Peo v. Lopez

19CA2302 Peo v Lopez 08-22-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA2302

Arapahoe County District Court No. 17CR3189

Honorable Andrew C. Baum, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Paul Lopez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE TOW

Gomez and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 22, 2024

Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Cynthia A. Harvey, Alternate Defense Counsel, Aurora, Colorado, for

Defendant-Appellant

1

¶ 1 Defendant, Michael Paul Lopez, appeals the judgment of

conviction entered on a jury verdict finding him guilty of vehicular

eluding. We affirm.

I. Background

¶ 2 While on patrol duty, two officers ran the plate of a black

truck. The license plate was registered to a silver minivan,

indicating that the plate may have been stolen. The officers pulled

alongside the truck to identify the driver, then pulled back behind

the truck and turned on the police car’s lights and siren. Instead of

pulling over, Lopez turned into a residential neighborhood, turned

off the truck lights, and sped away, running a stop sign. When

Lopez reached a dead end, he jumped out of the truck and ran

away. While searching the abandoned truck, the officers found a

back panel to a cell phone.

¶ 3 An officer searched the truck’s VIN and called the person

whose name appeared in the records, David Emick, who said that

he had sold the truck. The following day, the officers discovered

that the license plate on the truck was registered to Lopez’s mother

2

and got the address associated with the registration. They went to

the address, talked to Lopez’s mother and saw Lopez, whom they

recognized as the driver of the truck. They arrested Lopez. The

officers searched Lopez and found a phone that was missing its

back panel. The phone back panel found in the truck was later

“match[ed]” to Lopez’s phone and clicked onto it.

¶ 4 At trial, the officers identified Lopez. Lopez’s theory of defense

was that there was an insufficient police investigation and

inadequate evidence of identity. A jury convicted Lopez of vehicular

eluding, the only charge tried to the jury.

1

¶ 5 This appeal followed.

II. Judicial Conduct

¶ 6 Lopez contends that the trial court assumed the role of the

prosecutor and advocated for the admission of evidence the

prosecutor was not going to introduce. We disagree.

1

Lopez was also charged with possession of a weapon by a previous

offender (POWPO). The POWPO charge was bifurcated from the

vehicular eluding charge and ultimately dismissed after Lopez was

convicted of vehicular eluding.

3

A. Additional Background

¶ 7 During cross-examination, defense counsel asked one of the

officers about the use of his body camera. The officer indicated that

he could not recall if there was body camera footage from the

incident. He further explained that, according to his agency’s

policies, there are situations where some other action would take

precedence over the officer turning on the body camera, including

when shots are fired at either the officer or someone else. The

prosecutor asked to approach the bench. During the bench

conference, the prosecutor argued that defense counsel had opened

the door for him to ask about the gun that the officer saw when

Lopez exited the truck and the possession of a weapon by a

previous offender (POWPO) charge. Defense counsel stated that he

did not know why the officer started talking about a gun because

his testimony was that the priority was to clear the truck that he

had stopped. Ultimately, the trial court said that it would question

the officer in camera and then would have more information to

make a decision. The parties agreed.

4

¶ 8 The trial court then questioned the officer outside the presence

of the jury. The court ruled that it was a “moot point” whether or

not the policy stated that the officer had to turn the body camera on

once he saw the gun because the officer did turn the body camera

on. The court also observed that, based on the officer’s testimony

about the policy and the circumstances on the day in question,

there were other safety concerns present — unrelated to the gun —

that would also have justified the officer not turning on his body

camera. As such, the court did not allow any further testimony

about the gun.

¶ 9 The trial court also noted that the jury was left with an

inference that the officer did not turn the body camera on and that

there was a lack of investigation or no evidence. The court stated,

So I’ll allow, to the extent you want,

[prosecutor], on redirect to go into the fact that

he actually did have his body-worn camera on

and if you want to show that as an exhibit to

whatever extent that’s helpful, I’ll allow that

just to remedy the fact that the jury now has a

different version of events. And so you can

rebut the — maybe the inference that [the

officer] wasn’t doing a full investigation.

