v. Gutierrez ( 2021 )


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  •      The summaries of the Colorado Court of Appeals published opinions
    constitute no part of the opinion of the division but have been prepared by
    the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
    Any discrepancy between the language in the summary and in the opinion
    should be resolved in favor of the language in the opinion.
    SUMMARY
    August 19, 2021
    2021COA110
    No. 17CA0534, People v. Gutierrez — Crimes — Murder in the
    First Degree; Criminal Law — Trials — Separate Trial of Joint
    Defendants; Criminal Procedure — Relief From Prejudicial
    Joinder
    A division of the court of appeals holds that the joint trial of
    two defendants charged with first degree murder and conspiracy to
    commit murder resulted in reversible prejudice. The evidence
    indicated that the victim was shot with four bullets from the same
    gun. Interpreting this to mean that there was only one shooter —
    and thus, one perpetrator — both defendants moved for severance
    on multiple occasions, arguing, among other things, that their
    defenses were antagonistic because they both accused each other of
    being the sole shooter. The trial court disagreed and tried both
    defendants jointly. The division concludes that this was an abuse
    of discretion because to believe one defense meant that the jury had
    to disbelieve the other.
    The division further concludes that the joint proceedings in
    this case resulted in reversible prejudice because, in addition to the
    presentation of antagonistic defenses, the trial saw the introduction
    of voluminous evidence that would likely not have been admissible
    in a separate trial — and also required numerous limiting
    instructions — and a great deal of damaging evidence introduced
    not by the prosecution but by the codefendant.
    COLORADO COURT OF APPEALS                                         2021COA110
    Court of Appeals No. 17CA0534
    Jefferson County District Court No. 15CR1470
    Honorable Todd L. Vriesman, Judge
    The People of the State of Colorado,
    Plaintiff-Appellee,
    v.
    Andrew George Gutierrez,
    Defendant-Appellant.
    JUDGMENT REVERSED AND CASE
    REMANDED WITH DIRECTIONS
    Division IV
    Opinion by JUSTICE MARTINEZ*
    Brown and Graham*, JJ., concur
    Announced August 19, 2021
    Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney
    General, Denver, Colorado, for Plaintiff-Appellee
    Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State
    Public Defender, Denver, Colorado, for Defendant-Appellant
    *Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
    VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
    ¶1    After a two-week trial, a jury found defendant, Andrew George
    Gutierrez, and his codefendant, John Orlando Sanchez, guilty of
    first degree murder and conspiracy to commit murder. The
    defendants were tried jointly, despite numerous pretrial motions to
    sever. At trial, the prosecution introduced evidence that the victim,
    Eric Schnaare, was fatally shot four times with bullets from one
    gun. Both defendants and the prosecution regarded this evidence,
    considered with the other evidence in the case, as conclusively
    proving that there was one shooter. Gutierrez denied shooting
    Schnaare and accused Sanchez of being the sole shooter, and
    Sanchez similarly denied being the shooter and accused Gutierrez.
    ¶2    In this case, we conclude that Gutierrez’s defense was
    antagonistic to Sanchez’s because the two defenses specifically
    contradicted each other and to believe one defense meant that a
    jury would have to disbelieve the other. We further conclude that
    the joint proceedings in this case resulted in reversible prejudice
    because the trial saw the introduction of voluminous evidence that
    would likely not have been admissible in a separate trial — and also
    required numerous limiting instructions — and a great deal of
    damaging evidence introduced not by the prosecution but by the
    1
    codefendant. The trial court erred by denying Gutierrez’s motions
    for severance, so we reverse his convictions and remand for a new,
    separate trial.
    I.   Background
    ¶3    From the evening of May 13, 2015, through the early morning
    of May 14, a group was partying at an apartment in Lakewood. The
    group included codefendants Gutierrez and Sanchez and their
    families, significant others, and friends. The defendants were
    affiliated with the gang “Gallant Knights Insane” or “the GKIs.”
    There was some evidence that Gutierrez was the leader of the GKIs.
    ¶4    The defendants brought guns with them to the party. Not long
    after 6 a.m. on May 14, the victim — Schnaare — arrived at the
    apartment. Upon entering, Schnaare was fatally shot four times.
    After the shooting, the partygoers fled the scene.
    ¶5    Prior to the party, the Lakewood police had installed a pole
    camera outside the apartment as part of an unrelated investigation.
