People v. Perez

SUMMARY
August 22, 2024
2024COA94
No. 22CA1805,
People v. Perez
—
Constitutional Law
—
Sixth
Amendment
—
Confrontation Clause
—
Recorded Jailhouse
Phone Calls
—
Testimonial Statements
A division of the court of appeals considers, for the f
irst time,
whether the admission of recorded jailhouse calls between
the
defendant and his mother, who did not testify at trial,
violated the
Confrontation Clause.  The division holds that such statements are
not testimonial and, therefore, that no constitutional violation
occurred.  The division further holds that no instructional
error
occurred, that the court did not abuse its discretion
by
denying
the
defendant’s motion for a mistrial
, and that no cumulative error
occurred.  Accordingly, the judgment is affirmed.
The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader.  The summaries may not be
cited or relied upon as they are not the
official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS
2024COA94
Court of Appeals No. 22CA1805
Otero County District Court No. 21CR71
Honorable Mark A. MacD
onnell, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Matthew Perez,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE
FREYRE
Lipinsky
and Schutz, JJ., concur
Announced August 22, 2024
Philip J. Weiser, Attorney General,
Jessica E. Ross, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Lauretta A. Martin Neff, Alternate Defense Counsel,
Montrose, Colorado, for
Defendant-Appellant
1
¶ 1
Defendant, Matthew Perez, appeals the judgment of conviction
entered on a jury verdict finding him guilty of first degre
e murder.
We affirm.
I.
Background
¶ 2
On May 14, 2021, Perez and his girlfriend drove from
New
Mexico to their home in Kansas.
The pair decided to stop in La
Junta, Colorado.
While in La Junta, they stopped at an apartment
complex looking for the victim, E.A.
Witnesses testified that Perez
was banging on doors and asking where E.A.’s apartment
was.
One
witness testified that Perez asked them to tell E.A. that “Cuz is
looking for him.”
Perez then said,
“
[B]
ang, bang motherfucker.”
Another witness testified that Perez said,
“Tell [E.A.], his cousin
Lucky is looking for him.”
Perez eventually parked his car at the
apartment complex, where he waited for E.A.
A witness testified
that, when E.A. drove up, Perez got out of his own car and shot E.A
“instantaneously”
while E.A. was seated in his car.
However,
according to Perez’s girlfriend, E.A. pulled a gun on Pe
rez
before
Perez shot him.
¶ 3
Following the shooting, Perez and his girlfriend fled to Kansas.
The police found E.A.
’s body
slumped over
in the front driver’s s
eat
2
toward the front of the car.
They found
a handgun under E.A.’s
right arm, between his body and the emergency brake.
¶ 4
After his arrest, Perez claimed that he was never in La Junta
and had not seen E.A. in a long time.
However, once police
matched shell casings from the scene to his mother’s boyfrien
d’s
missing gun, Perez changed his defense.
Perez then asserted that
he shot E.A. in self-defense because E.A. had pulled a gun on him
first.
¶ 5
The jury found Perez guilty of first degree murder.
The trial
court sentenced him to life without parole in the custody of
the
Department of Corrections.
¶ 6
Perez challenges his conviction on four grounds and contends
that cumulative error requires reversal.  His first cont
ention
—
that
the trial court’s admission of jail phone calls between
him and his
mother, F.P., violated his constitutional right of confrontati
on
because the statements were testimonial and he had no opportunit
y
to cross-examine F.P.
—
raises a novel issue.  Consistent wit
h other
jurisdictions that have applied the well
-
settled definition of
“testimonial” articulated by the United States Sup
reme Court,
we
conclude
F.P.’s
statements were not testimonial and, thus, that
no
3
Confrontation Clause
violation occurred.  We also reject Pe
rez’s
contentions that the trial court erroneously instructed the jury
on
the provocation exception to self-defense, that it erred
by
refu
sing to
define provocation, that it erred
by
denying his mistrial m
otion, and
that he was denied a fair trial by virtue of the cumulative effect of
these errors.
II.
