22CA0853 Peo v Pinheiro 07-24-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0853 City and County of Denver District Court No. 17CR5304 Honorable Jennifer B. Torrington, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Joe Pinheiro,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE DUNN Brown and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 24, 2025
Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Joe Pinheiro, appeals his judgment of conviction
and sentence for second degree murder. We affirm the conviction,
reverse the sentence, and remand the case with directions.
I. Background
¶2 One summer day, Pinheiro went to a police station and called
911. He gave the 911 operator his name, told her that he was
outside the police station, and that he “needed a detective.” When
asked the nature of the emergency, Pinheiro reported that he had
“just shot and killed somebody” about “fifteen, twenty minutes ago.”
He declined to give the operator the victim’s location but said he
would give the address to the detective. He also disclosed that he
had a bag with two unloaded guns. Officers quickly arrived,
arrested Pinheiro, and advised him of his rights.
¶3 After Pinheiro later revealed the victim’s location to a detective,
officers found the victim dead with a single gunshot wound to the
chest.
¶4 The prosecution charged Pinheiro with first degree murder.
Pinheiro didn’t testify at trial, but his attorney defended on the
theory that the killing “was a tragic accident” and Pinheiro did not
intentionally or knowingly kill the victim.
1 ¶5 The jury convicted Pinheiro of the lesser included offense of
second degree murder. The district court sentenced him to forty-
eight years in prison.
¶6 On appeal, Pinheiro contends that the district court erred by
(1) violating his Fifth Amendment rights and failing to suppress
involuntary statements made after he invoked his right to counsel
along with the physical evidence obtained from those statements,
(2) allowing the prosecutor to commit misconduct during rebuttal
closing argument, (3) modifying his theory of defense instruction,
(4) violating his right to speak at sentencing, and (5) failing to state
any reason for imposing the maximum forty-eight-year sentence.
He also maintains that the cumulative effect of the errors warrants
reversal of the conviction and, if not the conviction, the sentence.
We address each contention in turn.
II. Suppression
¶7 Pinheiro first contends that the district court erred by denying
his motion to suppress statements he made to a detective disclosing
the location of the victim’s body — together with the physical
evidence that was found at the location. He specifically argues that
the statements and evidence should’ve been suppressed because
2 they were (1) obtained in violation of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966); and (2) involuntary. We agree that
the district court erred by admitting the statements under the
public safety exception to Miranda but conclude that the error does
not require reversal. We disagree that Pinheiro’s statements were
involuntary.
A. Additional Background
1. Pinheiro’s Statements
¶8 Outside the police station, Pinheiro called 911 to report that
he had “shot and killed” someone. He asked for a detective,
disclosed that he had a bag with two unloaded guns, and said he
would give the detective more information when the detective
arrived. Officers swiftly responded and arrested him. As an officer
started to look through his bag, Pinheiro volunteered, “It’s the very
first one in the front that you need.” Officers found two handguns
in Pinheiro’s bag. An officer then read Pinheiro his Miranda rights.
Pinheiro confirmed he understood his rights and that he still
3 wanted to speak with a detective as he had “asked for originally.”
The parties agreed that these statements were admissible.1
¶9 Pinheiro was then placed in a booking room. While there,
Detective Bryan Valenzuela and another officer interacted with
Pinheiro at various points. Portions of the booking room interview
are not in the record, but all agreed, and the district court found,
that Pinheiro twice invoked his right to counsel while in the booking
room. At some point when Detective Valenzuela was not in the
room, the other officer questioned Pinheiro after he had invoked his
right to counsel. While the record doesn’t disclose exactly what
Pinheiro said to the officer, the parties agreed that the statements
made to the officer were not admissible.
¶ 10 That leads us to the disputed last set of statements. About
two and a half hours after the 911 call, and after Pinheiro had
invoked his right to counsel, Detective Valenzuela re-entered the
booking room and told Pinheiro that based on the information they
had, there was “still an exigency” to verify whether someone might
be injured or need medical attention, and he needed to ask Pinheiro
1 No one disputed the admissibility of the 911 call, and it was
admitted by stipulation at trial.
