People v. Vialpando

Decision Date21 June 2022
Docket NumberSupreme Court Case No. 20SC343
Parties The PEOPLE of the State of Colorado, Petitioner, v. Yolanda Ursula VIALPANDO, Respondent.
CourtColorado Supreme Court

Attorneys for Petitioner: Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Megan A. Ring, Public Defender, Chelsea E. Mowrer, Deputy Public Defender, Denver, Colorado

En Banc

CHIEF JUSTICE BOATRIGHT delivered the Opinion of the Court, in which JUSTICE MÁRQUEZ, JUSTICE HOOD, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.

JUSTICE GABRIEL concurred in the judgment.

CHIEF JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶1 An eyewitness saw an SUV crash and a woman exit the driver's-side door and immediately flee from the vehicle. Inside the SUV, police officers found several items that belonged to Yolanda Vialpando. The police began investigating Vialpando, and the eyewitness identified her as the suspect with 75% certainty. The prosecution charged Vialpando with various crimes connected to the incident, and the matter proceeded to a jury trial.

¶2 In opening statement, the prosecutor focused on Vialpando's alleged flight from the scene after the crash. In closing argument and rebuttal, the prosecutor again referred to Vialpando's flight: He described how she fled in the SUV and then ran away on foot and stated that Vialpando's "flight continues to this moment" and "has continued up and to this point." Defense counsel did not object to these statements.

¶3 Ultimately, a jury convicted Vialpando as charged. She appealed, contending, as relevant here, that the prosecutor's statements in closing argument about flight were an improper comment on her exercising her Sixth Amendment right to a jury trial and that the cumulative impact of numerous errors deprived her of a fair trial. A split division of the court of appeals agreed and reversed her conviction. People v. Vialpando , 2020 COA 42, ¶ 1, 490 P.3d 648, 652.

¶4 The prosecution petitioned for certiorari review, and we granted it.1 We now hold that the prosecutor's comments, made during closing argument and concerning flight, were not error. Further, we conclude that there was not cumulative error. Accordingly, we reverse the judgment of the court of appeals and remand to that court for consideration of the remaining issues.

I. Facts and Procedural History

¶5 Police officers sitting in a parked car outside a motel saw an SUV pull around the corner of the building, immediately stop, reverse over a curb, and exit the motel parking lot. Based on this unusual driving, the officers followed the SUV, ran its plates, and discovered that it was reported as stolen. The officers activated their emergency lights to make a traffic stop, but the SUV sped off. In response, based on department policy, the officers turned off their emergency lights and did not pursue the SUV.

¶6 Soon after, the officers saw that the SUV had crashed into another car, seriously injuring that car's driver. A witness, R.H., observed the crash from her car while stopped at a nearby traffic light. R.H. spotted a woman exit the driver's-side door of the SUV and run away.

¶7 While investigating the crash, the officers found a purse inside the SUV. The purse contained several items that belonged to Yolanda Vialpando; namely, her current identification card, an expired identification card, a credit card, and a health insurance card. The SUV also contained several pieces of Vialpando's clothing.

¶8 Based on these items, the officers began investigating Vialpando. One officer showed a series of photographs to R.H., who stated with 75% certainty that Vialpando's photo matched the woman she saw flee from the SUV. Officers then arrested Vialpando, and the prosecution charged her with vehicular assault, vehicular eluding, first degree aggravated motor vehicle theft, and driving under restraint.

¶9 At trial, R.H. testified that the woman who fled was roughly 5'5? to 5'6?; was wearing a lot of makeup; and had long, black, wavy hair. According to R.H., the woman was in her twenties or thirties, but her makeup "made her look younger." R.H. testified that she was only 75% certain when she originally identified Vialpando's photo from the lineup because the woman whom she saw fleeing from the crash had a lot of makeup on, whereas Vialpando's lineup photo depicted her with less makeup. During trial, when the prosecutor asked R.H. to make an in-court identification, she said that Vialpando "could be" the woman she saw flee but she was not 100% certain because Vialpando no longer had long black hair.

¶10 An officer testified that Facebook photos of Vialpando showed her wearing heavy makeup and a longer hairstyle in the past. Additionally, he told the jury that Vialpando's DMV record stated that she was 5'5? tall, weighed 155 pounds, and had brown hair and brown eyes.

¶11 Vialpando testified at trial. She stated that the day before the crash, someone had robbed her at gunpoint and taken the personal items that the police subsequently found in the stolen SUV. She also testified that she reported the robbery to police the day that it happened—i.e., the day before the crash—and that she was at the hospital with her mother on the day of the crash.