Confrontation Clause
¶ 7
Perez contends that the court violated his Sixth Amendment
confrontation rights
by
allowing the prosecution to play jailh
ouse
phone calls between him and F.P.  He argues that the phone calls
included testimonial statements by F.P., who did not testify at
trial
and was not subject to cross-examination.  We disagree.
A.
Additional Facts
¶ 8
While Perez was in jail awaiting trial, he and F.P. discussed his
defense strategy in two phone calls.
F.P. said she wanted Perez to
maintain his alibi defense.
But Perez said that was no longer
possible because the shell casings from F.P.’s boyfriend’s missing
gun match
ed
the shell casings at the crime scene.
Perez then told
F.P. that “they have a self
-defense law here in Colorado, so.  You
know what I mean?
”
4
¶ 9
F.P. was charged as an accessory after the fact, invoked her
Fifth Amendment privilege against self-incrimination, and refu
sed
to testify at Perez’s trial.
Due to her unavailability and his inability
to cross-examine F.P. before or at trial, Perez objected to t
he
admissibility of the phone calls based on relevance, unfair preju
dice
that outweighed the probative value, hearsay, and violation
of his
rights of confrontation, to not testify, and to confide
ntial counsel.
Perez raised only his challenge to the Confrontation Clause
on
appeal.  Therefore, we deem the remaining challenges abandoned.
See People v. Rodriguez
,
914 P.2d 230, 249
(Colo. 1996) (f
ailure to
reassert on appeal certain claims constitutes a conscious
relinquishment of those claims).
¶ 10
The trial court found that F.P.’s statements were not
testimonial
1
.
It reasoned that, other than recording the phone calls
,
the calls involved no other governmental activity.
The court also
said
that an objective witness in F.P.’s position would not have
1
The court made no hearsay findings, and neither party alleges on
appeal that F.P.’s statements were not hearsay.  Therefore, we
assume, without deciding, that they were for the purpose of
our
analysis.
5
believed they were making testimonial statements for later use in
a
criminal prosecution.
B.
Standard of Review and Controlling Law
¶ 11
We review de novo whether the trial court’s admission
of
evidence violated a defendant’s rights under the Conf
rontation
Clause and apply the constitutional harmless error standard t
o any
error.
People v. McFee
,
2016 COA 97, ¶ 28
;
People v. Johnson
, 2019
COA 159, ¶ 49
,
aff’d
,
2021 CO 35
.  If the court erred, reversal is
required unless the reviewing court is “confident beyond a
reasonable doubt that the error did not contribute to t
he guilty
verdict.”
Nicholls v. People
,
2017 CO 71, ¶ 17
(quoting
Berna
l v.
People
,
44 P.3d 184, 198, 200
(Colo. 2002)).
¶ 12
The Confrontation Clause guarantees that,
“[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confr
onted
with the witnesses against him.”  U.S. Const. amend. VI.
Because
the provision applies to “witnesses” against the accused, the
Confrontation Clause is implicated only when “testimonial” hearsay
statements are at issue.
Crawford v. Washington
,
541 U.S.
36, 51
(2004).
6
¶ 13
Statements are testimonial when “the circumstances
objectively indicate that there is no . . . ongoing emergency, and
that the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal prosec
ution.”
Davis v. Washington
,
547 U.S. 813, 822
(2006).  The “core cl
ass of
testimonial statements” includes “statements that were made un
der
circumstances which would lead an objective witness reasonably t
o
believe that the statement would be available for use at a later
trial.”
Melendez-Diaz v. Massachusetts
,
557 U.S. 305, 310
(20
09)
(quoting
Crawford
, 541 U.S.
at
51
-52).
C.
Analysis
¶ 14
We conclude that F.P.’s statements were not testimonial
because an objective person in her position would not have
reasonably believed the statements
would be used in Perez’s
prosecution, despite knowing the statements were recorded
.
Perez
points to no evidence to show that the purpose of the calls was to
obtain evidence for prosecuting criminal cases.  Nor does the rec
ord
show that the government played any role in inducing a
conversation between Perez and F.P. for the purpos
e of prosecution.
