v. Gutierrez

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.

SUMMARY
August 19, 2021

2021COA110

No. 17CA0534, People v. Gutierrez — Crimes — Murder in the
First Degree; Criminal Law — Trials — Separate Trial of Joint
Defendants; Criminal Procedure — Relief From Prejudicial
Joinder

A division of the court of appeals holds that the joint trial of

two defendants charged with first degree murder and conspiracy to

commit murder resulted in reversible prejudice. The evidence

indicated that the victim was shot with four bullets from the same

gun. Interpreting this to mean that there was only one shooter —

and thus, one perpetrator — both defendants moved for severance

on multiple occasions, arguing, among other things, that their

defenses were antagonistic because they both accused each other of

being the sole shooter. The trial court disagreed and tried both

defendants jointly. The division concludes that this was an abuse
of discretion because to believe one defense meant that the jury had

to disbelieve the other.

The division further concludes that the joint proceedings in

this case resulted in reversible prejudice because, in addition to the

presentation of antagonistic defenses, the trial saw the introduction

of voluminous evidence that would likely not have been admissible

in a separate trial — and also required numerous limiting

instructions — and a great deal of damaging evidence introduced

not by the prosecution but by the codefendant.
COLORADO COURT OF APPEALS 2021COA110

Court of Appeals No. 17CA0534
Jefferson County District Court No. 15CR1470
Honorable Todd L. Vriesman, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Andrew George Gutierrez,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUSTICE MARTINEZ*
Brown and Graham*, JJ., concur

Announced August 19, 2021

Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 After a two-week trial, a jury found defendant, Andrew George

Gutierrez, and his codefendant, John Orlando Sanchez, guilty of

first degree murder and conspiracy to commit murder. The

defendants were tried jointly, despite numerous pretrial motions to

sever. At trial, the prosecution introduced evidence that the victim,

Eric Schnaare, was fatally shot four times with bullets from one

gun. Both defendants and the prosecution regarded this evidence,

considered with the other evidence in the case, as conclusively

proving that there was one shooter. Gutierrez denied shooting

Schnaare and accused Sanchez of being the sole shooter, and

Sanchez similarly denied being the shooter and accused Gutierrez.

¶2 In this case, we conclude that Gutierrez’s defense was

antagonistic to Sanchez’s because the two defenses specifically

contradicted each other and to believe one defense meant that a

jury would have to disbelieve the other. We further conclude that

the joint proceedings in this case resulted in reversible prejudice

because the trial saw the introduction of voluminous evidence that

would likely not have been admissible in a separate trial — and also

required numerous limiting instructions — and a great deal of

damaging evidence introduced not by the prosecution but by the

1
codefendant. The trial court erred by denying Gutierrez’s motions

for severance, so we reverse his convictions and remand for a new,

separate trial.

I. Background

¶3 From the evening of May 13, 2015, through the early morning

of May 14, a group was partying at an apartment in Lakewood. The

group included codefendants Gutierrez and Sanchez and their

families, significant others, and friends. The defendants were

affiliated with the gang “Gallant Knights Insane” or “the GKIs.”

There was some evidence that Gutierrez was the leader of the GKIs.

¶4 The defendants brought guns with them to the party. Not long

after 6 a.m. on May 14, the victim — Schnaare — arrived at the

apartment. Upon entering, Schnaare was fatally shot four times.

After the shooting, the partygoers fled the scene.

¶5 Prior to the party, the Lakewood police had installed a pole

camera outside the apartment as part of an unrelated investigation.

Through pole camera footage, the police identified the partygoers,

including the defendants. After the shooting, Gutierrez went to a

motel with Sanchez’s former girlfriend, Amelia Irizarry. Sanchez,

meanwhile, traded one of his guns for another, which he and

2
Irizarry later hid when they were arrested. Gutierrez was arrested

at the motel after a standoff with the Lakewood police.

¶6 Based on the above, Gutierrez and Sanchez were charged with

first degree murder and conspiracy to commit murder. Ultimately,

the prosecutors argued that the jury could find “either one of these

defendants guilty, either as a principal or as a complicitor.”

