People v. Martinez-Hernandez - Judgment Affirmed

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March 26, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Martinez-Hernandez

Colorado Court of Appeals

• Citations: None known
• Docket Number: 23CA0044

• Precedential Status: Non-Precedential

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (2.3K)

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Combined Opinion

23CA0044 Peo v Martinez-Hernandez 03-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0044
Mesa County District Court No. 18CR627
Honorable Gretchen B. Larson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Pedro Martinez-Hernandez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE WELLING
Grove and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 26, 2026

Philip J. Weiser, Attorney General, Lisa K. Michaels, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Lucy H. Deakins, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Pedro Martinez-Hernandez, appeals his judgment

of conviction for two felonies and two traffic infractions after

representing himself at trial. We affirm.

I. Background

¶2 On March 30, 2018, Trooper Christian Bollen was patrolling

Mesa County, Colorado. While on Interstate Highway 70, he

observed the driver of a black minivan do a “double take” when he

saw Trooper Bollen. Trooper Bollen started following the minivan

and observed it travel in the left lane without passing any vehicles

for about three miles. He also observed the vehicle’s right tires

cross over the right, dotted lane line. He initiated a traffic stop of

the vehicle and identified the only occupant as Martinez-Hernandez.

¶3 Martinez-Hernandez said he had flown from New York to Los

Angeles and was driving from Los Angeles to Michigan to see his

son. After confirming that the minivan was a rental car rented

under someone else’s name and seeing that the GPS had the

destination as Bronx, New York, Trooper Bollen had suspicion that

Martinez-Hernandez was carrying drugs in the minivan. He asked

another trooper to come with a drug-sniffing dog. The dog arrived

and alerted to the presence of narcotics in the minivan. After a

1
search of the vehicle, the troopers found about seven kilograms of a

substance wrapped in cellophane behind a rear trunk panel in the

minivan. After field testing, the substance produced a presumptive

positive result for cocaine.

¶4 Martinez-Hernandez was arrested and charged with

possession of cocaine. After further laboratory testing, the

substance turned out to be heroin, and the People amended the

complaint.

¶5 Leading up to his trial, Martinez-Hernandez repeatedly

expressed his dissatisfaction with his four court-appointed

attorneys — first his public defenders and then his alternate

defense counsel (ADC) — leading to three of them withdrawing. He

proceeded pro se at trial. The jury convicted him of possession with

intent to distribute a controlled substance (heroin), possession of a

controlled substance (heroin), improper use of a passing lane, and

improper lane change. The trial court sentenced him to sixteen

years in the custody of the Department of Corrections.

II. Issues on Appeal

¶6 Martinez-Hernandez raises five arguments on appeal. He

contends that (1) the court erred by concluding that he knowingly

2
and intelligently waived his right to counsel; (2) the court erred by

not appointing him advisory counsel; (3) the court erred by

empaneling three biased jurors; (4) the prosecutor committed

several instances of misconduct; and (5) there was insufficient

evidence to convict him because a fabricated video exhibit was

admitted at trial. Martinez-Hernandez also contends that the

cumulative effect of these errors requires reversal. We consider and

reject each contention in turn below.

A. Knowing and Intelligent Waiver of Counsel

¶7 We first address Martinez-Hernandez’s contention that the

trial court erred by accepting Martinez-Hernandez’s waiver of

counsel because he didn’t make it intelligently or knowingly. We

disagree.

1. Additional Facts

¶8 Over the course of the proceedings, four different attorneys

represented Martinez-Hernandez. The first two were public

defenders and the last two were ADC. The second public defender,

Michelle Sages, began representing Martinez-Hernandez after his

first public defender moved away from Mesa County. Thereafter,

there were six hearings about the status of Martinez-Hernandez’s

3
representation that eventually led to Martinez-Hernandez

representing himself at trial. We briefly describe those six hearings.

