Peo v. Pinheiro

22CA0853 Peo v Pinheiro 07-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0853
City and County of Denver District Court No. 17CR5304
Honorable Jennifer B. Torrington, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joe Pinheiro,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE DUNN
Brown and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 24, 2025

Philip J. Weiser, Attorney General, Caitlin E. Grant, 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
¶1 Defendant, Joe Pinheiro, appeals his judgment of conviction

and sentence for second degree murder. We affirm the conviction,

reverse the sentence, and remand the case with directions.

I. Background

¶2 One summer day, Pinheiro went to a police station and called

911. He gave the 911 operator his name, told her that he was

outside the police station, and that he “needed a detective.” When

asked the nature of the emergency, Pinheiro reported that he had

“just shot and killed somebody” about “fifteen, twenty minutes ago.”

He declined to give the operator the victim’s location but said he

would give the address to the detective. He also disclosed that he

had a bag with two unloaded guns. Officers quickly arrived,

arrested Pinheiro, and advised him of his rights.

¶3 After Pinheiro later revealed the victim’s location to a detective,

officers found the victim dead with a single gunshot wound to the

chest.

¶4 The prosecution charged Pinheiro with first degree murder.

Pinheiro didn’t testify at trial, but his attorney defended on the

theory that the killing “was a tragic accident” and Pinheiro did not

intentionally or knowingly kill the victim.

1
¶5 The jury convicted Pinheiro of the lesser included offense of

second degree murder. The district court sentenced him to forty-

eight years in prison.

¶6 On appeal, Pinheiro contends that the district court erred by

(1) violating his Fifth Amendment rights and failing to suppress

involuntary statements made after he invoked his right to counsel

along with the physical evidence obtained from those statements,

(2) allowing the prosecutor to commit misconduct during rebuttal

closing argument, (3) modifying his theory of defense instruction,

(4) violating his right to speak at sentencing, and (5) failing to state

any reason for imposing the maximum forty-eight-year sentence.

He also maintains that the cumulative effect of the errors warrants

reversal of the conviction and, if not the conviction, the sentence.

We address each contention in turn.

II. Suppression

¶7 Pinheiro first contends that the district court erred by denying

his motion to suppress statements he made to a detective disclosing

the location of the victim’s body — together with the physical

evidence that was found at the location. He specifically argues that

the statements and evidence should’ve been suppressed because

2
they were (1) obtained in violation of his rights under Miranda v.

Arizona, 384 U.S. 436 (1966); and (2) involuntary. We agree that

the district court erred by admitting the statements under the

public safety exception to Miranda but conclude that the error does

not require reversal. We disagree that Pinheiro’s statements were

involuntary.

A. Additional Background

1. Pinheiro’s Statements

¶8 Outside the police station, Pinheiro called 911 to report that

he had “shot and killed” someone. He asked for a detective,

disclosed that he had a bag with two unloaded guns, and said he

would give the detective more information when the detective

arrived. Officers swiftly responded and arrested him. As an officer

started to look through his bag, Pinheiro volunteered, “It’s the very

first one in the front that you need.” Officers found two handguns

in Pinheiro’s bag. An officer then read Pinheiro his Miranda rights.

Pinheiro confirmed he understood his rights and that he still

3
wanted to speak with a detective as he had “asked for originally.”

The parties agreed that these statements were admissible.1

¶9 Pinheiro was then placed in a booking room. While there,

Detective Bryan Valenzuela and another officer interacted with

Pinheiro at various points. Portions of the booking room interview

are not in the record, but all agreed, and the district court found,

that Pinheiro twice invoked his right to counsel while in the booking

room. At some point when Detective Valenzuela was not in the

room, the other officer questioned Pinheiro after he had invoked his

right to counsel. While the record doesn’t disclose exactly what

Pinheiro said to the officer, the parties agreed that the statements

made to the officer were not admissible.