¶7 Gutierrez and Sanchez were tried jointly. After a two-week

trial, the jury found both defendants guilty as charged. Gutierrez

was sentenced to life without parole. This appeal followed.

II. Severance and Joinder

¶8 Gutierrez contends, among other things, that the trial court

abused its discretion by repeatedly denying his motions to sever his

trial from Sanchez’s.1 Specifically, Gutierrez argues that he

presented a mutually exclusive, antagonistic defense to Sanchez’s,

and, as a result, he suffered reversible prejudice from a joint

proceeding. We agree.

1 Gutierrez also argues that he should have been granted a separate
trial as a matter of right. Given our disposition, we need not reach
this argument.

3
A. Relevant Principles

¶9 When severance is not mandatory under section 16-7-101,

C.R.S. 2020, the matter is addressed to the trial court’s discretion.

Peltz v. People, 728 P.2d 1271, 1275 (Colo. 1986). We will not

disturb a court’s ruling denying severance absent an abuse of that

discretion and a showing of prejudice to the moving party. Id.

¶ 10 Factors that a court may consider when ruling on a motion to

sever that does not trigger mandatory severance include (1) whether

the number of defendants or the complexity of the evidence will

cause the jury to confuse the evidence and law applicable to each

defendant; (2) whether, despite limiting instructions, evidence

admissible against one defendant will improperly be considered

against another; and (3) whether the defenses presented are

antagonistic. People v. Carrillo, 946 P.2d 544, 550-51 (Colo. App.

1997), aff’d on other grounds, 974 P.2d 478 (Colo. 1999).

¶ 11 Although courts around the country disagree regarding “the

amount of antagonism sufficient to require separate trials,” People

v. Maass, 981 P.2d 177, 184 (Colo. App. 1998), Colorado case law

makes clear that defenses are not antagonistic when one defendant

does not base their assertion of innocence on the guilt of the other.

4
Id.; see also People v. Toomer, 43 Colo. App. 182, 185, 604 P.2d

1180, 1183 (1979) (holding that defenses are not antagonistic when

they do not specifically contradict each other); United States v.

McClure, 734 F.2d 484, 488 (10th Cir. 1984) (“[O]ne defendant’s

attempt to cast blame on the other is not in itself a sufficient reason

to require separate trials.”). On the other hand, mutually exclusive

or “irreconcilable defenses” could require severance. Maass, 981

P.2d at 184. That is, “the acceptance of one defense would tend to

preclude the acquittal of the other defendant.” Id.

B. Additional Facts and Procedural History

¶ 12 Gutierrez’s counsel moved pretrial to sever the cases, arguing,

among other things, that the defendants would be raising mutually

exclusive and antagonistic defenses. The prosecution filed a written

response arguing that a joint trial would serve judicial economy and

that separate trials would risk inconsistent verdicts. At a March

2016 hearing, the court found that the motion was premature

because the parties had not yet presented their theories of defense.

The court opined, however, that even if the parties did raise

antagonistic defenses, limiting instructions would cure any

prejudice.

5
¶ 13 After subsequent discovery revealed that there was only one

shooter, Gutierrez’s counsel filed a renewed motion for severance.

At a hearing on the renewed motion, Gutierrez’s counsel argued

that it was clear, now, that the defendants would be accusing each

other of being the sole shooter — thus, the defendants would be

prosecuted not only by the State, but also by each other. The court

denied severance on the grounds that any prejudice could be cured

with limiting instructions.

¶ 14 Between this hearing and the trial, the parties deposed John

Paulin, the man who owned the apartment where the shooting took

place. Prior to the deposition, Sanchez’s counsel expressed concern

that the prosecution would elicit a hearsay statement made by

Gutierrez to Paulin that would implicate both defendants in the

shooting. Because Gutierrez was the declarant, Sanchez’s counsel

argued that he should be able to impeach Gutierrez’s statement by

introducing his prior felony convictions. Later in the deposition,

Gutierrez’s counsel agreed with Sanchez’s counsel and added, “I

believe that . . . will force Mr. Gutierrez to make a choice between

his constitutional rights, his right to a fair trial, as well as his right

6
to remain silent, and his right to confront.” Gutierrez’s counsel

then renewed their motion to sever, which was denied.