¶9 First hearing. On January 2, 2019, the trial court held an ex

parte hearing because Martinez-Hernandez said that he no longer

wanted Sages to represent him.1 After first explaining the charges

and possible punishments, the trial court heard from Martinez-

Hernandez and Sages about the conflict between them. In the end,

the court didn’t allow Sages to withdraw. In doing so, the court

explained to Martinez-Hernandez that he didn’t “have a real good

understanding of the criminal justice system; that if [he] were to try

and represent [him]self in this matter, [he] would be a poor

advocate for [him]self and [he] might end up wrongfully convicting

[him]self.”

¶ 10 Second hearing. On April 19, 2019, at the trial court’s

request, a different district court judge, Judge Gurley, conducted an

1 Although all six of the hearings addressed, at least to some degree,

Martinez-Hernandez’s dissatisfaction with his court appointed-
counsel and, therefore, would have seemed to implicate People v.
Bergerud, 223 P.3d 686, 695 (Colo. 2010), neither counsel nor the
court ever referred to the hearings as Bergerud hearings or
otherwise cited the case. We, therefore, don’t refer to any of the
hearings as Bergerud hearings.

4
ex parte hearing because Martinez-Hernandez again said that he

wanted new counsel. Judge Gurley denied his request.

¶ 11 Third hearing. On August 30, 2019, the trial court conducted

another ex parte hearing because Martinez-Hernandez alleged that

there was a conflict between him and Sages. Martinez-Hernandez

explained to the court that he believed Sages was conspiring with

the prosecutor and that, as a result, he didn’t trust her. The court

allowed Sages to withdraw and, after confirming that Martinez-

Hernandez still wanted to be represented by an attorney, appointed

ADC to represent him. ADC Ashley Whitham later entered her

appearance.

¶ 12 Fourth hearing. On February 20, 2020, the trial court

requested that Judge Gurley conduct another ex parte hearing

because Martinez-Hernandez said that he no longer wanted

Whitham to represent him. Judge Gurley denied his request, and

Whitham continued to represent Martinez-Hernandez.

¶ 13 Fifth hearing. On November 4, 2020, Judge Gurley, again at

the trial court’s request, presided over a third ex parte hearing

based on an alleged breakdown in the relationship between

Whitham and Martinez-Hernandez. At this hearing, Martinez-

5
Hernandez requested to proceed pro se. After Judge Gurley

struggled to complete a waiver of counsel advisement under People

v. Arguello, 772 P.2d 87 (Colo. 1989), Judge Gurley found that

Martinez-Hernandez hadn’t made a knowing and intelligent waiver

of counsel. Whitham stayed on as Martinez-Hernandez’s counsel.

But that evening, Whitham filed a motion to withdraw.

¶ 14 At a pretrial readiness conference the next day, Martinez-

Hernandez again stated that he wanted to proceed pro se. The trial

court again denied the request and gave him the choice of

proceeding to trial with Whitham or getting a new attorney and

continuing the jury trial to a later date. The court let him think it

over until the next appearance. On November 10, 2020, the trial

court continued the then-scheduled jury trial due to the COVID-19

pandemic. So the court granted Whitham’s motion to withdraw and

appointed another ADC, Dan Shaffer. Less than a month later,

Shaffer filed a motion to withdraw.

¶ 15 Sixth hearing. On December 7, 2020, the trial court addressed

Shaffer’s motion to withdraw. Martinez-Hernandez again requested

to proceed pro se. The trial court then asked Martinez-Hernandez

6
questions to determine if he was able to knowingly, intelligently,

and voluntarily waive his right to counsel.

¶ 16 At the outset of the inquiry, the trial court displayed the

amended complaint to Martinez-Hernandez. It also read each count

and explained the possible punishments. Then, it displayed the

Colorado Bureau of Investigation (CBI) Forensics Services Division’s

laboratory report, which showed the testing results of the controlled

substance found in the minivan and its weight. After going through

the charges against him and their possible punishments, the court

asked Martinez-Hernandez three times if he understood that if the

jury found him guilty of either count one or count two, he would

face a mandatory prison sentence. After the third time, Martinez-

Hernandez responded that he understood. Similarly, the trial court

informed Martinez-Hernandez two times that he had the right to be

represented by an attorney. After Martinez-Hernandez again didn’t

respond that he understood this right, the trial court informed him

that because he couldn’t “afford an attorney . . . right now,” it had

“appointed Mr. Shaffer to represent you at no cost to you.”