In
stead
, th
e content of F.P.’s inculpatory statements,
in which she
7
implicat
ed
herself as an accessory, reflects a reasonable belief
that
her statements would
not
be used against her but would assist
Perez in defending himself, thus, supporting our conclusion.
See
Crawford
,
541 U.S. at 51
(noting that a formal statement t
o a
government officer “bears testimony” in a sense that a person
making casual remarks does not);
United States v. Jones
, 716 F.3d
851, 856 (4th Cir. 2013) (statements by two people implicating
themselves in a fraudulent scheme showed statements were not fo
r
purpose of bearing testimony against the defendant).
Thus, the
primary purpose of the phone calls was not to assist t
he
prosecution or create a record for criminal prosecution
but instead
to establish and further Perez’s theory of defense.
¶ 15
Our conclusion is supported by decisions from courts in other
jurisdictions that have determined that jailhouse phone calls are
not testimonial.  For example, in
United States v. Alcorta
, Alcorta
challenged the admission of several recorded jailhouse phone call
s
among
co
-conspirators.
853 F.3d 1123, 1137
(10
th
Cir. 2017).  The
court noted that
a
statement is testimonial if it is made with
the
primary purpose of creating evidence for the prosecut
ion.
Id.
Because none of the criminal codefendants were cooperating wit
h
8
the government, the court concluded that their statements could
not be testimonial.
Id.
;
see also
Jackson-Johnson v. State
, 188 So.
3d 133, 141 (Fla. Dist. Ct. App. 2016) (jailhouse phone calls,
including other persons
’
statements incriminating the inmate,
do
not automatically violate the Confrontation Clause).
¶ 16
Additionally, in
United States v. LeBeau
,
LeBeau argued that
statements made by a co-conspirator during jailhouse phone calls
were testimonial because a message played at the beginning
of
every call informed the co-conspirator that his calls were being
recorded, and the co-conspirator admitted that he knew his calls
were being recorded.
867 F.3d 960, 980-81
(8
th
Cir. 2017).  The
court held that the statements were not testimonial, however,
because, although the co-conspirator knew that law enf
orcement
might listen to the calls and use them as evidence, the primary
purpose of the calls was to further a conspiracy, not t
o create
evidence for criminal prosecution.
Id
.
;
see also Jones
, 716 F.3d
at
856 (rejecting argument that knowledge of the recording alone
renders statements testimonial);
United States v. Cabrera-Belt
ran
,
660 F.3d 742, 752
(4
th
Cir. 2011) (noting that use of statements at
trial does not mean they were created for trial);
Nicholls v. Stat
e
,
9
630 S.W.3d 443
, 450 (Tex. App. 2021) (jailhouse call in which t
he
participants knew the call was being recorded were not testimonial).
¶ 17
Like the calls in these cases, the primary purpose of
F.P.’s
statements w
as
to discuss Perez’s theory of defense, not
to develop
a record for the prosecution.
See United States v. Ma
nfre
, 368 F.3d
832, 838 n.1 (8
th
Cir. 2004)
(“[Declarant’s] comments were made to
loved ones or acquaintances and are not the kind of
memorialized,
judicial-process-created evidence of which
Crawford
speaks.”);
McClurkin v. State
,
113 A.3d 1111, 1121
(Md. Ct. Spec. App.
2015)
(statements made during jailhouse phone call were not testimonial,
as the primary purpose of the call was to induce the victim
to
change his account of who was involved in the shooting).
¶ 18
Because we conclude
F.P.’s statements
were not testimonial
,
there was no Confrontation Clause violation.
III.
Provocation Jury Instruction
¶ 19
Perez next contends there was insufficient evidence to sup
port
instructing the jury on the provocation exception to self-defense
and that the trial court erroneously failed to define pro
vocation.  We
disagree.
10
A.
Additional Facts
¶ 20
The court instructed the jury on self-defense in Instruction No.
17, which read,
The evidence in this case has raised the
affirmative defense of “deadly physical force in
defense of a person,” as a defense to Murder in
the First Degree and Murder in the Second
Degree.