¶ 15 At a later hearing, the parties re-raised this issue. Both

defendants’ counsel explained that they were being placed in the

untenable position of having to choose between fully confronting

Paulin, or any other witness, and saving their respective clients

from the prejudice of having the codefendant’s counsel impeach on

prior felony convictions. Thus, both Gutierrez and Sanchez moved

to sever, which was again denied.

¶ 16 At the end of the hearing, prior to jury selection, the trial court

gave the prosecution fifteen peremptory challenges, Sanchez eight,

and Gutierrez seven. Later, during jury selection, Gutierrez’s

counsel argued that Gutierrez suffered prejudice because he had

received fewer peremptory challenges than he would have received

at a separate trial, and exhausted them before he could strike a

juror who expressed a fear of retaliation from gang members.

Gutierrez’s counsel made a record that she would have struck the

juror had she been allowed to and, further, Gutierrez would have

received more peremptory challenges had he been given a separate

trial.

7
¶ 17 In her opening statement, Gutierrez’s counsel began by

arguing,

Four bullets from one gun, shot by one person.
That person was not Andrew Gutierrez. And
Andrew Gutierrez was not an accomplice to the
shooting and the murder of Eric Schnaare.

Counsel then asked, “So what happened?” What happened,

counsel later argued, was “John Sanchez [walked] in the door after

Mr. Schnaare. And he immediately . . . starts shooting at Mr.

Schnaare: 1, 2, 3, 4 shots, shoots Mr. Schnaare dead.” Then, in his

opening statement, Sanchez’s counsel argued,

[I]f you look at the evidence in this case, you’re
going to see that John Sanchez didn’t shoot
anyone. If you listen to all the evidence in this
case, you’re going to see that the DA’s theory
that there was a complicity going on here and
there was some sort of agreement or
conspiracy isn’t true. You will see that the
shooter was Andrew Gutierrez.

Sanchez’s counsel then reiterated, “There [are] not two shooters,

there is one shooter, and evidence shows it’s not Mr. Sanchez.”

¶ 18 After opening statements, Sanchez’s counsel again moved for

severance, arguing,

[A]fter [having] now heard openings to the
extent that there was some ruling that we did
not have antagonistic defenses, I think [it is]

8
pretty clear that there are. Both sides opened
that there was one shooter. The prosecution
opened that there was one shooter . . . . [I]n
order for [Sanchez] to be found not guilty, the
jury must find Mr. Gutierrez guilty, and vice
versa.

The court again denied severance, but then gave the following

limiting instruction to the jury:

Although the defendants are being tried
together, you must consider this case against
each defendant separately. Each defendant is
entitled to have their case decided solely on the
evidence and the law that applies to that
defendant.

¶ 19 During trial, Gutierrez’s counsel moved for severance twice

more. The court denied severance both times. In addition, fifteen

separate times during trial, both defendants’ counsel either objected

or else drew the court’s attention to perceived prejudice resulting

from the joint proceedings.

¶ 20 In closing argument, Sanchez’s counsel reminded the jury that

“the physical evidence shows you that there is one shooter.”

Counsel then went on to highlight the incriminating evidence

against Gutierrez and again argued that Gutierrez was the sole

shooter. In Gutierrez’s closing, his counsel began with, “Four shots

from one gun and one shooter. Not Mr. Gutierrez.” His counsel

9
then proceeded to list all of the evidence tending to prove that

Sanchez was the sole shooter. At the end, Gutierrez’s counsel

argued,

The bottom line is, minus the distractions, is
that there were four bullets from one gun and
one shooter. That [two witnesses] both told
you that it was Mr. Sanchez . . . . Mr. Sanchez
is the one who had the motive, and there is
[no] actual evidence, aside of intention to
cause fear in you and dislike for Mr. Gutierrez,
that he actually participated in any way in this
shooting.

C. Analysis

1. The Defenses Were Antagonistic

¶ 21 Gutierrez contends that the trial court abused its discretion by

failing to sever the trials because his and Sanchez’s defenses were

antagonistic. The People contend that Gutierrez’s defense was not

antagonistic to Sanchez’s defense, and even if it was, that alone did

not require severance. For two reasons, we are persuaded that the

defenses were antagonistic.

