Peo v. Cholo

22CA0798 Peo v Cholo 07-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0798
City and County of Denver District Court No. 19CR8929
Honorable Martin F. Egelhoff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Bereket T. Cholo,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE LIPINSKY
Lum and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 10, 2025

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, 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. 2024.
¶1 Bereket T. Cholo appeals the judgment of conviction entered

on a jury verdict finding him guilty of first degree murder after

deliberation. He asserts four trial errors — two evidentiary errors

and two instances of prosecutorial misconduct. He also argues

that, even if no single error was reversible, the cumulative effect of

the errors requires reversal. We affirm.

I. Background

¶2 The jury could have reasonably found the following facts from

the evidence introduced at trial.

¶3 Cholo worked as an assistant manager for the victim, a

7-Eleven store owner. Believing that the victim had improperly

docked money from his paycheck, Cholo drove to the store to talk to

the victim. Cholo and the victim argued for approximately twenty

minutes.

¶4 Cholo then removed a kitchen knife from his pocket and

stabbed the victim in the neck multiple times. The victim

attempted to run toward the store’s front entrance, but Cholo

followed him and stabbed him again. A store security camera

recorded the entire incident.

1
¶5 After the victim collapsed, Cholo got into his car and drove

home. Paramedics took the victim to a hospital, where he was

pronounced dead.

¶6 Approximately an hour after the incident, Cholo called 911

and reported that he had done “something wrong,” had cut the

victim’s neck with a knife, and had to “go to jail.” Police officers

arrested Cholo at his home. Following the arrest, an officer drove

him to a police station and commented that he would be charged

with first degree murder. Cholo responded, “Oh, he died?” (Cholo’s

question). A crime scene analyst later found the murder weapon in

Cholo’s trash can.

¶7 Cholo was charged with first degree murder after deliberation.

He pleaded not guilty by reason of insanity (which necessarily

included a not guilty plea).

¶8 At trial, defense counsel did not deny that Cholo fatally

stabbed the victim. Rather, the defense argued that Cholo had

lacked the mental capacity to discern right from wrong or otherwise

form a culpable mental state before he struck the fatal blows and,

therefore, did not commit first degree murder after deliberation.

The parties further disputed whether Cholo, even if legally sane,

2
had acted after deliberation. The prosecution argued that Cholo’s

acts of bringing the knife with him to the store, holding it in his

pocket until he pulled it out to stab the victim, following the gravely

wounded victim to the front of the store, and stabbing him again

after the initial confrontation established deliberation.

¶9 The defense presented evidence that, before the killing, Cholo

worked long hours, did not sleep much, and was under significant

stress. In addition, the defense elicited testimony from Medhanit

Dageacho (Cholo’s wife) and a forensic psychologist indicating that

Cholo’s mental health had declined in the days and weeks leading

up to the stabbing. Although the forensic psychologist said she

diagnosed Cholo with unspecified depressive and trauma disorders,

she opined that Cholo was legally sane at the time he stabbed the

victim.

¶ 10 During closing argument, defense counsel played a portion of

Cholo’s 911 call, during which Cholo told the operator that he had

“just snapped.” Counsel argued that, in light of that statement and

the other mental health evidence, the prosecution failed to meet its

burden of proving deliberation beyond a reasonable doubt. Counsel

also told the jury that it was not bound by the forensic

3
psychologist’s opinions and could reach its own conclusion

regarding Cholo’s sanity.

¶ 11 The jury convicted Cholo of first degree murder after

deliberation. The district court imposed a mandatory life sentence

without the possibility of parole.

¶ 12 Cholo asserts four principal arguments on appeal: the court

erred by (1) holding that Cholo’s question was inadmissible;

(2) limiting Dageacho’s testimony explaining why she searched the

family’s garage; (3) not intervening when the prosecutor engaged in

misconduct during voir dire; and (4) allowing the prosecutor to

misstate the law during rebuttal closing argument.

II. Hearsay

¶ 13 Cholo contends that the court erred by barring defense

counsel from introducing Cholo’s question into evidence. He argues

it was admissible because it was not hearsay, or, even if it

constituted hearsay, it was admissible under three exceptions to

the hearsay rule: statements regarding then-existing mental

conditions, excited utterances, and statements against interest. We

conclude that, even if the court erred by declining to admit Cholo’s

question into evidence, any error was harmless.