¶ 17 Then the trial court asked Martinez-Hernandez why he wanted

to proceed pro se. After hearing Martinez-Hernandez express his

7
dissatisfaction with Shaffer, the trial court proceeded with an

Arguello advisement. The trial court asked if Martinez-Hernandez

had any legal training; he responded that he didn’t. He also told

the court that he went to high school but didn’t graduate.

¶ 18 Ultimately, before granting Martinez-Hernandez’s request to

proceed pro se, the trial court asked him if he understood that

• “criminal law is a complicated area, and an attorney trained

in criminal law would be of great help to [him] in preparing

for [his] case and . . . representing [him] in [his] case”;

• he had the right to remain silent;

• if he decided not to testify at trial, his silence couldn’t be

used against him;

• he had the right to testify at trial;

• he had the right to question witnesses who testified against

him;

• he had the right to have witnesses testify on his behalf; and

• he had the right to represent himself, but by doing so, he

ran a great risk of not properly presenting his case to the

jury.

8
¶ 19 To each inquiry, Martinez-Hernandez responded that he

understood.

¶ 20 The trial court then asked Martinez-Hernandez if he wanted

advisory counsel; Martinez-Hernandez declined. He confirmed that

he wasn’t under the influence of any alcohol, drugs, or medications;

that he didn’t wish to speak privately with Shaffer before waiving

his right to counsel; and that he did indeed want to represent

himself and waive his right to counsel.

¶ 21 Based on this colloquy, the trial court found that Martinez-

Hernandez had knowingly, intelligently, and voluntarily waived his

right to counsel. The court expressed “serious concerns about Mr.

Martinez-Hernandez’s ability to represent himself at trial” but

observed that he had a “right, an absolute right, to represent

himself if he wants to do so, but must live with the consequences of

that decision.” Martinez-Hernandez, ultimately, represented

himself at trial.

1. Legal Principles and Standard of Review

¶ 22 The United States and Colorado Constitutions guarantee a

criminal defendant the right to the assistance of counsel. See U.S.

Const. amends. VI, XIV; Colo. Const. art. II, § 16. But the Sixth

9
Amendment also provides a defendant with an implicit right to self-

representation. See Faretta v. California, 422 U.S. 806, 832 (1975);

Arguello, 772 P.2d at 92. Before proceeding pro se, however, a

defendant must waive their right to counsel. People v. Lavadie,

2021 CO 42, ¶ 25. “A defendant’s waiver of counsel is effective only

if (1) the defendant is competent to waive the right and (2) the

waiver is made voluntarily, knowingly, and intelligently.” Id. at

¶ 26. Regarding the second prong, whether a waiver is knowing

and intelligent is a separate inquiry from whether a waiver is

voluntary. People v. Davis, 2015 CO 36M, ¶¶ 18-19.

A waiver is knowing and intelligent if the
record clearly shows that the defendant
understood the nature of the charges, the
statutory offenses included within them, the
range of allowable punishments, the possible
defenses to the charges and circumstances in
their mitigation, and all other facts essential to
a broad understanding of the whole matter.

Lavadie, ¶ 28 (citing Arguello, 772 P.2d at 94).

¶ 23 The Colorado Supreme Court has suggested a series of

fourteen questions — generally known as an Arguello advisement or

inquiry — that the trial court should ask a defendant, who wants to

proceed pro se, to determine the validity of their waiver. Arguello,

10
772 P.2d at 98. But “‘[a] court’s failure to comply substantially with

this requirement does not automatically render the waiver invalid’ if

the totality of the circumstances supports the validity of the

waiver.” Lavadie, ¶ 36 (quoting Arguello, 772 P.2d at 96). So a trial

court must consider the totality of the circumstances in

determining whether a defendant validly waived his right to

counsel. Id. at ¶¶ 39, 43. A trial court, however, “must indulge

every reasonable presumption against finding a waiver of the right

to counsel.” Id. at ¶ 29.

