Martinez v. People

• Decision Date: 10 January 2011
• Docket Number: No. 09SC887.,09SC887.
• Citation: 244 P.3d 135
• Parties: Arthur Louis MARTINEZ, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

244 P.3d 135

Arthur Louis MARTINEZ, Petitioner

v.The PEOPLE of the State of Colorado, Respondent.

No. 09SC887.

Supreme Court of Colorado, En Banc.

Nov. 30, 2010.

Rehearing Denied Jan. 10, 2011.^*

Douglas K. Wilson, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, John J. Fuerst III, Senior Assistance Attorney General, Denver, Colorado, Attorneys for Respondents.

Justice MARTINEZ delivered the Opinion of the Court.

The defendant, Arthur Martinez, appeals his conviction for second degree assault and conspiracy to commit second degree assault. During closing rebuttal argument, the prosecutor twice accused the defendant of tailoring his testimony to meet the facts testified to byprior witnesses. The prosecutor did not, however, tie these accusations of tailoring to evidence presented at trial. Rather, the prosecutor said that the defendant's mere presence at trial enabled him to tailor his testimony. Although Martinez objected on the general grounds that the argument was improper, his objection was overruled. After he was convicted, Martinez appealed. In the published opinion of People v. Martinez, the court of appeals affirmed the conviction. 224 P.3d 1026 (Colo.App.2009). We granted certiorari and now affirm the judgment of the court of appeals on different grounds.

I.

Defendant Arthur Martinez was charged in Adams County with first degree assault and conspiracy to commit first degree assault. The prosecution sought to establish that on September 24, 2002, defendant came up behind the victim, Arthur Perez, and savagely attacked him with a large flashlight. The following facts, which provide context for the prosecutor's closing argument, were adduced at trial.

Perez testified that on September 24, 2002, he and a friend, Andrew Gonzalez, were at a sports bar where Perez's girlfriend worked. The defendant and his friend, Dominick Fernandez, were also present. Throughout the evening, Fernandez "hit on" Perez's girlfriend.

At closing time, the defendant and Fernandez left the bar and got into Fernandez's car. Before they had exited the bar's parking lot, however, they saw Perez and Gonzalez also leaving the bar. Accordingly, Fernandez stopped the car. They both got out and approached Perez and Gonzalez. There were conflicting accounts of what occurred next.

Gonzalez, the victim's friend, testified that when the defendant and Fernandez approached, the defendant had a large flashlight in his hand. Gonzalez threw the first punch at Fernandez because he was sure a fight was going to ensue. He then heard the sound of the flashlight hitting Perez's head and turned to see the defendant hit Perez two more times with the flashlight. Gonzalez ran over to help his unconscious friend and intervened before the defendant could strike another blow.

The court admitted into evidence a video from a parking lot security camera. According to the detective's frame-by-frame narration, the video showed that Fernandez's car made a U-turn and drove toward Perez and Gonzalez. Fernandez and the defendant got out of the car and approached Perez and Gonzalez. Although the video does not conclusively show the defendant with a flashlight in his hand, it does show him taking an overhand "swing, not a punch" at Perez—a motion that, according to the detective's testimony, would be consistent with swinging a flashlight.

The defendant testified on his own behalf and provided a different account of the events that evening. He testified that he was an experienced fighter who had engaged in fist fights while in prison. Accordingly, he knew how to hit Perez with his fist and did just that. When Perez dropped to the ground unconscious, the defendant stepped over him and got into a fight with Gonzalez. While fighting with Gonzalez, the defendant looked over and saw his friend—Fernandez—hammering away on the victim.

During the prosecutor's cross-examination of the defendant, she asked, "[Y]ou've had the advantage of sitting in court today and listening to all the testimony, as well as yesterday; is that correct?" Defendant responded, "Correct."

Later, during closing rebuttal argument, the prosecutor argued that the defendant had taken advantage of his presence at trial and tailored his testimony to what other witnesses said. The defendant objected on the general grounds that this was improper argument.

[Prosecutor]: [Defense counsel] was adamant that his client was so truthful. Well, he's had kind of an advantage, hasn't he? He's been able to sit in here the whole time and listen to what everybody had to say.

[Defense counsel]: I'm going to object. This is improper. He's entitled [to] sit and hear the trial to which he's argued.