4
A. Additional Background

¶ 14 The police officer who drove Cholo to the police station testified

for the prosecution. During the officer’s cross-examination, defense

counsel asked whether he had communicated with Cholo during

the drive. The prosecutor objected on the ground that the question

called for a hearsay response. Specifically, the prosecutor argued

that defense counsel was attempting to elicit testimony that, after

learning about the murder charge, Cholo expressed surprise that

the victim had died.

¶ 15 Defense counsel said that Cholo’s exact words to the officer

were, “Oh, he died?” and argued that Cholo’s question was

admissible as a statement against interest. The court disagreed,

said defense counsel’s question to the officer called for a hearsay

response, and sustained the prosecutor’s objection.

¶ 16 Defense counsel later asked the court to admit Cholo’s

question through a different witness, this time under the excited

utterance exception to the hearsay rule. The court disagreed that

Cholo’s question was an excited utterance. Defense counsel then

asserted that Cholo’s question was admissible evidence of his “state

of mind” and thus supported the defense’s argument that the

5
prosecution had not met its burden of proving “premeditation” and

“intent.” The court responded, “I’m not saying it wouldn’t be

relevant. I’m just saying it needs to come in through competent

evidence.”

B. Preservation and Standard of Review

¶ 17 To properly preserve an issue for appeal, a party’s objection or

request must be specific enough to (1) “draw the court’s attention to

the asserted error”; (2) “provide the court with a meaningful

opportunity to focus on the issue”; and (3) give the court an

opportunity to “prevent or correct the error.” People v. Anderson,

2020 COA 56, ¶ 11, 465 P.3d 98, 100. “Raising the ‘sum and

substance’ of an argument is sufficient to preserve it.” People v.

Cooley, 2020 COA 101, ¶ 24, 469 P.3d 1219, 1224 (quoting In re

Estate of Ramstetter, 2016 COA 81, ¶ 68, 411 P.3d 1043, 1053).

But “[i]f an objection or request was made in the trial court on

grounds different from those raised on appeal, the issue is

unpreserved.” People v. Gee, 2015 COA 151, ¶ 45, 371 P.3d 714,

722.

¶ 18 Defense counsel preserved the argument that Cholo’s question

was admissible under two exceptions to the hearsay rule — as a

6
statement against interest, see CRE 804(b)(3), or as an excited

utterance, see CRE 803(2). Whether counsel preserved the

argument that Cholo’s question was admissible to prove his mental

state — either as nonhearsay or under CRE 803(3) — is a closer

question. Defense counsel indeed argued that Cholo’s question was

relevant to establish Cholo’s “state of mind.” But counsel made no

further record regarding the defense’s theory of admissibility —

including whether the defense was offering Cholo’s question as

nonhearsay evidence of his state of mind or under the state of mind

exception to the hearsay rule, see CRE 803(3).

¶ 19 Nonetheless, given the prior colloquy regarding exceptions to

the hearsay rule, we conclude that defense counsel provided the

court with a meaningful opportunity to consider whether Cholo’s

question was admissible under CRE 803(3) and to prevent the

court’s purported error in ruling that Cholo’s question was

inadmissible under the hearsay rule. See Anderson, ¶ 11, 465 P.3d

at 100. But defense counsel did not preserve the related argument

that Cholo’s question was admissible because it was not hearsay.

¶ 20 We review a trial court’s evidentiary rulings for an abuse of

discretion. Rojas v. People, 2022 CO 8, ¶ 16, 504 P.3d 296, 302. A

7
court abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or when it misapplies the law. People v.

Johnson, 2021 CO 35, ¶ 16, 486 P.3d 1154, 1158. However, we

review de novo whether a particular statement constitutes hearsay.

See People v. Schnorenberg, 2023 COA 82, ¶ 10, 541 P.3d 1, 4,

aff’d, 2025 CO 43, ___ P.3d ___.

C. Law

¶ 21 Hearsay is an out-of-court statement offered into evidence to

prove the truth of the matter asserted. CRE 801(c). Unless an

exception applies, hearsay statements are generally inadmissible

because they are presumptively untrustworthy. People v.

Vanderpauye, 2023 CO 42, ¶ 26, 530 P.3d 1214, 1222.

¶ 22 A statement cannot be hearsay if the party seeking its

admission does not offer it into evidence to prove the truth of the

matter asserted. See People v. Barajas, 2021 COA 98, ¶ 52, 497

P.3d 1078, 1088 (“An out-of-court statement is not hearsay if it is

offered for some other purpose, such as to provide context for other

actions, to show its effect on the listener, or to explain why a

government investigation was undertaken.”).

