Peo v. Martinez

23CA0994 Peo v Martinez 10-09-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0994
Arapahoe County District Court No. 22CR83
Honorable Darren L. Vahle, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dominic Jorge Martinez,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE FOX
Brown and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 9, 2025

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant
Attorney General and Assistant Solicitor General, Denver, Colorado, for
Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Chloe Sovinee-Dyroff, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Dominic Jorge Martinez appeals his conviction for second

degree assault. We reverse and remand the case for a new trial.

I. Background

¶2 In January 2022, in Aurora, eighteen-year-old Martinez had

an argument with his mother and his stepfather, Francisco Samora.

The argument resulted in Martinez stabbing his stepfather.1

Martinez then left his family’s home where the stabbing occurred

and walked until he found a police car. He told the officers he

stabbed his dad.2 Martinez explained that his mother came into his

room, they argued, and she started yelling at and hitting him. His

stepfather then came into the room and also started yelling and

hitting him.

¶3 Martinez told Officer Gary Oliver that, about six months prior,

he had been stabbed in one of his eyes, and he “thought [he] was

gonna get stabbed in [his] other eye, so [he] stabbed [his] dad.”3 He

1 Because Martinez and his sister share a last name, and for ease of

identification and readability, we refer to Martinez’s family members
by their relationship to him, rather than their first or last names.
2 Although Samora was Martinez’s stepfather, Martinez called

Samora his dad at trial and when speaking to police.
3 The injury (caused by an accident with a friend) was significant

enough to require a prosthetic eye.

1
also explained that he stabbed his stepfather “to get away” and then

“ran out of the house . . . and went to look for an officer.” Martinez

repeatedly told Oliver that he did not mean to stab his stepfather

and explained that he had “anger issues and impulses,” struggled

with marijuana dependency, and experienced mental health issues.

¶4 Martinez’s first degree assault charge was tried to a jury in

2023. At trial, Martinez, his mother, and his sister testified.

Martinez testified to largely the same version of events that he told

Oliver. However, whereas he told Oliver he had never been in a

fight with his stepfather before and that his stepfather had not

previously physically assaulted him, he testified at trial that both

parents had been violent towards him in the past. He also testified

that his stepfather had hit him hard, which conflicted with his

statements to Oliver. Martinez’s recollection at trial was generally

more detailed than his account to Oliver. He explained at trial that

he did not tell Oliver “the extent of [his] parents hitting [him]”

because he “didn’t want anybody to get in trouble.”

¶5 Martinez’s mother testified that she had hit Martinez before,

hit him on the day of the incident, and that Martinez’s stepfather

had also hit him that day. Martinez’s mother also admitted that

2
she initially told police that Martinez was not involved in the

stabbing. Martinez’s sister similarly testified that Martinez’s

parents were hitting him when the stabbing occurred. And, as with

Martinez’s mother, his sister admitted she was initially dishonest

with police by implicating a stranger, rather than Martinez, in the

stabbing.

¶6 At trial, the prosecution also introduced recordings of jail calls

between Martinez and his mother. In the calls, Martinez and his

mother discussed the version of events they would give the district

attorney (DA) and discussed ensuring that their accounts were

consistent. For example, in one of the calls, Martinez asked his

mother to “go over the story” she would tell the DA. He then

described a version of events in which had the knife because he was

peeling potatoes, adding, “If we all tell the same story . . . that

should be good for the charges.” He also said, “It would look better

if you guys said that [my stepfather] was getting aggressive because

that would help . . . with my self-defense.”

¶7 The jury convicted Martinez of second degree assault pursuant

to section 18-3-203(1)(b), C.R.S. 2025. But it found that he was

acting upon a provoked “sudden heat of passion,” which reduced

3
the class of felony associated with his conviction. § 18-3-203(2)(a),

(b). He was sentenced to eighteen months with work release and

four years of probation. This appeal followed.

¶8 Martinez raises several issues on appeal. First, he argues that

the trial court’s reasonable doubt instruction impermissibly lowered

the prosecution’s burden of proof. He also contends that the

prosecutor made various improper statements throughout trial.

The instruction was proper, but we conclude that several of the

prosecutor’s statements warrant reversal. Therefore, we need not

address the remaining issues related to the prosecutor’s comments.

II. The Reasonable Doubt Instruction

¶9 Martinez contends that the trial court gave a reasonable doubt

instruction that lowered the prosecution’s burden of proof, which he

argues constituted structural error requiring reversal. We

disagree.4

4 Although we reverse Martinez’s conviction on other grounds, we

reach his challenge to the jury instruction because the current
model instruction is largely the same as the version given at his
trial, so the issue is likely to arise on remand.

