener, and the trial court overruled the objection.
11 ¶ 27 The prosecutor used the word “fantastic” to describe Muniz’s
account while arguing that the physical evidence did not support
Muniz’s testimony that the gun accidentally went off on the fifth
shot. He went on to argue that the surveillance video supported the
prosecution’s theory and belied Muniz’s claim of self-defense.
Because these statements were anchored in the facts in evidence,
they were not improper. See Rhea, ¶ 46.
¶ 28 Likewise, the prosecutor’s characterization of Muniz as a
“shotcaller” was a reasonable inference drawn from the evidence. A
security guard made a prior statement to police that there were “two
shotcallers” at the bar on the night of the incident. One of Muniz’s
friends testified that some people think there are “a couple
shotcallers” in NSM. And two security guards testified that they
looked to Muniz and Manzanares to help keep the NSM group
under control, with one testifying that he identified them as “the
people who were most highly respected in that bar area with that
group of people.” In response to Muniz’s objection, the trial court
also properly instructed the jury to use its own memory of the
testimony at trial.
12 ¶ 29 We agree with Muniz that the prosecutor’s statement that
defense counsel made a “smear attempt at a dead man” was
improper. This statement improperly implied that defense counsel
presented her case in bad faith and appears calculated to inflame
the passions of the jury. See McMinn, ¶ 62; Domingo-Gomez v.
People, 125 P.3d 1043, 1052 (Colo. 2005). Therefore, the trial court
erred by allowing it.
¶ 30 Nevertheless, the error was harmless. The prosecutor’s
comment, while improper, was brief and isolated, and he did not
return to it. See United States v. Delgado, 672 F.3d 320, 338 (5th
Cir. 2012) (en banc) (a single statement at closing will rarely justify
reversal).
¶ 31 Furthermore, the evidence against Muniz was strong.
According to timestamps on the bar’s surveillance video footage, the
time between when security deployed pepper spray and when Muniz
fired his first shot was five seconds. Muniz testified that during this
time — that is, after he saw a cloud of pepper spray moving in the
wind — he (1) saw a man point a gun at Manzanares’ head and pull
the trigger four times; (2) ran up to the man; (3) punched him to the
ground; (4) punched him twice more on the ground; (5) grabbed the
13 gun; (6) moved to the place where he saw Ames pointing his gun;
and (5) then shot. The prosecutor emphasized that this account
was not credible in view of the physical evidence, particularly given
that it would have taken some time for the cloud of pepper spray to
move through the parking lot before Muniz saw it.4
¶ 32 In light of this evidence, we conclude there is no reasonable
probability that the prosecutor’s single improper comment
contributed to Muniz’s convictions. See Monroe, ¶ 11.
C. Unpreserved Arguments
¶ 33 Muniz also argues that the trial court plainly erred by allowing
the prosecutor to make generic tailoring arguments, comment on
sentencing, refer to facts not in evidence, and belittle the defense.
We disagree.
4 Casting further doubt on Muniz’s theory that he acted in self-
defense, Muniz’s wife posted a photo of Bonnie and Clyde on Facebook shortly after Muniz was arrested. The photo showed the couple armed, back-to-back against a circle of police officers. Muniz’s wife testified that she was aware they “were an outlaw couple that positioned themselves contrary to the police.”
14 1. Generic Tailoring
¶ 34 A prosecutor may not make generic tailoring arguments by
attacking the defendant’s credibility based simply on his presence
at trial and resultant opportunity to tailor his testimony. Martinez
v. People, 244 P.3d 135, 141 (Colo. 2010). However, a prosecutor
may argue that a defendant has specifically tailored his testimony
to particular evidence introduced at trial. Id. Tailoring arguments
are specific and therefore appropriate “when the prosecutor cites to
an evidentiary basis in the record.” Id.
¶ 35 During cross-examination, the prosecutor asked Muniz, “Your
story’s changed quite a bit since [your police interview], hasn’t it?”
He pointed to the fact that, at that time, Muniz “didn’t have a lot of
information about the evidence that was collected” against him and
“now, several months later,” knew all the evidence that was
collected. The prosecutor continued, “You now know the physical
evidence . . . . That four shots were shot in rapid succession . . . .