[Prosecutor]: I can argue that he's not credible.

Despite the defendant's objection, the trial court stated that the defendant had a right to be present at trial, implicitly overruling the objection to improper argument.

[The court]: I understand. Ladies and gentlemen, the Defendant obviously is entitled to sit in on his own trial. It would be clearly unconstitutional to prohibit that, unless certain stringent requirements are met; and they certainly haven't been met in this case.

I would simply remind you again, it is simply argument and not evidence.

The prosecutor then continued with her argument that the defendant was able to tailor his testimony. Again though, the prosecutor failed to reference any evidence in the record of tailored testimony. Rather, she continued to focus on the defendant's mere presence at trial.

[Prosecutor]: What I am arguing is not that he does not have a right to be here and that he does not have the right to listen and offer help to his attorney and his defense to give a meaningful defense.

What I'm telling you is that you get to judge the credibility of all witnesses and that he had an advantage that nobody else did, which is that he was able to tailor his statement with what everybody else had to say because he's been here.

The defendant again objected on the general basis that the argument was improper.

[Defense counsel]: I object, Judge. This is improper testimony [sic]. The lead detective had the same opportunity to tailor his testimony. This is improper testimony [sic], commenting on the Defendant's presence at trial. We object to it.

[The court]: Noted. And I'm sure the jury also noted that the Detective was present in court during the trial also.

The jury found the defendant guilty of the lesser included offenses of second degree assault and conspiracy to commit second degree assault. The trial court imposed consecutive prison sentences of sixteen years for the assault conviction and six years for the conspiracy conviction.

The defendant appealed the judgment to the court of appeals. Due to the United States Supreme Court decision of Portuondo v. Agard, 529 U.S. 61, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000), the defendant acknowledged that the federal Constitution does not prohibit the tailoring argument made by the prosecutor. Nonetheless, on appeal, the defendant argued for the first time that the Colorado Constitution prohibits tailoring arguments like the one in this case. The defendant also argued, consistent with his objection at trial court, that the prosecutor's tailoring argument constituted improper argument.

In the published opinion of Martinez, a division of the court of appeals affirmed the judgment. 224 P.3d at 1026. The court of appeals identified at least four instances in the record where the defendant tailored his testimony to "track" the testimony of the prosecution's witnesses. Id. at 1036-38. Due to this evidence of tailoring, the court of appeals found that there was sufficient evidence of specific tailoring to justify the prosecutor's closing argument. Id. at 1037. It therefore concluded that there was no improper argument at closing. Id. at 1038.

The court of appeals also reached the defendant's Colorado Constitutional argument. The court could not, however, identify a persuasive reason for concluding that the Colorado Constitution offers protection independent of and supplemental to the federal Constitution. Id. at 1035-36. Accordingly, the court rejected the defendant's contention that the Colorado Constitution prohibits tailoring arguments. Id. at 1036.

Despite reaching the merits of the defendant's Colorado Constitutional argument, the court of appeals never considered whether the defendant had properly preserved this issue for appellate review. We granted certiorari to review the decision of the court of appeals.¹

II.

The defendant objected to the prosecutor's closing argument without mentioning any federal or Colorado Constitutional violation. Rather, the defendant objected on the general grounds that the prosecutor's argument was improper. Objections interrupting a prosecutor's closing argument often allege improper argument. See, e.g., People v. Loscutoff, 661 P.2d 274, 278 (Colo.1983); People v. Ferrell, 200 Colo. 128, 613 P.2d 324, 326-27 (1980). Accordingly, we interpret the defendant's two objections to raise only the issue of improper trial argument.

Even if the defendant's objections had raised a general constitutional violation, they would have been to no avail. A general constitutional objection, if made, will be presumed to be based on federal Constitutional grounds. See People v. Rodriguez, 209 P.3d 1151, 1156 (Colo.App.2008) (where there is no specific objection, we presume the defendant's objections are based on federal, not state, constitutional grounds and limit our review accordingly). In Portuondo, the United States Supreme Court expressly held that tailoring arguments do not violate a defendant's rights under the federal Constitution. 529 U.S. at 65, 120 S.Ct. 1119. Accordingly, even if the defendant had objected on the grounds that the prosecutor's closing argument violated his right to be present at trial, the objection would have been futile.

Portuondo...