Supreme Court oral arguments

Members of the Colorado Supreme Court participate in oral arguments on Sept. 15, 2021, with COVID-19 protocols still in place.

After a lower court determined that an Adams County prosecutor had committed misconduct, the state Supreme Court on Tuesday heard two different interpretations of what the prosecutor meant when he told the jury how a defendant's flight "has continued up and to this point."

Yolanda Ursula Vialpando believed the prosecutor was using her decision to have a trial by jury — which the Sixth Amendment guarantees — as further proof that she was guilty of motor vehicle theft.

But from the government's point of view, the prosecutor's statement was not nefarious at all: Vialpando allegedly fled from police while committing her crimes and the prosecutor was merely sticking with the theme.

"There was no implication from the prosecutor that by exercising her right she was fleeing," argued Senior Assistant Attorney General John T. Lee to the justices at oral arguments. "It was in response to the direct observation that the defendant in court — which wasn’t secret to anyone — had denied responsibility and was, under the theme, still trying to flee responsibility for the crime she committed."

According to the evidence at trial, police who were following a vehicle learned it was stolen and attempted to pull it over. However, the driver sped away, only to crash into another car down the road. Witnesses saw a man and woman flee the stolen vehicle. Inside, police found a purse with Vialpando's identification, medical insurance card and clothing.

Vialpando's explanation was that the prosecution had the wrong woman. She said she was recently the victim of a robbery. Police confirmed that the day before the car chase, Vialpando came to a police station to report as missing the items found in the car. Moreover, a witness to the car crash was only 75% certain that Vialpando was the same woman who fled the vehicle. 

The jury ended up convicting Vialpando and she received four years in community corrections. Her appeal focused on the trial's closing arguments, when the unnamed prosecutor reminded the jury that Vialpando had allegedly fled the officers in the stolen car, then fled again after it crashed.

"The defendant ran. And although she is seated now, that flight continues to this moment. But it ends today," the prosecutor said. He added: "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.'"

Justice Richard L. Gabriel said it gave him "heartburn" to think the prosecutor was criticizing Vialpando in that moment solely for choosing to have the government prove her guilt beyond a reasonable doubt at trial.

"The argument that was made was, although she is seated now, her flight continues up until today, but it ends today," he summarized. "In what way was the defendant fleeing by sitting at counsel table in the middle of a trial?"

Lee responded that the prosecutor was using a "rhetorical device" in referring to the broader arc of the case.

"So the defendant was fleeing by denying the charges, pleading not guilty and going to trial?" Gabriel asked.

"Again," Lee replied, "it was used as part of the general theme—"

"Please answer my question," Gabriel cut him off.

The government appealed a March 2020 decision from the Court of Appeals, in which a three-judge panel ordered a new trial for Vialpando after deciding the prosecutor's comments constituted misconduct. Because the evidence of Vialpando's guilt was not overwhelming, the statements at trial could well have influenced the verdict. The panel's majority found no reasonable meaning for the flight comments except to disparage Vialpando's choice to go to trial.

"It was permissible for the prosecutor to argue that fleeing the crime scene was evidence of guilt," wrote Judge Michael H. Berger for the panel. "But, when Vialpando was sitting in the courtroom, she was not fleeing from anything; she was facing the jury and engaging in the process that the United States and Colorado Constitutions demand."

Judge Terry Fox disagreed with that conclusion, noting that Vialpando's defense attorneys did not even object to the comments at the time.

Justice Monica M. Márquez said she had difficulty linking the prosecutor's statements to a commentary on Vialpando's constitutional rights, particularly given that flight was a theme throughout the trial.

"Why can’t [the statements] be understood as, 'she tried to evade responsibility and her attempt to do so ends today?'" she asked. "I guess I’m struggling to say how a jury would necessarily jump from 'her flight continues to this day' to the requisite inference of 'she’s exercised her right to a jury trial and moreover, jury, punish her for doing that'."

Deputy State Public Defender Chelsea E. Mowrer responded that she did not think it proper to characterize a defendant as failing to take responsibility at trial.

"It’s not that they’re failing to take responsibility, it’s that they're exercising their right to plead not guilty and go to trial and have the prosecution prove its case," she said.

The Supreme Court has previously weighed in on similar commentary from the prosecution. In the case of People v. Rodgers, one prosecutor told the jury how some lawyers feel that "if you are guilty, you would want to request a jury [trial] 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."

The justices, in a 1988 decision, agreed the remarks were improper statements about the Sixth Amendment rights of the criminally accused. But by a 4-3 vote, the Court declined to overturn the defendant's conviction.

The Court in Vialpando's case will also decide whether the appellate panel's majority was correct that her trial was "infected with errors" over the relatively short length of the proceedings, and cumulatively deprived her of a fair trial.

The case is People v. Vialpando.

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