4
A. Additional Background

¶ 10 Before 2022, and as relevant here, the model criminal jury

instructions defined proof beyond a reasonable doubt as follows:

Reasonable doubt means a doubt based upon
reason and common sense which arises from a
fair and rational consideration of all of the
evidence, or the lack of evidence, in the case. It
is a doubt which is not a vague, speculative or
imaginary doubt, but such a doubt as would
cause reasonable people to hesitate to act in
matters of importance to themselves.

If you find from the evidence that each and
every element of a crime has been proven
beyond a reasonable doubt, you should find
the defendant guilty . . . . If you find from the
evidence that the prosecution has failed to
prove any one or more of the elements of a
crime beyond a reasonable doubt, you should
find the defendant not guilty . . . .

COLJI-Crim. E:03 (2021) (emphases added).

¶ 11 The revised 2022 model instruction, in pertinent part, defined

reasonable doubt as follows:

Proof beyond a reasonable doubt is proof that
leaves you firmly convinced of the defendant’s
guilt. If you are firmly convinced of the
defendant’s guilt, then the prosecution has
proven the crime charged beyond a reasonable
doubt. But if you think there is a real
possibility that the defendant is not guilty, then
the prosecution has failed to prove the crime
charged beyond a reasonable doubt.

5
COLJI-Crim. E:03 (2022) (emphasis added). The instruction then

directed the jury to “consider[] all the evidence” when deciding

whether the prosecution proved or failed to prove all the elements

beyond a reasonable doubt. Id.

¶ 12 At Martinez’s trial, over the defense’s objection, the court gave

the 2022 model instruction. That version (1) omitted language

instructing the jury to consider “the lack of evidence,” (2) omitted

language defining a reasonable doubt as one that “would cause

reasonable people to hesitate to act in matters of importance to

themselves,” and (3) added language instructing the jury to acquit if

“there is a real possibility that the defendant is not guilty.” These

changes, Martinez argues, lowered the prosecution’s burden of

proof.5

5 The 2023 model instruction added a sentence explaining that “[a]

reasonable doubt can be based on the evidence presented or the
lack of evidence presented.” COLJI-Crim. E:03 (2023). This model
instruction was not yet available at Martinez’s trial because the
model instructions’ publication year does not correspond with the
edition year. See Colo. Jud. Branch, Model Crim. Jury Instructions
Comm., Colorado Jury Instructions—Criminal (2024) (2025),
https://perma.cc/DF4R-ALTN (publishing the 2024 edition in
February 2025).

6
B. Standard of Review and Applicable Law

¶ 13 We review de novo whether a trial court accurately instructed

the jury on the law. Tibbels v. People, 2022 CO 1, ¶ 22. The

reasonable doubt standard implicates a defendant’s constitutional

rights, see id. at ¶¶ 23-24, and “[i]nstructions that lower the

prosecution’s burden of proof below th[is] . . . standard constitute

structural error and require automatic reversal,” id. at ¶ 22.

¶ 14 Trial courts have some leeway to define reasonable doubt.

Johnson v. People, 2019 CO 17, ¶ 10 (citing Victor v. Nebraska, 511

U.S. 1, 5 (1994)). Nevertheless, the prosecution must prove the

elements of each crime beyond a reasonable doubt, and

instructions that lower this burden violate a defendant’s due

process rights. Id. at ¶ 13. To determine whether an instruction

unconstitutionally lowered the prosecution’s burden of proof, we

consider “whether there is a reasonable likelihood that the jury

understood a contested instruction, in the context of the

instructions as a whole and the trial record, to allow a conviction

based on a standard lower than beyond a reasonable doubt.”

Tibbels, ¶ 36. Finally, model jury instructions are guidelines; they

7
are not binding, nor are they automatically proper. People v.

Schlehuber, 2025 COA 50, ¶ 14.

¶ 15 Although our supreme court has not yet considered the

instruction at issue here, two divisions of this court recently

addressed challenges to the same model instruction. Id. at ¶ 7;

People v. Melara, 2025 COA 48, ¶¶ 10-32. Additionally, as

discussed below, many of the federal circuit courts have considered

challenges to similar instructions. Together, this jurisprudence

informs our decision.

C. Lack of Evidence

¶ 16 Martinez first contends that the 2022 model instruction

lowered the burden of proof by failing to inform the jury that it

could consider the evidence presented and the lack of such

evidence. Courts have approved of instructions directing juries to

consider a lack of evidence. E.g., Melara, ¶ 24; People v. Rubio, 222

P.3d 355, 363 (Colo. App. 2009) (“The instruction that reasonable

doubt can [also] arise . . . from [a] ‘lack of evidence’ strengthens

rather than undercuts the presumption of innocence.”); Johnson v.