¶ 10 That leads us to the disputed last set of statements. About

two and a half hours after the 911 call, and after Pinheiro had

invoked his right to counsel, Detective Valenzuela re-entered the

booking room and told Pinheiro that based on the information they

had, there was “still an exigency” to verify whether someone might

be injured or need medical attention, and he needed to ask Pinheiro

1 No one disputed the admissibility of the 911 call, and it was

admitted by stipulation at trial.

4
for the location of the “alleged victim.” Pinheiro provided the

address and answered a few follow-up questions about the house,

general directions to the house, and where they could find the

victim in the house. This exchange lasted less than five minutes.

¶ 11 At the disclosed address, officers found the victim, along with

a fired cartridge case that was later identified as having been fired

by one of Pinheiro’s guns.

2. The Motion to Suppress

¶ 12 Before trial, Pinheiro moved to suppress the statements to

Detective Valenzuela and the resulting physical evidence, arguing

that they were obtained in violation of his Fifth Amendment rights.

¶ 13 At the suppression hearing, the prosecution did not dispute

that Pinheiro had invoked his right to counsel and was subject to

custodial interrogation. Instead, the prosecution argued that the

statements to Detective Valenzuela were voluntary and admissible

under the public safety exception.

¶ 14 In a written order, the district court denied the motion to

suppress. The court found that the public safety exception applied

and that the statements were voluntary. As to the public safety

exception specifically, the court concluded that Detective

5
Valenzuela’s “questioning clearly concerned an immediate need to

protect a member of the public, as well as investigating officers,

from potential harm.”

B. The Public Safety Exception

¶ 15 We consider first the district court’s conclusion that Pinheiro’s

statements to Detective Valenzuela were admissible under the

public safety exception.

1. Legal Principles and Standard of Review

¶ 16 Before conducting a custodial interrogation, an officer must

advise a suspect of certain rights, including the right to remain

silent and the right to counsel. Miranda, 384 U.S. at 444. When a

suspect invokes his right to counsel during an interrogation, the

police must cease questioning. Edwards v. Arizona, 451 U.S. 477,

484-85 (1981); accord People v. Kutlak, 2016 CO 1, ¶ 14.

Statements made after a suspect invokes his right to counsel are

generally not admissible. Miranda, 384 U.S. at 478-79. But

decades ago, the Supreme Court carved out a narrow public safety

exception to Miranda. See New York v. Quarles, 467 U.S. 649, 657-

58 (1984); accord Perez v. People, 2021 CO 5M, ¶ 18. The exception

permits pre-Miranda questioning “reasonably prompted by a

6
concern” for public or officer safety. Quarles, 467 U.S. at 656; see

also Perez, ¶ 23 (considering whether the questioning “relates to an

objectively reasonable need to protect the public from immediate

danger”). And it applies if the exigency of the circumstances

warrants the momentary omission of Miranda warnings. Quarles,

467 U.S. at 658.

¶ 17 The important question is whether, under the totality of the

circumstances, there’s an objectively reasonable need to protect the

public or officers from an immediate danger. Perez, ¶ 23; see also

People v. Mullins, 532 P.2d 733, 735 (Colo. 1975). For that reason,

the exception is typically applied to situations where an officer first

arrives at the scene or first encounters a suspect. See, e.g., Perez,

¶¶ 26-27 (applying exception when officers apprehended fleeing

suspect and immediately asked about the location of a gun); People

v. Janis, 2016 COA 69, ¶ 56 (applying exception when officers

arriving on the scene had legitimate concerns about the existence of

weapons), rev’d on other grounds, 2018 CO 89; People v. Requejo,

919 P.2d 874, 879 (Colo. App. 1996) (applying exception “to protect

the safety of officers engaged in immediate, on-scene investigation

of a crime”). When that has not been the case, and when the

7
suspect “ha[s] been safely in custody for several hours and ha[s]

already invoked his Miranda rights,” our supreme court has not

applied the public safety exception. People v. Ingram, 984 P.2d 597,

605 (Colo. 1999).

¶ 18 Whether the public safety exception applies presents a mixed

question of fact and law. See Perez, ¶ 14. We defer to the district

court’s factual findings if they are supported by the record, but we

review its legal conclusions de novo. Id.