¶ 22 First, despite the People’s assertion to the contrary, Gutierrez

did raise a defense that was mutually exclusive of Sanchez’s. While

it is true that Gutierrez asserted general denial as his stated theory

of defense in required written disclosures to the prosecution, it is

10
clear from counsel’s opening and closing statements and arguments

on motions to sever, as well as the evidence presented at trial, that

Gutierrez did more than simply deny involvement. Bolstered by

undisputed evidence that Schnaare died from four bullets fired from

one gun, Gutierrez’s counsel argued in his opening and closing

statements that not only was Gutierrez unaware of Sanchez’s prior

conflict with the victim and had no involvement with the shooting,

but also that the evidence indicated that Sanchez was the sole

shooter. Further, not only did Gutierrez’s counsel accuse Sanchez

of being the sole shooter in arguments, she put on the testimony of

two eyewitnesses at the party — Edward Yazzie and Anna Neal —

who identified Sanchez as the one who shot Schnaare.2

¶ 23 Second, the fact that the prosecution charged Gutierrez with

conspiracy in addition to first degree murder, and that one

defendant could be complicit with the actions of another, does not

2 We acknowledge that the prosecution also presented Yazzie’s
testimony that Sanchez shot Schnaare. Our focus for the purposes
of whether the defenses were antagonistic, however, is on the
evidence and arguments that Gutierrez, not the prosecution, put
forward.

11
preclude the conclusion that the defenses were antagonistic.3

Relying on People v. Durre, 713 P.2d 1344 (Colo. App. 1985), the

People argue that Gutierrez’s “attempt to make the other look more

culpable” was not antagonistic because that would not be a

mutually exclusive defense to a conspiracy charge. The People’s

reliance on Durre is misplaced. The defendant in Durre appeared to

argue that he was just an accomplice to a robbery and that his

codefendant was more culpable. Id. at 1347. Gutierrez, by

contrast, was not arguing to the jury that he was just an

accomplice and that Sanchez was more culpable. Rather, he was

blaming the entirety of the crime — both the shooting and the

planning of it — on Sanchez. Were the jury to believe Sanchez’s

defense — that Gutierrez was the sole shooter — that would

preclude Gutierrez’s acquittal. Similarly, were the jury to believe

3 The People point to the prosecution’s charging document as
evidence that the very nature of the charges against Gutierrez mean
his defense was not antagonistic. Again, our inquiry is centered on
the defendants’ arguments and evidence, not the prosecution’s. See
United States v. Green, 324 F. Supp. 2d 311, 325 (D. Mass. 2004)
(“The issue is not the position the government takes. The issue is
whether a jury will be able to hear the opposing position — the
defense theory — and reliably consider all positions.”) (emphasis
omitted).

12
Gutierrez’s defense — that Sanchez concocted the shooting and

carried it out by himself — that would preclude Sanchez’s acquittal.

Thus, the acceptance of one defendant’s defense would preclude the

acquittal of the other defendant. See Maass, 981 P.2d at 184 (A

mutually exclusive, antagonistic defense means that “the

acceptance of one defense would tend to preclude the acquittal of

the other defendant.”).

¶ 24 In sum, considering the record before us, we conclude that

Gutierrez put forward a defense antagonistic to Sanchez’s.

2. Gutierrez Suffered Reversible Prejudice

¶ 25 Having concluded that Gutierrez advanced an antagonistic

defense, we now consider whether the joint trial in this case

resulted in reversible prejudice. We conclude, for four reasons, that

it did.

¶ 26 First, one of the concerns regarding the presentation of

antagonistic defenses is that a defendant will, in effect, have to

defend himself against both the prosecution and his codefendant.

People v. Warren, 196 Colo. 75, 78, 582 P.2d 663, 665 (Colo. 1978);

see also State v. Vinal, 504 A.2d 1364, 1368 (Conn. 1986) (noting

that a guilty verdict in these circumstances can be the result of the

13
codefendant’s efforts just as much as the government’s satisfaction

of its burden of proof); Silva v. State, 933 S.W.2d 715, 719 (Tex.

