Peo v. Tonelli

• Court: Colorado Court of Appeals
• Decided: April 2, 2026
• Docket: 24CA0854
• Status: Unpublished

Opinion

24CA0854 Peo v Tonelli 04-02-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0854 La Plata County District Court No. 21CR492 Honorable Suzanne F. Carlson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Nicolo Anthony Tonelli,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE BROWN Freyre and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 2, 2026

Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Adrienne R. Teodorovic, Alternate Defense Counsel, Windsor, Colorado, for Defendant-Appellant ¶1 Defendant, Nicolo Anthony Tonelli, appeals the judgment of

conviction entered on a jury verdict finding him guilty of

manslaughter and tampering with physical evidence. We affirm.

I. Background

¶2 Beginning in 2019, Tonelli and Jamison McMaster, the victim,

rented the lower portion of a detached garage on property owned by

Donna Brand. Brand lived in the main house, and her

groundskeeper lived on the upper floor of the garage. Tonelli and

McMaster grew marijuana on the property and sold it.

¶3 People who had known McMaster for at least a few years

reported that his demeanor changed around the summer of 2021.

McMaster’s behavior became more sporadic, he acted paranoid, and

he discussed “bizarre things.” He also began to carry around a

five-foot metal pole, which he anthropomorphized and named

“Pepperoncini.”

¶4 On the evening of November 21, Brand’s grandson noticed that

McMaster had left “Pepperoncini” in the main house right in front of

Brand’s bedroom door. Brand’s grandson grabbed it, threw it

outside into the front yard, and told McMaster not to leave it lying

around on the floor. McMaster became upset and told all the

1 people hanging out at the house to line up outside. No one wanted

to comply with this request, and the situation escalated until

Tonelli ended up hitting McMaster in the head with a rock, and the

group split up. While Brand’s grandson was trying to clean up the

cut on McMaster’s head, Tonelli came out of the house with a gun,

which Brand’s grandson took away from him.

¶5 The following morning, Tonelli and McMaster argued over a

box of marijuana and money. McMaster wanted to deliver the

marijuana to a buyer, but Tonelli did not trust him to do it, and the

two fought again. At Tonelli’s request, Brand’s grandson hid the

box of marijuana in the main house. McMaster tried to get into the

main house, but the doors were locked, so he banged on the doors

and the windows. From inside, Brand pointed her shotgun at

McMaster to stop him from trying to get in. When he persisted, she

called the police around 10:50 a.m. to have McMaster removed from

the property.

¶6 When the police arrived about twenty minutes later, everyone

was calm, and no one seemed like they wanted to talk. The police

told Brand that she needed to obtain an eviction order if she wanted

McMaster to leave her property, and they left after about fifteen to

2 twenty minutes. After the police left, Brand went to obtain eviction

paperwork.

¶7 Around 12:45 p.m., McMaster found the box of marijuana

inside the main house, carried it outside, and was walking toward

one of the vehicles parked outside when Tonelli shot him.

McMaster died immediately. Tonelli had a summer worker help him

move the box of marijuana from where it fell near McMaster’s body

to the worker’s car parked at the end of Brand’s driveway. Tonelli

threw his gun into the woods while they were walking to the

worker’s car. After they put the box into the car, Tonelli returned to

the house.

¶8 Sometime after 1 p.m., Brand returned to the house, and

Tonelli asked her to help him get McMaster to the hospital. The two

put McMaster’s body into Brand’s car. Brand started to drive down

her driveway but turned the car around because she knew

McMaster was dead and there was no reason to go to the hospital.

Brand parked her car in front of her garage with McMaster’s body

still inside. Around 3 p.m., the groundskeeper returned to the

property and found Brand and Tonelli still sitting in Brand’s car.

Brand told the groundskeeper what happened, and the

3 groundskeeper told Brand to go inside the house and Tonelli to get

out of the car while he called 911.

