The Colorado Supreme Court announced on Monday that it will review a high-profile murder case out of Arapahoe County in which the state’s second-highest court previously concluded the defendant’s conviction could not stand.

At least three of the court’s seven members must agree to hear a case on appeal.

The justices narrowly turned down a second criminal appeal in which a trial judge allegedly gave a defendant a harsher sentence solely for not saying the words, “I’m sorry.” Only two members of the Supreme Court showed an interest in deciding that case.

Murder defense

Lloyd Chavez IV, a student at Cherokee Trail High School, died in May 2019 after four teenagers attempted to rob him during a meetup to purchase vaping supplies. Demarea Mitchell was the one who fatally shot Chavez, but jurors also convicted Kenneth Alfonso Gallegos of felony murder.

Felony murder does not require that someone pull the trigger and cause another person’s death. Instead, to be guilty of felony murder, someone need only participate in certain serious offenses, like robbery, in which a person happens to die.

Gallegos insisted he did not plan to rob Chavez, nor was he aware the other members of the group had a gun. To that end, he asked Arapahoe County District Court Judge Ben L. Leutwyler to instruct jurors about Gallegos’ affirmative defense to felony murder. An affirmative defense – which would result in an acquittal if the prosecution is unable to disprove any part of it – must be given when there is “some credible evidence” supporting it.

Leutwyler rejected the request and jurors found Gallegos guilty.

Last year, a three-judge panel for the Court of Appeals agreed there was some evidence suggesting Gallegos was unaware of any plan to kill Chavez. Whether or not Gallegos committed the underlying robbery, wrote Judge Lino S. Lipinsky de Orlov, was separate from his defense to murder.

“Gallegos would face a wrongful conviction for first degree murder if denied the right to present a potentially meritorious affirmative defense,” Lipinsky explained.

The prosecution appealed to the Supreme Court insisting felony murder is inextricably linked to the underlying crime, meaning Gallegos could not deny the robbery and avail himself of a defense aimed only at the murder.

The Supreme Court will answer whether Gallegos needed to admit his involvement in the robbery in order to raise his murder defense.

The case is People v. Gallegos.

The defendant who did not say ‘sorry’

In February 2020, Trinidad Renay Marquez shot at multiple people at a Commerce City King Soopers. The victims claimed Marquez and the people with him were harassing them, while Marquez asserted the victims would not leave him alone. Prosecutors charged Marquez with multiple counts of attempted murder, but he pleaded guilty to one assault charge.

Although the offense merited 10 to 32 years in prison, the prosecution agreed to a sentence of 10 to 15 years. During a pre-sentencing interview, Marquez acknowledged he was “not going to say what I did was right, and I should not have let these guys get under my skin. I just don’t think it was right that I was the only one arrested.”

At sentencing, then-Adams County District Court Judge Roberto Ramirez indicated he wanted to hear from Marquez directly about Marquez’s comments that “both sides” needed to be arrested. However, Marquez declined to speak on his own behalf. The judge called his silence “unfortunate.”

“You want to be the tough guy, Mr. Marquez,” Ramirez said. “All you had to do was say, ‘Hey, I’m sorry.’ All you had to do was say, ‘You know what? Whenever I said that it was all their other – it was my victims’ fault, they had it coming to them. Man, I was – you know what? I was just upset. I’m sorry.'”

If Marquez had only said “sorry,” he “would have gotten 10 years. But you want to stay hard, man. You want to be the tough guy,” Ramirez continued. “I gave you the chance. Fifteen years.”

Marquez appealed his 15-year sentence, arguing he had the constitutional right against self-incrimination and Ramirez could not increase Marquez’s sentence as punishment for not speaking.

A Court of Appeals panel upheld the sentence, with the majority concluding Ramirez appropriately relied on Marquez’s defiant comments in the pre-sentencing report. Judge Stephanie Dunn indicated she “reluctantly” would have ordered a new sentencing.

“Indeed, one of the district court’s comments – ‘All you had to say is I’m sorry. You would have gotten ten years’ – causes me concern that the court improperly punished Marquez for refusing to admit guilt or express remorse,” Dunn wrote.

Appealing to the Supreme Court, Marquez argued Ramirez inappropriately tried to “compel” him to testify and penalized him for not complying.

“Mr. Marquez’s right to remain silent is a constitutionally prohibited factor. In fact, the Trial Court appeared to consider no other factor,” wrote attorney Avery Lehr.

Chief Justice Brian D. Boatright and Justice Melissa Hart would have accepted the appeal to determine if Ramirez’s actions were appropriate.

The case is Marquez v. People.