5

¶ 10 Defense counsel asked how the prosecutor was going to

introduce the body camera footage when the officer had already

testified that he did not recall if he had any footage. The court

replied,

Well, I’m not going to tell [the prosecutor] how

to run his case. . . . But I think he can figure

out a way to get that body-worn cam, body-

worn camera in if he wants. He’s a pretty

experienced attorney as are you, [defense

counsel]. So I have no doubt there will be a

way to get it in. . . . I’m more anticipating or

preaddressing any issue that it wasn’t on the

exhibit list or it wasn’t, you know, something

like that. At this point, the door has been

opened to them introducing it if they can get it

in, even though it wasn’t on their good-faith

list that I’m looking at. But to the extent,

[prosecutor] you want to put that into the . . . .

The prosecutor responded that he was not anticipating using the

video because it was short, blurry, and he thought the officer yelled

“gun” or Lopez had a gun at some point. It was suggested that the

video could be played on mute. The court said,

Yeah, that was my thought was if there’s

nothing sound-wise, at least the jury sees that

he had it on and that’s really the value of it,

the probative value of it at this point is that he

did turn it on, and that, I guess to rebut the

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presumption that this wasn’t, you know, the

correct action or the complete investigation,

whatever you want to call it.

¶ 11 The prosecutor questioned the officer about the body camera

video, the officer testified there was a body camera video, and the

body camera video was admitted without sound.

B. Analysis

¶ 12 To the extent Lopez contends that the trial court erred by

questioning the officer in camera, he waived any such claim.

¶ 13 The People do not assert waiver. However, waiver is an issue

of preservation. See People v. Struckmeyer, 2020 CO 76, ¶ 4. “[A]n

appellate court has an independent, affirmative duty to determine

whether a claim is preserved and what standard of review should

apply, regardless of the positions taken by the parties.” Forgette v.

People, 2023 CO 4, ¶ 15 (quoting People v. Tallent, 2021 CO 68,

¶ 11); see also People v. Carter, 2021 COA 29, ¶¶ 13-14 (noting the

independent obligation to determine preservation and concluding

that the claim of error asserted by the defendant was waived).

¶ 14 A waiver is “the intentional relinquishment of a known right or

privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (quoting Dep’t of

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Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)). “[W]aiver

extinguishes error and therefore any appellate review.” Richardson

v. People, 2020 CO 46, ¶ 24.

¶ 15 After the trial court explained that it was going to question the

officer in camera in order to get more information to make his

ruling, defense counsel replied, “sure.” Consequently, Lopez has

waived any claim that the court’s questioning of the officer in

camera was error. Given the waiver, we do not review this assertion

of error.

¶ 16 Lopez also contends that the trial court abandoned its role as

a neutral arbiter when it persuaded the prosecutor to ask certain

questions of the officer and admit the body camera video — actions

which the prosecutor explicitly said he was not intending to do —

with the express purpose of bolstering and rehabilitating the

officer’s testimony.

¶ 17 As a threshold matter, the parties dispute the applicable

standard of review. But we do not need to decide that question

because there was no error. But see People v. Hall, 2021 CO 71M,

8

¶¶ 16-17 (applying abuse of discretion review to claims of judicial

misconduct in a bench trial).

¶ 18 When a trial court elects to raise matters to promote a just

determination of a trial, it must take great care to ensure that it

does not become an advocate. See People v. Martinez, 185 Colo.

187, 189, 523 P.2d 120, 121 (1974). The test is whether the trial

court judge’s conduct so departed from the required impartiality as

to deny the defendant a fair trial. People v. Adler, 629 P.2d 569,

573 (Colo. 1981).

¶ 19 The trial court’s ruling that the prosecutor could ask the

officer about the body camera video and try to introduce it into

evidence did not so depart from the required impartiality as to deny

Lopez a fair trial. This decision, and the discussion that led to it,

occurred outside the presence of the jury. See id. (noting that the

trial court’s suggestions to the prosecutor were made out of the

presence of the jury and finding no breach of the impartiality

standard). And the court’s ruling permitted, but did not require,

the prosecutor to ask the officer questions about the body camera

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video and try to admit it into evidence even though it was not on the

exhibit list.

