23CA0174 Peo v Santiago 03-26-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0174 El Paso County District Court No. 21CR1233 Honorable Monica J. Gomez, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Marvin Gabriel Santiago,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VII Opinion by JUDGE PAWAR Johnson and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 26, 2026
Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, River B. Sedaka, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Marvin Gabriel Santiago, appeals the judgment of
conviction entered after a jury found him guilty of first degree
murder. We affirm.
I. Background
¶2 Santiago called 911 reporting that his girlfriend, Elena Alinj,
was unresponsive in the motel room where they were living. She
had been strangled and suffered multiple broken ribs, a broken jaw,
lacerations on her head, and bruises and bite marks over her whole
body. Santiago initially told police that Alinj was injured during
consensual rough sex. He later admitted to beating and strangling
her but claimed that he did not intend to kill her.
¶3 The prosecution charged Santiago with first degree murder,
second degree murder, two counts of first degree assault, and eight
crime of violence sentence enhancers.
¶4 Santiago’s first trial ended in a mistrial after the prosecutor
elicited evidence that Santiago invoked his right to counsel. Over
his objection, Santiago was retried.
¶5 At his second trial, the prosecution introduced evidence that
Santiago repeatedly threatened Alinj’s life via Facebook message
and that she ultimately died by homicidal violence. Santiago
1 testified in his own defense, admitting that he caused Alinj’s
injuries but stating he did so the day before Alinj died and had
attempted to keep her alive. Based on this testimony, the defense
argued that Santiago did not act with the requisite intent for
murder.
¶6 The jury found Santiago guilty of first degree murder and the
trial court sentenced him to life imprisonment without the
possibility of parole.
¶7 Santiago appeals, arguing that the trial court violated his right
to be free from double jeopardy by allowing him to be retried. He
further asserts that reversal is warranted based on prosecutorial
misconduct. We disagree with these arguments and affirm.
II. Double Jeopardy
A. Applicable Law
¶8 Generally, when a defendant moves for a mistrial and the trial
court grants it, the defendant cannot later complain that the
resulting retrial violated his rights to be free from double jeopardy.
See People v. August, 2016 COA 63, ¶ 14. But if the prosecution
acted with the intent to provoke the defendant into moving for a
mistrial, the defendant’s right to be free from double jeopardy
2 prevents retrial. Oregon v. Kennedy, 456 U.S. 667, 673-79 (1982);
see also August, ¶ 15. This narrow exception is subject to “an
extremely exacting standard,” met only in rare circumstances —
where the nature of the prosecutor’s misconduct “clearly and
unquestionably” demonstrates not only an intent to prejudice the
defendant but to deliberately cause or invite a mistrial. August, ¶
20 (first quoting Earnest v. Dorsey, 87 F.3d 1123, 1130 (10th Cir.
1996); and then quoting State v. Kelly, 2015-Ohio-1948, ¶ 19 (Ct.
App.)).
¶9 A defendant has the burden to establish that the prosecutor
acted with the intent to provoke the defense into obtaining a
mistrial. August, ¶ 19. We review de novo whether the trial court
applied the correct legal standard. Id. at ¶ 23. But the court’s
finding concerning the prosecution’s motivation and intent is a
finding of fact, and we defer to it unless it is clearly erroneous. Id.
A finding is clearly erroneous when it has no support in the record.
See People v. Beauvais, 2017 CO 34, ¶ 22.
¶ 10 Among the factors a court may consider in determining the
prosecutor’s intent are whether the prosecutor proffered some
plausible justification for his actions, as well as whether the record
3 contains any indication that the prosecutor believed the defendant
would be acquitted and whether another trial would be desirable for
the government. August, ¶ 35.
B. Discussion
¶ 11 At Santiago’s first trial, the prosecutor elicited the following
testimony:
Prosecutor: Did you ask whether or not [Santiago] was willing to go to the police station to talk to the detectives?
Officer: I did.
Prosecutor: And what was his response?
Officer: Not without a lawyer.
The trial court granted defense counsel’s motion for a mistrial,
holding that the testimony was a direct comment on Santiago’s
constitutional rights and there was no other way to cure the error.
¶ 12 Santiago then filed a motion to dismiss the charges based on
an intentional mistrial. The trial court held a hearing and, using
the correct legal standard, denied the motion. In determining that
the prosecutor did not intend to provoke Santiago into requesting
and obtaining a mistrial, the court found that while Santiago
initially told police he would not speak to them without a lawyer, he
4 in fact agreed to speak to detectives at some point. The court
weighed this “most important fact” and concluded that a reasonable
and equally plausible alternative answer to the prosecutor’s
question about Santiago’s response was that Santiago was willing to
speak to the police.
