23CA2031 Peo v Tapia 05-14-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2031 City and County of Denver District Court No. 22CR1855 Honorable Adam J. Espinosa, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Vincent S. Tapia,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE SCHUTZ Freyre and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 14, 2026
Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for Defendant-Appellant ¶1 Defendant, Vincent S. Tapia, appeals the trial court’s
judgment of conviction entered on a jury verdict finding him guilty
of second degree murder. We affirm the judgment.
I. Background and Procedural History
A. Incident and Arrest
¶2 Tapia and Ricardo Santos, the victim, were friends who grew
up together. On the evening of April 1, 2022, Santos and Tapia
drove in Santos’s car and picked up Isabella Lara-Tello and Leanel
Martinez. Tapia was in the front passenger seat and Lara-Tello and
Martinez were in the back. Martinez testified that she and Tapia
were Facebook acquaintances who had met up a few times in
person. Lara-Tello was Martinez’s friend and had not previously
met Santos or Tapia.
¶3 Martinez testified that, on the way to a nightclub, while Santos
was driving, Santos and Tapia passed around a tequila1 bottle, and
they all took turns drinking from it. There was also testimony
1 The state’s toxicology expert performed a retrograde extrapolation
on Tapia and determined that his blood alcohol concentration (BAC) was .272 at the time of the shooting.
1 about smoking marijuana. Martinez testified that she saw Santos
pass a revolver to Tapia while they were in the car.
¶4 Santos collided with another car stopped at a red light.
Santos drove away from the accident scene, and Santos and Tapia
argued about who was responsible for the accident (there was some
suggestion that Tapia may have grabbed the steering wheel).
Santos allegedly told Tapia that he had to either agree to pay part of
the repair expenses or fight him. Santos pulled over, and he and
Tapia got out of the car. Anticipating that Santos and Tapia were
about to fight, Martinez also got out of the car and called a friend.
Lara-Tello remained in the car. Santos and Tapia got into a fist
fight, and, at some point, Tapia pulled out the handgun and fired it
twice at Santos. One bullet struck Santos’s neck.
¶5 Tapia ran away. Lara-Tello cradled Santos’s head and applied
pressure to the wound while Martinez called the police. When the
officers arrived, Martinez showed the officers Tapia’s Facebook
profile. Santos was taken from the scene by ambulance shortly
after police were called but ultimately succumbed to his injuries at
the hospital.
2 ¶6 At around 11:40 p.m., police officers located Tapia about six
blocks away from the shooting and handcuffed him. Officer Vincent
Lombardi read Tapia his Miranda rights and asked him if he would
like to talk to the officers. See Miranda v. Arizona, 384 U.S. 436,
444 (1966). A visibly intoxicated Tapia initially said that he wanted
to talk to his mother but eventually talked to Lombardi. The
officers later took Tapia into custody.
¶7 Just before 4 a.m., Tapia was interviewed again at the police
station by Detective Mark Crider. Before Crider entered the room,
Tapia was asleep at a table and still appeared to be intoxicated.
Crider read Tapia his Miranda rights. Tapia indicated that he
understood the advisement and signed the Miranda waiver as
“yessi, Vinvent twentyy.” Crider then interrogated Tapia. Tapia
was subsequently charged with first degree murder.
B. Trial and Conviction
¶8 The court set the case for a jury trial. On the day of trial,
Tapia, for the first time, told the court that there was a conflict
between him and his attorneys and moved for a continuance so that
he could retain private counsel. The court emptied the courtroom
and found a judge who was available to conduct a Bergerud
3 hearing. See People v. Bergerud, 223 P.3d 686 (Colo. 2010). The
judge who conducted the hearing found that there was no conflict
between Tapia and his appointed counsel.
¶9 Tapia thereafter renewed his continuance motion with the trial
court, which it denied based on the last-minute nature of the
motion, the fact that this case had already been continued on one
other occasion, and strong objections from Santos’s family — some
of whom travelled from out of state.
¶ 10 The case proceeded to trial. The jury convicted Tapia of
second degree murder, and the trial court sentenced him to forty
years in the custody of the Department of Corrections.
II. Motion to Suppress
¶ 11 Tapia contends that the trial court erred by failing to suppress
body camera (bodycam) footage of Tapia making incriminating
statements to Officer Lombardi and video footage of his statements
to Detective Crider. We address each contention in turn.
A. Standard of Review and Applicable Law
¶ 12 Generally, we review a trial court’s ruling on a motion to
suppress as a mixed question of law and fact. Gow v. People, 2019
CO 30, ¶ 13. We defer to the court’s factual findings if they are
4 supported by the record but review its legal conclusions de novo.
Id. If the statements sought to be suppressed are recorded,
however, we may independently review the recording. See People v.
Kutlak, 2016 CO 1, ¶ 13. In such circumstances, we are in the
same position as the trial court to weigh the import of the
recording, and assuming other material facts are not disputed, our
entire review is de novo. People v. Sellers, 2022 COA 102, ¶ 9, aff’d
on other grounds, 2024 CO 64.
¶ 13 Defendants in criminal cases enjoy a constitutional right
against self-incrimination. U.S. Const. amend. V; Colo. Const. art.
II, § 18; Miranda, 384 U.S. at 444; People v. Aguilar-Ramos, 86 P.3d
397, 400 (Colo. 2004). Under Miranda, the prosecution may not
use a statement obtained by police during a custodial interrogation
in its case-in-chief unless the suspect was advised of, and validly
waived, their Fifth Amendment rights. People v. Alemayehu, 2021
COA 69, ¶ 73 (citing People v. Wood, 135 P.3d 744, 749 (Colo.