Louisiana, 406 U.S. 356, 360 (1972) (discussing the many cases

that define reasonable doubt as “aris[ing] from the evidence or lack

8
of evidence” (citations omitted)), abrogated by, Ramos v. Louisiana,

590 U.S. 83 (2020).

¶ 17 But Martinez cites no case in which a court held that failing to

instruct the jury that it could consider a lack of evidence lowered

the burden of proof. Cf. Melara, ¶ 24 (holding that courts “should

inform the jury . . . that it may consider the lack of evidence,” but

failing to do so does not impermissibly lower the burden of proof);

Schlehuber, ¶ 20 & n.3 (holding that omitting such language is not

error and noting that “[a]t least six federal courts of appeals have

held that a court does not err by omitting an explicit reference to

the lack of evidence,” and the division was unaware of any case

finding reversible error).

¶ 18 We agree with our sister divisions that “the absence of an

express instruction to consider the lack of evidence is not

tantamount to a prohibition on doing so.” Schlehuber, ¶ 21

(quoting Melara, ¶ 32). Therefore, even if the court erred by failing

to provide an instruction with the “lack of evidence” language, any

error did not impermissibly lower the prosecution’s burden of proof.

See Tibbels, ¶ 36.

9
D. Hesitate to Act

¶ 19 Next, we reject Martinez’s contention that the 2022 model

instruction impermissibly lowered the burden of proof by omitting

the 2021 model instruction’s definition of reasonable doubt as one

that “would cause reasonable people to hesitate to act in matters of

importance to themselves.” COLJI-Crim. E:03 (2021).

¶ 20 Federal and Colorado courts have approved of instructions

using the “hesitate to act” language. E.g., Victor, 511 U.S. at 20-21;

see also United States v. Reese, 33 F.3d 166, 171-72 (2d Cir. 1994)

(suggesting that the “hesitate to act” language is preferable to

instructing juries to acquit based on “a real possibility that [a

defendant] is not guilty”); People v. Alvarado-Juarez, 252 P.3d 1135,

1137 (Colo. App. 2010).

¶ 21 But this language has also been criticized as unhelpful and

confusing. See Victor, 511 U.S. at 24-25 (Ginsburg, J., concurring);

COLJI-Crim. E:03 cmt. 1 (2022) (citing criticism of the “hesitate to

act” language as one rationale for omitting it from the 2022 model

instructions); United States v. Noone, 913 F.2d 20, 29 (1st Cir.

1990) (describing similar language as an “unnecessary

embellishment that risks juror misunderstanding”). And

10
Schlehuber, ¶ 28, rejected an identical challenge to the one here,

concluding that it was not error to omit the “hesitate to act”

language “so long as the instruction otherwise correctly defines the

reasonable doubt standard.”

¶ 22 “[O]ther than pointing out that courts have previously

approved this language,” Martinez cites no authority holding that “it

is error not to include it.” Id. We are aware of no controlling

authority requiring this language, and the fact that an instruction

correctly states the law “does not mean the instruction must be

given or that it is the only correct way to articulate the applicable

law.” Id. We therefore conclude that omitting the “hesitate to act”

language from the reasonable doubt instruction did not lower the

prosecution’s burden of proof. See Tibbels, ¶ 36.

E. Real Possibility

¶ 23 Martinez’s final contention regarding this instruction is that

instructing the jury to acquit if “there is a real possibility that the

defendant is not guilty” diluted the presumption of innocence,

shifted the burden of proof, and risked confusing the jury.

(Emphasis added.) We disagree. The “real possibility” language

“correctly directs the jury not to acquit . . . simply because it can

11
conceive of some fanciful possibility that the defendant is not

guilty.” Schlehuber, ¶ 31. And this language does not shift the

burden of proof to the defendant because “[n]othing in th[e] phrase

suggests that the defendant must” prove that real possibility. Id. at

¶ 34.

¶ 24 Martinez cites two federal cases disapproving of this

wording — United States v. Porter, 821 F.2d 968, 973 (4th Cir.

1987) (noting that the trial court inadequately distinguished a

“possibility” from a “real possibility” and that the defendant had no

burden to prove “a ‘real possibility’ of innocence”), and United States

v. McBride, 786 F.2d 45, 51-52 (2d Cir. 1986) (explaining that the

“real possibility” language may cause confusion or “be

misinterpreted . . . as unwarrantedly shifting the burden of proof”).

But both circuits concluded that this language did not constitute

reversible error. Porter, 821 F.2d at 973; McBride, 786 F.2d at 52.

And many circuits have found no error in instructions with this

language. E.g., United States v. Williams, 20 F.3d 125, 131 (5th Cir.