¶9 The prosecution charged Tonelli with second degree murder,

tampering with physical evidence, and tampering with a deceased

body. After a thirteen-day trial, a jury found Tonelli guilty of a

lesser-included charge of manslaughter and tampering with

physical evidence.

II. Prosecutorial Misconduct

¶ 10 Tonelli contends that the district court erred by allowing the

prosecutor to commit misconduct during closing argument. We

disagree.

A. Standard of Review and Applicable Law

¶ 11 We engage in a two-step analysis when reviewing claims for

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine whether the prosecutor’s conduct

was improper based on the totality of the circumstances. Id.

Second, we decide whether such actions warrant reversal under the

proper standard. Id.

¶ 12 While prosecutors can use every legitimate means to bring

about a just conviction, they have a duty to avoid using improper

4 methods designed to obtain an unjust result. Domingo-Gomez v.

People, 125 P.3d 1043, 1048 (Colo. 2005). We evaluate claims of

improper argument in the context of the argument as a whole and

in light of the evidence before the jury. People v. McMinn, 2013 COA

94, ¶ 60.

¶ 13 The parties agree that this issue is unpreserved, so we will

reverse only for plain error. People v. Garner, 2015 COA 175, ¶ 34,

aff’d, 2019 CO 19. For an error to be plain, it must be both obvious

and substantial. Hagos v. People, 2012 CO 63, ¶ 14. For

prosecutorial misconduct to constitute plain error, it “must be

flagrant or glaringly or tremendously improper, and it must so

undermine the fundamental fairness of the trial as to cast serious

doubt on the reliability of the judgment of conviction.” McMinn,

¶ 58. “Prosecutorial misconduct in closing argument rarely

constitutes plain error.” People v. Smalley, 2015 COA 140, ¶ 37.

B. Additional Background

¶ 14 At trial, Tonelli asserted that he acted in self-defense based on

McMaster’s increasingly unpredictable and aggressive behavior in

the months and weeks leading up to the incident and, more

5 specifically, the night before and the morning of the shooting. The

district court instructed the jury, in relevant part, that

Mr. Tonelli was legally authorized to use deadly physical force upon another person without first retreating if:

1. he used that deadly physical force in order to defend himself from what he reasonably believed to be the use or imminent use of unlawful physical force by that other person, and

2. he reasonably believed a lesser degree of force was inadequate, and

3. he had a reasonable ground to believe, and did believe, that he was in imminent danger of being killed or of receiving great bodily injury[.]

The court also instructed the jury on the provocation and initial

aggressor exceptions to self-defense.

¶ 15 Defense counsel asked the court to also instruct the jury as

follows:

“Imminent” in the context of self-defense is defined as near at hand, impending or on the point of happening.

“Imminent” in the context of self-defense is also defined as likely to happen without delay.

The court declined to give the instruction, reasoning that “people

know what ‘imminent’ means.”

6 ¶ 16 During closing argument, the prosecutor discussed Tonelli’s

theory of self-defense, reminding the jury that it was the

prosecution’s burden to disprove that Tonelli “used that deadly

physical force in order to defend himself from what he reasonably

believed to be the use or imminent use of unlawful physical force by

that other person.” The prosecutor continued,

Key words in here. A reasonable belief, unlawful physical force, but most key, most key, in this prong is that word “imminent,” because “imminent” means what’s happening right now. It’s not really relevant what happened this morning or the night before. “Imminent” means what is happening in that moment and is deadly physical force justified right then.

The prosecutor later added,

“Imminent” means right now, right then, in the moment. And in that moment, once again, there is no Pepperoncini. Mr. McMaster is leaving. He’s unarmed. He’s possibly carrying that box [of marijuana] when he was shot in the side.

The only imminent threat that Mr. McMaster posed to [Tonelli] in that moment in time was financial. The threat was everyone wanted him to leave, but now he was leaving but he was taking that box with him . . . . That was the threat. It wasn’t a threat of great or serious bodily injury and it certainly wasn’t imminent.