2006)).
¶ 14 The prosecution must show by a preponderance of the
evidence that any waiver was valid. People v. Smiley, 2023 CO 36,
¶ 15 (citing Berghuis v. Thompkins, 560 U.S. 370, 383-84 (2010)).
5 “A waiver is knowing and intelligent when made with full awareness
of the nature of the right being abandoned and the consequences of
the decision to abandon it.” People v. Platt, 81 P.3d 1060, 1065
(Colo. 2004); People v. Hopkins, 774 P.2d 849, 851 (Colo. 1989).
¶ 15 Generally, to determine whether a waiver is knowing and
intelligent, courts may consider various factors:
(1) the lapse of time between an initial Miranda advisement and a subsequent interrogation, (2) the extent to which a suspect has been informed or is aware of the subject matter of the interrogation prior to its commencement, (3) whether the accused or the interrogating officer initiated the interview, (4) whether and to what extent the accused was reminded of his rights prior to the interrogation, (5) the clarity and form of the defendant’s acknowledgement and waiver, if any, and (6) the background and experience of the accused in connection with the criminal justice system.
People v. Humphrey, 132 P.3d 352, 356 (Colo. 2006).
¶ 16 A defendant’s intoxication level at the time of their Miranda
waiver is relevant to the waiver analysis. People v. Knedler, 2014
CO 28, ¶ 14. If the defendant was intoxicated, the court may
consider additional factors to determine whether the Miranda
waiver was knowing and intelligent, including whether the
defendant
6 • appeared oriented to their surroundings and situation;
• answered questions in a way that was responsive and
rational;
• appreciated the seriousness of their predicament,
including the possibility of being incarcerated;
• attempted to deceive the police;
• expressed remorse for their conduct; and
• expressly stated that they understood their rights.
Platt, 81 P.3d at 1066; Knedler, ¶ 14.
B. Officer Lombardi Video
¶ 17 Tapia contends that the trial court’s failure to suppress the
bodycam footage in which he speaks to Officer Lombardi while
handcuffed was reversible error. We discern no error with the trial
court’s ultimate conclusion.
1. Additional Facts
¶ 18 Lombardi’s bodycam footage, which started recording at
around 11:40 p.m., was approximately ten minutes long and
showed Tapia surrounded by police officers, handcuffed, and
leaning against a police car. Tapia appeared nervous and
distressed but responded appropriately to officers’ commands.
7 ¶ 19 Tapia made eye contact with Lombardi and started to ask him
a question. Lombardi interrupted Tapia before he could ask the
question and asked Tapia his age.
¶ 20 Tapia said that he was nineteen years old,2 and Lombardi
started advising him of his Miranda rights. After Lombardi told
Tapia that he had the right to remain silent, Tapia, through slurred
speech, interrupted Lombardi and said, “I know, I just want to talk
to my mom.” Lombardi instructed Tapia to listen to the rest of the
advisement and asked him whether he understood the first part of
the advisement. Tapia responded that he understood, and
Lombardi continued advising him of his right to counsel.
¶ 21 Tapia did not maintain eye contact throughout the entire
advisement and appeared distracted. When Lombardi finished the
advisement, he asked Tapia whether he would like to talk to him.
Tapia responded, “I understand, yes, no I don’t want to talk to you,
I want to talk to my mom.” Tapia then restated that he only wanted
to talk to his mom. Tapia then remained silent for about ten
seconds.
2 Tapia was actually twenty.
8 ¶ 22 Lombardi again asked Tapia if he wanted to talk about what
happened, and Tapia responded, “That’s up to you officer.” Tapia
then proceeded to tell Lombardi that he ran off with the gun and
talked about details of the shooting and his relationship with
Santos.
¶ 23 The trial court held an evidentiary hearing on the motions to
suppress. Lombardi testified that he was one of the responding
officers who spotted Tapia running from the crime scene. Lombardi
testified that Tapia was slurring his words when Lombardi first
encountered him and that he told officers that he had been
drinking.
¶ 24 The trial court denied defense counsel’s motion after finding
that, under the totality of the circumstances, Tapia knowingly,
intelligently, and voluntarily3 waived his Miranda rights.
Specifically, the court found as follows:
• Lombardi properly advised Tapia and asked him whether
he understood the advisement.
3 On appeal, Tapia does not contend that his statements were
involuntary.
9 • Tapia did not appear to be intoxicated, at least not to the
degree that raised significant concerns about whether he
could knowingly, intelligently, or voluntarily waive his
Miranda rights.
• Tapia understood and responded appropriately to the
questions, despite repeatedly interrupting Lombardi.
• The recorded conversation was brief, and Lombardi did
not engage in any conversations that appeared off
camera.
• Even though he asked to speak to his mom, at no point
did Tapia affirmatively invoke his right to remain silent or
ask for a lawyer, and Lombardi did not engage in any
coercive conduct or make any promises or threats.
2. Analysis
¶ 25 On appeal Tapia contends that the trial court erred by finding
that he knowingly and intelligently waived his Miranda rights before
speaking to Officer Lombardi. Tapia relies on the visible signs of his
intoxication, including his slurred speech, his repeated
interruptions of Lombardi during the advisement, and his three
requests for his mother during and shortly after Lombardi’s
10 recitation of the advisement. Furthermore, Tapia contends,
Lombardi asked a follow-up question after Tapia stated he didn’t
want to talk to Lombardi and wanted to talk to his mom.