The defendant is legally authorized to use
deadly force upon another person without first
retreating if:
1. he used deadly physical force in order to
defend himself from what he reasonably
believed to be the use or imminent use of
unlawful physical force by that other person,
and
2. he reasonably believed a lesser degree of
force was inadequate, and
3. he had reasonable ground to believe, and
did believe, that he or another person was in
imminent danger of being killed or of receiving
great bodily injury, and
4.he did not, with the intent to cause bodily
injury or death to another person, provoke the
use of unlawful physical force by that person,
5. he was not the initial aggressor, or, if he
was the initial aggressor, he had withdrawn
from the encounter and effectively
communicated to the other person his intent
to do so, and the other person nevertheless
11
continued or threatened the use of unlawful
physical force.
The prosecution has the burden to prove,
beyond a reasonable doubt, that the
defendant’s conduct was not legally authorized
by this defense.  In order to meet this burden
of proof, the prosecution must disprove,
beyond a reasonable doubt, at least one of the
above numbered conditions.
After considering all the evidence, if you decide
the prosecution has failed to meet this burden
of proof, then the prosecution has failed to
prove the defendant’s conduct was not legally
authorized by this defense, which is an
essential element of Murder in the First Degree
and Murder in the Second Degree.  In that
event, you must return a verdict of not guilty
on those offenses.
After considering all the evidence, if you decide
the prosecution has met this burden of proof,
then the prosecution has proved the
defendant’s conduct was not legally authorized
by this defense.  In that event, your verdict
concerning the charges of Murder in the First
Degree and Murder in the Second Degree must
depend upon your determination whether the
prosecution has met its burden of proof with
respect to the remaining elements of those
offenses.
¶ 21
The court reviewed the jury instructions, including the portion
of the instructions addressing the exceptions to self-defense, wit
h
both parties.
12
¶ 22
While Perez
’s attorney
objected to the combat by agreement
exception to self-defense, counsel did not object to the provoc
ation
exception, and the court did not discuss the exception further.
In closing argument, the prosecut
or
said,
So in order for this to be a self-defense case,
Matthew Perez, must have
—
and this will be
in your instructions
—
reasonably believed
that there was an imminent use of unlawful
physical force . . . .
And here’s another part:
He did not provoke the use of unlawful
physical force, and he was not the initial
aggressor.  Well, we know, of course, and we’ve
shown you beyond a reasonable doubt that
that’s not true.  Matthew Perez was the —
he
was the initial aggressor here.  He did provoke
the use of force.  He was there waiting for
[E.A.] and rushed up to his car.  And he shot
him in the head three times.  Because this was
an ambush.
¶ 23
Perez contends that no evidence established that he provoked
E.A. into pulling a gun on him.
He
argues that the trial evidence
only shows that Perez was waiting in the parking lot for E.A. and
that there was no evidence E.A. knew that Perez was loo
king for
him or why Perez was waiting for him.
¶ 24
The People respond that
there was “some evidence” to supp
ort
the instruction because the jury could have inferred that
the
message that “Lucky” or “Cuz” was looking for E.A. would r
each
13
E.A.  One witness testified that Perez
“[
s]eemed mad.
”
The same
witness called E.A.’s nephew and
told him that someone was
looking for E.A.
Multiple witnesses testified that Perez was l
ooking
for E.A. by banging on doors.  Another witness testified that
Perez
said,
“
[B]ang, bang
motherfucker” shortly before the shooting.
Based on this evidence, the People contend that, in the absence of
the provocation exception, a jury could have concluded that E.A.
showed up armed and pulled a gun on Perez, so Perez shot him in
self-defense.
Thus, the People conclude, the instruction was
appropriate.
B.
Giving the Instruction
1.
Standard of Review and Controlling Law
¶ 25
We review de novo whether sufficient evidence exists t
o
support giving an instruction.
Castillo v. People
,
2018 CO 62, ¶ 32
.
In doing so, we view the evidence in the light most favorable to
giving the instruction.
Id.
at ¶
13.
