People v. Perez

SUMMARY

August 22, 2024

2024COA94

No. 22CA1805, People v. Perez — Constitutional Law — Sixth

Amendment — Confrontation Clause — Recorded Jailhouse

Phone Calls — Testimonial Statements

A division of the court of appeals considers, for the first time,

whether the admission of recorded jailhouse calls between the

defendant and his mother, who did not testify at trial, violated the

Confrontation Clause. The division holds that such statements are

not testimonial and, therefore, that no constitutional violation

occurred. The division further holds that no instructional error

occurred, that the court did not abuse its discretion by denying the

defendant’s motion for a mistrial, and that no cumulative error

occurred. Accordingly, the judgment is affirmed.

The summaries of the Colorado Court of Appeals published opinions

constitute no part of the opinion of the division but have been prepared by

the division for the convenience of the reader. The summaries may not be

cited or relied upon as they are not the official language of the division.

Any discrepancy between the language in the summary and in the opinion

should be resolved in favor of the language in the opinion.

COLORADO COURT OF APPEALS 2024COA94

Court of Appeals No. 22CA1805

Otero County District Court No. 21CR71

Honorable Mark A. MacDonnell, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Matthew Perez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI

Opinion by JUDGE FREYRE

Lipinsky and Schutz, JJ., concur

Announced August 22, 2024

Philip J. Weiser, Attorney General, Jessica E. Ross, Assistant Attorney General,

Denver, Colorado, for Plaintiff-Appellee

Lauretta A. Martin Neff, Alternate Defense Counsel, Montrose, Colorado, for

Defendant-Appellant

1

¶ 1 Defendant, Matthew Perez, appeals the judgment of conviction

entered on a jury verdict finding him guilty of first degree murder.

We affirm.

I. Background

¶ 2 On May 14, 2021, Perez and his girlfriend drove from New

Mexico to their home in Kansas. The pair decided to stop in La

Junta, Colorado. While in La Junta, they stopped at an apartment

complex looking for the victim, E.A. Witnesses testified that Perez

was banging on doors and asking where E.A.’s apartment was. One

witness testified that Perez asked them to tell E.A. that “Cuz is

looking for him.” Perez then said, “[B]ang, bang motherfucker.”

Another witness testified that Perez said, “Tell [E.A.], his cousin

Lucky is looking for him.” Perez eventually parked his car at the

apartment complex, where he waited for E.A. A witness testified

that, when E.A. drove up, Perez got out of his own car and shot E.A

“instantaneously” while E.A. was seated in his car. However,

according to Perez’s girlfriend, E.A. pulled a gun on Perez before

Perez shot him.

¶ 3 Following the shooting, Perez and his girlfriend fled to Kansas.

The police found E.A.’s body slumped over in the front driver’s seat

2

toward the front of the car. They found a handgun under E.A.’s

right arm, between his body and the emergency brake.

¶ 4 After his arrest, Perez claimed that he was never in La Junta

and had not seen E.A. in a long time. However, once police

matched shell casings from the scene to his mother’s boyfriend’s

missing gun, Perez changed his defense. Perez then asserted that

he shot E.A. in self-defense because E.A. had pulled a gun on him

first.

¶ 5 The jury found Perez guilty of first degree murder. The trial

court sentenced him to life without parole in the custody of the

Department of Corrections.

¶ 6 Perez challenges his conviction on four grounds and contends

that cumulative error requires reversal. His first contention — that

the trial court’s admission of jail phone calls between him and his

mother, F.P., violated his constitutional right of confrontation

because the statements were testimonial and he had no opportunity

to cross-examine F.P. — raises a novel issue. Consistent with other

jurisdictions that have applied the well-settled definition of

“testimonial” articulated by the United States Supreme Court, we

conclude F.P.’s statements were not testimonial and, thus, that no

3

Confrontation Clause violation occurred. We also reject Perez’s

contentions that the trial court erroneously instructed the jury on

the provocation exception to self-defense, that it erred by refusing to

define provocation, that it erred by denying his mistrial motion, and

that he was denied a fair trial by virtue of the cumulative effect of

these errors.

II. Confrontation Clause

¶ 7 Perez contends that the court violated his Sixth Amendment

confrontation rights by allowing the prosecution to play jailhouse

phone calls between him and F.P. He argues that the phone calls

included testimonial statements by F.P., who did not testify at trial

and was not subject to cross-examination. We disagree.