¶ 13 The court’s additional findings reflect its consideration of
relevant factors. To begin, it noted that until the motion for
mistrial, the trial was going smoothly, and the prosecution was able
to call all its witnesses despite some initial difficulty with medical
witness availability. The court also found that the theory of defense
was a bit unclear, so it was not evident that the prosecution was
attempting to gain an upper hand by triggering a mistrial. Indeed,
the court noted it was “a mystery” how the prosecution might have
benefited from a mistrial and, based on the approaching holidays
and the difficulty in calling witnesses a second time, the mistrial
was to the prosecution’s detriment.
¶ 14 We conclude that the trial court’s findings are supported by
the record. Santiago argues his eventual willingness to speak with
police would not have been responsive to the prosecutor’s question
so the prosecutor could only have intended to elicit inadmissible
5 evidence. But the prosecutor was asking about “whether or not
[Santiago] was willing to go to the police station to talk to the
detectives.” Despite Santiago’s arguments, we conclude the fact
that he ultimately spoke with police was a reasonable response to
the prosecutor’s question.
¶ 15 Moreover, even if the prosecutor was trying to elicit
inadmissible testimony, there is no evidence in the record that he
was doing so to avoid a jury verdict. See id. at ¶ 22 (“It doesn’t even
matter that he knows he is acting improperly, provided that his aim
is to get a conviction. The only relevant intent is intent to terminate
the trial, not intent to prevail at this trial by impermissible means.”
(quoting United States v. Oseni, 996 F.2d 186, 188 (7th Cir.1993))).
To the contrary, the record supports the court’s finding that, until
the mistrial, the prosecution’s “case was going quite well,” and that
it did not stand to gain from a mistrial because it had had difficulty
calling its medical witnesses and the speedy trial deadline was in
the middle of the winter holiday season. See id. at ¶ 35 (identifying
these factors as relevant to prosecutorial intent).
¶ 16 Santiago argues the prosecution had a motive to trigger a
mistrial after learning the defense theory. But the court was
6 entitled to resolve conflicts, inconsistencies, and disputes in the
evidence before determining that the prosecution did not stand to
benefit. See People v. Crawford, 230 P.3d 1232, 1237 (Colo. App.
2009). Likewise, Santiago’s argument that the prosecution changed
its strategy at the second trial does not negate the record support
for the court’s conclusion regarding prosecutorial intent at the time
of the mistrial. See Salazar v. People, 870 P.2d 1215, 1221 (Colo.
1994) (clear error review requires deference to findings supported by
the record, even if there is conflicting evidence). While Santiago
emphasizes perceived changes in prosecutorial strategy between the
first and second trials, the trial court could necessarily have only
assessed the prosecutor’s intent at the time the mistrial occurred
and not on events that occurred later in time, at the second trial.
Because there is evidence to support its determination that the
prosecutor did not intend to provoke a mistrial, we may not disturb
it. Accordingly, Santiago is not entitled to relief.
III. Prosecutorial Misconduct
¶ 17 Santiago next argues that he is entitled to a new trial based on
prosecutorial misconduct. We disagree.
7 A. Applicable Law
¶ 18 We review claims of prosecutorial misconduct in two steps.
Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). First, we
determine whether the prosecutor engaged in misconduct based on
the totality of the circumstances. Id. We afford prosecutors wide
latitude to comment on the evidence, draw reasonable inferences
therefrom, and respond to arguments made by the defense. People
v. Samson, 2012 COA 167, ¶ 30. While prosecutors may engage in
oratorical embellishment, they may not misstate the evidence, use
arguments intended to inflame the jury’s passions or prejudices, or
assert personal opinions about the defendant’s guilt. Id. at ¶¶ 31-
32.
¶ 19 Second, if there was misconduct, we determine whether
reversal is warranted under the proper standard. Id. We review
preserved claims of prosecutorial misconduct for harmless error,
reversing only if there is “no reasonable probability that it
contributed to the defendant’s conviction.” Crider v. People, 186
P.3d 39, 42 (Colo. 2008). We review unpreserved claims for plain
error, reversing only if the misconduct was both obvious and
substantial. Hagos v. People, 2012 CO 63, ¶ 14. An error is
8 substantial only if it so undermines the fundamental fairness of the
trial that it casts serious doubt on the reliability of the conviction.
Id.
1. Impeachment of Hearsay Declarant
¶ 20 Santiago first argues that the prosecutor engaged in
misconduct by attacking his next-door neighbor’s credibility
through prior criminal convictions. Although the neighbor did not
testify at trial, he had told police during their investigation that he
did not hear anything on the night of the incident. The neighbor’s
statement came in as admissible hearsay through the officer who
spoke to the neighbor.