And then about 10 seconds later, there’s a single shot fired from
15 that same gun, right?” He repeated, “This is all the information
that you didn’t have . . . when you were arrested.”
¶ 36 During closing argument, the prosecutor also argued the
following:
• “Mr. Tocarciuc gave a statement. He did so
immediately . . . . He did this without the benefit that
[Muniz] got which is 13 days to hear about what
everybody else saw and heard . . . . He did this without
the benefit of watching the surveillance camera a lot and
matching up his story to that camera.”
• “The shortest summary of [Muniz]’s testimony is that his
stories are vague. They’re a reflection of access to
information.”
• Muniz’s statements to police were not credible, “[u]ntil
he ha[d] a chance to review all the evidence.”
• “Mr. Muniz can’t escape the truth. That’s why his
testimony matches the physical evidence because he
cannot escape it.”
16 c. Discussion
¶ 37 With one exception, we conclude that the prosecutor’s tailoring
arguments were specifically linked to the evidence and therefore
proper. Rather than being generally based on Muniz’s presence at
trial, the questions during cross-examination properly drew the
jury’s attention to the inconsistencies between Muniz’s initial
statements to police — when he evaded questions and did not
mention shooting a gun — and the detailed self-defense argument
he presented at trial. See Martinez, 244 P.3d at 141 (a prosecutor
may properly point to inconsistencies between a defendant’s
statements to police and testimony at trial).
¶ 38 Likewise, the arguments that Muniz’s testimony was based on
having watched the surveillance video, reviewed all the evidence,
and ensured that his story matched the physical evidence were
properly specific. These comments contrasted Muniz’s vague
statements to police with his testimony at trial and were linked to
17 an evidentiary basis in the record — namely, the surveillance video
and other physical evidence.5 See id.
¶ 39 By contrast, we conclude that the argument that Muniz’s
testimony was “a reflection of access to information” improperly
attacked his credibility based solely on his presence at trial. See id.
But while this comment amounted to improper generic tailoring, the
error was not plain. Particularly when viewed in the context of the
prosecutor’s multiple proper specific tailoring arguments, this single
generic tailoring comment was not so obvious that the trial court
should have been able to avoid it without the benefit of objection.
See People v. Pollard, 2013 COA 31M, ¶ 39; see also People v.
Walker, 2022 COA 15, ¶ 28 (prosecutorial misconduct must be
“flagrantly, glaringly, or tremendously improper” to require reversal
for plain error (quoting People v. Dominguez-Castor, 2020 COA 1,
¶ 85)). And, in view of the strong evidence against Muniz at trial —
including the inconsistencies between his initial statements to
5 The prosecutor’s argument that Muniz had thirteen days to
develop his story was not a tailoring argument at all. This comment referred to Muniz’s ability to shape his account based on information obtained between the shooting and his custodial interview, not based on his presence at trial.
18 police and his later testimony — we cannot conclude this single
comment casts serious doubt on the reliability of the jury’s verdict.
See Hagos, ¶ 14. Indeed, the jury’s split verdict, finding Muniz not
guilty of attempted murder, reflects that it considered the evidence
and was not unduly influenced by a fleeting instance of generic
tailoring.
2. Remaining Unpreserved Arguments
¶ 40 We are not persuaded that the following arguments resulted in
plain error:
• “[I]t’s natural for a jury to wonder why Mr. Muniz is
being charged with two counts of murder relative to each
victim . . . . [F]or purposes of your consideration, the
sentences will merge.”
• “The absence of live .45-caliber rounds lying around the
scene which had to have happened if Mr. Ames cocked
his gun multiple times.”
• The following statement referencing a photo of a gun
magazine with a red substance splattered on it: “This is
Mr. Ames’ magazine . . . . Now, . . . how does this blood
get up here? If he had the gun out all along, how would
19 there be blood on the inside of the gun?” “If there was
blood on that magazine, we knew exactly when that gun
was picked up.”
• “It is incredible; that is to say not credible, that the only
man who sees a gun is [Muniz] and his wife and his
wife’s best friend. Packed multiple times.”