4 for the location of the “alleged victim.” Pinheiro provided the
address and answered a few follow-up questions about the house,
general directions to the house, and where they could find the
victim in the house. This exchange lasted less than five minutes.
¶ 11 At the disclosed address, officers found the victim, along with
a fired cartridge case that was later identified as having been fired
by one of Pinheiro’s guns.
2. The Motion to Suppress
¶ 12 Before trial, Pinheiro moved to suppress the statements to
Detective Valenzuela and the resulting physical evidence, arguing
that they were obtained in violation of his Fifth Amendment rights.
¶ 13 At the suppression hearing, the prosecution did not dispute
that Pinheiro had invoked his right to counsel and was subject to
custodial interrogation. Instead, the prosecution argued that the
statements to Detective Valenzuela were voluntary and admissible
under the public safety exception.
¶ 14 In a written order, the district court denied the motion to
suppress. The court found that the public safety exception applied
and that the statements were voluntary. As to the public safety
exception specifically, the court concluded that Detective
5 Valenzuela’s “questioning clearly concerned an immediate need to
protect a member of the public, as well as investigating officers,
from potential harm.”
B. The Public Safety Exception
¶ 15 We consider first the district court’s conclusion that Pinheiro’s
statements to Detective Valenzuela were admissible under the
public safety exception.
1. Legal Principles and Standard of Review
¶ 16 Before conducting a custodial interrogation, an officer must
advise a suspect of certain rights, including the right to remain
silent and the right to counsel. Miranda, 384 U.S. at 444. When a
suspect invokes his right to counsel during an interrogation, the
police must cease questioning. Edwards v. Arizona, 451 U.S. 477,
484-85 (1981); accord People v. Kutlak, 2016 CO 1, ¶ 14.
Statements made after a suspect invokes his right to counsel are
generally not admissible. Miranda, 384 U.S. at 478-79. But
decades ago, the Supreme Court carved out a narrow public safety
exception to Miranda. See New York v. Quarles, 467 U.S. 649, 657-
58 (1984); accord Perez v. People, 2021 CO 5M, ¶ 18. The exception
permits pre-Miranda questioning “reasonably prompted by a
6 concern” for public or officer safety. Quarles, 467 U.S. at 656; see
also Perez, ¶ 23 (considering whether the questioning “relates to an
objectively reasonable need to protect the public from immediate
danger”). And it applies if the exigency of the circumstances
warrants the momentary omission of Miranda warnings. Quarles,
467 U.S. at 658.
¶ 17 The important question is whether, under the totality of the
circumstances, there’s an objectively reasonable need to protect the
public or officers from an immediate danger. Perez, ¶ 23; see also
People v. Mullins, 532 P.2d 733, 735 (Colo. 1975). For that reason,
the exception is typically applied to situations where an officer first
arrives at the scene or first encounters a suspect. See, e.g., Perez,
¶¶ 26-27 (applying exception when officers apprehended fleeing
suspect and immediately asked about the location of a gun); People
v. Janis, 2016 COA 69, ¶ 56 (applying exception when officers
arriving on the scene had legitimate concerns about the existence of
weapons), rev’d on other grounds, 2018 CO 89; People v. Requejo,
919 P.2d 874, 879 (Colo. App. 1996) (applying exception “to protect
the safety of officers engaged in immediate, on-scene investigation
of a crime”). When that has not been the case, and when the
7 suspect “ha[s] been safely in custody for several hours and ha[s]
already invoked his Miranda rights,” our supreme court has not
applied the public safety exception. People v. Ingram, 984 P.2d 597,
605 (Colo. 1999).
¶ 18 Whether the public safety exception applies presents a mixed
question of fact and law. See Perez, ¶ 14. We defer to the district
court’s factual findings if they are supported by the record, but we
review its legal conclusions de novo. Id.