A. Additional Facts

¶ 8 While Perez was in jail awaiting trial, he and F.P. discussed his

defense strategy in two phone calls. F.P. said she wanted Perez to

maintain his alibi defense. But Perez said that was no longer

possible because the shell casings from F.P.’s boyfriend’s missing

gun matched the shell casings at the crime scene. Perez then told

F.P. that “they have a self-defense law here in Colorado, so. You

know what I mean?”

4

¶ 9 F.P. was charged as an accessory after the fact, invoked her

Fifth Amendment privilege against self-incrimination, and refused

to testify at Perez’s trial. Due to her unavailability and his inability

to cross-examine F.P. before or at trial, Perez objected to the

admissibility of the phone calls based on relevance, unfair prejudice

that outweighed the probative value, hearsay, and violation of his

rights of confrontation, to not testify, and to confidential counsel.

Perez raised only his challenge to the Confrontation Clause on

appeal. Therefore, we deem the remaining challenges abandoned.

See People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996) (failure to

reassert on appeal certain claims constitutes a conscious

relinquishment of those claims).

¶ 10 The trial court found that F.P.’s statements were not

testimonial

1

. It reasoned that, other than recording the phone calls,

the calls involved no other governmental activity. The court also

said that an objective witness in F.P.’s position would not have

1

The court made no hearsay findings, and neither party alleges on

appeal that F.P.’s statements were not hearsay. Therefore, we

assume, without deciding, that they were for the purpose of our

analysis.

5

believed they were making testimonial statements for later use in a

criminal prosecution.

B. Standard of Review and Controlling Law

¶ 11 We review de novo whether the trial court’s admission of

evidence violated a defendant’s rights under the Confrontation

Clause and apply the constitutional harmless error standard to any

error. People v. McFee, 2016 COA 97, ¶ 28; People v. Johnson, 2019

COA 159, ¶ 49, aff’d, 2021 CO 35. If the court erred, reversal is

required unless the reviewing court is “confident beyond a

reasonable doubt that the error did not contribute to the guilty

verdict.” Nicholls v. People, 2017 CO 71, ¶ 17 (quoting Bernal v.

People, 44 P.3d 184, 198, 200 (Colo. 2002)).

¶ 12 The Confrontation Clause guarantees that, “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him.” U.S. Const. amend. VI. Because

the provision applies to “witnesses” against the accused, the

Confrontation Clause is implicated only when “testimonial” hearsay

statements are at issue. Crawford v. Washington, 541 U.S. 36, 51

(2004).

6

¶ 13 Statements are testimonial when “the circumstances

objectively indicate that there is no . . . ongoing emergency, and

that the primary purpose of the interrogation is to establish or

prove past events potentially relevant to later criminal prosecution.”

Davis v. Washington, 547 U.S. 813, 822 (2006). The “core class of

testimonial statements” includes “statements that were made under

circumstances which would lead an objective witness reasonably to

believe that the statement would be available for use at a later

trial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310 (2009)

(quoting Crawford, 541 U.S. at 51-52).

C. Analysis

¶ 14 We conclude that F.P.’s statements were not testimonial

because an objective person in her position would not have

reasonably believed the statements would be used in Perez’s

prosecution, despite knowing the statements were recorded. Perez

points to no evidence to show that the purpose of the calls was to

obtain evidence for prosecuting criminal cases. Nor does the record

show that the government played any role in inducing a

conversation between Perez and F.P. for the purpose of prosecution.

Instead, the content of F.P.’s inculpatory statements, in which she

7

implicated herself as an accessory, reflects a reasonable belief that

her statements would not be used against her but would assist

Perez in defending himself, thus, supporting our conclusion. See

Crawford, 541 U.S. at 51 (noting that a formal statement to a

government officer “bears testimony” in a sense that a person

making casual remarks does not); United States v. Jones, 716 F.3d

851, 856 (4th Cir. 2013) (statements by two people implicating

themselves in a fraudulent scheme showed statements were not for

purpose of bearing testimony against the defendant). Thus, the

primary purpose of the phone calls was not to assist the

prosecution or create a record for criminal prosecution but instead

to establish and further Perez’s theory of defense.

¶ 15 Our conclusion is supported by decisions from courts in other

jurisdictions that have determined that jailhouse phone calls are

not testimonial. For example, in United States v. Alcorta, Alcorta

challenged the admission of several recorded jailhouse phone calls

among co-conspirators. 853 F.3d 1123, 1137 (10th Cir. 2017). The

court noted that a statement is testimonial if it is made with the

primary purpose of creating evidence for the prosecution. Id.