¶ 21 Santiago argues that the neighbor’s statement supported his
defense that he beat Alinj the day before her death and therefore
did not intend to kill her. To cast doubt on the reliability of
neighbor’s testimony, the prosecutor asked the officer whether he
knew about the neighbor’s prior convictions. The officer said he
didn’t know about the neighbor’s criminal history, yet the
prosecutor continued to ask questions, referring to specific case
numbers and charges. Santiago argues that this was misconduct.
9 ¶ 22 We note at the outset that the prosecution was entitled to use
prior felony convictions to attack the neighbor’s credibility once his
hearsay statement was admitted into evidence. See CRE 806; see
also People v. Dore, 997 P.2d 1214, 1219 (Colo. App. 1999). We
therefore see no impropriety in the prosecutor’s initial question
about whether the police officer was familiar with the neighbor’s
prior felony convictions. And as to questions about misdemeanor
convictions, the trial court properly sustained defense counsel’s
objections and struck those references from the record, curing any
error.
¶ 23 We agree with Santiago, however, that the prosecutor engaged
in misconduct by proceeding to ask the officer whether he was
aware of specific cases, including case numbers, after the officer
testified that he was not familiar with the neighbor’s criminal
history. The prosecutor had no good faith basis to believe the
officer was aware of individual cases, and the prior convictions were
not otherwise admitted into evidence. See People v. Carlson, 72
P.3d 411, 418 (Colo. App. 2003) (prosecutor must have good faith
basis to ask about prior felony convictions).
10 ¶ 24 Nevertheless, the misconduct was harmless. Although the
neighbor’s hearsay statement aligned with Santiago’s story, the trial
court found that it was not clear whether the neighbor was even
home when the altercation occurred. His hearsay statement
therefore carried minimal evidentiary value. By contrast,
substantial evidence supported the prosecution’s theory that
Santiago intended to beat Alinj to death on the night that she died:
• The prosecution introduced many text messages in which
Santiago told Alinj outright that he was going to kill her.
• Another next-door neighbor who was home that night
testified that she heard a woman screaming for help, a man
yelling loudly, and something being thrown at the wall.1
• Santiago testified that Alinj “was able to walk away” from
the beating, and after the assault, she smoked marijuana,
went outside to smoke cigarettes, ate lunch, and talked with
him for two hours. He also initially told police that she
went to the store twice the day she died. But a forensic
1 Even if, as Santiago argues, this neighbor was inconsistent about
the length of the fight she heard and incorrectly described Santiago’s physical characteristics, the jury was entitled to weigh her credibility.
11 pathologist testified that Alinj’s broken jaw would have
made it “essentially impossible” to eat and “very painful” to
go through day-to-day functions and was “not something
you’re going to go around with for very long without seeking
care.”
• A paramedic testified that a wound on Alinj’s head was
recent and had not started healing itself before she died.
• Santiago changed his story multiple times. A different
neighbor testified that after the police arrived, Santiago told
him Alinj had fallen and hit her head in the bathtub but
told someone else that she had hit her head on the end
table by the bed. Santiago also admitted that he initially
lied to police about what occurred.
¶ 25 We recognize that the prosecutor improperly referenced facts
not in evidence by arguing at closing that the hearsay declarant
neighbor was “a multiple-convicted felon.” But like the questions
about the neighbor’s prior convictions — only two of which were not
struck from the record — the prosecutor’s comment constituted a
brief part of a six-day trial. As discussed, the hearsay declarant’s
statement had only minimal evidentiary value compared to
12 substantial evidence supporting the prosecution’s case. Based on
this record, we see no reasonable probability that the improper
questioning contributed to Santiago’s conviction. Accordingly,
reversal is not warranted.
2. Asking Jury to Begin Deliberations
¶ 26 Santiago next asserts that the prosecutor improperly told the
jury to begin deliberations early when, during rebuttal closing
argument, he rhetorically asked whether any jurors did not believe
that Alinj died from strangulation, that the evidence showed
Santiago put his hands on her neck, that he was the kind of person
who gets angry and would act on that motivation, that he can do
these acts, or that he is a hero for trying to save Alinj.
