20SC343- People v. Vialpando

Then, the court reviews whether the other five errors identified by the division

amount to cumulative error.

The supreme court concludes that the prosecutor’s flight comments were

not error and that there was not cumulative error. Accordingly, the supreme court

reverses the judgment of the court of appeals and remands to that court for

consideration of the remaining issues.
 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203

2022 CO 28

Supreme Court Case No. 20SC343
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 17CA1536

Petitioner:

The People of the State of Colorado,

v.

Respondent:

Yolanda Ursula Vialpando.

Judgment Reversed
en banc
June 21, 2022

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
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.

2
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.

3
¶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

1 We granted certiorari to review the following issues:
1. Whether, where a defendant’s flight established elements for
several of the charges, the court of appeals improperly reversed
for plain error because it concluded the prosecutor’s closing
argument commenting on this flight implicitly asked the jury to
punish her for exercising her Sixth Amendment right to a jury
trial[.]
2. Whether the court of appeals erred in finding that cumulative
error under Howard-Walker v. People, 2019 CO 69[, 443 P.3d 1007],
is guided by considering the number of errors against the length
of trial, and in concluding that there was cumulative error in this
case.

4
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.”

5
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.

6
¶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.

7
¶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

8
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 Comments on Flight

¶19 In considering whether the prosecutor’s “flight” comments constituted

error, we begin by outlining the appropriate standard of review. Then, we state

9
the test for determining prosecutorial misconduct and the relevant law concerning

the Sixth Amendment right to a jury trial. We then apply the law to the facts of

Vialpando’s case and conclude that the prosecutor’s statements, made during

closing argument and concerning flight, were not error.

A. Standard of Review

¶20 Because the prosecutor’s comments did not influence the framework of the

trial and because Vialpando did not contemporaneously object, we review her

prosecutorial misconduct claim for plain error. See Wend v. People, 235 P.3d 1089,

1097 (Colo. 2010). Plain error is error that is “obvious and substantial.” Hagos v.

People, 2012 CO 63, ¶ 18, 288 P.3d 116, 120 (quoting People v. Miller, 113 P.3d 743,

750 (Colo. 2005)).

B. Prosecutorial Misconduct and the Sixth Amendment
Right to a Fair Trial by an Impartial Jury

¶21 Whether a prosecutor’s conduct was improper, and thus error, depends on

the totality of the circumstances. Wend, 235 P.3d at 1096. “Factors to consider

when determining the propriety of statements include the language used, the

context in which the statements were made, and the strength of the evidence

supporting the conviction.” Domingo-Gomez v. People, 125 P.3d 1043, 1050 (Colo.

2005). Examples of context include “the nature of the alleged offenses and the

asserted defenses, the issues to be determined, the evidence in the case, and the

10
point in the proceedings at which the remarks were made.” Id. (quoting Harris v.

People, 888 P.2d 259, 266 (Colo. 1995)).

¶22 Vialpando claims that the prosecutor’s comments violated her Sixth

Amendment right to a jury trial. See U.S. Const. amends. V, VI, XIV; Colo. Const.

art. II, §§ 16, 23, 25. “A defendant’s exercise of the . . . [Sixth Amendment] right to

a trial by jury may not be used by the prosecution to [imply] guilt.” Dunlap v.

People, 173 P.3d 1054, 1080 (Colo. 2007); accord People v. Rodgers, 756 P.2d 980, 983

(Colo. 1988), overruled on other grounds by Miller, 113 P.3d at 748. This rule applies

to both direct and indirect implications. See Martinez v. People, 425 P.2d 299, 302

(Colo. 1967). For example, in Rodgers, we held that the prosecutor violated the

defendant’s right to a jury trial when the prosecutor claimed during closing,

“[S]ome attorneys . . . [believe that] if you are guilty, you would want to request a

jury because they just may not convict you and if you are innocent[,] you never

want to request a jury because they just might convict you.” 756 P.2d at 982.