¶ 26
The parties agree that the issue is unpreserved.  Therefore,
we
will review any error
for
plain error.
See Hagos v. People
,
2012 CO
63, ¶ 14.  Plain error is error that is obvious and substantial.
Id.
We consider whether the error was plain “at the time it
[wa]
s made.”
14
People v. Crabtree
,
2024 CO 40M
, ¶ 72.  An error is obvious if
“it
was so clear cut and so obvious that a trial judge should ha
ve been
able to avoid it without [the]
benefit of objection.”
People v. Conya
c
,
2014 COA 8M, ¶ 54
;
accord Cardman v. People
,
2019 CO 73, ¶ 34
.
An error is “substantial” enough to warrant reversal if
it “so
undermines the fundamental fairness of the trial itself as t
o cast
serious doubt on the reliability of the judgment of conviction.
”
Cardman
,
¶
19.
¶ 27
A defendant has a right to use physical force to defend h
imself
from the use or imminent use of force by another person.
§
18
-1-
704
(1), C.R.S.
2024
.  However, the right is limited.
“One way
for the prosecution to defeat a claim of self-defense is to prove
beyond a reasonable doubt that an exception to self-defense
applies.”
Castillo
,
¶ 40.  Provocation is one such exception.
¶ 28
A provocation instruction is authorized when
(1) the other person uses unlawful physical
force against [the defendant]; (2) the defendant
provoked the use of such physical force by the
other person; and (3) the defendant intended
his provocation to goad the other person into
attacking him [or her] in order to provide
a
pretext to injure or kill that person.
15
People v. Roberts-Bicking
,
2021 COA 12, ¶ 37
(quoting
Ga
lvan v.
People
,
2020 CO 82
, ¶
19
).
¶ 29
Instructing the jury on a principle of law is appropriate when
there is “some evidence” to support the instruction.
People v.
Zukowski
,
260 P.3d 339, 347
(Colo. App. 2010).
“
[S]
ome evidence”
is equivalent to “any credible [even if highly improbable] eviden
ce,”
“a scintilla of evidence,” “a small quantum of evidence,” and “any
evidence.”
Galvan
,
¶
24.
2.
Analysis
¶ 30
To justify this instruction, there had to be some evidence t
hat
(1) E.A. used unlawful physical force against Perez; (2) Perez
provoked the use of such force by E.A.; and (3) Perez
intended his
provocation to goad E.A. into attacking him to provide a
pretext for
him to injure or kill E.A.
See Galvan
,
¶
19.
¶ 31
Viewing the evidence in the light most favorable to giving the
instruction, we conclude that sufficient evidence supports the
instruction.  The record supports the inference that E.
A. came to
the apartment complex armed and pulled a gun on Perez b
ecause
he had heard that Perez was angrily looking for him, banging on
doors, and making threatening comments.  While we acknowledge
16
that the provocation evidence was weak, because “some e
vidence”
includes any credible, even if improbable, we conclude that
the
record supports the court’s decision to instruct the jury
on the
provocation exception.
See id.
at
¶
24.
¶ 32
However, even assuming the court erred, the error was not
plain.  While “superfluous instructions limiting self
-defense may be
prejudicial” because “the jury is likely to try to fit facts int
o an
erroneously given instruction,
” we do not think that is the case
here.
Castillo
,
¶ 61
.  T
he prosecut
or
mentioned the provocation
exception in closing, but did so only briefly.  The provocation
exception was not otherwise mentioned during the trial.  Therefore,
even assuming there was a lack of evidence supporting the
provocation exception, we cannot conclude that the jury would
have
attempted to force the other evidence to fit the exception.
Consequently, any error would not have been “substant
ial.”
See
People v. Ujaama
,
2012 COA 36
, ¶
41
.
¶ 33
Accordingly, we discern no basis for reversal.
17
C.
Provocation Definition
1.
Standard of Review and Controlling Law
¶ 34
We review de novo whether jury instructions adequately
inform
ed
the jury of the governing law.