¶ 26 The People argue that the trial court correctly found that Tapia
knowingly and intelligently waived his rights because Tapia was not
too intoxicated to make a knowing and intelligent decision whether
to speak with officers, never invoked his right to remain silent, and
“never declined to speak” to Lombardi.
¶ 27 We acknowledge that the court incorrectly stated that Tapia
never declined to speak to Lombardi because, immediately after
Lombardi finished the Miranda advisement, he asked Tapia if he
wanted to talk to him, and Tapia initially said “no.” However,
despite the court’s misstatement, we conclude that it did not err by
finding that Tapia’s waiver was knowing and intelligent.
¶ 28 First, we reject Tapia’s argument that he unequivocally
asserted his right to remain silent, and that Lombardi’s subsequent
questions were therefore improper. See People v. Torres, 2026 CO
15, ¶ 21 (“[I]f the suspect invokes their right to remain silent or
their right to counsel, officers must scrupulously honor their
invocation of that right.”). In order to invoke the right to remain
11 silent under Miranda, a defendant is not required to use “special or
ritualistic phrases.” People v. Cerda, 2024 CO 49, ¶ 24 (quoting
People v. Arroya, 988 P.2d 1124, 1132 (Colo. 1999)). However, the
burden is on the defendant to articulate the desire to remain silent
so that a reasonable officer in the circumstances would understand
that the defendant was asserting that right. Id.
¶ 29 Recall that after providing the Miranda advisement, Lombardi
asked Tapia if he would like to speak with him. Tapia responded, “I
understand, yes, no I don’t want to talk to you, I want to talk to my
mom.” Lombardi stepped away but returned to Tapia shortly
thereafter and asked, “Do you want to talk about what happened?”
Tapia responded, “That’s up to you officer.” Lombardi asked a
follow-up question, and from there Tapia answered all of Lombardi’s
questions without invoking his right to remain silent.
¶ 30 We conclude that Tapia’s statements about not wanting to
speak with Lombardi were ambiguous. See id. at ¶ 27 (a purported
invocation of one’s Miranda rights is ambiguous if it creates
opposing inferences). Indeed, Tapia initially answered “yes” and
then immediately said “no.” Under these circumstances, we
conclude that Lombardi’s follow-up clarifying question was proper.
12 See Arroya, 988 P.2d at 1134-35 (explaining that officers may
continue questioning if a suspect’s request is ambiguous or
equivocal). And after that question, Tapia never unequivocally
invoked his right to remain silent. Thus, Lombardi’s subsequent
questions were not improper.
¶ 31 As it relates to Tapia’s intoxication, despite Lombardi’s
testimony that Tapia did not appear intoxicated, we conclude from
our review of the bodycam footage that Tapia did in fact appear
intoxicated. Even if, as Lombardi testified, he did not smell alcohol
on Tapia’s breath, Tapia admitted to drinking and was obviously
slurring his speech. However, and critically, the voluntariness
analysis does not turn on whether Tapia was intoxicated; the
pertinent question is whether his intoxication invalidated his
Miranda waiver. Applying the Platt factors, we conclude that under
the totality of the circumstances, there was evidence to support a
conclusion that Tapia’s intoxication did not rise to the level that he
was incapable of knowingly and intelligently waiving his Miranda
rights. See Platt, 81 P.3d at 1066.
¶ 32 Although Tapia looked distressed and concerned for the
duration of the video, he spoke respectfully to the officers and
13 proffered explanations and justifications for running away from the
car. These behaviors and statements suggest that Tapia was aware
of his surroundings and the situation. Tapia also gave an
explanation that attempted to deceive the officers, which reflects
that he understood the gravity of the situation.
¶ 33 As the trial court noted, Tapia also answered the questions
asked by Lombardi, despite the slurring, in a way that was
responsive and rational. When asked whether he understood the
waiver and wished to talk to Lombardi, Tapia responded with the
yes/no response previously summarized. Tapia then remained
silent for around ten seconds. When asked a follow-up question,
Tapia started talking and never refused to answer any questions.
Moreover, his answers were largely responsive to Lombardi’s
questions. Therefore, under the totality of the circumstances, we
discern no error with the trial court’s ultimate finding that Tapia
was able to knowingly and intelligently waive his Miranda rights.
Id.
¶ 34 Because Tapia’s intoxication was not so pronounced that he
could not knowingly or willingly waive his Miranda rights, and
Lombardi’s follow-up questions were not improper, we discern no
14 error in the trial court’s order denying the motion to suppress
Lombardi’s bodycam footage.
C. Detective Crider Interview
¶ 35 Tapia also appeals the trial court’s finding that his statements
to Detective Crider were knowing and intelligent and therefore
admissible. Again, we discern no error.
¶ 36 Shortly before 4 a.m. — approximately three and a half hours
after Tapia’s conversation with Officer Lombardi — Detective Crider
interviewed Tapia. Before Crider entered the interrogation room,
Tapia appeared to be sleeping or resting his head on the table.
Crider asked Tapia if he needed water, and Tapia responded, “No.”
Crider then walked Tapia through a written Miranda advisement
and asked him if he understood the advisement. Tapia indicated
that he understood. Crider then asked him to sign the advisement
in different places.
¶ 37 In the section where Tapia was asked whether he understood
the rights that were read to him, Crider wrote “Yes sir” as Tapia’s
“Answer,” and Tapia then signed his name as “yessi, Vinvent
twentyy.” On another signature block, he signed his name as
15 “XXXIXX.” Crider proceeded to question Tapia for around forty
minutes.