2. The District Court Erred by Applying
the Public Safety Exception

¶ 19 Pinheiro contends that the district court erred by applying the

public safety exception because he says that the exception doesn’t

apply to suspects that have been Mirandized and invoked their right

to counsel. Alternatively, he argues that even if the exception does

apply generally to such circumstances, it didn’t apply here because

the questioning came hours after Pinheiro was taken into custody

and there wasn’t any immediate danger to public safety.

¶ 20 To be sure, this is not the typical situation in which the public

safety exception applies. Most Colorado cases addressing the

exception involve pre-Miranda questioning. See, e.g., Quarles, 467

8
U.S. at 657-59; Perez, ¶¶ 26-27. But in Ingram, our supreme court

considered the public safety exception in a case where the suspect

was Mirandized and invoked his right to silence. Ingram, 984 P.2d

at 605. And while Ingram distinguished Quarles on the basis that it

involved pre-Miranda questioning, it also analyzed whether an

immediate necessity or exigency justified the post-Miranda

questioning. Id. Though it ultimately concluded that the public

safety exception didn’t apply to the facts presented, the holding

suggests that the exception may extend to a suspect who has been

given his Miranda warnings and invoked his right to silence if there

is an immediate or exigent public or officer safety need to justify the

questioning. See id.2

2 To the extent Pinheiro claims that even if the public safety

exception applies after a suspect has been Mirandized, it only
applies where a suspect has invoked his right to silence, we
disagree. We see no reason why the public and officer safety
concerns would be different where a suspect invokes his right to
counsel versus his right to silence. See United States v. Paetsch,
900 F. Supp. 2d 1202, 1220-21 (D. Colo. 2012) (“The public-safety
exception applies not only to interrogation that occurs prior to the
giving of Miranda warnings, but also applies to interrogation that
occurs after a suspect has requested to speak to an attorney.”
(citing United States v. DeSantis, 870 F.2d 536, 541 (9th Cir.
1989))), aff’d on other grounds, 782 F.3d 1162 (10th Cir. 2015).

9
¶ 21 Even so construing Ingram, the exception doesn’t apply to the

circumstances here. Detective Valenzuela’s questioning occurred

neither “on the scene” nor even when the detective first encountered

Pinheiro. Rather, it occurred over two and a half hours after

Pinheiro was arrested. At that point, there was no situation posing

an immediate threat to officer or public safety. Cf. Quarles, 467

U.S. at 657; Requejo, 919 P.2d at 879. The People don’t contend

otherwise.

¶ 22 True, the location of the victim was unknown. But even

assuming that the public safety exception applies to locating a

single individual — as opposed to protecting the public at large —

the detective still waited several hours to ask Pinheiro about the

victim’s location. And well-intentioned though he might have been,

the fact that the detective waited several hours to press the issue

undercuts any claim that there was an objectively reasonable belief

of immediate or exigent danger. See Ingram, 984 P.2d at 605

(public safety exception didn’t apply where questioning occurred

hours after the suspect was arrested and Mirandized). Beyond that,

there wasn’t any basis for the detective’s belief that the victim might

be injured. Unlike some cases where it’s unknown if anyone had

10
been injured and needed medical care, see, e.g., People v.

Wakefield, 2018 COA 37, ¶¶ 55-57, Pinheiro plainly reported to the

911 operator that he had “shot and killed” someone fifteen to

twenty minutes ago and then surrendered two unloaded guns to

officers. That makes this case much different from those cases

where officers, “having just arrived on the scene, had a legitimate”

and immediate concern that there could be unknown “armed

suspects or injured victims in the vicinity.” Id. at ¶ 57; see also

United States v. Padilla, 819 F.2d 952, 961 (10th Cir. 1987) (public

safety exception applied to on-the-scene questioning about the

possibility of injured or armed person).