¶23 While a prosecutor may not tell the jury to infer guilt from a defendant’s

exercise of their Sixth Amendment right, a prosecutor may highlight facts in

evidence and draw reasonable inferences. Domingo-Gomez, 125 P.3d at 1048. In

doing so, a prosecutor is permitted to use “oratorical embellishment” and

“metaphoric nuance.” Harris, 888 P.2d at 265–66.

11
 C. Application

¶24 Our initial inquiry is whether the prosecutor’s statements, made during

closing argument and concerning flight, were an improper comment on the

defendant’s Sixth Amendment right to a jury trial and, thus, error. To make this

determination, we first consider the language used and the context in which the

statements were made. See Domingo-Gomez, 125 P.3d at 1050.

¶25 During opening statement, closing argument, and rebuttal closing, the

prosecutor stated that the defendant fled from the police officers, both in the SUV

and then later, on foot. In opening, he stated that “the defendant ran. The

defendant opened the driver’s-side door and stepped out and fled. Fled the

scene.” Again, in closing, he remarked that “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.” Critically, he said during closing that “although she is seated now, that flight

continues to this moment. But it ends today.” Additionally, during rebuttal, the

prosecutor told the jurors that Vialpando’s “flight has continued up and to this

point” and that they should “end her flight by signing ‘guilty.’”

¶26 We conclude that the prosecutor did not impermissibly imply that

Vialpando was guilty because she requested a jury trial. Our determination is

guided by the context in which these statements were made, which includes the

12
evidence in the case and the nature of the alleged offenses. See Domingo-Gomez,

125 P.3d at 1050.

¶27 Here, the prosecution presented evidence that Vialpando drove the stolen

SUV, fled from the police in the motel parking lot, and, after crashing the car, ran

away from the scene on foot. These facts demonstrate movement and flight. In

addition, Vialpando was charged with vehicular eluding, which required the

prosecution to prove that she knowingly eluded a peace officer while being

pursued by said officer. See § 18-9-116.5, C.R.S. (2021). That is, the vehicular

eluding charge implicated her evasion, escape, or flight. Thus, the prosecutor’s

comments were contextually related to the evidence in the case. See

Domingo-Gomez, 125 P.3d at 1048 (“Final argument may properly include the facts

in evidence and any reasonable inferences drawn therefrom.”).

¶28 In holding otherwise, the division majority relied on two cases—United

States v. Hardy, 37 F.3d 753, 757 (1st Cir. 1994), and Howard-Walker, ¶ 44, 443 P.3d

at 1014–15—which both held that the prosecution improperly commented on the

defendant’s right to remain silent under the Fifth Amendment. We find both cases

inapposite.

¶29 In Hardy, two defendants were arrested after a foot chase with police officers

and later charged with various firearm-related offenses. 37 F.3d at 755–56. During

closing argument, the prosecutor stated that the defendants were running and

13
hiding on the night of the crime and “still running and hiding today.” Id. at 757.

Neither defendant testified. Id. at 758. The First Circuit reasoned that the

prosecutor’s statements “improperly called attention to the failure of [the

defendants] to take the stand and testify at trial.” Id. at 757. On those facts, the

prosecutor’s improper reference to the defendants’ Fifth Amendment right to

silence was unmistakable because it drew direct attention to their absence from

the witness stand. That is, the link between the defendants “running and hiding”

and exercising their Fifth Amendment right to silence was obvious.

Comparatively, any link here between “flight” and the Sixth Amendment right to

a jury trial is less apparent. Moreover, Vialpando testified, and the prosecutor’s

remarks—that Vialpando’s “flight continue[d]”—did not draw a direct line to her

constitutional right to a jury trial.

¶30 Howard-Walker is also distinguishable. There, the defendant (who was

accused of burglary) did not testify, and the prosecutor told the jury, “[T]here is

only one person in this room that could tell you where all of those items are now

and he won’t.” Howard-Walker, ¶ 38, 443 P.3d at 1013. We held that this comment

clearly implied the defendant’s guilt because he exercised his Fifth Amendment

right to remain silent. Id. at ¶ 44, 443 P.3d at 1014–15. But in the case before us,

the prosecutor made no such pronounced insinuations. In context, his statements

did not bring Vialpando’s right to a jury trial to the forefront; rather, they drew on

14
the overall theme of flight and were connected to the facts of the case. Contra

Rodgers, 756 P.2d at 982, 985 (holding that the prosecutor improperly referenced

the defendant’s right to a jury trial when the prosecutor claimed during closing,

“[S]ome attorneys . . . [believe that] if you are guilty, you would want to request a

jury because they just may not convict you and if you are innocent[,] you never

want to request a jury because they just might convict you”).