8
¶ 23 As relevant here, out-of-court statements that

“circumstantially indicate a state of mind [r]egardless of their truth

are admissible as non-hearsay statements.” People v. Cavalier, 584

P.2d 92, 93 (Colo. App. 1978). Thus, out-of-court statements

shedding light on a person’s state of mind may or may not be

hearsay, depending upon whether they are offered to prove the

truth of the matter asserted. Id.

D. Analysis

¶ 24 The critical threshold question is whether Cholo’s question

was hearsay. In other words, was “Oh, he died?” (1) a statement

(2) offered to prove the truth of the matter asserted? See CRE

801(c).

¶ 25 A “statement” is “(1) an oral or written assertion or

(2) nonverbal conduct of a person, if it is intended by the person to

be communicative.” CRE 801(a). “The rule against hearsay

encompasses not only verbatim out-of-court statements, but also

implied hearsay or testimony that raises an inference of out-of-

court statements.” People v. Vigil, 2024 COA 72, ¶ 28, 557 P.3d

805, 812.

9
¶ 26 The Colorado courts have not previously weighed in on

whether questions can be “statements” for purposes of the hearsay

rule, although a division of this court resolved an analogous issue

— whether a command “phrased as a conditional sentence” is

hearsay. People v. Phillips, 2012 COA 176, ¶¶ 102-05, 315 P.3d

136, 160-61 (concluding the directive to two people that they had

“better get him something to drink” or he would kill them both was

not an “‘assertion’ offered ‘to prove the truth of the matter asserted’

and was therefore not covered by the hearsay rule”).

¶ 27 Cholo notes the split of authority from other jurisdictions

regarding whether questions can be deemed statements for

purposes of a hearsay analysis. Under what he deems the

“categorical approach,” questions are excluded from the definition of

hearsay because they are not assertive speech. See, e.g., United

States v. Rodriguez-Lopez, 565 F.3d 312, 314 (6th Cir. 2009); Terry

v. State, 386 So. 3d 744, 752 (Miss. Ct. App. 2024). Under the

“intent-based approach,” an utterance phrased as a question can be

an assertion if the declarant intended it to assert a fact. See, e.g.,

United States v. Summers, 414 F.3d 1287, 1300 (10th Cir. 2005);

State v. Soto, 2022 UT App 107, ¶ 34, 518 P.3d 157, 163.

10
¶ 28 In any event, Cholo’s question would be hearsay only if the

defense sought its admission to prove the truth of the matter

asserted — that Cholo had not previously known the victim had

died. Defense counsel asserted that Cholo’s question was

“relevant . . . to his state of mind and the charge being murder in

the first degree and the People having to prove premeditation and

with intent.” Counsel added, “We are arguing about degrees of

murder and whether or not somebody knowingly did something or

did something in a premeditated fashion with intent.” Counsel’s

theory of admissibility contained significant gaps, however.

Counsel did not explain how Cholo’s question was connected to

whether he had killed the victim after deliberation. Nor did counsel

establish why Cholo’s discovery of the victim’s death following the

incident was relevant.

¶ 29 But we need not reach these issues because, regardless of

whether the court erred by determining that Cholo’s question was

inadmissible, any error was harmless, as we explain below.

11
E. Even if the Court Erred by
Declining to Admit Cholo’s Question into Evidence,
the Error Was Harmless

¶ 30 We apply harmless error review to preserved contentions of

nonconstitutional dimension, reversing only if the error

“substantially influenced the verdict or affected the fairness of the

trial proceedings.” Hagos v. People, 2012 CO 63, ¶ 12, 288 P.3d

116, 119 (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)).

“Where there is not a reasonable probability that . . . an error

contributed to a defendant’s conviction, the error will be

disregarded as harmless.” People v. Casias, 2012 COA 117, ¶ 61,

312 P.3d 208, 220.

¶ 31 The court’s decision not to admit Cholo’s question into

evidence under CRE 804(b)(3), CRE 803(2), or CRE 803(3) did not

prejudice him because the evidence of his guilt was overwhelming.

See People v. Martinez, 2020 COA 141, ¶ 49, 486 P.3d 412, 422

(holding that the court’s erroneous evidentiary ruling “was harmless

in light of the overwhelming evidence of [the defendant’s] guilt”).

The forensic psychologist testified that Cholo told her “he decided to

take an action” after the victim did not agree to pay Cholo the

money withheld from his paycheck. In addition, the jury watched

12
the store security video depicting the entirety of the stabbing

incident and heard that Cholo brought the knife to the store. He

held the knife throughout his confrontation with the victim. After

stabbing the victim behind the store counter, Cholo followed the

victim as he tried to escape through the front door and stabbed him

again.