¶ 38 Defense counsel moved to suppress the interview on the basis
that Tapia was too intoxicated to waive his Miranda rights under
the circumstances. At the motions hearing, both sides heavily
litigated Tapia’s alleged intoxication level, but Tapia offered no
evidence regarding the level of his blood alcohol concentration
(BAC).
¶ 39 The trial court denied the motion after finding that Crider
correctly advised Tapia of his Miranda rights and verified his
signature, and that the manner and length of the interview did not
cause any concerns about whether Tapia knowingly, voluntarily,
and intelligently waived his rights.
¶ 40 Two months after the motions hearing, defense counsel
submitted a motion to reconsider along with an expert report
opining that Tapia’s BAC level was believed to be between .26 and
.29 when he spoke to Officer Lombardi — which occurred shortly
after the shooting — and between .111 and .29 when he spoke to
Crider. The prosecution asked the court to deny the motion
because the court had previously considered evidence that Tapia
16 consumed marijuana and alcohol and concluded that Tapia’s level
of intoxication did not render his statements unknowing or
unintelligent.
¶ 41 The trial court denied the motion to reconsider, incorporating
its prior findings. The court also concluded that the belated
evidence concerning Tapia’s potential BAC level at the time of the
Crider interrogation did not change its prior analysis.
¶ 42 We discern no error in the trial court’s admission of the
recorded interview between Tapia and Detective Crider. We have
previously concluded that Tapia was not too intoxicated earlier in
the evening to knowingly and intelligently waive his Miranda rights.
There was no evidence that Tapia consumed additional alcohol
thereafter. We note that during the Crider interrogation, Tapia
showed less energy and was possibly sleeping when Crider entered
the room; however, that alone was not sufficient to conclude that
Tapia was too intoxicated to proceed. Rather, the passage of nearly
four hours between the Lombardi interrogation and the Crider
interrogation, coupled with Tapia’s answers and body language,
17 suggested that Tapia was less intoxicated when Crider interrogated
him.
¶ 43 As it relates to Tapia’s unconventional signature, that alone is
not indicative of him being incapable of waiving his Miranda rights.
Crider verified Tapia’s signature, and — as discussed in more detail
in Part IV.B.2 — the court received evidence of other instances in
which Tapia added additional letters to his name, undermining his
assertion that the additional letters suggested that he was
incapable of knowingly or intelligently waiving his Miranda rights.
¶ 44 Based upon our independent review of the video of the Crider
interrogation, Tapia’s physical appearance, his responsiveness to
Crider’s questions, and the substantive and rational nature of his
responses, we discern no error in the trial court’s conclusion that
Tapia knowingly and intelligently waived his Miranda rights before
speaking with Crider.
¶ 45 We also discern no error with the trial court’s decision to deny
defense counsel’s motion to reconsider based on the newly
submitted evidence of Tapia’s BAC earlier in the evening. Counsel
did not provide any justification for failing to present such evidence
18 at the motions hearing or adequately explain why the expert’s
report would have changed the outcome.
III. Right to Counsel of Choice
¶ 46 Tapia next contends that the trial court violated his
constitutional right to counsel of his choosing by denying his
motion to continue the trial. We disagree.
A. Additional Facts
¶ 47 On the day of trial, Tapia orally moved for a continuance after
stating that he had a “conflict of interest” with his defense counsel
and that he was unhappy with his representation. He also stated
that he sought private counsel “a while ago” but had trouble
gathering the necessary funds to retain counsel. Upon learning
about the asserted conflict, the trial judge arranged for a different
judge to conduct a Bergerud hearing, and that judge found that
there was no conflict.
¶ 48 After renewing the continuance motion, Tapia explained that
he had spoken to Gary Fielder, a defense attorney, but that his
family was still working to obtain the funds necessary to secure
Fielder’s services. The court asked a series of follow-up questions
including
19 • whether Fielder, who was not present in the courtroom,
intended to show up at the trial on that day;
• whether Tapia had spoken to Fielder about how long it
would take him to get up to speed on the case (Tapia
indicated that he thought it would take approximately six
months for Fielder to be ready for trial);
• whether Tapia paid Fielder any money;
• how much more the family needed to raise (Tapia
indicated that the family had secured around 70% of the
funds and that he was not sure how long it would take
for his family to raise the remaining amount); and
• whether Tapia would have to re-retain the experts that
current defense counsel had already retained for the
trial.
¶ 49 The court noted that this was the second trial setting for the
case and asked whether the prosecution objected to the
continuance. The prosecutor objected due to the late nature of the
request and argued that the factors articulated in People v. Brown,
2014 CO 25, weighed in favor of denying the continuance.
Specifically, the prosecutor noted that Santos’s family members had
20 flown in to watch the trial; that some of the witnesses were nervous,
were scared, and had taken time off of work to testify; and that
Santos’s family objected to continuing the case.
¶ 50 After considering the Brown factors, the trial court denied
Tapia’s motion, finding that
• this was the second trial setting, and the case had been
pending since April 2022;
• the judge who presided over the Bergerud hearing found
that there was no conflict between Tapia and his current
counsel;
• Tapia’s counsel was ready for trial, whereas it would take
Fielder between four and six months to be ready for trial;
and
• Santos’s family objected to the continuance, and some of
his family members had flown in to watch the trial.