¶31 We recognize that, as the division majority pointed out, thematic arguments

concerning flight are fraught with peril. But here, based on the vehicular eluding

charge and the flight evidence pervading this case, the prosecutor’s closing

statements about Vialpando’s continued flight at trial are better considered

“oratorical embellishment” and “metaphoric nuance.” See Harris, 888 P.2d at

265–66. Absent this factual context, however, the result might well be different.

Accordingly, we conclude that the prosecutor’s flight comments were not error.

III. Cumulative Error

¶32 We begin this section by discussing the proper standard for reviewing

cumulative error. Then we apply that framework to the facts of Vialpando’s case

and conclude that there was not cumulative error.

A. Standard of Review

¶33 When reviewing for cumulative error, we ask whether “numerous formal

irregularities, each of which in itself might be deemed harmless, may in the

15
aggregate show the absence of a fair trial.” Howard-Walker, ¶ 24, 443 P.3d at 1011

(alteration omitted) (quoting Oaks v. People, 371 P.2d 443, 446 (Colo. 1962)).

Furthermore, although a shorter trial may compound the impact of any errors,

“the question is not whether the errors were ‘brief’ or ‘fleeting’ but whether,

viewed in the aggregate, the errors [cumulatively] deprived the defendant of a fair

trial.” Id. at ¶ 40, 443 P.3d at 1014. We now apply that standard to the facts of this

case.

B. The Five Remaining Errors Identified by the Division

¶34 Having already decided that the prosecutor’s flight comments were not

error, we are left with five remaining errors that the division majority

identified—four instances of prosecutorial misconduct, plus one evidentiary error.

Assuming, without deciding, that the division below correctly identified those

errors, we review whether, together, they constitute cumulative error. We begin

by outlining those five identified errors.

1. Illustrations of Reasonable Doubt

¶35 During voir dire, the prosecutor asked potential jurors if they could

recognize, beyond a reasonable doubt, the American flag in the courtroom even

though it was folded and not entirely visible. Vialpando, ¶ 54, 490 P.3d at 658. The

prosecutor then asked a potential juror to pretend that she was on the gameshow

Who Wants to Be a Millionaire? and consider whether she could identify the flag for

16
the million-dollar question. Id. The majority reasoned that analogizing finding

the defendant guilty to submitting an answer on a game show trivialized

reasonable doubt. Id. at ¶ 55, 490 P.3d at 658. Additionally, the majority

concluded that illustrating reasonable doubt with iconic images like the American

flag could cause jurors to associate the standard with easily recognizable objects,

thus easing the State’s burden. Id. at ¶ 56, 490 P.3d at 658.

2. Statements of Personal Belief

¶36 During the prosecutor’s opening statement, he told the jury, “I think you’ll

agree with me at the end of testimony, that the defendant is guilty of the charges,”

and then later said, “I think you’ll agree with me that it was, in fact, the defendant

who ran.” Id. at ¶ 57, 490 P.3d at 658. And during closing argument, the

prosecutor told the jury that he did not need to prove why Vialpando made a false

report—“or what we believe is a false report”—regarding her reported robbery.

Id. at ¶ 58, 490 P.3d at 658. The majority reasoned that in each of these three

statements, the prosecutor improperly expressed his personal belief that

Vialpando was guilty. Id. at ¶¶ 57–58, 490 P.3d at 658.