¶ 27 We disagree with Santiago that these questions told the jury to
begin deliberations early. Instead, they were rhetorical devices
asking the jury to weigh the evidence it had heard and responding
to defense counsel’s closing argument. Samson, ¶ 30 (prosecutors
have wide latitude in the language and style they choose to employ);
see also People v. Welsh, 176 P.3d 781, 788 (Colo. App. 2007)
(prosecutors have “leeway to point to evidence and inferences that
cast doubt on the defense theory or show that evidence on which
13 defendant was relying lacked substance”). And the cases Santiago
relies on are inapposite. In People v. Flockhart, 2013 CO 42, ¶ 15,
the court instructed the jury that it could discuss the case before
the close of evidence, and in People v. McBride, 228 P.3d 216, 223
(Colo. App. 2009), the prosecutor misstated the presumption of
innocence. For these reasons, we discern no error.
3. Remaining Unpreserved Arguments
¶ 28 We also reject Santiago’s remaining claims of prosecutorial
misconduct, none of which were preserved.
¶ 29 Santiago argues the prosecutor improperly attacked his
character when he asked the jury whether Santiago was “the kind
of person” who would get angry enough to beat and strangle Alinj.
But the court sustained defense counsel’s objection to this
comment. And the prosecutor’s subsequent comments did not rise
to the level of plain error. The prosecutor asked whether the jury
believed, “based on the testimony,” that Santiago “gets so angry,
that he can do these acts” or “is the kind of person that would act
on that kind of motivation.” While it may have been inartful for the
prosecutor to reference “the kind of person” Santiago is, the
comments following the objection were focused on evidence related
14 to Santiago’s temper and motive, including Santiago’s own
testimony that he would often beat Alinj out of anger. Particularly
given Santiago’s admission that he acted on his angry impulses, we
conclude that any impropriety does not cast serious doubt on the
fairness of his trial.
¶ 30 Santiago also argues that the prosecutor improperly invoked
stigma against the poor by calling the motel where Santiago and
Alinj lived “down and out” and “divey” during opening statement;
eliciting testimony that they had to live there because they “don’t
have enough money”; and arguing that Santiago was motivated by a
need for money, including a desire to get Alinj’s settlement check
from a car accident so he “can sit around in the motel all day and
smoke marijuana and play Xbox.”2 We conclude these questions
and comments were proper references to facts in evidence. Indeed,
Santiago told police and testified that he and Alinj were arguing
about money before the attack occurred. He also testified that he
2 The prosecutor also asked Santiago whether the motel was the
kind of place sex offenders live so they can stay away from children. While this question was improper, the trial court sustained defense counsel’s contemporaneous objection and counsel requested no further relief. Despite Santiago’s arguments, we need not consider this error further. See People v. Douglas, 2012 COA 57, ¶ 65.
15 expected that Alinj would receive $25,000 if she told her lawyer she
had recovered from her car accident injuries. And he described
smoking marijuana in the motel.
¶ 31 Moreover, even if we were to agree that some of the
prosecutor’s comments went too far by invoking stereotypes about
poverty, none were so “flagrantly, glaringly, or tremendously
improper” as to warrant reversal for plain error. See Domingo-
Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (citation
omitted). In fact, Santiago’s reliance on Alinj for money can be read
to support his defense — indicating that he wanted her to live so
that he could use her settlement check and continue relying on her
financially. Accordingly, any impropriety in the prosecutor’s
comments did not undermine the fundamental fairness of the trial.
¶ 32 Next, Santiago argues the prosecutor denigrated the defense
by characterizing his testimony as “excuses” and arguing that
defense counsel “stood here and said to you maybe [Santiago is] a
hero.” Read in context, however, these comments highlighted the
inconsistencies in Santiago’s story and emphasized the weight of
evidence against him. They further responded to defense counsel’s
argument, in both opening statement and closing argument, that
16 Santiago had tried to save Alinj’s life and “had he not done that, she
may not have made it as far as she did.”
¶ 33 Finally, we disagree with Santiago that the prosecutor
misstated the law and improperly equated his testimony to
argument when he said it is “really, really important for you all to
remember as jurors: It doesn’t matter what [defense counsel] says,
it doesn’t matter what I say. It doesn’t matter what the Defendant
says to you. It’s how you remember this evidence.” While the
prosecutor may have been inartful in listing Santiago’s testimony
alongside arguments by counsel, he did so in the context of
emphasizing that the jury should consider Santiago’s testimony
among the evidence relevant to his guilt. Before this comment, the
prosecutor contrasted Santiago’s testimony with other evidence
showing that Alinj died by strangulation and blunt force trauma.
And during initial closing argument, he specifically listed Santiago’s
testimony among the pieces of evidence the jury should consider.
We therefore discern no impropriety.
IV. Disposition
¶ 34 The judgment is affirmed.
JUDGE JOHNSON and JUDGE GOMEZ concur.