¶ 24 Whether a defendant validly waived his right to counsel is a

mixed question of law and fact, meaning we defer to the trial court’s

factual findings if supported by the record but review de novo the

legal question of whether the facts establish a valid waiver. Id. at

¶ 22.

¶ 25 An invalid waiver of the right to counsel is a structural error,

requiring automatic reversal. People v. Bergerud, 223 P.3d 686,

696 (Colo. 2010); Hagos v. People, 2012 CO 63, ¶ 10.

1. Analysis

¶ 26 Martinez-Hernandez first contends that the trial court erred

when it found that he knowingly and intelligently waived his right to

11
counsel at the sixth hearing on December 7, 2020. Specifically, he

contends that he didn’t understand (1) the nature of the charges;

(2) the possible punishments; and (3) the requirement to follow the

rules of procedure. He also asserts that he didn’t have (4) a “broad

understanding of the whole matter.” Arguello, 772 P.2d at 94.

¶ 27 As a threshold matter, we note that the trial court specifically

asked Martinez-Hernandez twelve of Arguello’s fourteen questions.

See id. at 98. For the ones involving his rights, Martinez-Hernandez

indicated that he understood each of them, although the trial court

had to repeat the questions for two of them.

¶ 28 As for the remaining two Arguello questions — (1) Do you

understand that if you can’t afford an attorney that one will be

provided to you free of charge? and (2) Do you understand I will

appoint counsel if you want an attorney to represent you? — the

trial court told Martinez-Hernandez, “[Y]ou cannot afford an

attorney to represent you right now. I have appointed Mr. Shaffer

to represent you at no cost to you.” This statement by the trial

court informed Martinez-Hernandez that he had the right to an

attorney if he couldn’t afford one and that one would be provided to

him free of charge, like all four of his attorneys for this case had

12
been, if he requested one. So the record establishes that the trial

court substantially complied with the inquiry required under

Arguello. See Lavadie, ¶ 36.

¶ 29 We now address each of Martinez-Hernandez’s four

contentions in turn. Viewing them in the context of the trial court’s

Arguello advisement and Martinez-Hernandez’s responses, we

conclude that the trial court didn’t err in finding that Martinez-

Hernandez knowingly and intelligently waived his right to counsel.

¶ 30 We address his first and second contentions — that he didn’t

understand the nature of the charges and the possible

punishments — together. During the Arguello advisement, the trial

court displayed the amended complaint to Martinez-Hernandez and

read all five counts to him, including the date the offense occurred,

the description of the offense from the amended complaint, the

punishment range if he was convicted, and any possible fines.

Then, although the court had to repeat the question, Martinez-

Hernandez confirmed that he understood that he would face a

mandatory prison sentence if a jury found him guilty at trial of

count one or count two. Based on the trial court’s detailed

explanation of the then-pending charges and Martinez-Hernandez’s

13
expressed understanding of the mandatory prison sentences for

count one and count two, the record clearly supports the trial

court’s finding that Martinez-Hernandez understood the nature of

the charges and possible punishments.

¶ 31 We next address his third contention that he didn’t

understand the requirement to follow the rules of procedure at trial.

While on December 7 the trial court didn’t specifically inquire into

whether Martinez-Hernandez understood that he would have to

comply with the rules of procedure during trial, Judge Gurly had

previously informed him of this requirement during the November

4, 2020, ex parte hearing. (In denying his request to proceed pro se

on November 4, Judge Gurley found that Martinez-Hernandez

wasn’t familiar with the procedural rules that would apply during

his trial, not that he didn’t understand that they would apply.)

¶ 32 Furthermore, the totality of the circumstances supports the

validity of Martinez-Hernandez’s waiver of counsel. See Arguello,

772 P.2d at 96. The trial court substantially complied with Arguello

14
by asking Martinez-Hernandez the suggested questions.2 Based on

this record, we can’t conclude that the trial court failing to explicitly

ask Martinez-Hernandez whether he understood that rules of

procedure would apply at trial during its December 7 colloquy

rendered his waiver of counsel invalid.