3. Questions About the Veracity of Another Witness

¶37 During his cross-examination of Vialpando, the prosecutor asked four

different times whether another witness, a police officer, was “mistaken.” Id. at

¶ 59, 490 P.3d at 658. The majority reasoned that the prosecutor repeatedly asked

17
Vialpando to opine on the veracity of another witness, which is categorically

improper under Liggett v. People, 135 P.3d 725, 732–35 (Colo. 2006). Vialpando, ¶ 59,

490 P.3d at 658.

4. Mischaracterization of the Evidence

¶38 During closing, the prosecutor asked the jury, “why didn’t [Vialpando] go

out and get a new ID?” even though Vialpando’s unrebutted testimony was that

she did get a new ID. Id. at ¶ 60, 490 P.3d at 658–59. The majority concluded that

this statement mischaracterized the evidence. Id.

5. Testimony Identifying Vialpando as the “Primary
Suspect”

¶39 During his testimony, the lead investigating officer stated that Vialpando

was the “primary suspect.” Id. at ¶ 63, 490 P.3d at 659. The majority reasoned that

this was improper because a witness may not opine on a defendant’s guilt and,

here, that was the only inference that could be drawn from this testimony. Id. at

¶¶ 62, 66, 490 P.3d at 659. The majority rejected the arguments that the officer’s

testimony was a proper explanation of the steps the police took in the course of

their investigation and that the testimony dispelled any implication that the

investigation was cursory. Id. at ¶¶ 63–65, 490 P.3d at 659.

C. Whether These Errors Cumulatively Warrant Reversal

¶40 We now consider whether the cumulative effect of these five errors deprived

Vialpando of a fair trial.

18
¶41 Turning first to the prosecutor’s illustrations of reasonable doubt, we ask

whether they prejudiced the defendant. The majority stated that the prosecutor’s

references to the American flag and the gameshow trivialized reasonable doubt

and lowered the burden of proof by making it seem easy to ascertain. We

recognize that analogies like these are perilous and unhelpful. See Tibbels v. People,

2022 CO 1, ¶ 25, 501 P.3d 792, 797. Nevertheless, the trial court instructed the jury

multiple times that they must follow only the instructions given by the court and

not comments by the attorneys, and we presume that the jury followed the court’s

instructions.2 See Johnson v. People, 2019 CO 17, ¶¶ 14, 16, 436 P.3d 529, 533.

Moreover, as Judge Fox’s dissent points out, the prosecutor’s analogies were brief

and isolated, and he did not raise them again in closing. See Vialpando, ¶ 114,

490 P.3d at 666 (Fox, J., concurring in part and dissenting in part). Taking these

considerations together, on these facts, the prosecutor’s illustrations of reasonable

doubt did not lower the burden of proof and were not prejudicial.

2 We do not decide today whether the trial court’s use of reasonable doubt
analogies during voir dire is a separate ground for reversal. That question is not
before us. See Vialpando, ¶ 87, 490 P.3d at 661–62 (“Because we reverse Vialpando’s
conviction without regard to the problematic analogies used by the trial court, we
do not decide whether the use of those analogies is a separate ground for reversal,
on the basis of structural error or otherwise.”).

19
¶42 Next, we address the prosecutor’s statements of personal belief as to

Vialpando’s guilt. A prosecutor may not offer a personal opinion about the

defendant’s guilt. See Domingo-Gomez, 125 P.3d at 1049. Moreover, we recognize

that the prosecutor is a government official, and as such, his opinion might carry

more weight with the jury, enflaming the overall impropriety. See Wilson v. People,

743 P.2d 415, 418–19 (Colo. 1987). Nevertheless, assuming these are improper

personal opinions, as Judge Fox’s dissent points out, the prosecutor’s statements

were a small part of his argument, which was otherwise a generally fair summary.

See Vialpando, ¶ 117, 490 P.3d at 666 (Fox, J., concurring in part and dissenting in

part). Furthermore, the prosecutor’s comments were brief and inconspicuous, and

they were largely tied to his arguments about the evidence. Last, the trial court

gave proper instructions on credibility and the presumption of innocence, which

helped to ameliorate any prejudice associated with the prosecutor’s comments.

See People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010). Overall, the prosecutor’s

statements demonstrating his personal belief as to Vialpando’s guilt were

minimally prejudicial.