App. 1996) (reversing because “[the] appellant was forced to defend

himself not only against the State but against his codefendant as

well”). In this case, Gutierrez was confronted with evidence from

both the prosecution and Sanchez. Further, Sanchez’s evidence

more clearly implicated Gutierrez as the sole shooter because the

evidence presented by the prosecution focused more on proof that

Gutierrez masterminded the shooting.

¶ 27 Specifically, Sanchez put forth the following evidence —

independent from the prosecution — that tended to implicate

Gutierrez:

• A detective testified, while footage from the Lakewood police’s

pole camera was played, that Gutierrez could be seen putting

a gun in his waistband after the shooting.

• While describing a still image from the pole camera footage

taken prior to the shooting, another detective testified that

Gutierrez could be seen in the photo with a gun.

14
• Irizarry testified that a police investigator informed her while

she was in jail for the shooting that Gutierrez had threatened

her.

• Another detective testified that, during his interview with

Irizarry, she accused Gutierrez of shooting Schnaare and was

afraid for her life for having done so.

• The same detective testified that, during his interview with

Paulin, Paulin said he was afraid of Gutierrez and called him a

“crazy son-of-a-bitch.”

• Two of the arresting officers testified that a seven-hour

standoff ensued between Gutierrez and the Lakewood police in

which they had to use a negotiator, bullhorns, and projectiles

to get him to surrender to the police.

Also, in her closing, Sanchez’s counsel argued that the standoff

referenced above was proof of Gutierrez’s consciousness of guilt.

¶ 28 Additionally, Sanchez’s counsel attacked Yazzie’s and Neal’s

credibility after they testified that Sanchez was the sole shooter.

Specifically, Sanchez’s counsel attempted to get Neal to testify that

she and Gutierrez went shopping for a gun in the hours leading up

to the shooting. Sanchez’s counsel also asked Yazzie numerous

15
questions about Yazzie’s prior felony convictions and pending

charges. Not only were these attacks detrimental to Gutierrez’s

case, they also largely eliminated the prosecution’s need to impeach

Neal and Yazzie given that the prosecution’s theory was that

Gutierrez ordered the shooting.

¶ 29 Comparatively, the prosecution put on less evidence against

Gutierrez, often undermined the evidence introduced by Sanchez

that Gutierrez was the shooter, or otherwise implicated Sanchez

was the shooter:

• Irizarry, who was the only witness to directly implicate

Gutierrez in the shooting, testified that she had a prior

relationship with Sanchez and that she was in love with him.

Accordingly, it was possible she implicated Gutierrez alone to

protect Sanchez.

• Irizarry also testified that when Gutierrez shot Schnaare, he

did so “western style” with two guns. This was inconsistent

with the undisputed physical evidence and tended to

undermine Irizarry’s credibility.

16
• Irizarry further testified that when she and Gutierrez arrived

at the motel after the shooting, Gutierrez was laughing and

smiling and stated that he “almost cum when he did it.”

• Irizarry told an investigator that Yazzie also shot Schnaare.

But when the investigator later informed her that forensics

had established that there was only one shooter, Irizarry

changed her story and accused Gutierrez alone.

• Another investigator testified that, during his interview with

Paulin, Paulin stated that on the night of the party he heard

Gutierrez and Sanchez having “a discussion about how to get

a job done” and putting “cop killer rounds” or “hollow-points”

in a magazine. Paulin did not specify whether Gutierrez or

Sanchez made these statements.

• Neal testified that she observed Gutierrez and Sanchez having

private conversations on the night of the party.

• During and after the party, Gutierrez posted several photos on

Facebook showing him flashing gang signs and carrying a gun.

¶ 30 The prosecution also introduced Sanchez’s prior statements

made to Dustin Durando, a jail inmate with whom Sanchez shared

a cell after his arrest. Sanchez purportedly told Durando that he (1)

17
was a member of the GKIs; (2) had a conflict with the victim over

his (Sanchez’s) guns; and (3) fatally shot the victim. Prior to

hearing this evidence, the jurors were instructed that they were to

consider it only against Sanchez and not against Gutierrez. Later in

closing argument, however, the prosecutor referenced these

statements as evidence of both Sanchez’s and Gutierrez’s motive for

the shooting (i.e., because the victim had a conflict with Sanchez, a

member of Gutierrez’s gang, the victim had a conflict with the whole

gang).