1994); United States v. Artero, 121 F.3d 1256, 1258 (9th Cir. 1997);

United States v. Conway, 73 F.3d 975, 980 (10th Cir. 1995); see

12
also Victor, 511 U.S. at 27 (Ginsburg, J., concurring) (approving of a

model instruction with the “real possibility” language).

¶ 25 Against this backdrop, we reject Martinez’s argument that the

“real possibility” language was improper. We also reject his

argument that a real possibility is subjective and that failing to

define it could cause confusion or lead to inconsistent results. A

real possibility is no more subjective than the kind of doubt that

“would cause reasonable people to hesitate to act in matters of

importance to themselves.” COLJI-Crim. E:03 (2021); see Castillo v.

State, 913 S.W.2d 529, 534 (Tex. Crim. App. 1995) (“To the extent

that reasonable persons may entertain different thresholds of

hesitation in acting in the most important of their own affairs, . . .

the law . . . recognize[s] a range of ‘reasonable doubt.’”). Therefore,

the trial court did not err by giving the 2022 model instruction.

III. The Prosecutor’s Statements

¶ 26 Martinez next argues that the prosecutor made numerous

improper comments that he contends warrant reversal on various

grounds. We conclude that it was plain error for the prosecutor to

suggest that Martinez did not (but should have) raised a

13
self-defense argument before trial. Therefore, we need not consider

his remaining arguments about prosecutorial misconduct.

A. Standard of Review

¶ 27 To determine whether a prosecutor engaged in misconduct, we

conduct a two-step inquiry. “First, we determine whether the

prosecutor’s conduct was improper based on the totality of the

circumstances.” People v. Licona-Ortega, 2022 COA 27, ¶ 85 (citing

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

“decide whether the misconduct warrants reversal under the

applicable standard.” Id. “Factors to consider when determining

the propriety of statements include the language used, the context

in which the statements were made, and the strength of the

evidence supporting the conviction.” People v. Vialpando, 2022 CO

28, ¶ 21 (citation omitted).

¶ 28 We review unpreserved claims of prosecutorial misconduct for

plain error. Licona-Ortega, ¶ 88. “To constitute plain error, any

prosecutorial misconduct must be obvious and ‘must be flagrant or

glaring or tremendously improper, and it must so undermine the

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

reliability of the judgment of conviction.’” Id. (citation omitted).

14
“Prosecutorial misconduct in closing argument rarely constitutes

plain error.” People v. Smalley, 2015 COA 140, ¶ 37.

B. Martinez’s Failure to Raise Self-Defense Before Trial

1. Additional Background

¶ 29 Oliver, who spoke with Martinez after the incident, testified at

trial. The prosecution played footage from Oliver’s body camera

containing his conversation with Martinez.6 The prosecutor asked

Oliver several questions about Martinez’s statements, including

whether Martinez said (1) “he stabbed his dad because his parents

were brutally beating him”; (2) “his parents were tossing him

around like a rag doll”; (3) “he . . . saw his dad’s knee near his face”;

(4) “his mother hit him four times”; (5) his mother had hit him

before and once wrapped an electrical cord around his neck; and

(6) one of his parents pulled his hair out. Oliver responded either in

the negative or said he did not recall Martinez making the

statements. Defense counsel did not object. Later, when Martinez

testified, the prosecutor asked him the following questions:

6 Exhibit 4, the body camera footage of Martinez and Oliver’s

conversation, was admitted at trial. Necause it is unclear exactly
which portions of the exhibit were played for the jury, we consider
the exhibit in its entirety.

15
Q: . . . Mr. Martinez, you never told the police
that you acted in self-defense?

A: No. I didn’t even know that was the law
before this.

Q: You didn’t know that self-defense was the
law?

A: No.

Q: Okay. You never told police, at all, that you
feared for your life before the stabbing
occurred?

A: I didn’t. . . .

Q: You never told Officer Oliver that you
believed you were going to die?

Later, the following exchange occurred:

Q: And after you got out of jail — or at any
point up until this Monday, you never told . . .
any officers that you were acting in self-
defense, right?

A: No. I didn’t know that was a thing.

Q: Okay. So even after you were released —
after we heard this call where you talked about
self-defense — you didn’t go to the police and
say “I was acting in self-defense”?

....

Q: So today is the first time you are ever telling
law enforcement — such as the DA’s office —
that you were acting in self-defense, right?

In closing arguments, the prosecutor said,

16
And then we hear this self-defense idea. Self-
defense is — he never told police . . . . And
then not telling the police, not saying anything
on the jail calls, for the very first time . . .
[Martinez] started to say that his mom was one
of the main aggressors too.

Defense counsel objected to “burden shifting.”