¶ 51 The court then stated,
This sure strikes the [c]ourt as a request that is rooted in fear and nervousness and concern about being in trial on a Class 1 felony, which — you’re right — could result in life in prison, if you’re convicted. It’s normal for you to be scared and concerned and nervous. Trial is a risky thing for everybody, for the district
21 attorney’s side and for your side, but I can’t delay the trial because of these uncertainties that you’re having. Your lawyers appear to be very prepared, and they have filed all of the motions and materials that I would expect in this kind of a case, if not more than I would have seen in the past. I’m convinced that your request to continue should be denied, and I’m going to deny your request for the reasons I set forth. We’re going to have a trial this week, Mr. Tapia.
B. Standard of Review and Applicable Law
¶ 52 We review a trial court’s denial of a motion to continue to
retain counsel of choice for an abuse of discretion. Brown, ¶ 19.
1. The Right to Counsel of One’s Own Choosing
¶ 53 The United States Constitution and Colorado Constitution
afford a criminal defendant the right to be represented by counsel of
their choice in state criminal prosecutions if the defendant faces
incarceration. Ronquillo v. People, 2017 CO 99, ¶ 15 (citing Gideon
v. Wainwright, 372 U.S. 335, 342 (1963)); see U.S. Const. amend.
VI; Colo. Const. art. II, § 16. The right to counsel of choice applies
whenever a defendant seeks to hire private counsel. Ronquillo,
¶ 20. While a defendant’s right to counsel of his choosing is “a
crucially important consideration for the trial court,” that right is
not unlimited. Brown, ¶ 22.
22 2. A Court’s Discretion to Deny a Continuance Motion
¶ 54 When evaluating a continuance motion to retain counsel of
defendant’s choice, trial courts must balance that right against the
nonexhaustive factors enumerated in Brown:
(1) the defendant’s actions surrounding the request;
(2) the availability of chosen counsel;
(3) the length of continuance necessary to accommodate
chosen counsel;
(4) the potential prejudice of a delay to the prosecution
beyond mere inconvenience;
(5) the inconvenience to witnesses;
(6) the age of the case, both in the judicial system and from
the date of the offense;
(7) the number of continuances already granted in the case;
(8) the timing of the request to continue;
(9) the impact of the continuance on the court’s docket;
(10) the victim’s position, if the victims’ rights act applies; and
(11) any other case-specific factors necessitating or weighing
against further delay.
Id. at ¶ 24.
23 C. Analysis
¶ 55 While Tapia concedes that waiting until the day of trial to
request this continuance weighed in favor of denying the motion, he
argues that, looking at the Brown factors holistically, the trial court
erroneously denied his motion. Tapia also specifically takes issue
with the court’s finding that his requested continuance was “rooted
in fear and nervousness and concern about being in trial on a Class
1 felony . . . [and that] [i]t’s normal for [Tapia] to be scared and
concerned and nervous.” Tapia argues that his fear was not due to
the seriousness of the charges or the gravity of the situation but
rather his anxiety about proceeding to trial represented by counsel
that he did not feel comfortable with. This type of anxiety, Tapia
argues, emanates from being denied the right to counsel of choice,
and the corresponding confidence in a chosen attorney that falls
within Sixth Amendment protection.
¶ 56 The People respond that the trial court properly denied the
last-minute continuance request based on the Brown factors. We
agree with the People.
¶ 57 As it relates to the first factor — Tapia’s motive — we discern
no error in the trial court’s finding that Tapia acted out of fear. It
24 was the first time that the court had been made aware of any issues
concerning his representation by the public defenders, and the
court that conducted the Bergerud hearing found no conflict.
Therefore, contrary to Tapia’s assertion on appeal, there was record
support for the trial court’s finding that the continuance motion
was actually based on fears inherent in proceeding to trial on a
class 1 felony rather than a lack of confidence in or conflict with his
appointed counsel. This finding works against Tapia’s continuance
motion under the first Brown factor.
¶ 58 As it relates to Brown factors two through five, which largely
deal with the administrative and logistical considerations of
granting a continuance, the trial court properly considered the
consequences of any continuance, including asking how long it
would take for Tapia’s family to come up with funds to retain
Fielder, how far along in the process the family was in securing the
representation, how long it would take Fielder — once retained — to
be prepared for a trial, and the potential costs associated with
having to re-retain experts for a new trial date.
¶ 59 The court also considered other factors before deciding
whether to grant the continuance, such as the number of
25 continuances previously granted (the trial had already been
continued twice); the impact on the court’s docket; and the burdens
a continuance would place on witnesses, including a finding that
there were witnesses who had expressed nervousness about
testifying in this case and had taken time off of work.
¶ 60 Finally, the court considered the objections made by Santos’s
family members, including those who had flown to Colorado to be
present for the trial.
¶ 61 Given the court’s consideration of the Brown factors and its
related findings, we conclude the court did not abuse its discretion
by denying Tapia’s motion to continue.
IV. The Unfairly Prejudicial Evidence Claims
¶ 62 Tapia contends that the trial court reversibly erred by
admitting (1) bodycam footage that graphically depicted Santos’s
injuries and (2) an unredacted image of Tapia’s Facebook profile
which used the name “Smith Wessøn (vmøneyy).” We address each
contention in turn.
¶ 63 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Elmarr, 2015 CO 53, ¶ 20.
26 ¶ 64 Relevant evidence is that which has “any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.” CRE 401. Relevant evidence is admissible unless its
probative value is “substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” CRE 403.