¶ 23 For these reasons, we conclude that the district court erred by

admitting Pinheiro’s statements to Detective Valenzuela under the

public safety exception.3

3 For the first time on appeal, the People contend that the

statements are admissible under the rescue doctrine. The
prosecution, however, did not raise the rescue doctrine before the
district court, and the district court didn’t apply it. We therefore
decline the People’s invitation to address this issue for the first time
on appeal.

11
3. The Admitted Statements Do Not Require Reversal

¶ 24 We must determine, then, whether the admission of Pinheiro’s

statements, in violation of his Fifth Amendment rights, was

harmless beyond a reasonable doubt. Hagos v. People, 2012 CO

63, ¶ 11 (a trial error of constitutional dimension requires reversal

unless the error was harmless beyond a reasonable doubt). To

make that determination, we consider (1) the statements’

importance to the prosecution’s case; (2) whether the statements

are cumulative; and (3) the overall strength of the prosecution’s

case. People v. Allen, 199 P.3d 33, 37 (Colo. App. 2007). We will

reverse if there is a reasonable possibility that Pinheiro’s statements

to Detective Valenzuela might have contributed to his conviction.

Hagos, ¶ 11.

¶ 25 For a few reasons, we conclude that no such reasonable

possibility exists. First, although not cumulative, the statements

were unimportant and irrelevant to the only disputed issue at trial,

which was whether the shooting was accidental. After all, Pinheiro

had already admitted that he had shot and killed a person and had

handed over the murder weapon. The prosecutor argued that

Pinheiro acted intentionally or knowingly while defense counsel

12
maintained the shooting was an accident. Nothing in Pinheiro’s

statements to the detective said anything about his intent or even

about the shooting itself. Rather, Pinheiro simply provided an

address, volunteered that two dogs were in the house, described the

house, gave general directions to it, clarified that the victim was in

the basement, and stated the victim’s name.

¶ 26 Second, the prosecution presented considerable circumstantial

evidence on the only disputed issue — whether Pinheiro acted with

intent or knowledge. See People v. Johnson, 2024 CO 32, ¶ 36

(observing that intent “can, and often must, be proved by

circumstantial evidence”) (citation omitted). Namely, the evidence

showed that the victim died almost instantly of a single gunshot

wound to the chest. An expert testified that the victim was shot at

“very close” range — meaning “within one inch.” And the expert

explained that it was possible that the gun was in “contact” with the

victim’s shirt when the gun was fired. Beyond that, there was no

evidence either at the crime scene or on Pinheiro suggesting that he

tried to render aid to the victim (as one reasonably would expect in

an accidental shooting).

13
¶ 27 Finally, Pinheiro’s voluntary confession to the 911 operator

after the shooting was deliberate and calm, not panicked. And

despite Pinheiro’s arguments to the contrary, this combined

circumstantial evidence is what the prosecution relied on in closing

argument to demonstrate that Pinheiro acted with intent or

knowledge — not Pinheiro’s statements to Detective Valenzuela

about the victim’s location.

¶ 28 Given all this, although the district court erred by admitting

Pinheiro’s statements to Detective Valenzuela under the public

safety exception, we conclude that the error was harmless beyond a

reasonable doubt.

C. Voluntariness

¶ 29 We next consider whether the district court erred by

concluding that Pinheiro’s statements were voluntary. If they

weren’t voluntary, then the physical evidence obtained from the

statements should also have been suppressed. People v. Bradshaw,

156 P.3d 452, 459-60 (Colo. 2007) (explaining that although the

14
fruit of the poisonous tree doctrine doesn’t apply to Miranda

violations, it does applies apply to coerced statements).4

1. Legal Principles and Standard of Review

¶ 30 The Due Process Clauses of the United States and Colorado

Constitutions require that “a defendant’s statements must be

voluntary to be admissible as evidence.” People v. Ramadon, 2013

CO 68, ¶ 18; U.S. Const. amends. V, XIV; Colo. Const. art. II, § 25.

A statement is involuntary only if “coercive governmental conduct

played a significant role in inducing the statement.” Effland v.

People, 240 P.3d 868, 877 (Colo. 2010).