2. The District Court Erred by Applying the Public Safety Exception
¶ 19 Pinheiro contends that the district court erred by applying the
public safety exception because he says that the exception doesn’t
apply to suspects that have been Mirandized and invoked their right
to counsel. Alternatively, he argues that even if the exception does
apply generally to such circumstances, it didn’t apply here because
the questioning came hours after Pinheiro was taken into custody
and there wasn’t any immediate danger to public safety.
¶ 20 To be sure, this is not the typical situation in which the public
safety exception applies. Most Colorado cases addressing the
exception involve pre-Miranda questioning. See, e.g., Quarles, 467
8 U.S. at 657-59; Perez, ¶¶ 26-27. But in Ingram, our supreme court
considered the public safety exception in a case where the suspect
was Mirandized and invoked his right to silence. Ingram, 984 P.2d
at 605. And while Ingram distinguished Quarles on the basis that it
involved pre-Miranda questioning, it also analyzed whether an
immediate necessity or exigency justified the post-Miranda
questioning. Id. Though it ultimately concluded that the public
safety exception didn’t apply to the facts presented, the holding
suggests that the exception may extend to a suspect who has been
given his Miranda warnings and invoked his right to silence if there
is an immediate or exigent public or officer safety need to justify the
questioning. See id.2
2 To the extent Pinheiro claims that even if the public safety
exception applies after a suspect has been Mirandized, it only applies where a suspect has invoked his right to silence, we disagree. We see no reason why the public and officer safety concerns would be different where a suspect invokes his right to counsel versus his right to silence. See United States v. Paetsch, 900 F. Supp. 2d 1202, 1220-21 (D. Colo. 2012) (“The public-safety exception applies not only to interrogation that occurs prior to the giving of Miranda warnings, but also applies to interrogation that occurs after a suspect has requested to speak to an attorney.” (citing United States v. DeSantis, 870 F.2d 536, 541 (9th Cir. 1989))), aff’d on other grounds, 782 F.3d 1162 (10th Cir. 2015).
9 ¶ 21 Even so construing Ingram, the exception doesn’t apply to the
circumstances here. Detective Valenzuela’s questioning occurred
neither “on the scene” nor even when the detective first encountered
Pinheiro. Rather, it occurred over two and a half hours after
Pinheiro was arrested. At that point, there was no situation posing
an immediate threat to officer or public safety. Cf. Quarles, 467
U.S. at 657; Requejo, 919 P.2d at 879. The People don’t contend
otherwise.
¶ 22 True, the location of the victim was unknown. But even
assuming that the public safety exception applies to locating a
single individual — as opposed to protecting the public at large —
the detective still waited several hours to ask Pinheiro about the
victim’s location. And well-intentioned though he might have been,
the fact that the detective waited several hours to press the issue
undercuts any claim that there was an objectively reasonable belief
of immediate or exigent danger. See Ingram, 984 P.2d at 605
(public safety exception didn’t apply where questioning occurred
hours after the suspect was arrested and Mirandized). Beyond that,
there wasn’t any basis for the detective’s belief that the victim might
be injured. Unlike some cases where it’s unknown if anyone had
10 been injured and needed medical care, see, e.g., People v.
Wakefield, 2018 COA 37, ¶¶ 55-57, Pinheiro plainly reported to the
911 operator that he had “shot and killed” someone fifteen to
twenty minutes ago and then surrendered two unloaded guns to
officers. That makes this case much different from those cases
where officers, “having just arrived on the scene, had a legitimate”
and immediate concern that there could be unknown “armed
suspects or injured victims in the vicinity.” Id. at ¶ 57; see also
United States v. Padilla, 819 F.2d 952, 961 (10th Cir. 1987) (public
safety exception applied to on-the-scene questioning about the
possibility of injured or armed person).
¶ 23 For these reasons, we conclude that the district court erred by
admitting Pinheiro’s statements to Detective Valenzuela under the
public safety exception.3
3 For the first time on appeal, the People contend that the
statements are admissible under the rescue doctrine. The prosecution, however, did not raise the rescue doctrine before the district court, and the district court didn’t apply it. We therefore decline the People’s invitation to address this issue for the first time on appeal.