¶ 32 Moreover, Cholo’s question was, at most, marginally probative

of his state of mind at the time of the stabbing for two reasons.

¶ 33 First, Cholo’s knowledge that the victim had died was

immaterial to whether he was legally insane at the time of the

stabbing. A defendant who commits a premeditated act of murder

may not know until sometime later that the plan succeeded and the

victim had succumbed. But it is equally true that an insane

defendant may not know until after being arrested that the victim

died. We perceive no logical connection between a defendant’s

sanity when the defendant acted and the defendant’s knowledge of

the consequences of the act. Thus, Cholo’s question had no bearing

on whether Cholo had a mental disease or defect and (1) was

incapable of distinguishing right from wrong or (2) was otherwise

13
incapable of forming the culpable mental state associated with first

degree murder after deliberation. See § 16-8-101.5(1), C.R.S. 2024.

¶ 34 Second, Cholo’s question did not support his alternate theory

that, even if he was legally sane, he did not deliberate. First degree

murder after deliberation is a specific intent offense. § 18-1-501(5),

C.R.S. 2024; § 18-3-102(1)(a), C.R.S. 2024. “A person acts

‘intentionally’ or ‘with intent’ when his conscious objective is to

cause the specific result proscribed by the statute defining the

offense.” § 18-1-501(5). “It is immaterial to the issue of specific

intent whether or not the result actually occurred.” Id.; see also

People v. Baca, 852 P.2d 1302, 1305 (Colo. App. 1992) (“Although

the distinction between an awareness of one’s conduct or

circumstance and an awareness of the result of one’s conduct is at

times subtle, it is a distinction recognized by the Colorado Criminal

Code itself.”). The court accurately instructed the jury on this

fundamental precept.

¶ 35 Thus, although Cholo asserts that Cholo’s question was

circumstantial evidence of his “state of mind,” he fails to bridge the

logical gap between the defense’s theories at trial and Cholo’s

14
apparent lack of knowledge, before he learned of the murder charge,

that the victim had died.

¶ 36 In light of this record, there is no reasonable probability that

the court’s decision to exclude Cholo’s question contributed to his

conviction. See Casias, ¶ 61, 312 P.3d at 220.

¶ 37 For the same reasons, any error in the court’s ruling that

Cholo’s question was inadmissible was not plain because it was not

substantial, even if it was obvious. An unpreserved error is

substantial if it “so undermined the fundamental fairness of the

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

of conviction.” People v. Crabtree, 2024 CO 40M, ¶ 43, 550 P.3d

656, 667 (quoting Wilson v. People, 743 P.2d 415, 420 (Colo. 1987)).

For the above reasons, the court’s decision to exclude Cholo’s

question did not affect the fundamental fairness of Cholo’s trial or

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

See id.

¶ 38 In sum, we reject Cholo’s argument that the court’s exclusion

of Cholo’s question warrants reversal of his judgment of conviction.

15
III. Limits on Witness Testimony

¶ 39 Cholo next argues that the court erred by limiting Dageacho’s

testimony regarding her inspection of the family’s garage and the

purpose for which the jury could use her statements about the

garage. We disagree.

A. Additional Background

¶ 40 The defense called Dageacho to testify about Cholo’s mental

state before the killing. During direct examination, defense counsel

sought to elicit testimony that, in the days and weeks before Cholo

stabbed the victim, he believed someone had followed him home

and asked Dageacho to check whether anyone was in their garage.

The following colloquy ensued when defense counsel sought to

introduce this testimony:

DEFENSE COUNSEL: Do you remember one or
multiple instances of Mr. Cholo believing that
someone was following him?

PROSECUTOR: Objection, hearsay;
speculation.

THE COURT: I think you need to lay some
foundation for the source or knowledge. If it’s
based on what someone else told her, it could
be hearsay, so you need to lay different
foundation.

16
DEFENSE COUNSEL: Sure. You lived with
your husband in 2019, right?

WITNESS: Yes.

DEFENSE COUNSEL: [W]hen he was home,
were you able to spend any time with him?

WITNESS: During those times just before this
incident happened, he was so stressed that he
didn’t spend much time with us. He was
mostly by himself.

DEFENSE COUNSEL: Did you ever go into the
garage of your house for him?

WITNESS: Because I had heard him saying
that there is something in the garage.

PROSECUTOR: Objection, hearsay.

DEFENSE COUNSEL: Your Honor, this is
effect on the listener, subsequent actions she
took in response to this. It’s not offered for the
truth of the matter.

