The Colorado Supreme Court will review the conviction of an alleged car thief after an Adams County prosecutor implied that the defendant’s exercise of her constitutional right to a jury trial was further proof of her guilt.

Two police officers were sitting outside a motel on Dec. 30, 2015, when they spied a stolen car. While the police followed in their patrol vehicle, the driver of the car sped up in a seeming attempt to flee, then crashed the car. A man and woman ran away, but police found an identification card, credit card and medical insurance card for Yolanda Ursula Vialpando in the vehicle.

At the trial, a witness who saw the car crash testified she was “75 percent” sure Vialpando was the woman she saw flee. The defense, however, argued a case of mistaken identity: that someone had recently stolen her personal belongings. A police officer seemed to corroborate that theory, testifying that Vialpando reported the theft of her personal property the day prior to the car crash.

Nevertheless, the jury convicted her of vehicular assault, eluding and aggravated motor vehicle theft, with a sentence of four years in community corrections.

Vialpando appealed based on comments made during the closing argument. The prosecutor for the 17th Judicial District Attorney’s Office told the jury that Vialpando ran from police, ran from the crashed car, and “although she is seated now, that flight continues to this moment. But it ends today.”

In a 2-1 decision from the Colorado Court of Appeals in March of this year, a panel overturned Vialpando’s conviction and ordered a new trial. The majority believed the prosecutor’s comments crossed the line by equating her Sixth Amendment right to a trial with her alleged behavior in the crime itself. 

“So, it is obviously improper for a prosecutor to tell the jury that the defendant should be condemned because she had the temerity to require the State to prove her guilt beyond a reasonable doubt,” wrote Judge Michael H. Berger for the majority. “The prosecutor told the jury that Vialpando was continuing to run from responsibility by insisting on a jury trial.”

Berger referenced a 1988 decision of the state Supreme Court, in which the justices deemed improper a prosecutor’s statement during closing argument 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.”

Commenting on the defendant’s right to a jury trial was just as impermissible as pointing to the defendant’s right against self-incrimination as evidence of guilt, the court found. By a 4-3 ruling, however, the court did not reverse the conviction because of other “overwhelming evidence” of guilt.

In Vialpando’s case, Berger described the evidence against her as less convincing, saying if Vialpando was truly robbed and the only evidence that she was the perpetrator was a witness’s 75% identification of her, the prosecutor’s statements could have been so “tremendously improper” to tip the jury toward a guilty verdict.

In her dissent, Judge Terry Fox dismissed the prosecutor’s comments as “oratorical embellishment.” She viewed the statement not as a commentary on Vialpando’s Sixth Amendment rights at all, but a reference to her alleged flight from police.

Nonetheless, “prosecutors should recognize the hazard involved in using words like ‘run’ and ‘flight’ to characterize a defendant’s trial strategy,” she acknowledged.

The Supreme Court will also review the appellate panel’s finding that six identified errors during Vialpando’s “relatively short trial” had a cumulative effect that denied her of a fair trial.

Specifically, the majority pointed to more comments from the prosecutor during jury selection in which he asked a potential juror if she could, for $1 million, identify the United States flag. His intent was to illustrate the concept of reasonable doubt, but the majority blasted this analogy as trivializing the principle.

Berger wrote that “by using iconic, easily recognizable images, the jury may conclude that guilt beyond a reasonable doubt is easy to determine,” with the practical effect of lowering the prosecution’s burden of proof.

The majority also took issue with the prosecutor asking another witness if a police officer was “mistaken,” and rhetorically quizzing the jury about why Vialpando did not get a replacement identification card, even though she testified that this was exactly what she did.

Fox disputed that this prosecutorial misconduct amounted to errors meriting reversal of Vialpando’s conviction.

The case is People v. Vialpando.