¶ 33 Finally, we reject his fourth contention that the record shows

that he didn’t have a “broad understanding of the whole matter.”

To begin, the trial court asked questions sufficient to generally

ascertain Martinez-Hernandez’s ability to understand the whole

matter. The court asked whether he had any legal training; how far

he went in school; and whether he was under the influence of any

alcohol, drugs, or medications. Furthermore, the court confirmed

that Martinez-Hernandez understood a variety of rights that he had

at trial, including the right to remain silent, right to cross-examine

witnesses, and the right to call witnesses on his behalf. Moreover,

the exchange between the trial court and Martinez-Hernandez

didn’t consist “merely of pro forma answers to pro forma questions.”

2 We note that inquiring into a defendant’s understanding that the

rules of criminal procedure will apply at trial isn’t one of the
fourteen suggested Arguello questions. People v. Arguello, 772 P.2d
87, 98 (Colo. 1989).

15
Id. at 95. Indeed, the trial court showed Martinez-Hernandez the

amended complaint and the CBI laboratory report. Further, the

trial court asked Martinez-Hernandez why he wanted to defend

himself, thereby starting a back-and-forth dialogue between the two

about Martinez-Hernandez’s concerns with his current counsel.

Given this dialogue and the fact that the trial court diligently asked

Martinez-Hernandez the suggested questions from Arguello, the

totality of the circumstances supports the trial court’s conclusion

that Martinez-Hernandez knowingly and intelligently waived his

right to counsel. Accordingly, the trial court didn’t err by accepting

Martinez-Hernandez’s waiver of counsel.

B. Advisory Counsel

¶ 34 Martinez-Hernandez next contends that the trial court erred

by not appointing advisory counsel over his objection. We discern

no error.

1. Additional Facts

¶ 35 The trial court twice offered to appoint advisory counsel for

Martinez-Hernandez. First, on December 7, 2020, before finding

that Martinez-Hernandez had waived his right to counsel, the trial

court explained that it had “the option of appointing what is called

16
advisory counsel. The difference is that you would still represent

yourself, but there would be an attorney present in the courtroom

to advise you if you had questions.” Martinez-Hernandez responded

that he didn’t want the trial court to appoint advisory counsel.

¶ 36 Second, on the morning trial began, the trial court again asked

Martinez-Hernandez if he wanted it to appoint advisory counsel to

assist him during trial. Martinez-Hernandez again declined, but the

trial court went on to explain the difference between counsel and

advisory counsel. Martinez-Hernandez confirmed that he didn’t

want advisory counsel. After he declined advisory counsel for a

third and final time, the trial court reaffirmed its decision to allow

Martinez-Hernandez to represent himself at trial.

¶ 37 At trial, Martinez-Hernandez didn’t conduct voir dire, cross-

examine any of the People’s witnesses, call any witnesses testify on

his behalf, or testify on his own behalf. But he gave an opening

statement and closing argument.

1. Standard of Review and Legal Principles

¶ 38 A trial court may use its discretion to appoint advisory

counsel. People v. Romero, 694 P.2d 1256, 1265 (Colo. 1985). We,

therefore, review a trial court’s decision to not appoint advisory

17
counsel for an abuse of discretion. People v. Waller, 2016 COA 115,

¶ 29.

¶ 39 “While a defendant has the constitutional right to represent

himself, he has no right to the appointment of advisory counsel in

connection with the exercise of his right of self-representation.”

Romero, 694 P.2d at 1265. But “there may be circumstances where

a pro se defendant’s performance reaches such a level of ineptitude

as to demonstrate a fundamental inability to provide any

meaningful representation in his defense.” Id. Factors relevant to

appointing advisory counsel include (1) the factual and legal

complexity of the issues; (2) the defendant’s familiarity with the

criminal trial process; and (3) the defendant’s formal education and

ability to effectively communicate with the court and jury. Id.