¶ 30 In rebuttal, the prosecutor argued, “When [Martinez] got up

here, this self[-]defense claim . . . was the first time that he had ever

reported it to police . . . [or] to the DA’s office. He had th[e]

opportunity to, though. There’s nothing that stopped him from

calling the police or calling the DA’s office . . . .” The defense

objected on the same ground of burden shifting.

2. The Prosecutor Engaged in Misconduct

¶ 31 Martinez argues that the prosecutor’s statements that he did

not assert self-defense before trial mischaracterized the evidence,

improperly shifted the burden to Martinez to prove his self-defense

claim, and impermissibly commented on his silence. We agree that

several of these comments violated Martinez’s constitutional rights.

See Doyle v. Ohio, 426 U.S. 610, 611 (1976) (The prosecution

violates due process when it “seek[s] to impeach a defendant’s

exculpatory story, told for the first time at trial, by cross-examining

17
the defendant about his failure to have told the story after

receiving” warnings pursuant to Miranda v. Arizona, 384 U.S. 436

(1966).); People v. Wright, 511 P.2d 460, 461-62 (Colo. 1973) (the

prosecutor violated the defendant’s “constitutional right against

self-incrimination” by commenting on his failure to tell police that

he acted in self-defense).

¶ 32 Defendants have a constitutional right to remain silent, and “it

is improper for the prosecution to allude to [the] exercise of that

right as indicating a consciousness of guilt.” Wright, 511 P.2d at

462. However, “a different rule applies if a defendant makes a post-

Miranda statement and then testifies at trial to a different version of

events.” People v. Castro, 2022 COA 101, ¶ 32 (citation omitted). If

this occurs, “the prosecution may cross-examine the defendant on

inconsistencies between the two statements. And, the prosecution

also may cross-examine the defendant on omissions in the first

statement insofar as such omissions are inconsistent with the

defendant’s testimony at trial.” Id. (citation omitted); see People v.

Hardiway, 874 P.2d 425, 427 (Colo. App. 1993) (a prosecutor may

impeach a defendant who omits “significant details from an initial

statement” but testifies to those details at trial (citing People v.

18
Quintana, 665 P.2d 605, 610 n.7 (Colo. 1983)). The types of

“significant details” on which a defendant may be impeached

include omissions that “fail[] to mention a material circumstance

presently testified to, which it would have been natural to mention

in the prior statement.” Hardiway, 874 P.2d at 427 (citation

omitted). But if a defendant’s trial testimony “merely augment[s]

that which was originally described, the prior silence is often simply

too ambiguous to have any probative force” and is not a proper

subject for impeachment on grounds of inconsistency. Castro, ¶ 33

(citation omitted).

¶ 33 In Hardiway, the defendant “spoke with the officer briefly, but

then invoked her right to remain silent.” 874 P.2d at 427. She

later “testified to a more detailed version of events and, during

cross-examination, the prosecutor asked why she” did not tell police

“th[e] more elaborate version.” Id. Because her “more elaborate

trial testimony merely augmented her initial statement,” the

division held that the omissions were not proper inconsistent

statements and concluded that the error was not harmless. Id. at

428. It reasoned that the prosecutor “did more than merely allude

to or unintentionally evoke testimony relating to the fact of [the]

19
defendant’s custodial silence” but instead used Hardiway’s “silence

as a means of implying guilt in both cross-examination and rebuttal

argument.” Id.

¶ 34 In Wright, our supreme court found reversible error where —

during the direct examination of several witnesses and the

defendant’s cross-examination — “the [prosecutor] continuously,

over objection, alluded to the fact that Wright had not presented his

theory of self-defense during the investigation.” 511 P.2d at 461,

463. For example, in closing, the prosecutor argued, “[I]f he meant

this self-defense, what was the big secret about telling [the

authorities] that night . . . . No, he called his attorney. Not only

wouldn’t he talk, but” other witnesses also refused to talk. Id. at

462. The supreme court held that “[t]he only inference to be drawn

from” the prosecutor’s statements “was that the defendant was

guilty and that an honest answer would have incriminated him,”

and the resulting prejudice was “of constitutional proportion.” Id.;

see also People v. Ortega, 597 P.2d 1034, 1035-36 (Colo. 1979)

(holding that it was plain error for the prosecutor to argue that the

defendant should have elaborated on his statements to police and

offered exculpatory information).

20
¶ 35 More recently, a division of this court held that impeaching a

defendant’s inconsistent statements does not allow prosecutors to

“present evidence suggesting that a defendant should have

affirmatively offered an exculpatory statement to law enforcement.”