¶ 20 The trial court made this ruling instead of finding that defense

counsel had opened the door to the jury hearing about the gun that

Lopez had when he exited the truck. The court determined that,

while defense counsel’s question did not open the door that far, it

had potentially left the jury with an inaccurate view of the

evidence — that there was no body camera video. In essence, the

ruling was an effort to ensure a fair hearing while protecting Lopez

from the admission of prejudicial evidence.

¶ 21 Thus, because the trial court did not assume the role of an

advocate, it did not deprive Lopez of a fair trial. See id. (concluding

that the trial court’s action in pointing out a possible deficiency in

the prosecution’s case did not result in a breach of the standard for

impartiality).

III. Prosecutorial Misconduct

¶ 22 Lopez next contends that numerous unobjected-to remarks

made by the prosecutor during closing statements constituted

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prosecutorial misconduct. We conclude that the trial court did not

reversibly err by allowing the statements, either because the

statements were not improper or because any error was not plain.

A. Standard of Review and Applicable Law

¶ 23 We engage in a two-step analysis when reviewing claims of

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine whether the conduct was

improper based on the totality of the circumstances. Id. In doing

so, we evaluate claims of improper argument in the context of the

argument as a whole and in light of the evidence before the jury.

People v. Conyac, 2014 COA 8M, ¶ 132. Next, we consider whether

such actions warrant reversal under the applicable standard of

review. Wend, 235 P.3d at 1096.

B. Analysis

1. Elements of Vehicular Eluding

¶ 24 Lopez contends that the prosecutor told the jury that vehicular

eluding was a strict liability crime and failed to concede that failing

to stop might not be reckless behavior when he said that

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[t]he fact that the defendant sped into a dead

end. That doesn’t matter. As soon as he

starts accelerating, doesn’t stop, as soon as he

starts accelerating away, that is eluding, that

is his reckless conduct. He didn’t know he

was going to hit a dead end. Fine. Doesn’t

matter. As soon as that gas pedal goes down

to get away, boom, that’s the crime. Now, if it

continues on for miles, that is still the crime.

If you continue on to a dead end, that is still a

crime. It happens when the decision is made

and when the conduct starts.

Viewed in context, the prosecutor was simply explaining that the

fact that Lopez did not know that he was driving into a dead end

does not mean that he did not act recklessly. The prosecutor later

reviewed the elements for vehicular eluding for the jury and argued

that Lopez acted recklessly when, in a residential area, he

accelerated away from the police and ran a stop sign. The

prosecutor also discussed the mental state of knowingly for

vehicular eluding. See § 18-9-116.5(1), C.R.S. 2024. Thus, the

prosecutor did not tell the jury that vehicular eluding was a strict

liability crime.

¶ 25 Nor was the prosecutor required, as Lopez contends, to

concede that in some circumstances failing to stop might not be

12

reckless behavior. Rather, as noted, the prosecutor argued, based

on the facts of this case, that Lopez acted recklessly when, in a

residential area, he accelerated away from the police and ran a stop

sign. See People v. Samson, 2012 COA 167, ¶ 31 (“Prosecutors may

comment on the evidence admitted at trial and the reasonable

inferences that can be drawn therefrom.”).

2. Denigration of Defense Counsel

¶ 26 Lopez also contends that the prosecutor committed

misconduct in rebuttal closing by denigrating defense counsel. We

disagree.

¶ 27 Remarks made for the obvious purpose of denigrating defense

counsel constitute professional misconduct. People v. Jones, 832

P.2d 1036, 1038 (Colo. App. 1991). Such remarks include those

intended to imply that opposing counsel does not have a good faith

belief in the innocence of their client. Id. at 1039. These kinds of

statements are impermissible because they serve no legitimate

purpose and impermissibly divert the attention of the jurors from

the factual issues concerning the defendant’s guilt. Id.

13

¶ 28 In support of his contention, Lopez cites the prosecutor’s

statement that “[t]he defense can ask any questions they want. If I

think it’s improper I object, the judge rules on it. He is an attorney,

he’s not short for words. If you don’t like the answer, keep asking.