Because none of the criminal codefendants were cooperating with

8

the government, the court concluded that their statements could

not be testimonial. Id.; see also Jackson-Johnson v. State, 188 So.

3d 133, 141 (Fla. Dist. Ct. App. 2016) (jailhouse phone calls,

including other persons’ statements incriminating the inmate, do

not automatically violate the Confrontation Clause).

¶ 16 Additionally, in United States v. LeBeau, LeBeau argued that

statements made by a co-conspirator during jailhouse phone calls

were testimonial because a message played at the beginning of

every call informed the co-conspirator that his calls were being

recorded, and the co-conspirator admitted that he knew his calls

were being recorded. 867 F.3d 960, 980-81 (8th Cir. 2017). The

court held that the statements were not testimonial, however,

because, although the co-conspirator knew that law enforcement

might listen to the calls and use them as evidence, the primary

purpose of the calls was to further a conspiracy, not to create

evidence for criminal prosecution. Id.; see also Jones, 716 F.3d at

856 (rejecting argument that knowledge of the recording alone

renders statements testimonial); United States v. Cabrera-Beltran,

660 F.3d 742, 752 (4th Cir. 2011) (noting that use of statements at

trial does not mean they were created for trial); Nicholls v. State,

9

630 S.W.3d 443, 450 (Tex. App. 2021) (jailhouse call in which the

participants knew the call was being recorded were not testimonial).

¶ 17 Like the calls in these cases, the primary purpose of F.P.’s

statements was to discuss Perez’s theory of defense, not to develop

a record for the prosecution. See United States v. Manfre, 368 F.3d

832, 838 n.1 (8th Cir. 2004) (“[Declarant’s] comments were made to

loved ones or acquaintances and are not the kind of memorialized,

judicial-process-created evidence of which Crawford speaks.”);

McClurkin v. State, 113 A.3d 1111, 1121 (Md. Ct. Spec. App. 2015)

(statements made during jailhouse phone call were not testimonial,

as the primary purpose of the call was to induce the victim to

change his account of who was involved in the shooting).

¶ 18 Because we conclude F.P.’s statements were not testimonial,

there was no Confrontation Clause violation.

III. Provocation Jury Instruction

¶ 19 Perez next contends there was insufficient evidence to support

instructing the jury on the provocation exception to self-defense

and that the trial court erroneously failed to define provocation. We

disagree.

10

A. Additional Facts

¶ 20 The court instructed the jury on self-defense in Instruction No.

17, which read,

The evidence in this case has raised the

affirmative defense of “deadly physical force in

defense of a person,” as a defense to Murder in

the First Degree and Murder in the Second

Degree.

The defendant is legally authorized to use

deadly force upon another person without first

retreating if:

1. he used deadly physical force in order to

defend himself from what he reasonably

believed to be the use or imminent use of

unlawful physical force by that other person,

and

2. he reasonably believed a lesser degree of

force was inadequate, and

3. he had reasonable ground to believe, and

did believe, that he or another person was in

imminent danger of being killed or of receiving

great bodily injury, and

4.he did not, with the intent to cause bodily

injury or death to another person, provoke the

use of unlawful physical force by that person,

5. he was not the initial aggressor, or, if he

was the initial aggressor, he had withdrawn

from the encounter and effectively

communicated to the other person his intent

to do so, and the other person nevertheless

11

continued or threatened the use of unlawful

physical force.

The prosecution has the burden to prove,

beyond a reasonable doubt, that the

defendant’s conduct was not legally authorized

by this defense. In order to meet this burden

of proof, the prosecution must disprove,

beyond a reasonable doubt, at least one of the

above numbered conditions.

After considering all the evidence, if you decide

the prosecution has failed to meet this burden

of proof, then the prosecution has failed to

prove the defendant’s conduct was not legally

authorized by this defense, which is an

essential element of Murder in the First Degree

and Murder in the Second Degree. In that

event, you must return a verdict of not guilty

on those offenses.

After considering all the evidence, if you decide

the prosecution has met this burden of proof,

then the prosecution has proved the

defendant’s conduct was not legally authorized

by this defense. In that event, your verdict

concerning the charges of Murder in the First

Degree and Murder in the Second Degree must

depend upon your determination whether the

prosecution has met its burden of proof with

respect to the remaining elements of those

offenses.

¶ 21 The court reviewed the jury instructions, including the portion

of the instructions addressing the exceptions to self-defense, with

both parties.