¶43 Of all the errors, the most significant occurred during the prosecutor’s cross-

examination of Vialpando, when he asked four different times whether another

witness, a police officer, was “mistaken.” See Liggett, 135 P.3d at 732 (“[A]sking a

witness to opine on the veracity of another witness is prejudicial, argumentative,

20
and ultimately invades the province of the fact-finder.”). These types of questions

are categorically improper because they distort the trial process. Id. at 730–32.

Here, the prosecutor asked, and Vialpando answered, these categorically

improper questions, which invaded the province of the jury. As a result, the

prosecutor’s comments about whether the police officer was mistaken were

inherently prejudicial.

¶44 The next error that the majority identified concerned the prosecutor

misstating the evidence by asking the jury, “why didn’t [Vialpando] go out and

get a new ID?” even though Vialpando’s unrebutted testimony was that she did

get a new ID. Undeniably, prosecutors may not misstate the evidence. See

Domingo-Gomez, 125 P.3d at 1048–49. But even assuming that the prosecutor

misstated the evidence, the trial court repeatedly instructed the jury that closing

arguments were not evidence, which makes it less likely that the jury was

improperly influenced. Additionally, this fact was not significant, and the jury

was capable of remembering that Vialpando testified to the contrary. Taking these

factors together, the prosecutor’s comments during closing about Vialpando

getting a new ID were not unduly prejudicial.

¶45 Finally, we turn to the officer’s testimony identifying Vialpando as the

primary suspect. The majority identified this as error because a witness may not

opine on a defendant’s guilt, and here, that was the only inference that could be

21
drawn. See People v. Penn, 2016 CO 32, ¶ 31, 379 P.3d 298, 305. But as the dissent

points out, the prosecutor did not dwell on the officer’s statement, nor did either

party revisit it during closing. See Vialpando, ¶ 147, 490 P.3d at 671 (Fox, J.,

concurring in part and dissenting in part). Additionally, Vialpando’s counsel had

the opportunity to cross-examine the officer to clarify his testimony. Thus, we find

the officer’s testimony to be mildly prejudicial.

¶46 Overall, we hold that the cumulative effect of these errors on Vialpando’s

trial was slight, especially considering the other evidence against Vialpando that

was available to the jury: Vialpando’s belongings were found in the stolen vehicle,

an eyewitness identified her, and a reasonable juror could find that Vialpando’s

robbery defense was not credible. True, these errors took place over a short, three-

day trial; however, when viewed in the aggregate and against the backdrop of

other evidence, they did not deprive Vialpando of a fair trial. Accordingly, we

conclude that there was not cumulative error.

IV. Conclusion

¶47 We conclude that the division erred by determining that the prosecutor’s

flight comments were plain error. Additionally, we conclude that there was not

cumulative error. Accordingly, we reverse the judgment of the court of appeals

and remand the case to that court for consideration of the remaining issues.

JUSTICE GABRIEL concurred in the judgment.

22
JUSTICE GABRIEL, concurring in the judgment.

¶48 The majority concludes that the prosecution’s arguments to the jury that

defendant Yolanda Vialpando was continuing to flee by sitting at counsel table

during trial were mere “oratorical embellishment” and “metaphoric nuance” and

did not impermissibly imply that Vialpando was guilty because she was exercising

her right to a jury trial. Maj. op. ¶¶ 26, 31 (quoting Harris v. People, 888 P.2d 259,

265–66 (Colo. 1995)). I do not agree. In my view, the prosecution’s argument could

only be interpreted as faulting Vialpando for exercising her constitutional right to

a jury trial, and because flight is evidence of consciousness of guilt, the prosecution

was essentially telling the jury that Vialpando’s exercise of her constitutional

rights somehow evinced her guilt.

¶49 Accordingly, unlike the majority, I believe that the prosecution’s argument

was improper and that we should expressly disapprove it. The more difficult

question for me is whether the error here was plain. Given the demanding

standard for establishing plain error, particularly in cases of alleged prosecutorial

misconduct, I cannot say that it was. Nor can I conclude that this error, when

considered together with the other apparent errors in this case, establishes

reversible cumulative error.

