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
2

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.
3

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

¶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.
5

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’sside 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.” 
6

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.
7

¶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.
8

¶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 
9

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 
10

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 
11

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.
12

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 
13

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 
14

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 
15

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 
16

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 
17

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 
18

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.
19

¶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.”).
20

¶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 crossexamination 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, 
21

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 
22

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, threeday 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.
1

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.
2

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.
3

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 
4

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.
5

¶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 
6

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.
7

¶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 
8

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.
9

¶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.”
10

¶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.