¶ 41 The court called a sidebar conference. Defense counsel

clarified the testimony she sought to elicit: Dageacho had checked

the garage because Cholo told her he believed people were following

him and hiding in the garage (the garage statement). Counsel

argued that such evidence was “relevant to the mental health

defense” and was not offered to prove that “someone was actually

following him or hiding in the garage.” Defense counsel reiterated

17
that she was only offering Dageacho’s testimony about the garage

statement for its effect on the listener — in other words, to explain

why Dageacho looked in the garage — and not to prove that strange

people were in the garage.

¶ 42 The prosecutor countered that “the truth of the matter here is

what the defendant thought,” so if Dageacho’s testimony regarding

the garage statement was offered to prove that Cholo thought

someone was in the garage, it was being offered for its truth.

¶ 43 The court asked how the defense intended to use the evidence

of the garage statement during closing argument. Defense counsel

responded that he planned to use the evidence only to explain why

Dageacho went into the garage. The court said that, if so, the

garage statement was being offered for a nonhearsay purpose. But

the court added that defense counsel “can’t have it both ways” — if

defense counsel only offered the evidence of the garage statement

for its effect on Dageacho, counsel could not also rely on it during

closing argument to argue that Cholo had lacked the mental state

necessary to commit first degree murder after deliberation. Defense

counsel agreed to abide by this limitation.

18
¶ 44 The court gave the jury a preemptive limiting instruction that

Dageacho’s testimony about the garage statement was offered only

to prove its effect on Dageacho, the listener. Defense counsel then

resumed her direct examination of Dageacho:

DEFENSE COUNSEL: So around November
2019, did Mr. Cholo tell you that he thought
people were following him and hiding in the
garage?

WITNESS: Yes. He used to say that when I’m
driving there’s somebody following me. And
then he would also say that —

THE COURT: Counsel, I think we’re going
further than what we talked about at sidebar.

DEFENSE COUNSEL: Let me . . . Did you ever
go into the garage at your husband’s request
to see whether there was someone inside the
garage?

WITNESS: Yes, I did go in and check the
garage, and there was nothing in the garage.

DEFENSE COUNSEL: No one in the garage?

WITNESS: There was nobody in the garage.

THE COURT: Jurors, just make sure you
understand my ruling. You can consider the
statement to explain why she went in the
garage, but you cannot consider the statement
as to what Mr. Cholo, in fact, believed.

19
¶ 45 During closing argument, defense counsel referred to

Dageacho’s — and the forensic psychologist’s — testimony about

the garage statement when discussing Cholo’s mental state:

But what we do have from [the forensic
psychologist] is incredibly helpful information
about what happens when people are deprived
of sleep and not just, I didn’t get my eight
hours last night, but I have been working 16 to
20 hours a day for seven days a week for as
long as I can remember. I am starting to
hallucinate. I see shadows where there are
none. I ask my wife to go to the garage to look
to see if there are people following me.

(Emphasis added.) The prosecutor did not object to this argument.

¶ 46 Cholo now contends that the court erred by limiting

Dageacho’s testimony because evidence of the garage statement was

admissible to prove Cholo’s mental state under section 16-8-109,

C.R.S. 2024.

B. Preservation and Standard of Review

¶ 47 The People argue that Cholo failed to preserve his argument

that Dageacho’s testimony about the garage statement was

admissible under section 16-8-109 to establish Cholo’s state of

mind. Cholo asserts that, although defense counsel did not cite the

20
statute, his counsel preserved the argument by telling the court

that the testimony was “relevant to the mental health defense.”

¶ 48 Cholo is mistaken. Because defense counsel told the court

that she was not offering evidence of the garage statement for the

truth of the matter asserted, and only intended to introduce it for

the limited purpose of its effect on Dageacho, it is unclear to us how

the court could have known that counsel actually intended to

introduce the statement to prove its truth under a statute that she

did not cite.

¶ 49 Because Cholo did not preserve his statutory argument

regarding the garage statement, we review for plain error and

reverse only if the court erred and the error was obvious and

substantial. Hagos, ¶ 14, 288 P.3d at 120. An error is obvious if it

contravenes a clear statutory command, a well-settled legal

principle, or established Colorado case law. Crabtree, ¶ 42, 550

P.3d at 667. An error is substantial if it “so undermined the

fundamental fairness of the trial itself as to cast serious doubt on

the reliability of the judgment of conviction.” Id. at ¶ 43, 550 P.3d

at 667 (quoting Wilson, 743 P.2d at 420).