12

¶ 22 While Perez’s attorney objected to the combat by agreement

exception to self-defense, counsel did not object to the provocation

exception, and the court did not discuss the exception further.

In closing argument, the prosecutor said,

So in order for this to be a self-defense case,

Matthew Perez, must have — and this will be

in your instructions — reasonably believed

that there was an imminent use of unlawful

physical force . . . . And here’s another part:

He did not provoke the use of unlawful

physical force, and he was not the initial

aggressor. Well, we know, of course, and we’ve

shown you beyond a reasonable doubt that

that’s not true. Matthew Perez was the — he

was the initial aggressor here. He did provoke

the use of force. He was there waiting for

[E.A.] and rushed up to his car. And he shot

him in the head three times. Because this was

an ambush.

¶ 23 Perez contends that no evidence established that he provoked

E.A. into pulling a gun on him. He argues that the trial evidence

only shows that Perez was waiting in the parking lot for E.A. and

that there was no evidence E.A. knew that Perez was looking for

him or why Perez was waiting for him.

¶ 24 The People respond that there was “some evidence” to support

the instruction because the jury could have inferred that the

message that “Lucky” or “Cuz” was looking for E.A. would reach

13

E.A. One witness testified that Perez “[s]eemed mad.” The same

witness called E.A.’s nephew and told him that someone was

looking for E.A. Multiple witnesses testified that Perez was looking

for E.A. by banging on doors. Another witness testified that Perez

said, “[B]ang, bang motherfucker” shortly before the shooting.

Based on this evidence, the People contend that, in the absence of

the provocation exception, a jury could have concluded that E.A.

showed up armed and pulled a gun on Perez, so Perez shot him in

self-defense. Thus, the People conclude, the instruction was

appropriate.

B. Giving the Instruction

1. Standard of Review and Controlling Law

¶ 25 We review de novo whether sufficient evidence exists to

support giving an instruction. Castillo v. People, 2018 CO 62, ¶ 32.

In doing so, we view the evidence in the light most favorable to

giving the instruction. Id. at ¶ 13.

¶ 26 The parties agree that the issue is unpreserved. Therefore, we

will review any error for plain error. See Hagos v. People, 2012 CO

63, ¶ 14. Plain error is error that is obvious and substantial. Id.

We consider whether the error was plain “at the time it [wa]s made.”

14

People v. Crabtree, 2024 CO 40M, ¶ 72. An error is obvious if “it

was so clear cut and so obvious that a trial judge should have been

able to avoid it without [the] benefit of objection.” People v. Conyac,

2014 COA 8M, ¶ 54; accord Cardman v. People, 2019 CO 73, ¶ 34.

An error is “substantial” enough to warrant reversal if it “so

undermines the fundamental fairness of the trial itself as to cast

serious doubt on the reliability of the judgment of conviction.”

Cardman, ¶ 19.

¶ 27 A defendant has a right to use physical force to defend himself

from the use or imminent use of force by another person.

§ 18-1-704(1), C.R.S. 2024. However, the right is limited. “One way

for the prosecution to defeat a claim of self-defense is to prove

beyond a reasonable doubt that an exception to self-defense

applies.” Castillo, ¶ 40. Provocation is one such exception.

¶ 28 A provocation instruction is authorized when

(1) the other person uses unlawful physical

force against [the defendant]; (2) the defendant

provoked the use of such physical force by the

other person; and (3) the defendant intended

his provocation to goad the other person into

attacking him [or her] in order to provide a

pretext to injure or kill that person.

15

People v. Roberts-Bicking, 2021 COA 12, ¶ 37 (quoting Galvan v.

People, 2020 CO 82, ¶ 19).

¶ 29 Instructing the jury on a principle of law is appropriate when

there is “some evidence” to support the instruction. People v.

Zukowski, 260 P.3d 339, 347 (Colo. App. 2010). “[S]ome evidence”

is equivalent to “any credible [even if highly improbable] evidence,”

“a scintilla of evidence,” “a small quantum of evidence,” and “any

evidence.” Galvan, ¶ 24.

2. Analysis

¶ 30 To justify this instruction, there had to be some evidence that

(1) E.A. used unlawful physical force against Perez; (2) Perez

provoked the use of such force by E.A.; and (3) Perez intended his

provocation to goad E.A. into attacking him to provide a pretext for

him to injure or kill E.A. See Galvan, ¶ 19.