11 3. The Admitted Statements Do Not Require Reversal
¶ 24 We must determine, then, whether the admission of Pinheiro’s
statements, in violation of his Fifth Amendment rights, was
harmless beyond a reasonable doubt. Hagos v. People, 2012 CO
63, ¶ 11 (a trial error of constitutional dimension requires reversal
unless the error was harmless beyond a reasonable doubt). To
make that determination, we consider (1) the statements’
importance to the prosecution’s case; (2) whether the statements
are cumulative; and (3) the overall strength of the prosecution’s
case. People v. Allen, 199 P.3d 33, 37 (Colo. App. 2007). We will
reverse if there is a reasonable possibility that Pinheiro’s statements
to Detective Valenzuela might have contributed to his conviction.
Hagos, ¶ 11.
¶ 25 For a few reasons, we conclude that no such reasonable
possibility exists. First, although not cumulative, the statements
were unimportant and irrelevant to the only disputed issue at trial,
which was whether the shooting was accidental. After all, Pinheiro
had already admitted that he had shot and killed a person and had
handed over the murder weapon. The prosecutor argued that
Pinheiro acted intentionally or knowingly while defense counsel
12 maintained the shooting was an accident. Nothing in Pinheiro’s
statements to the detective said anything about his intent or even
about the shooting itself. Rather, Pinheiro simply provided an
address, volunteered that two dogs were in the house, described the
house, gave general directions to it, clarified that the victim was in
the basement, and stated the victim’s name.
¶ 26 Second, the prosecution presented considerable circumstantial
evidence on the only disputed issue — whether Pinheiro acted with
intent or knowledge. See People v. Johnson, 2024 CO 32, ¶ 36
(observing that intent “can, and often must, be proved by
circumstantial evidence”) (citation omitted). Namely, the evidence
showed that the victim died almost instantly of a single gunshot
wound to the chest. An expert testified that the victim was shot at
“very close” range — meaning “within one inch.” And the expert
explained that it was possible that the gun was in “contact” with the
victim’s shirt when the gun was fired. Beyond that, there was no
evidence either at the crime scene or on Pinheiro suggesting that he
tried to render aid to the victim (as one reasonably would expect in
an accidental shooting).
13 ¶ 27 Finally, Pinheiro’s voluntary confession to the 911 operator
after the shooting was deliberate and calm, not panicked. And
despite Pinheiro’s arguments to the contrary, this combined
circumstantial evidence is what the prosecution relied on in closing
argument to demonstrate that Pinheiro acted with intent or
knowledge — not Pinheiro’s statements to Detective Valenzuela
about the victim’s location.
¶ 28 Given all this, although the district court erred by admitting
Pinheiro’s statements to Detective Valenzuela under the public
safety exception, we conclude that the error was harmless beyond a
reasonable doubt.
C. Voluntariness
¶ 29 We next consider whether the district court erred by
concluding that Pinheiro’s statements were voluntary. If they
weren’t voluntary, then the physical evidence obtained from the
statements should also have been suppressed. People v. Bradshaw,
156 P.3d 452, 459-60 (Colo. 2007) (explaining that although the
14 fruit of the poisonous tree doctrine doesn’t apply to Miranda
violations, it does applies apply to coerced statements).4
¶ 30 The Due Process Clauses of the United States and Colorado
Constitutions require that “a defendant’s statements must be
voluntary to be admissible as evidence.” People v. Ramadon, 2013
CO 68, ¶ 18; U.S. Const. amends. V, XIV; Colo. Const. art. II, § 25.
A statement is involuntary only if “coercive governmental conduct
played a significant role in inducing the statement.” Effland v.
People, 240 P.3d 868, 877 (Colo. 2010).