¶50 I therefore concur in the majority’s judgment.

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 I. Factual Background

¶51 I agree with the majority’s recitation of the pertinent facts and will not repeat

those facts here. Because the prosecution’s arguments to the jury regarding

Vialpando’s alleged flight are central to my analysis, however, I will note them

again.

¶52 In its closing argument, the prosecution asserted, “And although she is

seated now, [Vialpando’s] flight continues to this moment. But it ends today.”

¶53 Then, during rebuttal argument, the prosecution doubled down on this

flight theme:

The defendant ran that day. She ran from the police, and she ran after
she had an accident that left in its wake [a 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” for
Count 1, 2, 3, and 4.

(Emphasis added.)
II. Analysis

¶54 I begin by addressing Vialpando’s contention regarding the prosecution’s

above-quoted arguments to the jury as to her alleged flight during trial. I then

briefly address Vialpando’s assertion of reversible cumulative error.

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 A. Prosecution’s Arguments on Vialpando’s Alleged Flight

¶55 Vialpando contends that the prosecution’s above-quoted arguments

regarding her alleged flight during trial amounted to an improper comment on

her Sixth Amendment right to trial. Because Vialpando did not object to these

arguments, our review is for plain error. See People v. Miller, 113 P.3d 743, 745

(Colo. 2005). Plain error addresses error that was obvious and substantial and that

so undermined the fundamental fairness of the trial itself as to cast serious doubt

on the reliability of the judgment of conviction. Id. at 750. In the context of plain

error review of alleged prosecutorial misconduct, we will reverse only when the

misconduct was “flagrantly, glaringly, or tremendously improper.”

Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People v. Avila,

944 P.2d 673, 676 (Colo. App. 1997)). Recognizing the demanding nature of this

standard, we have observed that prosecutorial misconduct in closing argument

rarely is so egregious as to constitute plain error. People v. Constant, 645 P.2d 843,

847 (Colo. 1982).

¶56 We have long recognized that criminal defendants may not be penalized for

exercising their Fifth Amendment right to remain silent. People v. Rodgers, 756 P.2d

980, 983 (Colo. 1988), overruled on other grounds by Miller, 113 P.3d at 749. We have

also long recognized that “[b]ecause a defendant’s constitutional right to remain

silent cannot be used against him to draw an inference of guilt, it follows that a

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defendant’s exercise of his constitutional right to a trial by jury cannot be used

against him to create an inference of guilt.” Id.; accord Dunlap v. People, 173 P.3d

1054, 1080 (Colo. 2007). Accordingly, we have opined that “it is impermissible for

a prosecutor to make comments ‘which ha[ve] the effect of creating an inference

of guilt by reference’ to the defendant’s exercise of his right to a trial by jury.”

Rodgers, 756 P.2d at 983 (alteration in original) (quoting People v. Ortega, 597 P.2d

1034, 1036 (Colo. 1979)). In so stating, we saw no significant difference between a

prosecutor’s improper comments on a defendant’s exercise of the right to remain

silent and a prosecutor’s comments on a defendant’s exercise of the equally

fundamental right to a jury trial. Id.

¶57 Lastly, as pertinent here, we have observed that evidence of flight and

concealment can be admissible to show consciousness of guilt. People v. Summitt,

132 P.3d 320, 324 (Colo. 2006).

¶58 Applying the foregoing settled principles to the case now before us, I believe

that the prosecution’s arguments that Vialpando was continuing to flee by sitting

at counsel table during trial could have only one meaning: by exercising her

fundamental rights to a jury trial and to have the prosecution prove her guilt

beyond a reasonable doubt, Vialpando was fleeing, and her continuing flight was

evidence of her guilt.

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¶59 In my view, the above-described precedents make clear that such an

argument was improper, and cases from other jurisdictions support my

conclusion.

