Although the Colorado Supreme Court has established that prosecutors cannot imply criminal defendants are guilty for exercising their Fifth Amendment right to silence or their Sixth Amendment right to a jury trial, the justices last week decided an Adams County prosecutor’s comments to a jury did not cross that threshold.

In a case that centered on whether defendant Yolanda Ursula Vialpando fled from a stolen vehicle, the prosecutor reminded jurors at Vialpando’s trial that she had run from the police and from the victim she injured.

“That flight has continued up and to this point. And it ends with you,” the unnamed prosecutor 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.’”

The state’s Court of Appeals, by a 2-1 decision, interpreted those statements as improper commentary on Vialpando’s decision to have a jury decide her fate, given that she was sitting in the courtroom at the time and not physically fleeing. It was one of several errors that “infected” her trial in the appellate court’s eyes.

But the Supreme Court rejected that interpretation, labeling the prosecutor’s comments as “oratorical embellishment” rather than clear misconduct.

“In context, his statements did not bring Vialpando’s right to a jury trial to the forefront; rather, they drew on the overall theme of flight and were connected to the facts of the case,” wrote Chief Justice Brian Boatright in the opinion.

The justices further did not believe the multiple other errors identified by the Court of Appeals merited reversal of Vialpando’s convictions.

Even though he agreed with the outcome, Justice Richard Gabriel wrote separately to emphasize how problematic he found the statements.

“I would conclude that the prosecution’s arguments were improper, and I would unequivocally disapprove them,” Gabriel explained.

A jury convicted Vialpando in 2017 of vehicular assault, vehicular eluding and related offenses after a trial that focused on the identity of the perpetrator. Police officers arrived at a crash scene on Dec. 30, 2015, in which an SUV had collided with another car. The officers had previously attempted to pull over the SUV because they learned it was stolen, but the vehicle fled.

A witness to the accident reported she saw a woman exit the driver’s side of the SUV after the crash and run away. Upon viewing a photograph of Vialpando, the witness claimed she was 75% sure Vialpando was who she saw. At trial, the witness reiterated that Vialpando “could be” the SUV’S driver.

Among the prosecution’s other evidence, police also found items belonging to Vialpando in the SUV, including her identification, credit card and clothing.

The defense offered an explanation for how Vialando’s possessions got into the stolen vehicle. The day before the crash, she had reported to Denver police that she had been robbed at gunpoint. An officer confirmed Vialpando had, indeed, reported the theft of the items later found in the SUV.

In March 2020, a three-judge panel of the Court of Appeals weighed in on Vialpando’s trial. A majority of the panel found it was “infected with errors” from start to finish.

Several problems, when combined, deprived Vialpando of her right to a fair trial, the majority said, including the prosecutor’s improper illustrations of reasonable doubt, his inappropriate personal opinions about Vialpando’s guilt, repeated requests that a witness opine about another witness’ truthfulness and his incorrect statement about the evidence.

However, it was the prosecutor’s comments to the jury about Vialpando’s flight continuing “up and to this point” that provided grounds on their own to reverse Vialpando’s convictions.

“The prosecutor told the jury that Vialpando was continuing to run from responsibility by insisting on a jury trial,” wrote Judge Michael Berger for himself and Judge Lino Lipinsky de Orlov. “This misconduct was flagrant, glaring and tremendously improper.”

Judge Terry Fox disagreed that was the implication of the prosecutor’s remarks.

“The prosecutor was not attempting to inject irrelevant issues into the case but rather was highlighting his argument, based on evidence presented, that Vialpando fled from the police on Dec. 30, 2015,” she wrote. Fox also did not believe the other errors, taken together, amounted to conviction-reversing conduct.

The Supreme Court agreed to hear Vilapando’s appeal. During oral arguments last fall, some justices leaned toward accepting Fox’s interpretation.

“Why can’t (the statements) be understood as, ‘she tried to evade responsibility and her attempt to do so ends today?’” Justice Monica Márquez asked. “I guess I’m struggling to see 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’.”

Other courts across the country have analyzed the propriety of similar remarks from prosecutors. One of Florida’s appellate courts reversed a defendant’s conviction after the prosecutor told jurors “we’re all here” because the defendant “refuses to take responsibility for his own actions.” The Boston-based federal appeals court similarly overturned a man’s convictions when a prosecutor said the defendant was “still running and hiding today.”

The Supreme Court declined to find the Adams County prosecutor’s argument about Vialpando fell into the same category of prohibited remarks.

“These facts demonstrate movement and flight,” wrote Boatright. “Thus, the prosecutor’s comments were contextually related to the evidence in the case.”

The justices did not believe the other errors identified by the Court of Appeals rose to a level necessitating the reversal of Vialpando’s convictions. The “most significant” problem was the prosecutor’s repeated question to Vialpando about whether a police officer was testifying truthfully. Boatright called the behavior “inherently prejudicial.”

Gabriel, writing separately, said he disagreed with the court’s other members and believed the prosecutor had, in fact, suggested Vialpando was guilty for exercising her Sixth Amendment right to a jury trial.

“The obvious implication of the prosecution’s comments in this case was that by not taking responsibility and conceding her guilt, Vialpando was somehow continuing to flee,” he wrote. “Vialpando, however, had no obligation to concede her guilt, and she had every right to put the prosecution to its proof. Accordingly, the prosecution’s comments improperly denigrated Vialpando’s fundamental right to a trial by jury.”

He noted the same principle applies to prosecutors who refer to a defendant’s decision not to testify at trial, which is a right guaranteed under the Fifth Amendment.

Because Vialpando’s lawyer had not objected to the comments during trial, the question was whether the erroneous statements obviously and substantially undermined the fairness of Vialpando’s trial. Gabriel concluded the answer was no.