¶ 31 To determine whether a statement was voluntary or coerced,
we consider (1) whether the police conduct was coercive and, if so,
(2) whether the coercive conduct played a significant role in
inducing the statement. People v. Coke, 2020 CO 28, ¶ 19.
¶ 32 And to decide whether the conduct was coercive, we consider
the following, non-exhaustive list of factors:
4 Pinheiro acknowledges that, absent a finding that the statements
were involuntary, the fruit of the poisonous tree doctrine doesn’t apply to the physical evidence obtained after a Miranda violation. See New York v. Quarles, 467 U.S. 649, 654 (1984); People v. Gosselin, 205 P.3d 456, 461 (Colo. App. 2008).
15 (1) whether the defendant was in custody;
(2) whether the defendant was free to leave;
(3) whether the defendant was aware of the situation;
(4) whether the police read Miranda rights to the defendant;
(5) whether the defendant understood and waived Miranda
rights;
(6) whether the defendant had an opportunity to confer with
counsel or anyone else before or during the interrogation;
(7) whether the statement was made during the
interrogation or volunteered later;
(8) whether the police threatened the defendant or promised
anything directly or impliedly;
(9) the method of the interrogation;
(10) the defendant’s mental and physical condition just before
the interrogation;
(11) the length of the interrogation;
(12) the location of the interrogation; and
(13) the physical conditions of the location where the
interrogation occurred.
Id. at ¶ 20 (citation omitted).
16 ¶ 33 When, as here, the interrogation is video-recorded, and there
are no disputed facts outside the recording pertinent to the
suppression issue, we are in the same position as the district court
in determining whether the statements are voluntary. Ramadon,
¶ 21. In any event, “the ultimate determination of whether a
statement is voluntary is a legal question” that we review de novo.
Effland, 240 P.3d at 878.
2. The Statements Were Voluntary
¶ 34 We conclude that Pinheiro’s statements to Detective
Valenzuela were not the product of government coercion.
¶ 35 We acknowledge that the factors do not all cut one way. As
Pinheiro points out, he was in custody, he was not free to leave, he
made the statements during questioning at the police station, and
the detective knew that Pinheiro had invoked his right to counsel
before he asked Pinheiro about the victim’s location.5
5 To the extent Pinheiro relies on a separate interaction with a
different officer to suggest coercion, that video footage is not in the appellate record. We therefore don’t know much about that interaction other than the fact that whatever statements Pinheiro made to that officer were suppressed.
17 ¶ 36 But balanced against these factors are those that show no
coercive conduct. Namely, Pinheiro was aware of his situation and,
from the outset, he specifically and repeatedly asked to speak with
a detective. Pinheiro was in a large, open room. Contrary to
Pinheiro’s assertion, neither the officer nor the detective “loomed”
over him or were even particularly close to him. Pinheiro was
unrestrained, though he had bags on his hands pending gunshot
residue testing. The detective was in plainclothes and unarmed.
Pinheiro displayed no physical or mental distress. Indeed, Pinheiro
smirked, smiled, and laughed at times during the brief interaction.
And though Pinheiro points to the fact that he was not wearing a
shirt, he voluntarily removed his shirt outside the police station and
reported that to the 911 operator. Most critically, the detective
made no threats or promises and didn’t engage in trickery. The
detective was calm and polite, not threatening, aggressive, or
intimidating. Finally, the entire interaction lasted less than five
minutes and was not investigatory in nature. Rather, the
detective’s limited questioning was based on his sincere (but
mistaken) belief that there was “still an exigency.” The questions
18 were thus limited to finding the victim — not overbearing Pinheiro’s
will.
¶ 37 We are unpersuaded by Pinheiro’s claim that his body
language, including a sigh and an eye roll, shows government
coercion or that his will was overborne. While the video shows that
Pinheiro seemed irritated, the voluntariness inquiry focuses on the
conduct of law enforcement and whether that conduct was of such
a nature as to overbear the defendant’s will. Effland, 240 P.3d at
877. Indeed, compared to those cases where police have engaged in
coercive tactics, the detective’s limited questioning here falls far
short. See Ramadon, ¶ 28 (concluding statements were coerced
after the government invoked “violence” and exploited the
defendant’s unique vulnerabilities, including fear of deportation and
death, to elicit inculpatory statements).