Garcia v. People
, 2023
CO
30,
¶
9.  We review a trial court’s decision to give, or not
to give, a
particular jury instruction for an abuse of discretion.
People v.
Payne
,
2019 COA 167, ¶ 16
.  A trial court does not abuse its
discretion unless its decision was manifestly arbitrary,
unreasonable, or unfair or was based on an erroneous
understanding of the law.
People v. Esparza-Treto
, 282 P.3d 471,
480 (Colo. App. 2011).
¶ 35
Again, the parties agree that the issue is unpreserved.
Therefore, we review any error under the plain error standard
.
See
Hagos
, ¶ 14.
¶ 36
“We consider ‘
not only whether the jury instructions faithf
ully
track the law but also whether the instructions are confusing
or
may mislead the jury.
’”
Garcia
,
2023 CO 30
, ¶ 9 (quoting
Ga
rcia
v.
People
,
2022 CO 6
,
¶
1
6).  “
[I]f a statutory definition does not
adequately inform the jury of the governing law, additional
instructions are required.”
People v. Mendenhall
,
2015 COA 10
7M,
18
¶ 24.  Definitions should be provided for technical terms.
Garcia
,
2023 CO 30
, ¶ 20.
Alternatively, when “a term, word, or phrase in
a jury instruction is one with which reasonable persons of c
ommon
intelligence would be familiar, and its meaning is not so t
echnical or
mysterious as to create confusion in jurors’ minds as to its
meaning, an instruction defining it
is not required.”
I
d.
(quoting
Day v. Johnson
,
255 P.3d 1064, 1070
(Colo. 2011)).
2.
Analysis
¶ 37
Perez contends that the provocation exception requires the
prosecution to prove that the defendant intended to pr
ovoke the
victim and because provocation is part of the element of
intent, the
court was required to define it.
¶ 38
While the statute does not include a definition of provocation,
we conclude that persons of reasonable intelligence woul
d be
familiar with its meaning, which is neither mysterious nor
technical.
“
P
rovocation” is “the act of provoking.”  Merriam
-Webster
Dictionary, https://perma.cc/35PA-ASKR.
“Provoke” means “to call
forth (a feeling, action, etc.)
”
or “to stir up purposely
.
”
Merriam-Webster Dictionary, https://perma.cc/C3YQ-ZDG2.  The
dictionary definition is consistent with the language used in
19
Colorado cases.
See People v. Roberts-Bicking
,
2021 COA 12, ¶ 37
(provoke means to goad).  Accordingly
, we reject Perez’s assertion
that “provocation” is a technical term the court was requi
red to
further define.  Moreover, nothing in the record indicates that
the
jury was confused about its meaning.
¶ 39
Accordingly, the trial court did not err by failing to further
define provocation.
IV.
Mistrial Request
¶ 40
Perez contends that the trial court erroneously denied his
mistrial motion after a law enforcement agent mentioned linking t
he
moniker “Lucky
,
”
which was also a monike
r
that Perez used
,
to
a
person who had recently been released on parole in Kansas.  We
discern no abuse of
discretion in the trial court’s ruling.
A.
Additional Facts
¶ 41
Joseph Somosky, a field agent with the Colorado Bureau of
Investigation, testified at trial.
During direct examination, the
following exchange took place:
PROSECUTOR: So after you speak with [a
witness], what do you do next, still, that night
or early morning hours?
20
SOMOSKY: We started working on that name.
I had some remote help from another agent,
kind of working the Kansas side through law
enforcement databases to try to drill down on
that nickname or street moniker of Lucky,
which we did find some matching information
in the Kansas Department of Corrections
database for a subject who was recently
released on parole.
¶ 42
Defense counsel objected and moved for a mistrial.
The court
recessed for the day.  The next morning, the court gave the jury
a
limiting instruction, saying,
The Court recessed at the conclusion of the
day yesterday because Agent Somosky broke a
court rule in relation to his testimony.  The
Court is going to give a limiting instruction in
reference to that.  The jury is required to
disregard the last statements of Agent
Somosky.
The statement was not referenced again.
B.