• The following statement referring to testimony that
Muniz wears red, white, and blue because he is a patriot
and Republican: “The patriot and Republican thing is
absurd.”
• “[Self-defense] isn’t a story full of riddles and could-bes
and nonresponses and games.”
• “He fired that gun four times yet gives you this fantastic
story of the minute that leads up to that . . . .”
¶ 41 To be sure, a jury “should be admonished to ‘reach its verdict
without regard to what sentence might be imposed.’” Shannon v.
United States, 512 U.S. 573, 579 (1994) (quoting Rogers v. United
States, 422 U.S. 35, 40 (1975)). But while the prosecutor
referenced sentencing, he did not point to any particular sentence
or suggest that the jury should base its decision on the sentence
20 Muniz would receive.6 See id. (The risk is that “providing jurors
sentencing information invites them to ponder matters that are not
within their province, distracts them from their factfinding
responsibilities, and creates a strong possibility of confusion.”).
Therefore, the prosecutor’s comment on sentencing was neither
obviously improper nor substantial. See Hagos, ¶ 14.
¶ 42 Muniz also argues that the prosecutor mischaracterized the
evidence by arguing that Ames did not “cock[] his gun multiple
times” and that there was blood on his magazine. But even if
Muniz didn’t clearly testify that Ames cocked his gun multiple
times, he did testify that he saw Ames “cock the gun [in the middle
of the alley], . . . . and he kind of moves in [and as he’s on the
driver’s side of a car,] [h]e cocked and pointed it pretty fast.” In
light of this testimony, the prosecutor’s summary of the evidence
was not so obviously improper that the trial court should have
intervened sua sponte. See Pollard, ¶ 39.
6 The trial court also repeatedly instructed the jury that closing
arguments are not evidence and that it should base its decision on the evidence introduced at trial.
21 ¶ 43 Likewise, the comment regarding blood on Ames’s magazine
was a reasonable inference drawn from the photograph presented to
the jury and a crime scene investigator’s testimony that “[w]e would
assume it was a blood-like substance.” See Rhea, ¶ 46. While
Muniz points to conflicting evidence that Ames’s arm was shattered,
the jury was able to weigh the evidence before it, and the
prosecution was entitled to emphasize the evidence that supported
its case.
¶ 44 As discussed, the prosecutor’s description of Muniz’s
testimony as “fantastic” and “not credible” was an appropriate
comment on the strength of the evidence refuting his account. See
Domingo-Gomez, 125 P.3d at 1051. Similarly, the description of his
testimony regarding why he wears red, white, and blue as “absurd”
was not improper. The prosecutor made this comment in the
context of pointing to a photograph of Muniz and other NSM
members dressed in red and arguing that “[r]ed is obviously the
color.” It was therefore a proper reference to the evidence.7
7 We do not consider Muniz’s argument that this comment was also
a mischaracterization of the evidence because he makes it for the first time in his reply brief. See People v. Allman, 2012 COA 212, ¶ 14 n.3.
22 ¶ 45 Finally, in view of the video recording of Muniz’s custodial
interview, we see no error in the prosecutor’s description of his
story as “full of riddles and could-bes and nonresponses and
games.” Muniz specifically told police that he was going to “speak
to [them] in could-bes.” He was nonresponsive to multiple
questions and repeatedly put questions back on police, asking,
“What do you think happened?” During cross-examination, Muniz
further testified that he “wanted to give [the police] hints” during his
interview and was “laying a trail for them to figure it out.” We
therefore conclude this statement, too, was a proper comment on
the evidence. See Rhea, ¶ 46.
IV. Admission of Gang Evidence
¶ 46 Unless otherwise prohibited, all evidence is admissible if it is
relevant — that is, if it tends to make the existence of any
consequential fact more or less probable than it would be without
the evidence. CRE 401; CRE 402; Rojas v. People, 2022 CO 8, ¶ 25.
But relevant evidence can be excluded if (1) its probative value is
substantially outweighed by the danger of unfair prejudice, or (2) it
is used to prove the character of a person in order to show that he
23 or she acted in conformity with that character on a particular
occasion. People v. Trujillo, 2014 COA 72, ¶ 56 (citing CRE 403 and
CRE 404(b)).