¶ 38 Because the totality of the circumstances does not show
coercive conduct or that Pinheiro’s will was overborne, we conclude
that the district court correctly found that the statements were
voluntary. Therefore, the physical evidence obtained from those
statements was admissible, even if the statements themselves were
not.
19 III. Prosecutorial Misconduct
¶ 39 Pinheiro contends that the prosecutor committed misconduct
in rebuttal closing argument by arguing that Pinheiro’s post-
Miranda silence was evidence of guilt, and that the district court
reversibly erred by allowing the argument. We aren’t persuaded.
¶ 40 We apply a two-step analysis to questions of prosecutorial
misconduct, considering (1) whether the prosecutor’s conduct was
improper based on the totality of the circumstances and, if so,
(2) whether the conduct warrants reversal under the applicable
standard. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).
¶ 41 Because defense counsel didn’t object to the prosecutor’s
conduct at trial, we review for plain error. People v. Buckner, 2022
COA 14, ¶ 43. Under that standard, we will reverse only if the error
was obvious and so undermined the fundamental fairness of the
trial as to cast serious doubt on the reliability of the conviction.
Hagos, ¶ 14.
¶ 42 Pinheiro defended on the theory that the killing was
accidental. His counsel pressed this theory in closing argument,
telling the jury, “Ladies and gentlemen, the [p]rosecution wants you
to believe that every gun accident is somehow a homicide, and
20 that’s just not true. We all have a right to carry a gun, and we all
know that accidents do happen.”
¶ 43 In rebuttal argument, the prosecutor addressed the theory of
defense and argued that:
• “[Pinheiro] chose to confess to this crime. There was never a
mention of anything happening other than him saying, I shot
somebody. There was no evidence of an accident, no evidence
of unintentional discharge of a weapon, none of that, just
simply: I shot him.”
• “There would be an explanation of what happened if it were a
tragedy, right? No. That’s not what you hear, not what you
see in the body-worn camera from [the responding police
officer].”
• “[Pinheiro] showed no remorse. He did nothing to help.
Rather, he walked to the Sheridan police station, called 911,
confessed his murder. The police came. He never said
anything different.”
¶ 44 Pinheiro now contends that these statements improperly
commented on his post-arrest silence to infer guilt.
21 ¶ 45 But Pinheiro’s premise that the referenced statements are
post-arrest is wrong. Pinheiro confessed that he had shot and
killed someone to the 911 operator. That confession was pre-arrest
and before Pinheiro was Mirandized. Pinheiro doesn’t argue that
the prosecution’s comments on his pre-arrest silence were
improper. See Coke, ¶ 7 (explaining that, when a defendant is not
in custody, there is no “conceivable basis by which the Fifth
Amendment privilege against self-incrimination could have
attached,” and, therefore, a defendant has no Fifth Amendment
privilege to assert). In any event, the prosecution’s comments
centered on the content of Pinheiro’s statements, not his silence.
See People v. Rogers, 68 P.3d 486, 492 (Colo. App. 2002) (“A
defendant cannot have it both ways. If he talks, what he says or
omits is to be judged on its merits or demerits . . . .”) (citation
omitted). Because Pinheiro elected to speak, we conclude that the
prosecutor did not commit misconduct by commenting on what
Pinheiro said to the 911 operator, including what he omitted.
¶ 46 To the extent Pinheiro contends that the prosecutor committed
misconduct by commenting on Pinheiro’s demeanor or
demonstrated lack of remorse, we disagree. The jury heard the 911
22 call and saw the video of Pinheiro’s arrest. It’s not improper to
comment on the evidence and reasonable inferences to be drawn
from the evidence. Domingo-Gomez v. People, 125 P.3d 1043, 1048
(Colo. 2005). And insofar as Pinheiro contends that the prosecutor
committed misconduct by commenting on the lack of evidence
showing an accidental or unintentional shooting, that, too, is proper
argument. See People v. Esquivel-Alaniz, 985 P.2d 22, 23 (Colo.