¶ 65 Under Rule 403, a reviewing court is obligated to “afford the
evidence the maximum probative value attributable by a reasonable
fact finder and the minimum unfair prejudice to be reasonably
expected.” People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002). Images
may be admissible in evidence if “they depict relevant facts and are
not unnecessarily gruesome and inflammatory so as to incite the
jury to unfair prejudice against the defendant.” People v. Herrera,
2012 COA 13, ¶ 30 (explaining that photographs depicting a victim
at the scene of a crime are admissible if they depict relevant facts).
Moreover, “photographs of a victim may have probative value even if
they relate to an undisputed matter.” Id. at ¶ 32; see People v.
White, 606 P.2d 847, 849 (Colo. 1980) (“[P]hotographs are not
27 inadmissible solely because the defendant has stipulated to these
matters, or because these matters have been established through
the testimony of prosecution witnesses.”).
B. Discussion
1. Officer Brown’s Bodycam Footage
¶ 66 Tapia contends that the footage from the bodycam worn by
Officer Phillip Brown, a police officer who reported to the scene of
the shooting and tended to Santos’s injuries, should have been
excluded because the prejudicial impact of the video outweighed its
probative value. We are not persuaded.
¶ 67 The video, which is a little shy of five minutes, shows Officer
Brown running toward an apparently unconscious and bleeding
Santos, as Lara-Tello applies pressure to Santos’s neck wound. The
footage shows Martinez describing Tapia’s clothing to nearby
officers and Brown cutting off Santos’s shirt to inspect his body for
additional injuries. Significant amounts of blood appear on
Santos’s face and upper body. The footage also shows paramedics
placing Santos on a gurney and into an ambulance.
28 ¶ 68 At trial, the prosecution moved to admit Officer Brown’s
bodycam footage. Tapia’s counsel objected on relevance grounds
and argued that the extremely bloody content of the video was
unduly prejudicial. The prosecution responded that the footage was
relevant to show the condition of the scene and would assist the
eyewitnesses’ explanations of what happened.
¶ 69 After finding that the footage was “relevant to show the
condition of the scene, the chaotic nature of the scene, [and] to
show timing issues,” the trial court admitted the video but only
allowed the prosecution to play it for the jury once. The court also
warned members of the public that the video was disturbing prior to
playing it. The prosecutor played the video.
b. Analysis
¶ 70 Tapia contends that the video was unduly prejudicial and had
scant probative value. Tapia cites the court’s disclaimer to the
public about the graphic content of the video to demonstrate its
prejudice. Because other evidence was available to convey the same
information — such as testimony from Officer Brown, Lara-Tello,
and Martinez — as well as less prejudicial autopsy photos, Tapia
argues the court abused its discretion by admitting the video.
29 ¶ 71 The People counter that the trial court properly admitted the
bodycam footage because the evidence was relevant and not
unfairly prejudicial. They emphasize that the bar for relevance is
low, see CRE 401, and under CRE 403 the objecting party must
demonstrate that the probative value of the evidence “is
substantially outweighed by the danger of unfair prejudice.” The
People argue the footage showed the position of Martinez and Lara-
Tello and the condition of the scene when officers arrived.
¶ 72 The People also reject Tapia’s contention that the footage was
unduly prejudicial under CRE 403 because it was the only exhibit
that the prosecution offered depicting Santos’s injuries at the scene
of the shooting, and autopsy photos would not show the relevant
appearance and condition of Santos as effectively. We agree with
the People.
¶ 73 Contrary to Tapia’s assertion, the bodycam footage is relevant
because it contextualizes the witnesses’ testimony and shows the
extent of Santos’s injuries. Tapia also asserted that Santos’s
injuries were survivable; therefore, seeing the extent of those
injuries and Santos’s condition was relevant information for the
jury to consider. See People v. Kurts, 721 P.2d 1201, 1204 (Colo.
30 App. 1986) (“Photographs depicting the circumstances surrounding
the victim’s death, such as the appearance of the victim and the
location and nature of the wounds, have probative value in a
homicide case.”).
¶ 74 We also reject Tapia’s contention that the nature of the video
is presumptively prejudicial. When determining whether evidence
should be excluded, courts must consider whether it depicts
“relevant facts and [is] not unnecessarily gruesome and
inflammatory so as to incite the jury to unfair prejudice against the
defendant.” Herrera, ¶ 30.
¶ 75 The video of Santos was relatively short, was only shown once,
and did not depict an excessive amount of violence. As Tapia notes,
the video depicts Santos’s response to a lethal wound and the
resulting blood loss. But because this case concerned a homicide
caused by a gunshot wound to the neck, the jury already had
context for the video given the significance of the charges and the
nature of the crime.
¶ 76 Beyond the blood and a momentary look at Santos’s gunshot
wound, the video contained nothing that was unduly disturbing.
Because the bodycam footage was both relevant and not unfairly
31 prejudicial, the trial court did not abuse its discretion by admitting
it. See CRE 401; CRE 403.
¶ 77 We also reject Tapia’s assertion that the bodycam footage
should have been excluded as cumulative simply because witnesses
had described the events depicted in the video. Tapia asserts that
the witnesses’ testimony was less prejudicial and that the video’s
prejudice is amplified because it was cumulative. But as the People
note, evidence is not rendered inadmissible simply because it may
be cumulative in some respects. See People v. Pahlavan, 83 P.3d
1138, 1140 (Colo. App. 2003).