¶12 A police officer confirmed that Vialpando reported the robbery the day before the crash, testifying that she did, in fact, come to the Denver police station to report that an assailant had taken her ID cards, purse, luggage, and personal effects.

¶13 From opening statement to closing argument, the prosecutor emphasized Vialpando's flight. The prosecutor began his opening statement by remarking:

[T]he defendant ran. The defendant had just crashed a stolen [SUV] ... at a high rate of speed running through a red light ... into [the victim]. And as [the victim] was still in her car, still recovering from the shock of being T-boned, the defendant ran. The defendant opened the driver's-side door and stepped out and fled. Fled the scene.

The prosecutor repeated this theme throughout opening statement, remarking: "[the SUV] started to run," "the defendant ran," "the defendant ... ran away," "in the immediate wake of the defendant fleeing," and "the defendant who ran." At closing argument, the prosecutor began by stating:

Yolanda Vialpando[ ] ran. A few moments before[,] she had crashed a stolen [SUV] .... She opened the driver's-side door and ran .... Before that[,] she had run ... from the officers .... The defendant ran. And although she is seated now, that flight continues to this moment. But it ends today.

(Emphasis added.) Similarly, the prosecutor ended rebuttal closing with the following:

The defendant ran that day. She ran from the police, and she ran after she had an accident that left in its wake [the victim] severely injured and in pain to this day. And that flight has continued up and to this point. And it ends with you. It ends when you go back to the jury deliberation room and you take out the most powerful tool in this courtroom, a pen, and you end her flight by signing "guilty" ....

(Emphasis added.)

¶14 Defense counsel did not object to these statements. Ultimately, the jury found Vialpando guilty as charged.

¶15 On appeal, a split division of the court of appeals reversed Vialpando's convictions on two independent bases. Vialpando, ¶¶ 1–2, 490 P.3d at 652. First, the majority held that the prosecutor's comments evoking flight constituted plain error because they invited the jury to punish Vialpando for exercising her constitutional right to a jury trial. Id. at ¶¶ 41, 47, 490 P.3d at 657. Specifically, the majority held that the prosecutor's comments during closing—that Vialpando's flight "continues to this moment" and "has continued up and to this point"—suggested that she "was continuing to run from responsibility by insisting on a jury trial." Id. at ¶ 36, 490 P.3d at 656. The majority asserted that the prosecutor's misconduct unfairly prejudiced Vialpando and was "tremendously improper." Id. at ¶ 41, 490 P.3d at 657. The majority further concluded that the error was plain because, given Vialpando's uncontroverted testimony that she reported being robbed before the crash, this was a close case; thus, the comments "cast serious doubt on the reliability of her convictions." Id. at ¶¶ 44–47, 490 P.3d at 657.

¶16 Second, the majority held that even if the prosecutor's comments on flight did not constitute plain error, reversal was nevertheless required because of cumulative error. Id. at ¶ 49, 490 P.3d at 657. The majority identified five additional errors: The prosecutor (1) made improper analogies to reasonable doubt during voir dire, (2) improperly expressed his personal belief during opening statements and rebuttal, (3) improperly asked Vialpando to opine on the veracity of another witness, (4) mischaracterized evidence, and (5) prompted an officer to improperly opine on Vialpando's guilt. Id. at ¶¶ 52–66, 490 P.3d at 658–59. Applying the cumulative error test from Howard-Walker v. People, 2019 CO 69, ¶¶ 25–26, 443 P.3d 1007, 1011–12, the majority concluded that "Vialpando's trial was infected with errors" and that because the six errors "occurred over the course of a relatively short trial" (three days), the errors cumulatively deprived her of a fair trial. Vialpando, ¶ 70, 490 P.3d at 659–60.

¶17 Judge Fox dissented in relevant part, stating that the prosecutor's closing remarks evoking flight, "[w]hile possibly inartful," were better categorized as permissible "oratorical embellishment and metaphorical nuance" and, thus, were not improper.

Id. at ¶ 121, 490 P.3d at 667 (Fox, J., concurring in part and dissenting in part). Regarding cumulative error, Judge Fox concluded that Vialpando received a fair trial because the prosecutor's misconduct was limited and not overly prejudicial and the evidence against Vialpando was strong. Id. at ¶¶ 150–51, 490 P.3d at 671–72.

¶18 We granted certiorari and now reverse.

II. Prosecutor's...

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