The truck was stolen.” Lopez also objects to the prosecutor’s

discussion of how the evidence supports the officers’ identification

of Lopez and how there is a lack of evidence supporting Lopez’s

theory that the officers could not identify him. Finally, Lopez cites

the prosecutor’s statement that

License plate, no report. I’m not going to

blame a mom for helping her son. I sure hope

that his mom — he is a bigger deal than I am,

and he is a bigger deal than the police are, and

the judge, and this whole thing. I’m not going

to judge a mom for doing that. It’s almost a

badge of honor. But we’re not here in the mom

business. We are here in the evidence

business. He did it.

¶ 29 None of these statements denigrated the defense or defense

counsel. Rather, although inartful, the prosecutor was responding

to defense counsel’s arguments that the officers could not identify

Lopez, did not investigate the case thoroughly, and were not

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credible. See Samson, ¶ 31; People v. Denhartog, 2019 COA 23,

¶ 55 (noting that a prosecutor’s comments in direct response to

defense arguments were not prejudicial misconduct). The

prosecutor’s statements were also grounded in the evidence or lack

thereof. Cf. People v. Esquivel-Alaniz, 985 P.2d 22, 23 (Colo. App.

1999) (“[C]omment on the lack of evidence confirming a defendant’s

theory of the case is permissible . . . .”). Thus, we conclude there

was no prosecutorial misconduct.

3. Opinion on Veracity and Guilt

¶ 30 Lopez also argues that three aspects of the prosecutor’s

rebuttal closing argument constituted misconduct. Specifically, he

contends that the prosecutor twice vouched for the police officers’

credibility and expressed his personal opinion that Lopez was guilty

in a PowerPoint slide. We discern no reversible error.

a. Vouching

¶ 31 Lopez first challenges the prosecutor’s statement during

rebuttal that “[w]hen a witness answers, I don’t know, that is

honest, okay? If somebody knows everything, whoa, whoa, whoa,

this person is full of it, this person is not telling the truth. You ask

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a hard question, and someone says, I don’t know, well, that’s

honest.” This statement was made in response to defense counsel’s

closing argument that

[s]imply put, when you get officers that say, I

don’t recall, or, I don’t remember, in the legal

business that is code word for I remember, I

just don’t want to tell you, or that is code word

for, I know, I just don’t want to tell you.

Simply put, you know or you don’t know.

¶ 32 This was not misconduct. See Denhartog, ¶ 55; see also

People v. Gilmore, 97 P.3d 123, 131 (Colo. App. 2003) (holding that,

in response to defense comments challenging the quality of the

investigation against defendant, prosecutor’s argument that officers

“were honest when they admitted to the jury that they could not

remember aspects of the investigation and the search” was fair

comment on the testimony).

¶ 33 However, the prosecutor committed misconduct when he said

in rebuttal closing, “[d]o the police officers get a benefit? No. The

guy who is sitting over there is the guy who’s got skin in this. The

police officers are off to the next case. They talk about what they

did, they talk about it truthfully and they are done.” This statement

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was not tied to the evidence or the instructions and was essentially

an assertion that police officers, by definition, tell the truth. As

such, this was an improper expression of the prosecutor’s personal

opinion about the police officers’ veracity. See Wilson v. People, 743

P.2d 415, 418 (Colo. 1987).

¶ 34 Because defense counsel failed to object, we review for plain

error. See Wend, 235 P.3d at 1097. Plain error is error that is

obvious and that “so undermined the fundamental fairness of the

trial itself as to cast serious doubt on the reliability of the judgment

of conviction.” Garcia v. People, 2019 CO 64, ¶ 3 (quoting Hagos v.

People, 2012 CO 63, ¶ 18). To qualify as obvious, the alleged error

must be “so clear-cut, so obvious, that a trial judge should be able

to avoid it without benefit of objection.” People v. Pollard, 2013 COA

31M, ¶ 39; see also People v. Fortson, 2018 COA 46M, ¶ 78. “Only

prosecutorial misconduct which is “‘flagrantly, glaringly, or

tremendously improper’ warrants reversal” under the plain error

standard. Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo.

17

2005) (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App.

1997)).

¶ 35 The fact that defense counsel did not object “may demonstrate

defense counsel’s belief that the live argument, despite its

appearance in a cold record, was not overly damaging.” People v.