¶ 31 To determine whether a statement was voluntary or coerced,

we consider (1) whether the police conduct was coercive and, if so,

(2) whether the coercive conduct played a significant role in

inducing the statement. People v. Coke, 2020 CO 28, ¶ 19.

¶ 32 And to decide whether the conduct was coercive, we consider

the following, non-exhaustive list of factors:

4 Pinheiro acknowledges that, absent a finding that the statements

were involuntary, the fruit of the poisonous tree doctrine doesn’t
apply to the physical evidence obtained after a Miranda violation.
See New York v. Quarles, 467 U.S. 649, 654 (1984); People v.
Gosselin, 205 P.3d 456, 461 (Colo. App. 2008).

15
(1) whether the defendant was in custody;

(2) whether the defendant was free to leave;

(3) whether the defendant was aware of the situation;

(4) whether the police read Miranda rights to the defendant;

(5) whether the defendant understood and waived Miranda

rights;

(6) whether the defendant had an opportunity to confer with

counsel or anyone else before or during the interrogation;

(7) whether the statement was made during the

interrogation or volunteered later;

(8) whether the police threatened the defendant or promised

anything directly or impliedly;

(9) the method of the interrogation;

(10) the defendant’s mental and physical condition just before

the interrogation;

(11) the length of the interrogation;

(12) the location of the interrogation; and

(13) the physical conditions of the location where the

interrogation occurred.

Id. at ¶ 20 (citation omitted).

16
¶ 33 When, as here, the interrogation is video-recorded, and there

are no disputed facts outside the recording pertinent to the

suppression issue, we are in the same position as the district court

in determining whether the statements are voluntary. Ramadon,

¶ 21. In any event, “the ultimate determination of whether a

statement is voluntary is a legal question” that we review de novo.

Effland, 240 P.3d at 878.

2. The Statements Were Voluntary

¶ 34 We conclude that Pinheiro’s statements to Detective

Valenzuela were not the product of government coercion.

¶ 35 We acknowledge that the factors do not all cut one way. As

Pinheiro points out, he was in custody, he was not free to leave, he

made the statements during questioning at the police station, and

the detective knew that Pinheiro had invoked his right to counsel

before he asked Pinheiro about the victim’s location.5

5 To the extent Pinheiro relies on a separate interaction with a

different officer to suggest coercion, that video footage is not in the
appellate record. We therefore don’t know much about that
interaction other than the fact that whatever statements Pinheiro
made to that officer were suppressed.

17
¶ 36 But balanced against these factors are those that show no

coercive conduct. Namely, Pinheiro was aware of his situation and,

from the outset, he specifically and repeatedly asked to speak with

a detective. Pinheiro was in a large, open room. Contrary to

Pinheiro’s assertion, neither the officer nor the detective “loomed”

over him or were even particularly close to him. Pinheiro was

unrestrained, though he had bags on his hands pending gunshot

residue testing. The detective was in plainclothes and unarmed.

Pinheiro displayed no physical or mental distress. Indeed, Pinheiro

smirked, smiled, and laughed at times during the brief interaction.

And though Pinheiro points to the fact that he was not wearing a

shirt, he voluntarily removed his shirt outside the police station and

reported that to the 911 operator. Most critically, the detective

made no threats or promises and didn’t engage in trickery. The

detective was calm and polite, not threatening, aggressive, or

intimidating. Finally, the entire interaction lasted less than five

minutes and was not investigatory in nature. Rather, the

detective’s limited questioning was based on his sincere (but

mistaken) belief that there was “still an exigency.” The questions

18
were thus limited to finding the victim — not overbearing Pinheiro’s

will.

¶ 37 We are unpersuaded by Pinheiro’s claim that his body

language, including a sigh and an eye roll, shows government

coercion or that his will was overborne. While the video shows that

Pinheiro seemed irritated, the voluntariness inquiry focuses on the

conduct of law enforcement and whether that conduct was of such

a nature as to overbear the defendant’s will. Effland, 240 P.3d at

877. Indeed, compared to those cases where police have engaged in

coercive tactics, the detective’s limited questioning here falls far

short. See Ramadon, ¶ 28 (concluding statements were coerced

after the government invoked “violence” and exploited the

defendant’s unique vulnerabilities, including fear of deportation and

death, to elicit inculpatory statements).