¶ 31 The evidence the prosecution put on against Gutierrez was not

overwhelming, as the People argue. Importantly, the evidence

Sanchez put on added significantly to the overall weight of the

evidence against Gutierrez.

¶ 32 Because Gutierrez had to defend himself against two accusers,

only one of which had the burden of proof beyond a reasonable

doubt, we conclude that Gutierrez suffered prejudice from the joint

jury trial. See United States v. Romanello, 726 F.2d 173, 182 (5th

Cir. 1984).

¶ 33 Our second reason for concluding that the prejudice suffered

was reversible is that the joint trial at times prevented Gutierrez

18
from fully confronting the witnesses against him, and thus from

presenting a complete defense. The prosecution sought to

introduce Sanchez’s statements on multiple occasions. One way in

which Gutierrez hoped to impeach the credibility of those

statements was to introduce Sanchez’s prior convictions under CRE

806. To be sure, Gutierrez was not necessarily prevented from

introducing this evidence. However, as Sanchez’s counsel explained

in pretrial proceedings, doing so would have resulted in Sanchez’s

counsel introducing Gutierrez’s prior convictions as well. Thus,

Gutierrez was faced with a prejudicial Hobson’s choice between

impeaching the credibility of his codefendant’s statements and

opening the door to his own convictions. Though this situation, as

grounds for reversal, has not been addressed in Colorado, we find

other jurisdictions’ discussions persuasive. See Silva, 933 S.W.2d

at 719 (concluding that the defendant’s inability to introduce

impeachment evidence was a factor supporting reversal); United

States v. Sherlock, 962 F.2d 1349, 1360 n.4 (9th Cir. 1989) (same).

¶ 34 Furthermore, on two separate occasions, Gutierrez’s counsel

was prevented from going into the details of Sanchez and

Schnaare’s prior conflict. Specifically, Gutierrez’s counsel sought to

19
introduce the fact that Sanchez and Schnaare were involved in a

prior robbery in which Schnaare was supposed to “kill the guys and

he didn’t, so that’s why [Schnaare] kept [Sanchez’s] guns.”

Relatedly, Gutierrez’s counsel was also not allowed to elicit from

Yazzie that he and Sanchez were once cellmates and that Yazzie

was actually closer with Sanchez than Gutierrez, his own brother.4

The court, based on a pretrial ruling limiting this testimony under

CRE 404(b), instructed the jury not to consider any of this evidence

because it touched on Sanchez’s prior criminal history.

¶ 35 Gutierrez’s counsel considered this evidence important

because it helped show Sanchez’s motive for the shooting and

bolstered Yazzie’s credibility as Sanchez’s accuser.5 Apparently the

4 The relevance is the tendency to show that Yazzie — who
implicated Sanchez as the sole shooter — did not have a motive to
lie to protect his brother because he was actually closer with
Sanchez.

5 The People’s argument that this evidence would have bolstered the
prosecution’s case is unpersuasive. For one thing, that argument
depends on the People’s assertion that Gutierrez did not argue
Sanchez was the sole shooter, but instead only denied involvement.
Gutierrez did argue that Sanchez was the sole shooter; thus the
excluded evidence would have tended to prove Sanchez was the sole
shooter because he had a motive. Regardless, the fact that the
evidence might have strengthened the prosecution’s case is also
irrelevant. See Green, 324 F. Supp. 2d at 325.

20
jury was also concerned about Yazzie’s motives. Four times, the

jury asked questions of witnesses who could provide more details of

the nature of Sanchez and Schnaare’s relationship. Each time, the

court declined to ask the jurors’ questions due to Sanchez’s

counsel’s objection. Though we cannot know for sure whether the

excluded evidence would have been admissible at a separate trial,

we can say that Gutierrez’s inability to present a complete defense

in this regard was another example of the prejudicial effect of the

joint proceeding.

¶ 36 We pause briefly to address the People’s reliance on Zafiro v.

United States, 506 U.S. 534 (1993). Interpreting Fed. R. Crim. P.