21
C. Law

¶ 50 Section 16-8-109 provides:

In any trial or hearing in which the mental
condition of the defendant is an issue,
witnesses not specially trained in psychiatry or
psychology may testify as to their observation
of the defendant’s actions and conduct, and as
to conversations which they have had with him
bearing upon his mental condition, and they
shall be permitted to give their opinions or
conclusions concerning the mental condition
of the defendant.

(Emphasis added.) (The General Assembly amended the statute’s

syntax this year but did not substantively change it. See Ch. 15,

sec. 15, § 16-8-109, 2025 Colo. Sess. Laws 50.)

D. The Court Erred by Limiting Dageacho’s Testimony
Regarding the Garage Statement,
but the Error Was Not Plain

¶ 51 Because a statute in effect at the time of Cholo’s trial

permitted lay witnesses to testify about their “observation of the

defendant’s actions and conduct, and as to conversations which

they have had with him bearing upon his mental condition,” and to

“give their opinions or conclusions concerning the mental condition

of the defendant,” § 16-8-109, the court erred by ruling that the

jury could not consider evidence of the garage statement when

22
determining Cholo’s mental state. See also People v. Wright, 648

P.2d 665, 668 (Colo. 1982) (“Traditionally, the scope of evidence

admissible on the issue of insanity is broad. Even lay persons are

free to testify as to the sanity of a defendant if a proper foundation

is presented.”). Because the error contravened a “clear statutory

command,” the error was obvious. Crabtree, ¶ 42, 550 P.3d at 667.

¶ 52 However, the error was not substantial for two reasons. First,

Dageacho’s testimony regarding the garage statement was

cumulative of the forensic psychologist’s testimony. See People v.

Caldwell, 43 P.3d 663, 668 (Colo. App. 2001). The forensic

psychologist testified about the garage statement during the

defense’s case:

[Dageacho] also mentioned to us that at some
point [Cholo] said to her that he could hear
someone speaking to him from the garage,
from his car, and she went to go check and
there was no one there. So, essentially, that
he was exhibiting some sort of auditory
hallucinations or hearing things that aren’t
really there.

The prosecutor did not object to this questioning. Therefore, the

jury would have learned about the garage statement from the

23
forensic psychologist regardless of whether Dageacho also testified

about it.

¶ 53 Second, during closing argument, defense counsel pointed to

the garage statement as evidence of Cholo’s mental state before the

stabbing. The prosecutor did not object to this argument. Thus,

regardless of the court’s limitation on the scope of Dageacho’s

testimony regarding the garage statement, defense counsel was able

to argue in closing that the jury should consider that Cholo “ask[ed]

[his] wife to go to the garage to look to see if there are people

following [him]” when deciding whether the prosecution had proved

that Cholo possessed the mental state to commit first degree

murder after deliberation.

¶ 54 On these facts, we conclude that the court’s error by limiting

Dageacho’s testimony did not prejudice Cholo such that reversal is

warranted.

IV. Prosecutorial Misconduct

¶ 55 Cholo next contends that the prosecutor committed

misconduct during voir dire and closing argument, and that the

court plainly erred by not intervening to address the alleged

24
misconduct even in the absence of defense objections. We are

unpersuaded.

A. Standard of Review

¶ 56 “While a prosecutor can use every legitimate means to bring

about a just conviction, [the prosecutor] has a duty to avoid using

improper methods designed to obtain an unjust result.” Domingo-

Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005). We engage in a

two-step analysis when reviewing claims of prosecutorial

misconduct. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

First, we consider whether the prosecutor’s conduct was improper

based on the totality of the circumstances. Id. Second, we review

whether such actions warrant reversal under the proper standard of

review. Id.

¶ 57 We review unpreserved claims of prosecutorial misconduct for

plain error. Hagos, ¶ 14, 288 P.3d at 120; Crabtree, ¶¶ 42-43, 550

P.3d at 667.

¶ 58 Unpreserved claims of prosecutorial misconduct in closing

argument “rarely constitute[] plain error.” People v. Smalley, 2015

COA 140, ¶ 37, 369 P.3d 737, 745; see also Hagos, ¶ 23, 288 P.3d

at 122 (reversals on plain error review “must be rare to maintain

25
adequate motivation among trial participants to seek a fair and

accurate trial the first time”). “Only prosecutorial misconduct that

is ‘flagrantly, glaringly, or tremendously improper’ warrants reversal

under the plain error test.” People v. Duncan, 2023 COA 122, ¶ 33,

545 P.3d 963, 972 (quoting Hagos, ¶ 14, 288 P.3d at 120).

B. Voir Dire

¶ 59 Cholo contends that the prosecutor committed reversible

misconduct during voir dire by educating the prospective jurors on

his view of the evidence and securing favorable positions from them.