¶ 38 Because the totality of the circumstances does not show

coercive conduct or that Pinheiro’s will was overborne, we conclude

that the district court correctly found that the statements were

voluntary. Therefore, the physical evidence obtained from those

statements was admissible, even if the statements themselves were

not.

19
III. Prosecutorial Misconduct

¶ 39 Pinheiro contends that the prosecutor committed misconduct

in rebuttal closing argument by arguing that Pinheiro’s post-

Miranda silence was evidence of guilt, and that the district court

reversibly erred by allowing the argument. We aren’t persuaded.

¶ 40 We apply a two-step analysis to questions of prosecutorial

misconduct, considering (1) whether the prosecutor’s conduct was

improper based on the totality of the circumstances and, if so,

(2) whether the conduct warrants reversal under the applicable

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

¶ 41 Because defense counsel didn’t object to the prosecutor’s

conduct at trial, we review for plain error. People v. Buckner, 2022

COA 14, ¶ 43. Under that standard, we will reverse only if the error

was obvious and so undermined the fundamental fairness of the

trial as to cast serious doubt on the reliability of the conviction.

Hagos, ¶ 14.

¶ 42 Pinheiro defended on the theory that the killing was

accidental. His counsel pressed this theory in closing argument,

telling the jury, “Ladies and gentlemen, the [p]rosecution wants you

to believe that every gun accident is somehow a homicide, and

20
that’s just not true. We all have a right to carry a gun, and we all

know that accidents do happen.”

¶ 43 In rebuttal argument, the prosecutor addressed the theory of

defense and argued that:

• “[Pinheiro] chose to confess to this crime. There was never a

mention of anything happening other than him saying, I shot

somebody. There was no evidence of an accident, no evidence

of unintentional discharge of a weapon, none of that, just

simply: I shot him.”

• “There would be an explanation of what happened if it were a

tragedy, right? No. That’s not what you hear, not what you

see in the body-worn camera from [the responding police

officer].”

• “[Pinheiro] showed no remorse. He did nothing to help.

Rather, he walked to the Sheridan police station, called 911,

confessed his murder. The police came. He never said

anything different.”

¶ 44 Pinheiro now contends that these statements improperly

commented on his post-arrest silence to infer guilt.

21
¶ 45 But Pinheiro’s premise that the referenced statements are

post-arrest is wrong. Pinheiro confessed that he had shot and

killed someone to the 911 operator. That confession was pre-arrest

and before Pinheiro was Mirandized. Pinheiro doesn’t argue that

the prosecution’s comments on his pre-arrest silence were

improper. See Coke, ¶ 7 (explaining that, when a defendant is not

in custody, there is no “conceivable basis by which the Fifth

Amendment privilege against self-incrimination could have

attached,” and, therefore, a defendant has no Fifth Amendment

privilege to assert). In any event, the prosecution’s comments

centered on the content of Pinheiro’s statements, not his silence.

See People v. Rogers, 68 P.3d 486, 492 (Colo. App. 2002) (“A

defendant cannot have it both ways. If he talks, what he says or

omits is to be judged on its merits or demerits . . . .”) (citation

omitted). Because Pinheiro elected to speak, we conclude that the

prosecutor did not commit misconduct by commenting on what

Pinheiro said to the 911 operator, including what he omitted.

¶ 46 To the extent Pinheiro contends that the prosecutor committed

misconduct by commenting on Pinheiro’s demeanor or

demonstrated lack of remorse, we disagree. The jury heard the 911

22
call and saw the video of Pinheiro’s arrest. It’s not improper to

comment on the evidence and reasonable inferences to be drawn

from the evidence. Domingo-Gomez v. People, 125 P.3d 1043, 1048

(Colo. 2005). And insofar as Pinheiro contends that the prosecutor

committed misconduct by commenting on the lack of evidence

showing an accidental or unintentional shooting, that, too, is proper

argument. See People v. Esquivel-Alaniz, 985 P.2d 22, 23 (Colo.