¶ 47 “[B]ecause ‘gangs are regarded with considerable disfavor by
our society,’ gang-related evidence must be ‘admitted with care.’”
Id. at ¶ 72 (quoting People v. Morales, 2012 IL App (1st) 101911,
¶ 40). Where such evidence is extrinsic to the charged offense and
suggestive of bad character, it is admissible if it is (1) logically
relevant; (2) to a material fact; (3) independent of the prohibited
inference of the defendant’s bad character; and (4) the probative
value of the evidence must not be substantially outweighed by the
risk of unfair prejudice. Rojas, ¶¶ 27, 52; see also People v. Spoto,
795 P.2d 1314, 1318-19 (Colo. 1990).
¶ 48 We review the admission of evidence for an abuse of
discretion. Trujillo, ¶ 60. A trial court abuses its discretion when
its ruling is manifestly arbitrary, unreasonable, or unfair. Id.
¶ 49 Before trial, the trial court concluded the following evidence
was admissible as res gestae: evidence that Muniz and Manzanares
were part of NSM; that the fight in the bar began because members
24 of NSM felt disrespected by Ames and Garfio; that the bar was
widely known as an NSM bar; and that part of NSM culture is that
“when you mess with one of them, you mess with all of them.” The
court concluded that this evidence illustrated Muniz’s motive to
shoot Ames and provided context for why many witnesses were
noncooperative with the investigation. It also found that the
relevance of this evidence was not outweighed by the danger of
unfair prejudice.
¶ 50 At trial, the prosecution introduced evidence from multiple
witnesses that the bar where the shooting occurred is frequented by
NSM members; that Muniz and Manzanares were part of NSM; that
other witnesses were also associated with NSM or with other gangs;
that Ames and Garfio were not affiliated with NSM; and that NSM
members wore similar colors and logos and used certain gang signs.
It also introduced evidence that when you mess with one NSM
member, you mess with all of them, and that, on the night of the
incident, there was gang-related tension in the bar. The prosecutor
also emphasized this evidence during closing argument, arguing
that there was “a turf war,” and the gang evidence proved that
“disrespect” was the motivation for the shooting.
25 C. Discussion
¶ 51 We conclude that the trial court did not abuse its discretion by
admitting limited gang-related evidence in this case.8 Despite
Muniz’s arguments to the contrary, there was substantial evidence
that the shooting began as a gang-related dispute. Ames’s uncle
testified that he believed “[s]omething [was] about to go down” when
a group of NSM members lined up and were “[m]ad-dogging” Ames,
with one of them saying, “[H]e’s disrespecting me.” A police officer
responding to the scene testified that security guards advised him
“it was a gang fight.” And Tocarciuc testified that on the night of
the incident, “there was tension, a lot of tension in the air and
people were posturing” and using “gang signs.” Because this
evidence served to directly prove the charged offenses (i.e., by
proving Muniz’s state of mind just before the shooting and his
8 Although the court admitted the evidence as res gestae, a doctrine
that has since been abolished, the evidence was otherwise admissible. See Rojas v. People, 2022 CO 8, ¶ 41; see also People v. Gonzalez-Quezada, 2023 COA 124M, ¶ 31 (we may affirm a trial court’s evidentiary ruling on any basis supported by the record).
26 motive to shoot Ames), it was intrinsic evidence exempt from
analysis under Rule 404(b).9 See id. at ¶ 52.
¶ 52 We are not persuaded that the other gang-related evidence
was suggestive of bad character. The testimony at trial related to
generic information about NSM and gang dynamics (such as the
value placed on respect). None of it pertained to other bad acts or
acts of violence committed by Muniz or other members of NSM. See
Rojas, ¶ 52 (if extrinsic evidence does not suggest bad character,
Rule 404(b) does not apply, and admissibility is governed by Rules
401-403).
¶ 53 Moreover, evidence that Muniz and others at the bar were
members of NSM, and that NSM members respond to disrespect as
a group, was highly relevant to prove that Muniz was motivated to
shoot Ames because he and Garfio disrespected NSM. See Trujillo,
¶¶ 72, 74, 80 (while gang evidence may not be used as a backdoor
means of associating the defendant with the gang and describing
9 Muniz does not assert that any intrinsic evidence was
inadmissible under CRE 403 or otherwise. In any event, like the extrinsic evidence discussed in greater detail below, we conclude the probative value of this evidence was not substantially outweighed by any danger of unfair prejudice.