We disagree.

¶ 60 During voir dire, the prosecutor posed a hypothetical scenario

to a mother on the jury panel: She finds a valuable vase that had

been placed on her dining table shattered on the floor, and her

children blame one another for dropping it. The prosecutor asked

the mother and the panel, “What kind of evidence might you look

for to figure out what happened?” The panel identified eyewitness

statements, cuts on the children’s hands (physical evidence),

consistencies and inconsistencies in the children’s stories,

surveillance video, and DNA as possible sources of evidence.

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¶ 61 The prosecutor asked the panel, “How would you decide

amongst all this evidence which is more credible?” One prospective

juror answered that “conclusive evidence” such as “video footage”

would be the most persuasive. Another said that video evidence

could be instructive because “it’s tangible evidence, you can see the

action happening.”

¶ 62 The prosecutor followed up with this prospective juror:

PROSECUTOR: [Y]ou’ve got teddy bear cam
video, you’ve got maybe some DNA off the vase,
you’ve got stories or conflicting accounts from
the people that were there, you have a third
child who’s sort of an independent eyewitness
maybe. How would you decide amongst all
those pieces of evidence what actually
happened?

PROSPECTIVE JUROR: I’d probably place the
most credibility on the camera footage. DNA
would be tough because it’s in a common place
and other people could have been touching it.
Eyewitness would come into account, and then
you would have to assess the credibility of that
eyewitness. . . . But as far as in my hierarchy,
I would place the video footage highest.

This line of questioning comprised approximately six transcript

pages of the thirty-six-page initial voir dire.

¶ 63 Voir dire allows counsel to inquire whether potential jurors

hold any biases that would prevent the defendant from receiving a

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fair trial. People v. Wilson, 2013 COA 75, ¶ 12, 318 P.3d 538, 541.

Crim. P. 24(a)(3) grants trial courts discretion to limit improper voir

dire. For example, trial courts may limit voir dire that instructs the

jurors on a party’s theory of the case. See Wilson, ¶ 13, 318 P.3d at

541. The Wilson division explained that a court may do so because

“[t]he knowledge or ignorance of prospective jurors concerning

questions of law is generally not a proper subject of inquiry for voir

dire since it is presumed that the jurors will be adequately informed

as to the applicable law by the instructions of the court.” Id.

(quoting People v. Collins, 730 P.2d 293, 301 (Colo. 1986)).

¶ 64 The prosecutor’s questioning about different types of evidence

did not educate the prospective jurors on the prosecution’s theory

of the case, contrary to Cholo’s contention. Rather, it elicited their

perspectives on the relative strengths of different forms of evidence

to prove who committed an act. Further, Cholo does not point us to

any legal authorities that would have alerted the court it needed,

even in the absence of a defense objection, to bar the prosecutor

from referring to different forms of evidence during voir dire.

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¶ 65 Under the circumstances, the court did not plainly err by not

sua sponte cutting off the prosecutor’s questioning regarding

different types of evidence.

C. Closing Argument

¶ 66 Cholo next asserts that the prosecutor committed reversible

misconduct during rebuttal closing argument by misstating the law

of first degree murder after deliberation.

¶ 67 Defense counsel argued that Cholo could not have deliberated

before stabbing the victim because, as he told the 911 operator, he

just “snapped.” During rebuttal closing argument, the prosecutor

responded by saying, “[Cholo] said he snapped. Snapping does not

mean not deliberating. You can snap and still think about what

you’re about to do.”

¶ 68 The prosecutor’s statement was not consistent with the law

concerning deliberation.

¶ 69 A person commits murder in the first degree if, after

deliberation and with the intent to cause the death of a person

other than himself, he causes the death of that person.

§ 18-3-102(1)(a). “The term ‘after deliberation’ means not only

intentionally but also that the decision to commit the act has been

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made after the exercise of reflection and judgment concerning the

act.” § 18-3-101(3), C.R.S. 2024. “An act committed after

deliberation is never one which has been committed in a hasty or

impulsive manner.” Id.

¶ 70 “The prosecutor must ‘scrupulously avoid comments that

could mislead or prejudice the jury.’” Duncan, ¶ 31, 545 P.3d at

972 (quoting Domingo-Gomez, 125 P.3d at 1049). Accordingly,

prosecutors may not misstate the law. People v. Monroe, 2020 CO

67, ¶ 16, 468 P.3d 1273, 1276.