App. 1999).

¶ 47 Finally, even assuming any of the rebuttal argument could be

construed as a reference to post-arrest statements, we cannot

conclude that the brief comments were so obviously improper that

the district court should have sua sponte intervened “without the

benefit of an objection.” Cardman v. People, 2019 CO 73, ¶ 34

(citation omitted).

¶ 48 We therefore disagree that the prosecutor committed

misconduct or that the district court erred by allowing the rebuttal

argument.

IV. Theory of Defense Instruction

¶ 49 For his theory of defense, Pinheiro asked the court to instruct

the jury as follows:

23
The defense contends that [Pinheiro] is not
guilty of first-degree murder. On July 29th,
2017, [the victim] was downstairs in the
basement drinking beer. [Pinheiro] was
showing [the victim] the gun when the gun
accidentally fired. [Pinheiro] did not act after
deliberation or with intent. After the shooting,
[Pinheiro] immediately left the house and went
to the Sheridan Police Department to report
the shooting. [Pinheiro] is not guilty of the
lesser included offense of second degree
murder. As this was an accident, [Pinheiro]
did not act with the required mental state of
knowingly.

¶ 50 The court rejected this instruction, finding, among other

things, that “nothing in the record . . . supports that [Pinheiro] was

showing [the victim] the gun or that the gun was accidentally fired.”

¶ 51 Ultimately, after working with defense counsel on a modified

instruction, the court instructed the jury, in relevant part, as

follows:

The defense contends that [Pinheiro] is not
guilty of the lesser included offense of second
degree murder. On July 29th, 2017, [the
victim] had consumed alcohol. There were no
marks on [the victim’s] body that indicated he
had been in a physical altercation. The
defense contends that there is no evidence that
[Pinheiro] acted knowingly. After the shooting,
[Pinheiro] immediately left the house and went
to the Sheridan Police Department to report
the shooting.

24
¶ 52 Pinheiro maintains that the district court reversibly erred by

modifying his theory of defense instruction.

¶ 53 “[A]n instruction embodying a defendant’s theory of the case

must be given by the [district] court if the record contains any

evidence to support the theory.” People v. Nunez, 841 P.2d 261,

264 (Colo. 1992). But the court may reject a theory of defense

instruction that is “argumentative, contains errors of law, merely

reiterates portions of the evidence, or is encompassed within the

other instructions.” People v. Martinez, 2020 COA 141, ¶ 82

(quoting People v. Lee, 30 P.3d 686, 689 (Colo. App. 2000)). If the

court refuses to give a defense theory of the case instruction, it has

an affirmative obligation to cooperate with counsel to either correct

the tendered theory of defense instruction or to incorporate the

defense theory in a court-drafted instruction. Nunez, 841 P.2d at

265. The court isn’t required, however, to instruct the jury on the

defense theory by using the language tendered by the defendant.

People v. Merklin, 80 P.3d 921, 927 (Colo. App. 2003).

¶ 54 We review the decision to modify a tendered theory of defense

instruction for an abuse of discretion. Martinez, ¶ 79.

25
¶ 55 The district court correctly refused the tendered instruction

because no evidence was presented that the shooting was

accidental. See People v. Griego, 517 P.2d 460, 461 (Colo. 1973)

(“[T]he [district] court correctly refused the tendered instruction as

there was no evidence in the record to support [the] defendant’s

theory of the case.”). While Pinheiro points to evidence (and the

absence of evidence) that he claims supports his accidental

shooting theory, none of the cited evidence or lack of evidence says

anything about whether the shooting was accidental or knowing.

While defense counsel was free to — and did — argue that the

shooting was accidental, he wasn’t entitled to a jury instruction

that lacked record support. See id.; see also Lee, 30 P.3d at 690

(holding the district court did not err by rejecting the defendant’s

“accidental shooting” theory of defense instruction because the

theory was conveyed by other instructions and closing arguments).