People v. Cuellar, 2023 COA 20, ¶ 48. In Cuellar, a sexual assault

case, the prosecutor elicited testimony that Cuellar invoked his

right to counsel when speaking to police, he never told police he

and the victim engaged in consensual sex, and he never contacted

police “to offer such a statement.” Id. at ¶¶ 31, 34. The division

first concluded that the prosecutor could elicit testimony that

Cuellar never told police the sex was consensual because his

statements were inconsistent; he initially denied having sex with

the victim but later asserted a consent defense at trial. Id. at ¶¶ 8,

11, 46, 47. However, the division held that the court erroneously

allowed testimony that Cuellar invoked his rights and never

contacted police to explain the sex was consensual. Id. at ¶ 49.

¶ 36 Concluding that the errors were not reversible, the division

reasoned that the statements were not made to imply guilt, and

they “were brief, were not the focus of the prosecutor’s comments or

. . . the [witnesses’] testimony, and were not repeated in closing

21
argument.” Id. at ¶ 51. Additionally, there was overwhelming

evidence contesting Cuellar’s consent defense. Id. at ¶¶ 52-53.

¶ 37 In Castro, ¶¶ 7-8, the defendant also asserted a consent

defense to a sexual assault charge. He initially refused to speak to

police but later told officers that the encounter was consensual. Id.

at ¶ 12. At trial, his testimony was more detailed than his

statements to police, and the prosecutor asked, “Did you tell that

deputy . . . everything you just told us here this morning?” Id. at

¶¶ 13-14 (alteration in original). The prosecutor then asked if

Castro “ever [thought] to talk to law enforcement and . . . [share]

[his] side of the story . . . ?” Id. at ¶ 16. And in closing, the

prosecutor said, “He was given the opportunity, not once but twice,

to talk to law enforcement.” Id. at ¶ 18.

¶ 38 Unlike in Cuellar, the Castro division concluded that the

prosecutor’s comment and cross-examination were improper

because Castro’s statements were consistent; he told police and

testified that the encounter was consensual, and the details he

added at trial did not give the prosecution license to probe “why

those details were missing from the original statement.” Id. at

¶¶ 34-35; cf. People v. Davis, 312 P.3d 193, 200-01 (Colo. App.

22
2010) (no error where the defendant said he told police everything,

and the prosecutor referenced his more comprehensive trial

testimony), aff’d, 2013 CO 57. And the Castro division concluded

that the error was not harmless in part because the evidence of

guilt “was not overwhelming,” and “the case turned on Castro’s

credibility.” Castro, ¶¶ 43, 44.

¶ 39 Here the prosecutor engaged in misconduct by repeatedly

referencing Martinez’s failure to raise self-defense before trial.

Martinez made several pretrial statements that were inconsistent

with his testimony, which the prosecutor could have (and did) ask

about. But it was not inconsistent for Martinez to assert

self-defense at trial without using those exact words when speaking

to Oliver. Martinez’s initial statements and his testimony reflected

that he stabbed his stepfather because his parents were yelling at

and hitting him, and he was afraid of losing his good eye; he

effectively explained that he believed he acted in self-defense

(without using those words).

¶ 40 For example, Martinez told Oliver, “I didn’t mean to stab him,

but [my parents] were just yelling at me and then they started

hitting me . . . .” He later said that when his parents were hitting

23
him, he stabbed his stepfather because he was concerned about

being stabbed in his good eye. When asked what was happening

when he stabbed his stepfather, Martinez said, “He was going to hit

me.” He also said he stabbed his stepfather “to get away.” When

asked why he pulled out a knife, he said, “[T]hey were just yelling at

me, and my mom smacked me, but that’s like pretty normal . . .

and then my dad got some hits in, too.”

¶ 41 True, Martinez recounted less violence to Oliver than in his

trial testimony and told Oliver his parents “were treating him like

they should” and that hitting one’s children was “pretty normal.”

He also responded, “I don’t know. It was an impulse,” when asked

why he stabbed his stepfather. These statements may have

constituted proper grounds for impeachment, but the prosecutor’s

emphasis on Martinez not telling police or the prosecution before

trial that he acted in self-defense improperly and repeatedly

“suggest[ed] that [Martinez] should have affirmatively offered an

exculpatory statement to law enforcement.” Cuellar, ¶ 48. The

prosecutor’s rebuttal argument also mirrored the improper

argument in Castro, ¶ 18, where the prosecutor asserted that

Castro could have spoken to law enforcement before trial.

24
¶ 42 And though Martinez’s trial testimony added details about his

parents’ past violence, the extent of their violence during the

incident, and his mother’s involvement, his testimony — as it

related to self-defense — was not inconsistent with his statements

to Oliver overall. That he did not explicitly use the words “self-

defense” when speaking to Oliver and did not subsequently

volunteer such an explanation to law enforcement or the

prosecution before trial was not an omission of a “material

circumstance . . . [that] would have been natural to mention” to

police. Hardiway, 874 P.2d at 427 (citation omitted).