1. Analysis

¶ 40 Martinez-Hernandez argues that because he didn’t

meaningfully participate in trial and his self-representation was so

inept, the court should have appointed advisory counsel over his

objection. The People respond that Martinez-Hernandez’s

performance at trial wasn’t due to an inability to represent himself

but rather was a strategic decision not to participate. We conclude

18
that the trial court didn’t abuse its discretion by not appointing

advisory counsel to assist Martinez-Hernandez at trial over his

objection.3

¶ 41 To begin, we reject Martinez-Hernandez’s contention that his

lack of participation in certain portions of the trial proceedings, by

itself, establishes or is even strongly indicative that he didn’t know

how to participate in the proceedings if he had wanted to. Instead,

such lack of participation is just as indicative of a strategic decision

to stay silent at certain times. In any event, the trial court was in

the best position to make such an assessment. Indeed, by the time

of trial, Martinez-Hernandez had appeared in front of the trial court

for almost three years. The court, therefore, had interacted with

him on numerous occasions and had the “opportunity to evaluate

any potential issues related to [Martinez-Hernandez’s] formal

3 The law is somewhat unclear as to whether a trial court can

appoint advisory counsel over a defendant’s objection. In People v.
Romero, 694 P.2d 1256, 1265 (Colo. 1985), the supreme court
noted that a trial court may appoint advisory counsel “over the
objection of an accused.” But the supreme court later explained
that “[a]dvisory counsel may assist a pro se defendant only if and
when the defendant requests such assistance.” Downey v. People,
25 P.3d 1200, 1203 (Colo. 2001). We proceed, however, assuming
that the trial court had discretion to appoint advisory counsel over
Martinez-Hernandez’s objection.

19
education or ability to communicate with the court and jury.”

Waller, ¶ 40.

¶ 42 Moreover, the factual and legal issues at trial weren’t

particularly complex. See Romero, 694 P.2d at 1265. The charges

arose from one traffic stop where troopers searched the vehicle and

found what appeared to be drugs. Indeed, the People only called

four witnesses at trial. We also note that at no time during the

proceedings did any of Martinez-Hernandez’s attorneys or himself

allege or assert that he struggled with his mental health such that it

would affect his ability to represent himself at trial. See Waller,

¶ 40 (concluding that the trial court didn’t abuse its discretion in

not appointing advisory counsel when, among other reasons, no one

had alleged that the defendant “suffered from a limited education or

mental health problems”). Finally, it’s unclear from the record

whether Martinez-Hernandez had previously represented himself at

a criminal trial or had even participated in a criminal trial before.

But even assuming that this factor weighs in favor of appointing

advisory counsel, given the number of other factors that weigh

against appointing advisory counsel, the trial court didn’t abuse its

discretion. See Romero, 694 P.2d at 1266 (concluding that the trial

20
court didn’t abuse its discretion in failing to appoint advisory

counsel “although the defendant might well have fared better if he

had the benefit of advisory counsel”).

¶ 43 And critically, Martinez-Hernandez repeatedly refused to have

the trial court appoint advisory counsel.

¶ 44 For these reasons, we conclude that the trial court didn’t

abuse its discretion by not appointing advisory counsel over

Martinez-Hernandez’s objection.

C. Biased Jurors

¶ 45 Martinez-Hernandez next contends that the trial court erred

by empaneling three biased jurors in violation of his rights to trial

by an impartial jury and to conviction only upon proof beyond a

reasonable doubt. Because this contention was waived, we decline

to consider its merits.

¶ 46 Martinez-Hernandez didn’t move to strike — either for cause

or by a peremptory challenge — any of the allegedly biased jurors.

In fact, he didn’t exercise any of his peremptory challenges. Still,

he argues that the trial court should have excused these jurors sua

sponte.