27 the gang’s bad acts, testimony about gang affiliation may be
admissible to prove motive). And because evidence related to
motive is crucial in a case involving self-defense, its probative value
was not substantially outweighed by the risk of unfair prejudice.
See Rojas, ¶ 27. The trial court also properly instructed the jury
that it could not infer Muniz’s guilt based on his mere association
with a gang. Accordingly, we discern no error.
V. Evidentiary Rulings
¶ 54 Muniz next argues that other “questionable evidentiary
rulings” deprived him of a fair trial. He asserts that the court
“almost reflexively” sustained prosecution objections while
overruling meritorious defense objections, impermissibly limited his
ability to cross-examine witnesses, and allowed the jury to be
misled.
¶ 55 But while Muniz’s opening brief includes a lengthy string cite
to examples of apparently unfair treatment at trial, he does not
explain how any of the trial court’s “reflexive” evidentiary rulings
were an abuse of discretion. Because this is an undeveloped
assertion of error lacking support in legal authority, we decline to
address it. See People v. Lowe, 2021 CO 51, ¶ 20 n.4.
28 ¶ 56 Likewise, we reject as undeveloped Muniz’s claims that the
trial court misled the jury by allowing testimony that (1) the case
would have been dismissed if Muniz made a viable self-defense
claim during his custodial interview, and (2) Muniz’s wife didn’t
come forward with evidence that Ames was holding a gun before
trial. Muniz’s arguments on these points are conclusory. He
presents no citation to legal authority and does not develop any
argument regarding why this testimony was improper. See People
v. Sanders, 2023 CO 62, ¶ 18 (rejecting conclusory arguments
made without “any legally supported argument” or citation to
relevant authorities).
¶ 57 Muniz lends more development to his argument that the court
improperly restricted him from cross-examining witnesses who
testified that Ames lawfully possessed a gun.10 But, again, he does
not explain why the trial court’s rulings regarding this evidence
10 He points to his right under the Confrontation Clause to conduct
effective cross-examination in his opening brief and, in his reply brief, asserts that the court allowed the prosecution to paint Ames as a law-abiding citizen even when this was false.
29 were improper.11 In any event, even if we assume without deciding
that the trial court erred, any error was harmless. It was not
disputed that Ames had a gun in his possession at the time of the
shooting. Whether or not he lawfully owned a gun had no relevance
whatsoever to whether Muniz shot him in self-defense. And the
testimony suggesting lawful gun ownership was brief and not
emphasized during closing argument. We therefore conclude that
the court’s evidentiary rulings did not substantially influence the
verdict or affect the fairness of the trial proceedings.12 See Hagos,
¶ 12.
11 For example, Muniz does not discuss the trial court’s ruling that,
while Ames had previously been involved in a domestic violence incident, evidence of that incident was inadmissible because the case had been dismissed, and the relevant law preventing ownership of a gun was not in place when it occurred. Nor does he address the court’s conclusion that asking whether “it is legal to have a gun while you are drunk” would go to whether or not the victim committed an uncharged crime, which was not relevant. The trial court also permitted Ames’s uncle to testify that he believed Ames had a permit for his gun, but it noted that this testimony was limited to personal belief and defense counsel could cross-examine on that point. 12 For the same reasons, any error under the Confrontation Clause,
which Muniz did not preserve, could not have been plain error. See Hagos v. People, 2012 CO 63, ¶ 14; see also Kinney v. People, 187 P.3d 548, 559 (Colo. 2008) (even under the Confrontation Clause, judges have wide latitude to impose reasonable limits on cross- examination based on concerns about relevance).
30 VI. Time Restrictions
A. Standard of Review
¶ 58 Whether to grant or deny a motion for a continuance falls
within the trial court’s discretion. People v. Brown, 2014 CO 25,
¶ 19 (there are no mechanical tests for denying a continuance). A
trial court also has wide discretion in conducting a trial, including
determining the order and presentation of evidence and the scope of
closing arguments. People v. Hall, 2021 CO 71M, ¶ 16.