¶ 31 Viewing the evidence in the light most favorable to giving the

instruction, we conclude that sufficient evidence supports the

instruction. The record supports the inference that E.A. came to

the apartment complex armed and pulled a gun on Perez because

he had heard that Perez was angrily looking for him, banging on

doors, and making threatening comments. While we acknowledge

16

that the provocation evidence was weak, because “some evidence”

includes any credible, even if improbable, we conclude that the

record supports the court’s decision to instruct the jury on the

provocation exception. See id. at ¶ 24.

¶ 32 However, even assuming the court erred, the error was not

plain. While “superfluous instructions limiting self-defense may be

prejudicial” because “the jury is likely to try to fit facts into an

erroneously given instruction,” we do not think that is the case

here. Castillo, ¶ 61. The prosecutor mentioned the provocation

exception in closing, but did so only briefly. The provocation

exception was not otherwise mentioned during the trial. Therefore,

even assuming there was a lack of evidence supporting the

provocation exception, we cannot conclude that the jury would have

attempted to force the other evidence to fit the exception.

Consequently, any error would not have been “substantial.” See

People v. Ujaama, 2012 COA 36, ¶ 41.

¶ 33 Accordingly, we discern no basis for reversal.

17

C. Provocation Definition

1. Standard of Review and Controlling Law

¶ 34 We review de novo whether jury instructions adequately

informed the jury of the governing law. Garcia v. People, 2023 CO

30, ¶ 9. We review a trial court’s decision to give, or not to give, a

particular jury instruction for an abuse of discretion. People v.

Payne, 2019 COA 167, ¶ 16. A trial court does not abuse its

discretion unless its decision was manifestly arbitrary,

unreasonable, or unfair or was based on an erroneous

understanding of the law. People v. Esparza-Treto, 282 P.3d 471,

480 (Colo. App. 2011).

¶ 35 Again, the parties agree that the issue is unpreserved.

Therefore, we review any error under the plain error standard. See

Hagos, ¶ 14.

¶ 36 “We consider ‘not only whether the jury instructions faithfully

track the law but also whether the instructions are confusing or

may mislead the jury.’” Garcia, 2023 CO 30, ¶ 9 (quoting Garcia v.

People, 2022 CO 6, ¶ 16). “[I]f a statutory definition does not

adequately inform the jury of the governing law, additional

instructions are required.” People v. Mendenhall, 2015 COA 107M,

18

¶ 24. Definitions should be provided for technical terms. Garcia,

2023 CO 30, ¶ 20. Alternatively, when “a term, word, or phrase in

a jury instruction is one with which reasonable persons of common

intelligence would be familiar, and its meaning is not so technical or

mysterious as to create confusion in jurors’ minds as to its

meaning, an instruction defining it is not required.” Id. (quoting

Day v. Johnson, 255 P.3d 1064, 1070 (Colo. 2011)).

2. Analysis

¶ 37 Perez contends that the provocation exception requires the

prosecution to prove that the defendant intended to provoke the

victim and because provocation is part of the element of intent, the

court was required to define it.

¶ 38 While the statute does not include a definition of provocation,

we conclude that persons of reasonable intelligence would be

familiar with its meaning, which is neither mysterious nor

technical. “Provocation” is “the act of provoking.” Merriam-Webster

Dictionary, https://perma.cc/35PA-ASKR. “Provoke” means “to call

forth (a feeling, action, etc.)” or “to stir up purposely.”

Merriam-Webster Dictionary, https://perma.cc/C3YQ-ZDG2. The

dictionary definition is consistent with the language used in

19

Colorado cases. See People v. Roberts-Bicking, 2021 COA 12, ¶ 37

(provoke means to goad). Accordingly, we reject Perez’s assertion

that “provocation” is a technical term the court was required to

further define. Moreover, nothing in the record indicates that the

jury was confused about its meaning.

¶ 39 Accordingly, the trial court did not err by failing to further

define provocation.

IV. Mistrial Request

¶ 40 Perez contends that the trial court erroneously denied his

mistrial motion after a law enforcement agent mentioned linking the

moniker “Lucky,” which was also a moniker that Perez used, to a

person who had recently been released on parole in Kansas. We

discern no abuse of discretion in the trial court’s ruling.

A. Additional Facts

¶ 41 Joseph Somosky, a field agent with the Colorado Bureau of

Investigation, testified at trial. During direct examination, the

following exchange took place:

PROSECUTOR: So after you speak with [a

witness], what do you do next, still, that night

or early morning hours?

20

SOMOSKY: We started working on that name.