App. 1999).
¶ 47 Finally, even assuming any of the rebuttal argument could be
construed as a reference to post-arrest statements, we cannot
conclude that the brief comments were so obviously improper that
the district court should have sua sponte intervened “without the
benefit of an objection.” Cardman v. People, 2019 CO 73, ¶ 34
(citation omitted).
¶ 48 We therefore disagree that the prosecutor committed
misconduct or that the district court erred by allowing the rebuttal
argument.
IV. Theory of Defense Instruction
¶ 49 For his theory of defense, Pinheiro asked the court to instruct
the jury as follows:
23 The defense contends that [Pinheiro] is not guilty of first-degree murder. On July 29th, 2017, [the victim] was downstairs in the basement drinking beer. [Pinheiro] was showing [the victim] the gun when the gun accidentally fired. [Pinheiro] did not act after deliberation or with intent. After the shooting, [Pinheiro] immediately left the house and went to the Sheridan Police Department to report the shooting. [Pinheiro] is not guilty of the lesser included offense of second degree murder. As this was an accident, [Pinheiro] did not act with the required mental state of knowingly.
¶ 50 The court rejected this instruction, finding, among other
things, that “nothing in the record . . . supports that [Pinheiro] was
showing [the victim] the gun or that the gun was accidentally fired.”
¶ 51 Ultimately, after working with defense counsel on a modified
instruction, the court instructed the jury, in relevant part, as
follows:
The defense contends that [Pinheiro] is not guilty of the lesser included offense of second degree murder. On July 29th, 2017, [the victim] had consumed alcohol. There were no marks on [the victim’s] body that indicated he had been in a physical altercation. The defense contends that there is no evidence that [Pinheiro] acted knowingly. After the shooting, [Pinheiro] immediately left the house and went to the Sheridan Police Department to report the shooting.
24 ¶ 52 Pinheiro maintains that the district court reversibly erred by
modifying his theory of defense instruction.
¶ 53 “[A]n instruction embodying a defendant’s theory of the case
must be given by the [district] court if the record contains any
evidence to support the theory.” People v. Nunez, 841 P.2d 261,
264 (Colo. 1992). But the court may reject a theory of defense
instruction that is “argumentative, contains errors of law, merely
reiterates portions of the evidence, or is encompassed within the
other instructions.” People v. Martinez, 2020 COA 141, ¶ 82
(quoting People v. Lee, 30 P.3d 686, 689 (Colo. App. 2000)). If the
court refuses to give a defense theory of the case instruction, it has
an affirmative obligation to cooperate with counsel to either correct
the tendered theory of defense instruction or to incorporate the
defense theory in a court-drafted instruction. Nunez, 841 P.2d at
265. The court isn’t required, however, to instruct the jury on the
defense theory by using the language tendered by the defendant.
People v. Merklin, 80 P.3d 921, 927 (Colo. App. 2003).
¶ 54 We review the decision to modify a tendered theory of defense
instruction for an abuse of discretion. Martinez, ¶ 79.
25 ¶ 55 The district court correctly refused the tendered instruction
because no evidence was presented that the shooting was
accidental. See People v. Griego, 517 P.2d 460, 461 (Colo. 1973)
(“[T]he [district] court correctly refused the tendered instruction as
there was no evidence in the record to support [the] defendant’s
theory of the case.”). While Pinheiro points to evidence (and the
absence of evidence) that he claims supports his accidental
shooting theory, none of the cited evidence or lack of evidence says
anything about whether the shooting was accidental or knowing.
While defense counsel was free to — and did — argue that the
shooting was accidental, he wasn’t entitled to a jury instruction
that lacked record support. See id.; see also Lee, 30 P.3d at 690
(holding the district court did not err by rejecting the defendant’s
“accidental shooting” theory of defense instruction because the
theory was conveyed by other instructions and closing arguments).