7 ¶ 17 Defense counsel did not object to the prosecutor’s remarks.

Instead, in closing argument, defense counsel said that

[a] person can use deadly physical force without first retreating in order to defend himself if he reasonably believes a lesser degree of force is inadequate and he has a reasonable ground to believe, and does believe, that he’s in imminent danger of being killed or of receiving great bodily injury . . . .

Defense counsel explained,

They say there’s no evidence of any justification that [Tonelli] had to shoot [McMaster], it has nothing to do with what happened earlier or the day before or in the weeks and month[s] before. But they are wrong. It has everything to do with that.

And it’s not the law in Colorado that you’re looking at that one single moment in time. The law says you can’t look at this with tunnel vision and the law says that you can’t look at this in a vacuum because this is about [Tonelli]’s reasonable belief. Reasonable is determined by what a reasonable person with [Tonelli]’s experience and circumstances in that specific situation would do and think, and his reasonable belief, based on the totality of the circumstances, all of [Tonelli]’s experiences and knowledge at the time. It’s about the context of the situation.

...

Contrary to the prosecutor’s contentions, [McMaster]’s behavior in the months, weeks, and days prior to the shooting are absolutely

8 relevant as to how [Tonelli] perceived the situation and the threat that [McMaster] presented to him at that moment. All of [McMaster]’s previous behaviors for the previous six months, his drug use, his head injury, his aggression, his unpredictability, his paranoia, his steep mental decline, all of those are relevant to [Tonelli]’s reasonable belief.

C. The Prosecutor Did Not Commit Reversible Error

¶ 18 Tonelli contends that the district court plainly erred because it

allowed the prosecutor to commit misconduct by misstating the

definition of “imminent.” Specifically, Tonelli contends that the

prosecutor erroneously defined “imminent” as something happening

“right now, right then, in the moment,” rather than something

“about to happen” based on all the facts and Tonelli’s perception of

those facts. We are not persuaded for two reasons.

¶ 19 First, any error was not obvious. As the district court

correctly instructed the jury, under Colorado law, for a defendant’s

use of deadly physical force to be legally justified as self-defense, he

must reasonably believe that someone is in “imminent danger” of

being killed or seriously injured and that he must defend against

the use or “imminent use” of unlawful physical force by the victim.

§ 18-1-704(1), (2)(a), C.R.S. 2025. “‘Imminent’ has not been

9 expressly defined by statute or by Colorado case law in the context

of self-defense.” People v. Yaklich, 833 P.2d 758, 760 (Colo. App.

1991). And Tonelli cites no authority concluding otherwise; rather,

he concedes that “the law does not instruct on what ‘imminent’

means.”

¶ 20 For an error to be “plain,” it “must be so clear-cut, so obvious,

that a trial judge should be able to avoid it without benefit of

objection.” People v. Pollard, 2013 COA 31M, ¶ 39. Generally, for

an error to be obvious, it must contravene a statute or rule, a

well-settled legal principle, or established Colorado case law.

Campbell v. People, 2020 CO 49, ¶ 25. In the absence of a statute,

rule, or established Colorado case law defining “imminent” only as

Tonelli defines it, or declaring the prosecutor’s definition erroneous,

we perceive no obvious error. See id.

¶ 21 We are not persuaded otherwise by Tonelli’s argument that

case law clearly provides that the dictionary definition of a term

controls in the absence of a statutory or common law definition and

that the prosecutor plainly erred by not strictly adhering to Tonelli’s

10 proposed dictionary definitions.1 There are several different

dictionary definitions, including those Tonelli cites on appeal. For

example, Tonelli cites Black’s Law Dictionary defining “imminent”

as “threatening to occur immediately; dangerously impending.”

Black’s Law Dictionary 894 (12th ed. 2024). And the People cite

Merriam-Webster Dictionary defining “imminent” as “ready to take

place; happening soon.” Merriam-Webster Dictionary,

https://perma.cc/JBM6-JSKX.