¶60 For example, in United States v. Hardy, 37 F.3d 753, 754 (1st Cir. 1994), the

defendants were charged with a number of firearms-related offenses. They

exercised their Fifth Amendment right not to testify, and thereafter, in closing

argument, the prosecutor asserted:

[T]hey were running and hiding, running from the police and hiding
the evidence from the police. They’re still running and hiding today. The
time has come for them to stop running and stop hiding. The time has come
for them to be held accountable for the wrongful acts that they
committed on the night of April 18th, 1991 in Boston. That time is
now and only you can hold them accountable.

Id. at 757.

¶61 The defendants in Hardy contended that the foregoing argument constituted

an improper comment on the exercise of their Fifth Amendment rights, and the

First Circuit ultimately agreed:

The prosecutor’s comment during his closing set up an analogy
between what the defendants were allegedly doing on the night of the
crime—running and hiding—and what the prosecutor believed they
were doing during the trial—running and hiding. Of course, the
defendants were not literally running from the trial or hiding during
the trial. Rather, they were both in custody and were sitting silently
during each day of the proceeding. Neither defendant testified on his
own behalf. The natural and necessary implication of the prosecutor’s
remark was therefore that the defendants were running from the
evidence presented against them, and hiding behind their right to

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 silence during the trial. The prosecutor’s comment therefore violated
the Fifth Amendment.

Id. at 757–58.

¶62 Although Hardy involved the Fifth Amendment right against

self-incrimination and the present case involves the Sixth Amendment right to a

jury trial, I believe that the same analysis that the court employed in Hardy applies

here. Specifically, the prosecution’s comments in closing and rebuttal argument

in this case set up an analogy between what Vialpando had done during the

alleged crime (i.e., fleeing from the police) and what the prosecution said she was

doing during the trial (i.e., continuing to flee). But she was not fleeing from

anything at trial. She was sitting at counsel table exercising her constitutional right

to a trial at which the prosecution would be required to prove her guilt beyond a

reasonable doubt. In my view, the necessary implication of the prosecution’s

argument was that Vialpando should be faulted—and, because flight evinces

consciousness of guilt, an inference of guilt should apply—merely because she had

exercised her constitutional right to a jury trial. As we have long made clear,

however, just as criminal defendants cannot be penalized for exercising their Fifth

Amendment right to remain silent, they cannot be penalized for exercising their

Sixth Amendment right to a trial by jury. See Dunlap, 173 P.3d at 1080; Rodgers,

756 P.2d at 983.

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¶63 Gabriel v. State, 254 So. 3d 558 (Fla. Dist. Ct. App. 2018), is also instructive.

There, a co-defendant conceded his guilt, but the defendant did not. Id. at 561.

The prosecutor then argued in closing, “[W]e’re all here because [the defendant]

refuses to take responsibility for his own actions on May 7, 2015. That’s why we

are here.” Id. The prosecutor then contrasted the defendant’s conduct with that

of his co-defendant, who did take responsibility. Id. The court reversed the

defendant’s conviction, concluding that the prosecutor’s comments “denigrate[d]

the fundamental principles of the right to jury trial and presumption of

innocence.” Id. at 564–65.

¶64 Although the prosecution’s comments in the present case were not as

blatant as the prosecutor’s statements in Gabriel, I believe that the principles

enunciated in that case apply with equal force here. The obvious implication of

the prosecution’s comments in this case was that by not taking responsibility and

conceding her guilt, Vialpando was somehow continuing to flee. Vialpando,

however, had no obligation to concede her guilt, and she had every right to put

the prosecution to its proof. Accordingly, the prosecution’s comments improperly

denigrated Vialpando’s fundamental right to a trial by jury. See also State v. Snow,

144 P.3d 729, 740–41 (Kan. 2006) (concluding that the prosecutor’s argument in

closing that “the defendant wants his jury trial, he’s had his jury trial, and its [sic]

time to put an end to this nonsense” (1) improperly inferred that the defendant

7
should have acceded to the state’s evidence and waived his right to a trial because

of the purported strength of the state’s case and (2) implied that the defendant had

wasted the prosecutor’s and the jury’s time because he had exercised his

constitutional rights), disapproved on other grounds by State v. Guder, 267 P.3d 751,

754 (Kan. 2012).