¶ 43 We acknowledge that this case differs from Hardiway and

Castro, where the defendants “spoke only briefly . . . after having

been arrested and advised of [their] rights.” Castro, ¶ 31 (citing

Hardiway, 874 P.2d at 427); cf. People v. Lewis, 2017 COA 147,

¶ 36 (distinguishing Ortega, 597 P.2d at 1035, on the basis that

“Lewis did not make a brief statement, answer only some questions,

or volunteer only limited statements”). Because Martinez spoke to

Oliver at length, the prosecutor could properly “contrast[] what

[Martinez] said with what he had not said.” Lewis, ¶¶ 33, 37

(finding no error where “the prosecutor talked about how Lewis had

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volunteered lots of information during the interview but never

blamed himself or categorically denied” certain facts).

¶ 44 Thus, the prosecutor could, for example, ask Martinez if he

told Oliver he believed he was going to die and about the fact that

Martinez had primarily implicated his stepfather when he had

spoken to police, whereas his trial testimony included more details

about his mother’s involvement. What the prosecutor could not do,

however, is repeatedly assert that Martinez’s failure to use the

words “self-defense” implied guilt. See Cuellar, ¶ 48; Ortega, 597

P.2d at 1035-36; Wright, 511 P.2d at 462. Indeed, the State admits

that “the prosecution encouraged the jury not to believe Martinez’s

self-defense theory because” trial was “the first time . . . he ever

reported” self-defense to authorities.

¶ 45 We also reject the State’s argument that these comments did

not infringe on Martinez’s rights because he voluntarily spoke to

Oliver. See Anderson v. Charles, 447 U.S. 404, 408 (1980) (“[A]

defendant who voluntarily speaks after receiving Miranda warnings

. . . has not remained silent . . . .”). “‘[T]he mere fact that [Martinez]

. . . answered some questions or volunteered some statements . . .

[did] not deprive him of his right to refrain from . . .’ volunteering

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further . . . exculpatory information.” Ortega, 597 P.3d at 1034

(quoting Miranda, 384 U.S. at 445). And as we explained, a

defendant’s choice to speak to police does not end the inquiry.

¶ 46 Finally, the prosecutor’s questions to Oliver, which Martinez

challenges for the first time on appeal, did not implicate Martinez’s

failure to raise self-defense before trial. And although Oliver

testified before Martinez, so his testimony could not properly be

construed as highlighting Martinez’s omissions or prior inconsistent

statements, we conclude that any error was not plain. Martinez

testified that his mother had hit him before, he saw his stepfather’s

knee near his face, his mother hit him “five times or less,” and his

mother pulled his hair. But he did not relay these details to Oliver.

Compared to his statements to Oliver, Martinez’s trial testimony

also suggested a more violent encounter. Thus, the prosecutor

could have properly called Oliver in rebuttal to testify about these

omissions. Moreover, the jury heard portions of Oliver and

Martinez’s conversation. So even without Oliver’s testimony, the

jury heard that Martinez’s statements to Oliver were substantially

less detailed than his trial testimony.

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¶ 47 In sum, we conclude that the prosecutor’s conduct was

improper only with respect to his statements and questions to

Martinez that specifically referenced Martinez’s failure to raise

self-defense before trial.

3. The Misconduct Warrants Reversal

¶ 48 Although Martinez objected to some of the challenged

statements at trial, he did so only on the ground that they

improperly shifted the burden of proof. He raises the same

argument on appeal, but we determine that the error implicated his

right to silence, not the burden of proof. Martinez did not raise his

right to silence at trial, and none of the cases discussed above held

that similar comments shifted the burden of proof. See also Phillips

v. People, 2019 CO 72, ¶ 12 (“[T]o preserve a claim for review on

appeal, the party claiming error must have supplied the right

ground for the request.” (citation omitted)); People v. Tallent, 2021

CO 68, ¶ 12 (reviewing for plain error “[w]hen a party presents a

new argument or alters the grounds for an objection on appeal”).

Therefore, we review for plain error. Licona-Ortega, ¶ 88.

¶ 49 A prosecutor’s reference to a defendant’s exercise of his right

to remain silent does not necessarily require reversal. People v.