I had some remote help from another agent,

kind of working the Kansas side through law

enforcement databases to try to drill down on

that nickname or street moniker of Lucky,

which we did find some matching information

in the Kansas Department of Corrections

database for a subject who was recently

released on parole.

¶ 42 Defense counsel objected and moved for a mistrial. The court

recessed for the day. The next morning, the court gave the jury a

limiting instruction, saying,

The Court recessed at the conclusion of the

day yesterday because Agent Somosky broke a

court rule in relation to his testimony. The

Court is going to give a limiting instruction in

reference to that. The jury is required to

disregard the last statements of Agent

Somosky.

The statement was not referenced again.

B. Standard of Review and Controlling Law

¶ 43 “A trial court has broad discretion to grant or deny a mistrial,

and its decision will not be disturbed on appeal absent an abuse of

discretion and prejudice to the defendant.” People v. Salas, 2017

COA 63, ¶ 9. A trial court abuses its discretion when its ruling is

manifestly arbitrary, unreasonable, or unfair or when it

misconstrues that law. People v. Marko, 2015 COA 139, ¶ 29, aff’d

21

on other grounds, 2018 CO 97. A mistrial “is only warranted where

the prejudice to the accused is too substantial to be remedied by

other means.” People v. Collins, 730 P.2d 293, 303 (Colo. 1986).

¶ 44 Factors bearing on whether a mistrial is warranted include the

weight of admissible evidence of the defendant’s guilt and the value

of a cautionary instruction. People v. Tillery, 231 P.3d 36, 42 (Colo.

App. 2009), aff’d sub nom. People v. Simon, 266 P.3d 1099 (Colo.

2011). Inadmissible evidence will inflict less prejudice if it appears

only in a fleeting reference. People v. Lahr, 2013 COA 57, ¶ 24.

¶ 45 “In general, evidence of an accused’s prior criminal acts is

inadmissible.” People v. Abbott, 690 P.2d 1263, 1269 (Colo. 1984).

C. Analysis

¶ 46 We agree that Agent Somosky’s comment was improper.

However, we conclude, for two reasons, that the trial court did not

abuse its discretion by denying the motion for a mistrial.

¶ 47 First, the comment was fleeting; Agent Somosky only

mentioned it once, and the prosecutor did not refer to it later in the

trial. See Abbott, 690 P.2d at 1269 (concluding that the denial of

mistrial was not error, in part because the witness’s insinuation

22

that the defendant had a criminal record was a single

nonresponsive remark).

¶ 48 Second, the comment was mitigated by the trial court’s

limiting instruction to disregard the statement. See People v.

Cousins, 181 P.3d 365, 373 (Colo. App. 2007). Absent evidence to

the contrary, we presume that the jury understood and followed the

court’s instruction. See Garcia, 2023 CO 30, ¶ 20.

¶ 49 Accordingly, while Agent Somosky’s comment was improper,

we conclude that it did not influence the verdict and that the trial

court’s ruling denying a mistrial was not an abuse of discretion.

V. Cumulative Error

¶ 50 Finally, Perez contends that the trial court’s combined errors

amounted to cumulative error. Cumulative error occurs when the

aggregate effect of individual errors shows the absence of a fair trial.

Howard-Walker v. People, 2019 CO 69, ¶ 26.

¶ 51 First, we note that Perez raises two new arguments as part of

his cumulative error claim — the denial of defense evidence and

prosecutorial misconduct. Because these issues are undeveloped,

we decline to consider them in our analysis. See People v. Curtis,

23

2021 COA 103, ¶ 36 (declining to address an undeveloped

argument).

¶ 52 Next, while we have found one error, and assumed an error for

the purpose of analysis, we conclude no cumulative error occurred

because the record established overwhelming evidence of guilt and

thus, the cumulative effect of any error was slight. People v.

Vialpando, 2022 CO 28, ¶ 46. Witnesses described Perez

immediately shooting the victim, contrary to his self-defense claim,

and the jailhouse calls and Perez’s girlfriend’s testimony showed the

self-defense claim was contrived. When viewed cumulatively and

against the backdrop of the other evidence, we conclude Perez was

not deprived of a fair trial. Id.; see also People v. Martinez, 2020

COA 141, ¶ 89 (identifying two errors and declining to reverse for

cumulative error given overwhelming evidence of guilt).

VI. Disposition

¶ 53 The judgment is affirmed.

JUDGE LIPINSKY and JUDGE SCHUTZ concur.