¶65 For these reasons, unlike the majority, I would conclude that the

prosecution’s arguments were improper, and I would unequivocally disapprove

them. Although to be sure, a prosecutor “need not abandon effective debate

techniques or eschew metaphoric nuance in accepting the restrictions inherent in

the prosecutorial function,” Harris, 888 P.2d at 265–66, a prosecutor’s license to

embellish oratorically does not permit her to make an argument suggesting that a

defendant’s exercise of the right to trial by jury somehow evinced the defendant’s

guilt.

¶66 The more difficult question for me is whether the prosecution’s comments

rose to the level of plain error. As noted above, the standard for plain error in the

context of a prosecutorial misconduct claim is a demanding one. A defendant

asserting plain error in this context must show that the prosecutor’s misconduct

was “flagrantly, glaringly, or tremendously improper,” Domingo-Gomez, 125 P.3d

at 1053, and we have observed that prosecutorial misconduct in closing argument

rarely is so egregious as to satisfy this standard, Constant, 645 P.2d at 847.

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¶67 Applying these principles here, I cannot say that the prosecution’s remarks

rose to the level of plain error. Unquestionably, Vialpando’s flight from the police

was a theme in this case. Moreover, the prosecution’s comments did not expressly

reference Vialpando’s right to a jury trial. And we have noted that the lack of an

objection to a prosecutor’s argument may indicate defense counsel’s belief that the

live argument was not overly damaging, despite its appearance in a cold record.

People v. Rodriguez, 794 P.2d 965, 972 (Colo. 1990).

¶68 For these reasons, although I see the issue as close, I perceive no reversible

plain error in the prosecution’s improper comments regarding Vialpando’s

alleged flight during trial.

B. Cumulative Error

¶69 The question remains whether Vialpando’s conviction must be reversed

based on the cumulative error doctrine.

¶70 In Howard-Walker v. People, 2019 CO 69, ¶ 26, 443 P.3d 1007, 1012, we

clarified the governing standard for cumulative error: “[R]egardless of whether

any error was preserved or unpreserved . . . , reversal is warranted when

numerous errors in the aggregate show the absence of a fair trial, even if

individually the errors were harmless or did not affect the defendant’s substantial

rights.”

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¶71 Here, Vialpando has alleged six separate errors, five of which raised

substantial questions of prosecutorial misconduct, including the prosecution’s

arguments as to Vialpando’s alleged flight during trial. The majority assumes

without deciding that the division below correctly identified five of these errors

(i.e., the five alleged errors other than the prosecution’s flight comments) but

concludes that the cumulative effect of these errors were “slight” and did not

deprive Vialpando of a fair trial. Maj. op. ¶¶ 34, 46.

¶72 My view that the prosecution’s flight arguments were improper makes the

cumulative error issue far closer for me. This is especially true given that (1) this

trial was short (thereby magnifying the effect of the constellation of errors); (2) the

identification of Vialpando by the prosecution’s principal identification witness

was questionable at best (she was only 75% certain of her initial photo

identification, and at trial, she testified that Vialpando “could be” the woman that

she saw flee); and (3) much of the prosecutorial conduct at issue violated

well-settled principles of law. Nonetheless, for the reasons set forth by the

majority, maj. op. ¶¶ 32–46, and because the evidence supported a proper

argument that Vialpando had, in fact, fled from the police, I cannot say that the

errors that occurred in this case affected Vialpando’s substantial rights and denied

her a fair trial.

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 III. Conclusion

¶73 For all of these reasons, although I believe that the prosecution’s arguments

regarding Vialpando’s alleged flight while sitting at trial were improper and

denigrated her Sixth Amendment right to a jury trial, I cannot say that this

misconduct rose to the level of plain error. Nor can I conclude, on the record

before us, that this misconduct, even when considered together with the other

errors at trial, was sufficient to establish cumulative error requiring the reversal of

Vialpando’s conviction.

¶74 Accordingly, I concur in the majority’s judgment, albeit not in all of its

reasoning.

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