¶ 78 The bodycam footage provided the jury with details concerning
the gravity of Santos’s wound, his condition in real time, and the
positioning of witnesses, all of which are relevant and not wholly
duplicative of the witnesses’ testimony. See Young v. People, 488
P.2d 567, 574 (Colo. 1971) (“[P]hotographs may be used to
graphically portray, among other things, the scene of a crime, the
identification of a victim, the appearance and condition of the
deceased, and the location, nature and extent of the wounds or
injuries, all of which matters are relevant.”).
32 2. Tapia’s Facebook Profile
¶ 79 Tapia contends that admitting a photograph depicting his
unredacted Facebook profile picture and name, “Smith Wessøn
(vmøneyy),” was unfairly prejudicial because the photograph
contained little to no probative value under CRE 401 and was
unfairly prejudicial under CRE 403 due to the reference to the
name of a gun manufacturer. We are not persuaded.
¶ 80 The picture of Tapia’s profile was relevant because (1) it
corroborated Martinez’s identification of him as the shooter;
(2) Tapia raised the profile in his interview with Detective Crider and
discussed how it was the primary way in which he connected with
Santos; and (3) it established how Tapia sometimes used extra
letters and symbols when identifying himself. Thus, the trial court
did not err by concluding that the picture of the profile and name
was relevant.
¶ 81 As it relates to the trial court’s specific decision not to redact
his profile name, we also discern no abuse of discretion. The profile
name “Smith Wessøn (vmøneyy)” was relevant because it
corroborated that Tapia’s writing routinely included unnecessary Xs
and Ys.
33 ¶ 82 Furthermore, nothing in the picture of the profile
impermissibly suggested that Tapia had a violent character. The
profile contained images of a middle-aged man, presumably Tapia’s
father, along with Tapia taking a selfie in a mirror. None of this
content depicted guns or created undue prejudice against Tapia.
Because it was relevant, and not unreasonably prejudicial under
Rule 403, the trial court did not abuse its discretion by admitting
the unredacted image of Tapia’s Facebook profile.
V. The Jury Instructions
¶ 83 Tapia contends that the trial court erred by failing to instruct
the jury on ordinary force and by modifying his tendered theory of
defense instruction. We address each contention in turn.
A. Standard of Review
¶ 84 A trial court has a duty to properly instruct the jury on the
applicable law. People v. Claycomb, 2025 COA 36, ¶ 14. We review
de novo whether the trial court’s instructions, read as a whole,
correctly informed the jury on the controlling law. Tibbels v. People,
2022 CO 1, ¶ 22. We also review de novo whether there was
sufficient evidence to support a defendant’s claimed affirmative
defense. Pearson v. People, 2022 CO 4, ¶ 16. Generally, assuming
34 that the jury instructions accurately reflect the controlling law, we
review “a trial court’s decision to give, or not to give, a particular
jury instruction for an abuse of discretion.” People v. Payne, 2019
COA 167, ¶ 16.
B. Ordinary Force Instruction
¶ 85 Tapia contends that the trial court reversibly erred by
impermissibly lowering the prosecution’s burden of proof by failing
to instruct the jury on the affirmative defense of ordinary physical
force. We disagree.
1. Applicable Law
¶ 86 “In order to present an affirmative defense for the jury to
consider, a defendant must offer ‘some credible evidence’ to support
the claimed defense.” Pearson, ¶ 16 (quoting § 18-1-407(1), C.R.S.
2025). If the defendant meets that standard, but the trial court
fails to instruct the jury concerning the affirmative defense, then
the prosecution’s burden of proof has been impermissibly lowered,
and the defendant’s constitutional rights are implicated. Id. When
reviewing an affirmative defense instruction, appellate courts must
review the evidence in the light most favorable to the defendant.
35 People v. Newell, 2017 COA 27, ¶ 19 (citing Cassels v. People, 92
P.3d 951, 955 (Colo. 2004)).
¶ 87 A person may use “physical force upon another person in
order to defend himself . . . from what he reasonably believes to be
the use or imminent use of unlawful physical force by that other
person, and he may use a degree of force which he reasonably
believes to be necessary for that purpose.” § 18-1-704(1), C.R.S.
2025.
¶ 88 Deadly physical force “means force, the intended, natural, and
probable consequence of which is to produce death, and which
does, in fact, produce death.” § 18-1-901(3)(d), C.R.S. 2025.
Deadly physical force is only permitted upon a showing that a lesser
degree of force would be inadequate. § 18-1-704(2)(a). It is not
error for a court to refuse to instruct the jury on the affirmative
defense of ordinary physical force in instances where there was “no
evidence from which the jury could have found that the defendant’s
use of physical force upon the victim was anything other than
deadly physical force.” People v. Opana, 2017 CO 56, ¶ 17.
36 2. Analysis
¶ 89 At trial, defense counsel requested a jury instruction on both
ordinary physical force and deadly physical force. The court
permitted the jury to be instructed on deadly physical force but
declined to instruct the jury on ordinary physical force after finding
that, under Opana, the facts did not warrant an instruction on
ordinary physical force due to Tapia’s admission that he had a .38
caliber handgun, pointed it at Santos, and pulled the trigger twice
within close range.
¶ 90 Tapia contends that the trial court’s failure to instruct the jury
on ordinary physical force impermissibly lowered the prosecution’s
burden of proof because (1) the facts in this case were
distinguishable from Opana, and (2) there was sufficient evidence to
support an ordinary physical force jury instruction because there
was some evidence to support Tapia’s theory of defense that the
amount of force he used would not normally be expected to cause
Santos’s death. Specifically, Tapia argues that it was heavily
disputed at trial whether his actions amounted to deadly physical
force given the bullet’s trajectory, his extreme intoxication, and the
37 fact that Santos’s injuries were arguably survivable if he had
received immediate medical attention.