14, which is substantively identical to our rule, the Supreme Court

held that “[m]utually antagonistic defenses are not prejudicial per

se.” Zafiro, 506 U.S. at 538; see also Crim. P. 14. It explained that

Fed. R. Crim. P. 14 “does not require severance even if prejudice is

shown; rather, it leaves the tailoring of the relief to be granted, if

any, to the district court’s sound discretion.” Zafiro, 506 U.S. at

538-39. It then went a step further:

[W]hen defendants properly have been joined
. . . a district court should grant severance . . .
only if there is a serious risk that a joint trial

21
would compromise a specific trial right of one
of the defendants, or prevent the jury from
making a reliable judgment about guilt or
innocence.

Id. at 539.

¶ 37 Zafiro was decided after many of the Colorado cases on

antagonistic defenses, and although it is not controlling, it does

provide guidance. It would appear, however, that Gutierrez’s case

would satisfy the Zafiro test. As we have explained, Gutierrez was

denied a specific trial right (the right to present a complete defense),

and we are not convinced that the jury made a finding of guilt

based on the prosecution’s efforts alone. Furthermore, in Zafiro the

Court was not so much concerned with the precise contours of

antagonistic defenses, but rather with when the prejudice stemming

from a joint proceeding would require reversal. Thus, Zafiro does

not change the result we reach today.

¶ 38 Third, during jury selection, Gutierrez received only seven

peremptory challenges and was denied an eighth when confronted

with a potential juror who expressed concern over retaliation given

that the case involved gangs. The People are correct that the

supreme court has concluded the denial of extra peremptory

22
challenges, by itself, does not require severance. People v. Lesney,

855 P.2d 1364, 1366 (Colo. 1993). We are not, however, dealing

with an argument for severance based on a lack of peremptory

challenges alone. Rather, we may consider this fact in conjunction

with the examples of prejudice already discussed. See Eder v.

People, 179 Colo. 122, 125, 498 P.2d 945, 946 (1972) (finding no

single example of prejudice dispositive but reversing based on the

cumulative effect).

¶ 39 Last, we conclude that the number of limiting instructions

given in this case defeats any curative effect they may have had on

the prejudice resulting from a joint trial. The People argue, relying

on Zafiro, that limiting instructions cured any prejudice resulting

from the joint proceeding. But here, the jury heard differing

iterations of five limiting instructions twenty-one times throughout

the course of a two-week trial. We need not decide today just how

many limiting instructions are too many. What we can say is that,

after instructing the jury to limit its consideration of the evidence

twenty-one times, any curative power a limiting instruction may

have had was lost. See Bruton v. United States, 391 U.S. 123, 135

(1968) (“[T]here are some contexts in which the risk that the jury

23
will not, or cannot, follow instructions is so great, and the

consequences of failure so vital to the defendant, that the practical

and human limitations of the jury system cannot be ignored.”);

State v. Zadeh, 226 A.3d 463, 478 (Md. 2020) (ten limiting

instructions in a joint trial is a factor indicating prejudice).

¶ 40 Sanchez’s counsel summed this case up quite nicely in a

pretrial hearing:

[T]he prosecution has blamed two people for
one murder involving what the physical
evidence seems to show was one gun involved.

They’re throwing the gun in the middle of the
room and saying: You guys get a trial
together, you figure it out and figure out
what’s going on.

This gladiator-style trial is not one that we can condone. It is quite

clear from counsel’s arguments and the evidence presented at trial

that Gutierrez’s defense was antagonistic to Sanchez’s. Further,

the prejudice resulting from a joint trial under these circumstances

was made clear to the court on multiple occasions. While any one

of the instances of prejudice described above might not be sufficient

by itself to warrant reversal, we hold that their cumulative effect

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does so and requires a new, separate trial. See Eder, 179 Colo. at

125, 498 P.2d at 946.

III. Remaining Contentions

¶ 41 Because we conclude that Gutierrez’s first claim of error

warrants reversal, we need not reach his other claims, which might

not recur on retrial and, even if they did, might arise under different

circumstances.

IV. Conclusion

¶ 42 We reverse Gutierrez’s convictions and remand for a new trial.

JUDGE BROWN and JUDGE GRAHAM concur.

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