21
¶ 47 We conclude that by failing to exercise any peremptory strikes,

Martinez-Hernandez waived any challenge to the trial court’s failure

to excuse allegedly biased jurors. Recently, a division of this court

concluded that a defendant who failed to exercise all his peremptory

challenges waived appellate review of a claim that the trial court

erred by denying the defendant’s for-cause challenge to an allegedly

biased juror. People v. Vergari, 2022 COA 95, ¶ 13. The division

reasoned that having unexercised opportunities to remove an

allegedly bias juror is a “‘classic example’ of an intentional

relinquishment of a known right.” Id. (citation omitted); see also

Hammond v. Peden, 278 S.W.2d 96, 98 (Ark. 1955) (“[I]f a litigant

fails to exhaust his peremptory challenges he waives any error

committe[d] by the court in failing to excuse a challenged juror.”);

Jordan v. United States, 295 F.2d 355, 356 (10th Cir. 1961) (“By his

failure to exercise any challenge for cause and by his use of only

half of his peremptory challenges, the defendant has waived the

right to complain that he was not tried by an impartial jury.”). If a

defendant waives review of a preserved for-cause challenge by

failing to exercise all of his peremptory challenges, then certainly

Martinez-Hernandez waived an unpreserved for-cause challenge by

22
failing to exercise any peremptory challenges at all. Accordingly, we

decline to address this contention.

D. Prosecutorial Misconduct

¶ 48 Martinez-Hernandez next contends reversal is required

because of prosecutorial misconduct. We aren’t persuaded.

1. Legal Principles and Standard of Review

¶ 49 When reviewing claims of prosecutorial misconduct, we engage

in a two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.

2010). First, we determine whether the prosecutor’s challenged

conduct was improper based on the totality of the circumstances

and, second, whether such conduct warrants reversal applying the

appropriate standard of reversal. Id.

¶ 50 If the defendant contemporaneously objected at trial and the

error isn’t of constitutional magnitude, we review for harmless

error. Id. at 1097. But if the defendant fails to contemporaneously

object to the prosecutor’s alleged misconduct — whether the

misconduct implicates a constitutional right or not — then we

review for plain error. Id.; see Hagos, ¶ 14. Prosecutorial

misconduct constitutes plain error if it’s “‘flagrant or glaringly or

tremendously improper’ and so undermine[s] the fundamental

23
fairness of the trial as to cast serious doubt on the reliability of the

judgment of conviction.” People v. Carian, 2017 COA 106, ¶ 52

(quoting People v. Cevallos-Acosta, 140 P.3d 116, 122 (Colo. App.

2005)).

1. Analysis

¶ 51 Martinez-Hernandez contends that the prosecutor engaged in

two instances of misconduct. We address both below.

a. Statements During Voir Dire

¶ 52 First, Martinez-Hernandez contends that the prosecutor

misrepresented the law, undermined the presumption of innocence,

and lowered the burden of proof when he told the jury panel during

voir dire, “Well smoke is good circumstantial evidence of fire, right?”

The parties agree that this issue isn’t preserved and should,

therefore, be reviewed for plain error.

¶ 53 During voir dire, the prosecutor explained to the jury panel the

difference between circumstantial evidence and direct evidence. He

then asked the panel, “[I]n the instance that you were persuaded by

the facts that were presented, could everyone judge the situation of

guilty?” One of the jurors responded, “I still have this thought that

where there’s smoke, there’s fire, so . . . I don’t know if I would be

24
able to.” In response, the prosecutor said, “Okay. Well smoke is

good circumstantial evidence of fire, right?” The prosecutor then

explained, “But it’s not . . . everything, right? Can you . . . hear

from witnesses, could you heard [sic] from a firefighter, could you

do those different things and then make a determination based on

that?”

¶ 54 Viewing the prosecutor’s statements in the context of his

discussion about circumstantial evidence and direct evidence, we

aren’t persuaded that the prosecutor engaged in misconduct by

misstating the law. The juror initially said, “[W]here there is smoke

there is fire,” and the prosecutor connected that statement to the

ongoing conversation about circumstantial evidence, while

clarifying immediately after that the smoke was “not . . . everything”

needed to prove there was a fire. In doing so, we aren’t persuaded

that the prosecutor misstated the law, undermined the presumption

of innocence, or lowered the burden of proof. Accordingly, we

discern no misconduct. And to the extent that the prosecutor’s

comment could have been construed as a misstatement of the law,

we note that the trial court properly instructed the jurors on the

burden of proof, told them they may not be influenced by bias or

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prejudice, and informed them they must follow the law as it

instructed them. Thus, we discern no basis for reversal.

