People v. Vialpando.

2022 CO 28. No. 20SC343. Plain Error—Prosecutorial Misconduct—Cumulative Error.

June 21, 2022

Vialpando was accused of running from police in a stolen SUV, crashing into another vehicle, and running away from the scene on foot. At trial, the prosecutor focused on the theme of flight. He described how Vialpando fled in the SUV and ran away on foot, and he stated that Vialpando’s “flight continues to this moment” and “has continued up and to this point.” Ultimately, a jury convicted Vialpando. On appeal to the Court of Appeals, Vialpando contended that the prosecutor’s statements in closing argument about flight were an improper comment on her exercise of 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.

The Supreme Court first considered whether the prosecutor’s comments, made during closing argument and concerning flight, were error. It then reviewed whether the other five errors identified by the division amounted to cumulative error.

The Court concluded that the prosecutor’s flight comments were not error and that there was not cumulative error. Accordingly, the Court reversed the Court of Appeals’ judgment and remanded the case for consideration of the remaining issues.