¶ 56 And the court fulfilled its duty to work with counsel to craft an

appropriate alternative theory of defense instruction. Based on the

evidence presented, the court added “There were no marks on [the

victim’s] body that indicated he had been in a physical altercation.”

That, together with the language that “there was no evidence that

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[Pinheiro] acted knowingly,” as well as defense counsel’s closing

argument that the shooting was accidental, sufficiently conveyed

Pinheiro’s theory of defense. See People v. Trujillo, 2018 COA 12,

¶ 14 (“In considering whether a jury was adequately informed of a

defendant’s theory of the case, a reviewing court can take into

account whether defense counsel’s closing argument ‘fairly

represented’ the theory to the jury.”) (citation omitted).

¶ 57 We therefore conclude that the court did not abuse its

discretion by giving the modified theory of defense instruction.

V. Cumulative Error

¶ 58 Pinheiro contends that collectively the district court’s errors

violated his right to a fair trial, entitling him to a new one. See

Howard-Walker v. People, 2019 CO 69, ¶ 24. But cumulative error

requires multiple errors resulting in cumulative prejudice. Id. at

¶ 25. Because we have identified only a single harmless error and

assumed a possible nonprejudicial error, cumulative error doesn’t

apply.

VI. The Sentence

¶ 59 Pinheiro says he must be resentenced because the district

court violated his right to speak at the sentencing hearing and

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because the court failed to state the “basic reasons” for imposing

the maximum forty-eight-year sentence. Alternatively, Pinheiro

argues that the cumulative effect of these sentencing errors requires

resentencing. Because we agree that the court violated Pinheiro’s

right to speak, we don’t reach the remaining arguments.

¶ 60 The district court must give every criminal defendant an

opportunity to speak on their own behalf before it imposes a

sentence. § 16-11-102(5), C.R.S. 2024; Crim. P. 32(b)(1). To afford

a defendant this opportunity, the “court must address the

defendant in a manner that leaves no doubt that the defendant is

personally invited to speak” before sentencing. People v.

Marquantte, 923 P.2d 180, 186 (Colo. App. 1995); see also Green v.

United States, 365 U.S. 301, 305 (1961) (noting that district courts

should “unambiguously address themselves to the defendant”

before sentencing).

¶ 61 At sentencing, defense counsel stated that he “instructed”

Pinheiro “not to make a statement today” and that he planned on

appealing the conviction. Defense counsel, however, did not state

that he had advised Pinheiro of his right to speak before sentencing.

And after defense counsel spoke, the court immediately sentenced

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Pinheiro without addressing Pinheiro directly or confirming whether

Pinheiro understood that he had a right to speak and, if so, whether

he wanted to exercise that right before sentencing.

¶ 62 Because nothing in the brief sentencing record shows that

Pinheiro was aware that he had the right to speak at sentencing,

and because the court didn’t clarify that point or invite him to

speak, we cannot agree with the People that Pinheiro “was clearly

aware of his right to speak” or “was given the opportunity to speak”

and “chose not to.”

¶ 63 While the People argue that any error was harmless, they also

acknowledge that the required remedy is resentencing. People v.

Borrego, 774 P.2d 854, 856 (Colo. 1989) (“We have consistently held

that the defendant has the right to allocution before sentence is

imposed and that denial of the right of allocution requires

resentencing.”). We therefore reverse the sentence and remand for

resentencing.

VII. The Mittimus

¶ 64 Though not raised by the parties, the mittimus incorrectly

states that Pinheiro “pled guilty” to second degree murder. Because

a clerical mistake may be corrected at any time, Crim. P. 36, on

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remand the district court should correct the mittimus to reflect that

Pinheiro did not plead guilty.

VIII. Disposition

¶ 65 The judgment of conviction is affirmed, the sentence is

reversed, and the case is remanded for resentencing and correction

of the mittimus.

JUDGE BROWN and JUDGE SCHOCK concur.

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