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Burnell, 2019 COA 142, ¶ 45. “Reversal is only required where the

prosecutor’s comment . . . creates an inference of guilt or where the

prosecutor argues that the defendant’s silence constituted an

implied admission of guilt.” Id. To evaluate the effect of an

improper comment on a defendant’s silence, we may consider

several factors: “(1) the prosecutor’s use of the post-arrest silence;

(2) which party elected to pursue the line of questioning; (3) the

quantum of other evidence of guilt; (4) the intensity and frequency

of the reference; and (5) the trial court’s opportunity to grant a . . .

mistrial or to give curative instructions.” Castro, ¶ 40.

¶ 50 We conclude that the statements here warrant reversal. First,

“the only inference to be drawn from” the comments about

Martinez’s failure to raise self-defense earlier “was that [he] was

guilty.” Wright, 511 P.2d at 462; see Burnell, ¶ 45. The prosecutor

used Martinez’s post-arrest silence to “indirectly imply his guilt” by

suggesting “that an innocent person would have talked with the

police sooner and in more detail.” Castro, ¶ 41. The comments also

implied that Martinez was lying about acting in self-defense. Id.

¶ 51 Second, “the prosecut[or] . . . injected the issue into the case

on cross-examination . . . and in closing argument.” Id. at ¶ 42.

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¶ 52 Third, the evidence negating self-defense was not

overwhelming. Id. at ¶ 43. Martinez, his mother, and his sister all

testified that Martinez’s parents were hitting him and yelling at him

when he stabbed his stepfather. Martinez’s statements to Oliver

corroborated this testimony, and he also told Oliver and testified at

trial that he reacted out of fear for the safety of his good eye.

Therefore, as in Castro, ¶ 44, “the case turned on [Martinez’s]

credibility” — particularly because his self-defense claim hinged on

whether he reasonably believed (1) his stepfather was using or

about to use “unlawful physical force” and (2) the degree of force he

used was necessary, § 18-1-704(1), C.R.S. 2025.

¶ 53 Fourth, the improper comments were pervasive and repeated

throughout trial. Castro, ¶ 40. Four times during cross-

examination, the prosecutor asked Martinez whether he told police

or the DA before trial that he had acted in self-defense. In closing

and rebuttal, the prosecutor also referenced Martinez’s failure to

raise self-defense. Unlike Cuellar, ¶ 51, where the division found

the errors harmless or not plain, the statements here were made to

imply Martinez’s guilt, they were not brief, they were a focus of

Martinez’s cross-examination, and they “were . . . repeated in

30
closing argument” multiple times. Lastly, because Martinez did not

object, we do not consider the court’s failure to give a curative

instruction. Castro, ¶ 40.

¶ 54 We conclude that this case presents one of the rare instances

in which reversal is required under plain error review. See Ortega,

597 P.2d at 1035-36 (concluding that similar comments constituted

plain error). First, the errors were obvious, Licona-Ortega, ¶ 88,

because our supreme court has explicitly found error where a

prosecutor “allude[d] to the fact that [a defendant] did not present

his theory of self-defense during [an] investigation,” Wright, 511

P.2d at 461, 463. They were also flagrant and glaring given the

number of times the comments were repeated throughout trial. Id.

¶ 55 And the errors, which violated Martinez’s constitutional rights,

undermined the fairness of his trial and “cast serious doubt on the

reliability of . . . [his] conviction.” Licona-Ortega, ¶ 88. A

prosecutor’s position as a representative of the State means that his

or her “argument[s] [are] likely to have significant persuasive force

with the jury.” Domingo-Gomez v. People, 125 P.3d 1043, 1049

(Colo. 2005) (citation omitted). Additionally, “jurors may attach

undue significance to the failure to provide an exculpatory version

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of events, creating a substantial risk of prejudice.” People v. Glover,

559 N.Y.S.2d 518, 520 (App. Div. 1990) (explaining that the “use of

a defendant’s pre-trial silence” is not harmless error). Here, there

was a significant likelihood that the jury assigned undue weight to

the prosecutor’s repeated comments implying Martinez’s guilt from

his failure to use the words “self-defense” before trial.

¶ 56 Moreover, Martinez was young, experiencing mental health

challenges, and appeared to be relatively unsophisticated. See

People v. Kutlak, 2016 CO 1, ¶ 24 (“[S]uspects ‘may not be legally

sophisticated or paragons of clarity in their use of language.’”

(citation omitted)); Gallegos v. Colorado, 370 U.S. 49, 54 (1962)

(Young defendants often do not “know how to prote[c]t [their] own

interests or how to get the benefits of [their] constitutional rights.”).

The prosecutor’s repeated emphasis on Martinez’s failure to use

specific language was therefore more prejudicial than it would have

been if Martinez were older and more sophisticated.

IV. Disposition

¶ 57 The judgment of conviction is reversed, and the case is

remanded for a new trial.

JUDGE BROWN and JUDGE MEIRINK concur.

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