¶ 56 And the court fulfilled its duty to work with counsel to craft an
appropriate alternative theory of defense instruction. Based on the
evidence presented, the court added “There were no marks on [the
victim’s] body that indicated he had been in a physical altercation.”
That, together with the language that “there was no evidence that
26 [Pinheiro] acted knowingly,” as well as defense counsel’s closing
argument that the shooting was accidental, sufficiently conveyed
Pinheiro’s theory of defense. See People v. Trujillo, 2018 COA 12,
¶ 14 (“In considering whether a jury was adequately informed of a
defendant’s theory of the case, a reviewing court can take into
account whether defense counsel’s closing argument ‘fairly
represented’ the theory to the jury.”) (citation omitted).
¶ 57 We therefore conclude that the court did not abuse its
discretion by giving the modified theory of defense instruction.
V. Cumulative Error
¶ 58 Pinheiro contends that collectively the district court’s errors
violated his right to a fair trial, entitling him to a new one. See
Howard-Walker v. People, 2019 CO 69, ¶ 24. But cumulative error
requires multiple errors resulting in cumulative prejudice. Id. at
¶ 25. Because we have identified only a single harmless error and
assumed a possible nonprejudicial error, cumulative error doesn’t
apply.
VI. The Sentence
¶ 59 Pinheiro says he must be resentenced because the district
court violated his right to speak at the sentencing hearing and
27 because the court failed to state the “basic reasons” for imposing
the maximum forty-eight-year sentence. Alternatively, Pinheiro
argues that the cumulative effect of these sentencing errors requires
resentencing. Because we agree that the court violated Pinheiro’s
right to speak, we don’t reach the remaining arguments.
¶ 60 The district court must give every criminal defendant an
opportunity to speak on their own behalf before it imposes a
sentence. § 16-11-102(5), C.R.S. 2024; Crim. P. 32(b)(1). To afford
a defendant this opportunity, the “court must address the
defendant in a manner that leaves no doubt that the defendant is
personally invited to speak” before sentencing. People v.
Marquantte, 923 P.2d 180, 186 (Colo. App. 1995); see also Green v.
United States, 365 U.S. 301, 305 (1961) (noting that district courts
should “unambiguously address themselves to the defendant”
before sentencing).
¶ 61 At sentencing, defense counsel stated that he “instructed”
Pinheiro “not to make a statement today” and that he planned on
appealing the conviction. Defense counsel, however, did not state
that he had advised Pinheiro of his right to speak before sentencing.
And after defense counsel spoke, the court immediately sentenced
28 Pinheiro without addressing Pinheiro directly or confirming whether
Pinheiro understood that he had a right to speak and, if so, whether
he wanted to exercise that right before sentencing.
¶ 62 Because nothing in the brief sentencing record shows that
Pinheiro was aware that he had the right to speak at sentencing,
and because the court didn’t clarify that point or invite him to
speak, we cannot agree with the People that Pinheiro “was clearly
aware of his right to speak” or “was given the opportunity to speak”
and “chose not to.”
¶ 63 While the People argue that any error was harmless, they also
acknowledge that the required remedy is resentencing. People v.
Borrego, 774 P.2d 854, 856 (Colo. 1989) (“We have consistently held
that the defendant has the right to allocution before sentence is
imposed and that denial of the right of allocution requires
resentencing.”). We therefore reverse the sentence and remand for
resentencing.
VII. The Mittimus
¶ 64 Though not raised by the parties, the mittimus incorrectly
states that Pinheiro “pled guilty” to second degree murder. Because
a clerical mistake may be corrected at any time, Crim. P. 36, on
29 remand the district court should correct the mittimus to reflect that
Pinheiro did not plead guilty.
VIII. Disposition
¶ 65 The judgment of conviction is affirmed, the sentence is
reversed, and the case is remanded for resentencing and correction
of the mittimus.
JUDGE BROWN and JUDGE SCHOCK concur.