¶ 71 Cholo contends that the prosecution’s assertion that a person

can both snap and deliberate was inaccurate as a matter of law.

See People v. Bartowsheski, 661 P.2d 235, 242 (Colo. 1983) (“What

is required for the element of deliberation is that the decision to kill

be made after the exercise of reflection and judgment concerning

the act.”); People v. McBride, 228 P.3d 216, 224-25 (Colo. App.

2009) (holding that the prosecutor misstated the law by analogizing

the “after deliberation” element of first degree murder to a one-

second decision to drive through a yellow light). We agree that the

prosecutor misstated the law and that the court’s lack of

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intervention was therefore an obvious error. But the error was not

plain because it was not substantial.

¶ 72 First, the prosecutor’s misstatement of law was brief and

isolated. The prosecutor referred to “snapping” only once during

closing arguments, and it amounted to two lines of text in a

ten-page argument. See People v. Cuellar, 2023 COA 20, ¶ 75, 530

P.3d 1236, 1251 (no reversible error where statement was brief);

People v. Liebler, 2022 COA 21, ¶ 51, 510 P.3d 548, 559 (reversible

error more likely where misconduct is repeated). Although the

statement was one of the last things the jury heard before it began

deliberating, see Domingo-Gomez, 125 P.3d at 1052, the prosecutor

immediately followed it with a review of the evidence reflecting

Cholo’s mental state.

¶ 73 That evidence included that Cholo

• brought the knife with him to the store;

• argued with the victim for approximately twenty minutes;

• held the knife throughout the argument;

• had time to think during at least one break in the

argument when the victim stepped away to greet a

vendor;

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• after initially stabbing the victim, followed the victim to

the door and stabbed him again; and

• told the forensic psychologist that he “decided to take an

action” during his argument with the victim.

¶ 74 Further, the court provided the jury with the correct definition

of deliberation: that “the decision to commit the act has been made

after the exercise of reflection and judgment” and that the act is not

“committed in a hasty or impulsive manner.” (Quoting

§ 18-3-101(3).) The prosecutor repeated that correct statement of

law during his initial closing argument. The court further

instructed the jury, “While the attorneys may comment on some of

[the rules of law], you must follow the instructions I give you,” and

“[y]our decision must be made by applying the rules of law that I

give you to the evidence presented at trial.” We presume the jury

understood and followed these instructions. Bondsteel v. People,

2019 CO 26, ¶ 62, 439 P.3d 847, 856.

¶ 75 For these reasons, the court’s error in not intervening to strike

the prosecutor’s brief remark about “snapping” was not plain

because it was not substantial.

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V. Cumulative Error

¶ 76 Cholo contends that if we determine the court erred and that

none of the errors individually requires reversal of his conviction,

we should nevertheless reverse because of the errors’ cumulative

prejudicial impact. “For reversal to occur based on cumulative

error, a reviewing court must identify multiple errors that

collectively prejudice the substantial rights of the defendant, even if

any single error does not.” Howard-Walker v. People, 2019 CO 69,

¶ 25, 443 P.3d 1007, 1011. “Stated simply, cumulative error

involves cumulative prejudice.” Id. The relevant inquiry is

“whether, viewed in the aggregate, the errors deprived the defendant

of a fair trial.” Id. at ¶ 40, 443 P.3d at 1014; see Vigil, ¶ 48, 557

P.3d at 815 (explaining that, to determine whether errors are

harmless individually or collectively, we must conduct a “case

specific assessment of the likely impact of the error[s] in question

on the outcome of the litigation as a whole” (quoting Pernell v.

People, 2018 CO 13, ¶ 22, 411 P.3d 669, 673)).

¶ 77 As discussed above, the court made two, and possibly three,

errors — it may have erred by excluding evidence of Cholo’s

question, it erred by ruling that Dageacho’s testimony about the

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garage statement was inadmissible, and it erred by not stepping in

when the prosecutor misstated the meaning of “after deliberation”

during rebuttal closing. But given the nature of the two errors and

the possible third error, coupled with the overwhelming evidence of

Cholo’s guilt, “we cannot conclude that the cumulative effect of the

errors substantially prejudiced [his] right to a fair trial.” People v.

Mendenhall, 2015 COA 107M, ¶ 82, 363 P.3d 758, 775 (holding

that the cumulative effect of the trial court’s admission of irrelevant

testimony and the prosecutor’s improper statements did not

substantially prejudice the defendant’s right to a fair trial).

VI. Disposition

¶ 78 The judgment is affirmed.

JUDGE LUM and JUDGE TAUBMAN concur.

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