Van Meter, 2018 COA 13, ¶ 33 (quoting People v. Rodriguez, 794

P.2d 965, 972 (Colo. 1990)). The prosecutor was responding to

defense counsel’s argument in closing that when police officers say

“I don’t know” they are not being truthful. And because “[a]

prosecutor is afforded considerable latitude in replying to an

argument by defense counsel,” People v. Perea, 126 P.3d 241, 247

(Colo. App. 2005) (quoting People v. Wallace, 97 P.3d 262, 269

(Colo. App. 2004)), it is not surprising that the trial court did not

intervene on its own when there was no objection to the comment.

¶ 36 Moreover, we do not believe the statement was prejudicial. It

was a brief reference made during the prosecutor’s rebuttal

argument. See People v. Villa, 240 P.3d 343, 358 (Colo. App. 2009).

And what the officers testified that they did not know or did not

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recall was not material information to the vehicular eluding charge.

One officer testified that he did not know if a photograph accurately

depicted the aerial view of what the intersection looked like where

the event took place, did not know how many lanes a particular

street had, did not recall if the windows on the truck were tinted,

did not recall if Emick said it was stolen, and did not recall if they

put in the report that they learned the truck was not stolen. The

other officer also testified that he did not know if they got

information from Emick about whether the truck was stolen, did

not know what the crime scene officers processed in the truck, did

not know exactly how tall Lopez was determined to be when he

measured while being booked at the police station, did not recall

what Lopez’s mother said about the truck’s license plates, did not

recall if he drew his weapon, did not remember the first name of the

person to whom the plates were registered (but recalled that the last

19

name was Lopez), and did not remember the brand of the car the

plates were registered to (just that it was a silver van).

2

¶ 37 Furthermore, the strength of the other evidence of guilt was

strong. Both officers identified Lopez as the truck driver, the cell

phone back panel found in the truck “match[ed]” the missing piece

on the back of Lopez’s phone, and the license plate was registered

to Lopez’s mother. Finally, both officers saw Lopez speed away from

the police car and run the stop sign. See People v. Estes, 2012 COA

41, ¶¶ 42-43 (concluding that there was no plain error when

evidence of guilt was overwhelming).

¶ 38 In sum, the error did not “cast serious doubt on the reliability

of the judgment of conviction.” Garcia, ¶ 3 (quoting Hagos, ¶ 18).

b. Opinion on Guilt

¶ 39 Finally, Lopez contends that the prosecutor expressed his

personal opinion regarding Lopez’s guilt when he displayed a

PowerPoint slide with the word “GUILTY” in red font and another

2

The officer also testified that he did not recall if he turned his body

camera on or if the other officer did, but later clarified that he had

turned his body camera on.

20

slide with “Accountable” in yellow font. While we do not condone

such a tactic, even if we were to assume it was error, we cannot say

it was plainly so. Lopez cites no case — and we are aware of

none — holding that these types of slides contravene clear Colorado

law. See Pollard, ¶ 40 (an error is obvious if the challenged action

contravenes Colorado case law). Indeed, a prosecutor is permitted

to orally say that the defendant is guilty. See People v. Merchant,

983 P.2d 108, 115 (Colo. App. 1999) (concluding that prosecutor’s

comment “that the ‘[defendant’s] guilty of the crime of theft,’ merely

expressed the proposition that the evidence was sufficient to

sustain a conviction” and was proper) (alteration in original). Lopez

does not provide any basis to conclude that displaying in a slide

what can be said out loud is somehow less permissible.

Significantly, here, the prosecutor used the slides in conjunction

with his argument about how the evidence established Lopez’s guilt.

See People v. Tran, 2020 COA 99, ¶¶ 68-69. Thus, we discern no

reversible error.

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IV. Cumulative Error

¶ 40 Finally, we reject Lopez’s contention that the cumulative effect

of the trial errors denied him a fair trial. See Howard-Walker v.

People, 2019 CO 69, ¶¶ 24-25. We have identified a single

incidence of error and assumed the existence of a second. Even

including the assumed error, we cannot conclude that “in the

aggregate [the misconduct] show[s] the absence of a fair trial.” Id.

at ¶ 26.

V. Disposition

¶ 41 The judgment is affirmed.

JUDGE GOMEZ and JUDGE KUHN concur.