¶ 91 The People counter that the trial court properly denied the
ordinary physical force instruction as Tapia was not entitled to such
an instruction because there was no evidence that he acted with
anything but deadly physical force. See id. We agree with the
People.
¶ 92 We are not persuaded by Tapia’s effort to distinguish Opana.
True, as Tapia points out, the defendant in Opana did not ask for
an ordinary physical force jury instruction, and therefore the
supreme court reviewed for plain error. See id. at ¶ 1. And equally
true, Tapia requested an ordinary physical force instruction and
therefore preserved the issue. But the question of preservation does
not impact the ultimate legal rule articulated in Opana — that is, a
defendant who uses lethal force by shooting someone at close range
with a firearm is not entitled to an ordinary force affirmative defense
instruction. Id. at ¶ 17 (“[T]here was no evidence from which the
jury could have found that the defendant’s use of physical force . . .
was anything other than deadly physical force. . . . [The defendant]
38 shot the victim in the chest, at close range, with a large caliber
firearm.”).
¶ 93 “While the threshold for entitlement to an instruction on an
affirmative defense is low, it is not negligible.” Id. In order for a
jury to be instructed on an affirmative defense, there must be some
evidence to support the instruction. Pearson, ¶ 16. Tapia argues
that because it was disputed whether Santos’s injuries were
survivable and whether Tapia understood his actions when he shot
Santos, an ordinary physical force instruction was appropriate.
However, that is not where the analysis ends.
¶ 94 There is nothing in the statute governing the use of physical
force that allows a defendant’s motives or mental state to
presumptively or expressly require a court to issue an ordinary
physical force instruction. See § 18-1-704. Rather, the statute
refers to the perceptions of a reasonable person. Id. Consequently,
the fact that Tapia’s motives and his mental capabilities at the time
of the shooting were heavily litigated did not entitle him to an
ordinary physical force instruction.
¶ 95 As it relates to Tapia’s second argument, that an ordinary
physical force instruction was warranted because there was some
39 evidence to support the instruction, we are, again, not persuaded.
Deadly physical force is that force “the intended, natural, and
does, in fact, produce death.” § 18-1-901(3)(d). A probable
consequence of firing multiple shots from a .38 caliber revolver at
someone at close range is death. And, as the trial court noted,
there was nothing in the record suggesting that Tapia used lesser
force prior to firing the gun at Santos. Thus, the trial court did not
abuse its discretion by denying Tapia’s tendered ordinary physical
force instruction.
C. Theory of the Defense
¶ 96 Tapia also contends that the trial court reversibly erred by
failing to adopt his unedited theory of defense instruction. We
discern no error.
¶ 97 “We review a trial court’s decision to modify a tendered theory
of defense instruction for an abuse of discretion.” People v.
Martinez, 2020 COA 141, ¶ 79.
40 2. Analysis
¶ 98 Defense counsel tendered the following theory of defense
instruction:
Mr. Tapia asserts that he did not intend to kill Mr. Santos. He asserts that he was intoxicated to such a degree that he could not act with deliberation or premeditation. Further, based on his perceptions of the circumstances, he was acting in self-defense when he fired the gun and did not mean to hit him.
¶ 99 The trial court modified the instruction as follows:
Mr. Tapia asserts that he did not intend to kill Mr. Santos. He asserts that he was intoxicated to such a degree that he could not act with deliberation or premeditation. Further, based on his perceptions of the circumstances, He asserts he was acting in self-defense when he fired the gun and did not mean to hit him.
(Additions are shown in italics and deletions are shown in
strikethroughs.) Tapia contends that the deletions resulted in error
because the omissions undermined his theory of defense, which
was that he did not mean to hit Santos when he fired the gun. He
further reasons that the instruction was warranted because there
was evidence that Tapia fired the gun twice, but Santos’s wounds
were only caused by one bullet.
41 ¶ 100 The People counter that the trial court acted within its
discretion by modifying Tapia’s tendered instruction because there
was no evidence of the trajectory of the second round, only that one
of the bullets did not hit Santos. The People also argue that the
trial court was not required to include the language that Tapia did
not mean to hit Santos because other instructions ensured that
Tapia “could not be convicted of the charge if the shooting were
accidental,” and the jury was properly instructed on the elements of
murder and the lesser included offenses.
¶ 101 We conclude that the trial court did not abuse its discretion by
modifying Tapia’s theory of defense instruction. The court’s
modified instruction correctly advised the jury of the law and struck
the balance between Tapia’s affirmative assertion that he did not
intentionally kill Santos and not impermissibly weighing in on the
evidence. Because the modified theory of defense instruction
accurately described Tapia’s theory of the case and explained the
law to the jury, we discern no error.
VI. Cumulative Error
¶ 102 Finally, Tapia contends that the cumulative impact of the
asserted errors requires reversal. “The doctrine of cumulative error
42 is based on the notion that multiple errors, in isolation, may be
viewed as harmless, but the synergistic effect of the multiple errors
may be so prejudicial that they deprive a defendant of a fair trial.”
People v. Serna-Lopez, 2023 COA 21, ¶ 47. “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. Because we have found no error, Tapia’s
cumulative error claim necessarily fails.
VII. Disposition
¶ 103 The judgment is affirmed.
JUDGE FREYRE and JUDGE BROWN concur.