¶ 22 The prosecutor’s explanation of the term during closing

argument did not veer far from these definitions. Thus, we cannot

conclude that the prosecutor’s definition of “imminent” was so

clearly wrong that the district court should have interjected to

correct it without any objection from defense counsel. See Hagos,

¶ 14; Pollard, ¶ 39; see also Domingo-Gomez, 125 P.3d at 1048

(prosecutors have “wide latitude in the language and presentation

style used to obtain justice”); People v. Samson, 2012 COA 167,

1 We note that Tonelli does not assert on appeal that the district

court erred by declining to instruct the jury with his proposed definitions.

11 ¶ 30 (reviewing courts afford prosecutors “the benefit of the doubt

when their remarks are ambiguous or simply inartful”).

¶ 23 Second, in any event, we do not perceive anything improper

about the prosecutor’s conduct. The prosecutor opposed Tonelli’s

proposed instruction on the dictionary definitions of “imminent,”

the district court declined to give the proposed instruction, and

then the prosecutor and defense counsel both argued in closing

about what “imminent” meant. The prosecutor argued that

something is “imminent” if it is “happening right now” or “in that

moment,” while defense counsel argued that what happened in the

preceding weeks, months, days, and hours informed Tonelli’s

perception of “the threat that [McMaster] presented to him at that

moment.” (Emphasis added.) These explanations of what is

“imminent” are not that different. And it is not as though the court

adopted a specific definition of “imminent” that the prosecutor

disregarded in closing argument.

¶ 24 To the extent Tonelli contends that the district court plainly

erred by allowing the prosecutor to encourage the jury to disregard

anything that occurred the evening before and the morning of the

shooting when considering whether Tonelli reasonably believed he

12 had to use deadly physical force in self-defense, we are not

persuaded. True, the jury was required to consider the totality of

the circumstances when evaluating the reasonableness of Tonelli’s

belief. See Kaufman v. People, 202 P.3d 542, 551 (Colo. 2009). But

we do not view the prosecutor’s challenged remarks as instructing

the jury otherwise.

¶ 25 Instead, we understand the prosecutor to have argued that

events occurring months, weeks, days, and hours before the

incident should not have given Tonelli a reasonable belief that

McMaster was about to use unlawful physical force in the moments

before Tonelli shot him. The prosecutor essentially argued that one

cannot use deadly force in response to a threat that is hours or

days old and then claim to have acted in self-defense. See People v.

Suazo, 867 P.2d 161, 169 (Colo. App. 1993) (affirming the district

court’s denial of a defense of others instruction because no evidence

supported “a claim that [the defendant] reasonably believed that

further violence towards his mother was, under any definition,

‘imminent’” when the victim, who had hit the defendant’s mother,

was seeking medical treatment after the “fracas that had taken

place a few minutes earlier”).

13 ¶ 26 But even if a reasonable jury would have understood the

prosecutor’s remarks as suggesting that it should disregard the

totality of the circumstances when considering the reasonableness

of Tonelli’s belief — which would have been improper, see Kaufman,

202 P.3d at 551; see also McMinn, ¶ 62 (explaining, in relevant part,

that a prosecutor may not misstate or misinterpret the law) — we

doubt the jury would have heeded that fleeting suggestion. The

trial was thirteen days long. The jury heard extensive testimony

regarding McMaster’s increasingly bizarre and dangerous conduct

leading up to the shooting. And defense counsel clearly argued that

all of McMaster’s behavior was relevant to Tonelli’s reasonable belief

in that moment. Under these circumstances, we are not persuaded

that the jury would have disregarded the totality of the

circumstances in its deliberations. Thus, we conclude that any

prosecutorial misconduct did not undermine the fundamental

fairness of the trial as to cast serious doubt on the reliability of the

judgment of conviction. See McMinn, ¶ 58.

III. Disposition

¶ 27 We affirm the judgment of conviction.

JUDGE FREYRE and JUDGE SCHUTZ concur.