Standard of Review and Controlling Law
¶ 43
“A trial court has broad discretion to grant or deny a mistrial,
and its decision will not be disturbed on appeal absent an ab
use of
discretion and prejudice to the defendant.”
People v. Salas
, 2017
COA 63, ¶ 9.  A trial court abuses its discretion when its ruling
is
manifestly arbitrary, unreasonable, or unfair or when
it
misconstrues that law.
People v. Marko
,
2015 COA 139, ¶ 29
,
aff’d
21
on other grounds
,
2018 CO 97
.  A mistrial “is only warrant
ed where
the prejudice to the accused is too substantial to be remedied
by
other means.
”
People v. Collins
,
730 P.2d 293, 303
(Colo.
1986).
¶ 44
Factors bearing on whether a mistrial is warranted include the
weight of admissible evidence of the defendant’s guilt
and the value
of a cautionary instruction.
People v. Tillery
,
231 P.3d 36, 42
(Col
o.
App. 2009)
,
aff’d sub nom.
People v. Simon
,
266 P.3d 1099
(Colo.
2011).  Inadmissible evidence will inflict less prejudice if it
appears
only in a fleeting reference.
People v. Lahr
, 2013 COA 57, ¶
24.
¶ 45
“In general, evidence of an accused’s prior criminal acts is
inadmissible.”
People v. Abbott
,
690 P.2d 1263, 1269
(Colo.
1984).
C.
Analysis
¶ 46
We agree
that Agent Somosky’s comment was improper.
However, we conclude, for two reasons, that the trial cou
rt did not
abuse its discretion by denying the motion for
a
mistrial.
¶ 47
First, the comment was fleeting; Agent Somosky only
mentioned it once, and the prosecutor did not refer to it later in t
he
trial
.
See Abbott
,
690 P.2d
at
1269
(concluding that the denial of
mistrial was not error, in part because the
witness’s
insinuation
22
that the defendant had a criminal record was a single
nonresponsive remark).
¶ 48
Second, the comment was mitigated by the trial court’s
limiting instruction to disregard the statement.
See People v.
Cousins
,
181 P.3d 365, 373
(Colo. App. 2007).
Absent evidence to
the contrary, we presume that the jury understood and followed the
court’s instruction.
See Garcia
,
2023 CO 30
, ¶ 20.
¶ 49
Accordingly, while Agent Somosky’s
comment was improper,
we conclude that it did not influence the verdict and that
the trial
court’s ruling denying a mistrial was not an abuse of discreti
on.
V.
Cumulative Error
¶ 50
Finally, Perez contends that the trial court’s combined erro
rs
amounted to cumulative error.  Cumulative error occurs when t
he
aggregate effect of individual errors shows the absence of a f
air trial.
Howard-Walker v. People
,
2019 CO 69, ¶ 26
.
¶ 51
First, we note that Perez raises two new arguments as part
of
his cumulative error claim
—
the denial of defense evidence and
prosecutorial misconduct.  Because these issues are undevelop
ed,
we decline to consider them in our analysis.
See People v. Curtis
,
23
2021 COA 103, ¶ 36
(declining to address an undeveloped
argument).
¶ 52
Next, while we have found one error, and assumed an
error for
the purpose of analysis, we conclude no cumulative error occ
urred
because the record established overwhelming evidence of guilt
and
thus, the cumulative effect of any error was slight.
People v.
Vialpando
,
2022 CO 28
, ¶ 46.  Witnesses described Perez
immediately shooting the victim, contrary to his self-defense claim,
and the jailhouse calls and Perez’s girlfriend’s testimony show
ed the
self-defense claim was contrived. When viewed cumulatively and
against the backdrop of the other evidence, we concl
ude Perez was
not deprived of a fair trial.
Id
.;
see also People v. Martinez
, 2020
COA 141, ¶ 89 (identifying two errors and declining to reve
rse for
cumulative error given overwhelming evidence of guilt).
VI.
Disposition
¶ 53
The judgment is affirmed.
JUDGE LIPINSKY and JUDGE SCHUTZ concur.