B. Discussion
¶ 59 Muniz argues that the trial court unreasonably restricted his
right to present a defense by denying his motion to continue,
placing unreasonable time restrictions on his presentation of
evidence, and limiting the parties’ closing arguments to thirty
minutes. But he makes no specific argument regarding the detailed
reasons the trial court provided for denying a continuance in its
31 thoughtful written order.13 Based on the totality of the
circumstances considered by the court, we cannot conclude that its
decision was manifestly arbitrary, unreasonable, or unfair. See
Brown, ¶ 20.
¶ 60 We further conclude the trial court did not improperly halt
defense questioning or impose a “clock trial” in an effort to complete
trial before the end-of-year holidays. True, “[f]ew rights are more
fundamental than that of the accused to present witnesses in his
own defense, and to put before the jury evidence that might
influence the determination of guilt.” People v. Richards, 795 P.2d
1343, 1345 (Colo. App. 1989) (citation omitted). But in order to
meet situations as they arise, the trial court “must have broad
power to cope with the complexities and contingencies inherent in
the adversary process.” People v. Walden, 224 P.3d 369, 376 (Colo.
App. 2009) (quoting Geders v. United States, 425 U.S. 80, 86
13 The court denied the motion after weighing its own calendar, the
prejudice to the prosecution based on a difficulty subpoenaing witnesses, the fact that counsel had already accepted the dates which were set to be complete before the end-of-year holidays, the fact that the court had already made accommodations to give additional time to the parties, and Muniz’s unwillingness to waive his right to a speedy trial.
32 (1976)). Once again, Muniz does not address the specific rulings
the court made to ensure the timely completion of trial.14
¶ 61 Moreover, while Muniz argues that the court’s time restrictions
limited his ability to present a complete defense, he does not specify
what additional testimony he would have offered if given more time.
See People v. Johnson, 30 P.3d 718, 726 (Colo. App. 2000) (unless
prejudice is shown, error may not be predicated on discretionary
rulings related to how the trial court conducts a trial).15
14 Based on our review of the record, the court properly exercised its
discretion to limit defense counsel from “going line by line through [Muniz’s] entire [custodial] interview” during cross-examination; to allow the prosecutor to play the recording of Muniz’s custodial interview on redirect (and allow defense counsel to recross) because at least one juror was unable to understand it without a transcript; to limit testimony related to “thousands of jail calls” between Muniz and his wife because the questions were leading and counsel’s questions were asked and answered; and to inform counsel that Muniz’s redirect examination was going to eat into the time for closing arguments, particularly given that it had to repeatedly admonished him to answer the attorneys’ questions without providing a narrative or addressing the gallery. 15 For the same reason, we reject Muniz’s argument that the trial
court improperly limited closing argument to thirty minutes per side. Muniz does not indicate how he would have used additional time for closing argument or cite to any authority indicating that a thirty-minute limit is an abuse of discretion. See People v. Rodriquez, 645 P.2d 857, 859 (Colo. App. 1982).
33 VII. Cumulative Error
¶ 62 “For reversal to occur based on cumulative error, a reviewing
court must identify multiple errors that collectively prejudice the
substantial rights of the defendant, even if any single error does
not.” Howard-Walker v. People, 2019 CO 69, ¶ 25; see also People
v. Vialpando, 2020 COA 42, ¶ 67 (“[T]he ultimate question is
whether the errors deprived the defendant of a fair trial.”), rev’d on
other grounds, 2022 CO 28, ¶ 10.
¶ 63 Of the many errors Muniz asserts on appeal, we have
identified only three isolated instances of prosecutorial
misconduct — one preserved and two unpreserved. These
comments were brief and, in view of all of the evidence introduced
at trial and the fact that the jury found in Muniz’s favor on one of
the charges, we conclude they did not individually or cumulatively
deprive Muniz of a fair trial. See Vialpando, ¶ 67. Accordingly,
reversal is not warranted.
VIII. Disposition
¶ 64 The judgment is affirmed.
JUDGE TOW and JUDGE BERGER concur.