¶ 55 In a footnote, Martinez-Hernandez also contends that the

prosecutor undermined the burden of proof in the following

conversation with Juror T:

PROSECUTOR: [I]n the instance that you
were persuaded by the facts that were
presented, could everyone judge the situation
of guilty? What do you think, [Juror T]?

[JUROR T]: (Unintelligible) and I have to see
the evidence.

[JUROR T]: And their character and see what
happened.

PROSECUTOR: All right, that’s correct.

(Emphasis added.)

¶ 56 As noted above, the jurors were properly instructed on the law,

including that they may not be influenced by bias or prejudice.

Also, looking at the context of Juror T’s reference to character, it’s

unclear what type of character trait or who she was referring to.

But ultimately, Martinez-Hernandez doesn’t explain how the

prosecutor’s statement undermined the prosecution’s burden of

proof, and so we decline to consider this undeveloped contention

26
further. See People v. Cuellar, 2023 COA 20, ¶ 44 (declining to

address undeveloped argument).

b. Alleged Late Disclosure

¶ 57 Second, Martinez-Hernandez contends that the prosecutor

committed reversible misconduct by failing to timely disclose

discovery to Martinez-Hernandez before his trial. Specifically, he

contends that the prosecutor had an obligation to ensure that

Martinez-Hernandez had access to the discovery after he changed

attorneys and eventually when he represented himself. He

contends that the prosecutor should have known that there were

issues with his prior attorney giving him access to the discovery;

therefore, when he became pro se, the prosecutor should have

known that Martinez-Hernandez didn’t have the discovery and

should have ensured that it was provided to him. The parties agree

that this issue isn’t preserved and is, therefore, reviewed for plain

error.

¶ 58 On the morning trial began, Martinez-Hernandez explained to

the court that he had just received the discovery from the People

only four days prior. The prosecutor confirmed this but said that

he had assumed that Martinez-Hernandez’s prior attorneys had

27
given him the discovery. Multiple times that morning, the trial

court offered to continue the trial so that Martinez-Hernandez had

more time to review the discovery, but Martinez-Hernandez refused

each time.4

¶ 59 Martinez-Hernandez doesn’t cite anything to support his

contention that the prosecutor had a continuing obligation to make

sure he had access to the discovery after he became pro se. And

the prosecutor confirmed that the district attorney’s office had given

the discovery to each of Martinez-Hernandez’s prior counsel.

Therefore, we discern no misconduct by the prosecutor in failing to

timely ensure that a pro se defendant had the discovery before trial

when they had disclosed the discovery to the defendant’s prior

counsel.

E. The Video

¶ 60 Martinez-Hernandez next asserts that the jury had insufficient

evidence to convict him because it relied on a fabricated video. He

4 Martinez-Hernandez doesn’t contend on appeal that the trial court

plainly erred by not continuing the trial. Nor do the People contend
that his insistence to proceed waived this claim of alleged
prosecutorial misconduct. Thus, we don’t address either of these
issues.

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also asserts that the prosecutor committed misconduct by showing

the allegedly fabricated video to the jury. The trial court admitted a

redacted video exhibit at trial that purported to show the traffic

stop. Trooper Bollen testified at trial that the video accurately

reflected the traffic stop. Martinez-Hernandez doesn’t offer any

support for his contention that the video is fabricated other than

the fact that he doesn’t appear in the video and that the license

plate shown in the video is unreadable. But these two assertions do

not establish that the video was fabricated, and so this claim fails.

See McCoy v. People, 2019 CO 44, ¶ 63.

F. Cumulative Error

¶ 61 Because we haven’t identified any errors — much less multiple

errors — there can be no cumulative error. See People v. Jones,

2025 COA 43, ¶ 56 (cert. granted May 1, 2025); People v. Grant,

2021 COA 53, ¶ 76.

III. Disposition

¶ 62 The judgment is affirmed.

JUDGE GROVE and JUDGE JOHNSON concur.

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