    Through pole camera footage, the police identified the partygoers,
    including the defendants. After the shooting, Gutierrez went to a
    motel with Sanchez’s former girlfriend, Amelia Irizarry. Sanchez,
    meanwhile, traded one of his guns for another, which he and
    2
    Irizarry later hid when they were arrested. Gutierrez was arrested
    at the motel after a standoff with the Lakewood police.
    ¶6    Based on the above, Gutierrez and Sanchez were charged with
    first degree murder and conspiracy to commit murder. Ultimately,
    the prosecutors argued that the jury could find “either one of these
    defendants guilty, either as a principal or as a complicitor.”
    ¶7    Gutierrez and Sanchez were tried jointly. After a two-week
    trial, the jury found both defendants guilty as charged. Gutierrez
    was sentenced to life without parole. This appeal followed.
    II.   Severance and Joinder
    ¶8    Gutierrez contends, among other things, that the trial court
    abused its discretion by repeatedly denying his motions to sever his
    trial from Sanchez’s.1 Specifically, Gutierrez argues that he
    presented a mutually exclusive, antagonistic defense to Sanchez’s,
    and, as a result, he suffered reversible prejudice from a joint
    proceeding. We agree.
    1 Gutierrez also argues that he should have been granted a separate
    trial as a matter of right. Given our disposition, we need not reach
    this argument.
    3
    A.    Relevant Principles
    ¶9     When severance is not mandatory under section 16-7-101,
    C.R.S. 2020, the matter is addressed to the trial court’s discretion.
    Peltz v. People, 
    728 P.2d 1271
    , 1275 (Colo. 1986). We will not
    disturb a court’s ruling denying severance absent an abuse of that
    discretion and a showing of prejudice to the moving party. 
    Id.
    ¶ 10   Factors that a court may consider when ruling on a motion to
    sever that does not trigger mandatory severance include (1) whether
    the number of defendants or the complexity of the evidence will
    cause the jury to confuse the evidence and law applicable to each
    defendant; (2) whether, despite limiting instructions, evidence
    admissible against one defendant will improperly be considered
    against another; and (3) whether the defenses presented are
    antagonistic. People v. Carrillo, 
    946 P.2d 544
    , 550-51 (Colo. App.
    1997), aff’d on other grounds, 
    974 P.2d 478
     (Colo. 1999).
    ¶ 11   Although courts around the country disagree regarding “the
    amount of antagonism sufficient to require separate trials,” People
    v. Maass, 
    981 P.2d 177
    , 184 (Colo. App. 1998), Colorado case law
    makes clear that defenses are not antagonistic when one defendant
    does not base their assertion of innocence on the guilt of the other.
    4
    Id.; see also People v. Toomer, 
    43 Colo. App. 182
    , 185, 
    604 P.2d 1180
    , 1183 (1979) (holding that defenses are not antagonistic when
    they do not specifically contradict each other); United States v.
    McClure, 
    734 F.2d 484
    , 488 (10th Cir. 1984) (“[O]ne defendant’s
    attempt to cast blame on the other is not in itself a sufficient reason
    to require separate trials.”). On the other hand, mutually exclusive
    or “irreconcilable defenses” could require severance. Maass, 
    981 P.2d at 184
    . That is, “the acceptance of one defense would tend to
    preclude the acquittal of the other defendant.” 
    Id.
    B.   Additional Facts and Procedural History
    ¶ 12   Gutierrez’s counsel moved pretrial to sever the cases, arguing,
    among other things, that the defendants would be raising mutually
    exclusive and antagonistic defenses. The prosecution filed a written
    response arguing that a joint trial would serve judicial economy and
    that separate trials would risk inconsistent verdicts. At a March
    2016 hearing, the court found that the motion was premature
    because the parties had not yet presented their theories of defense.
    The court opined, however, that even if the parties did raise
    antagonistic defenses, limiting instructions would cure any
    prejudice.
    5
    ¶ 13   After subsequent discovery revealed that there was only one
    shooter, Gutierrez’s counsel filed a renewed motion for severance.
    At a hearing on the renewed motion, Gutierrez’s counsel argued
    that it was clear, now, that the defendants would be accusing each
    other of being the sole shooter — thus, the defendants would be
    prosecuted not only by the State, but also by each other. The court
    denied severance on the grounds that any prejudice could be cured
    with limiting instructions.
    ¶ 14   Between this hearing and the trial, the parties deposed John
    Paulin, the man who owned the apartment where the shooting took
    place. Prior to the deposition, Sanchez’s counsel expressed concern
    that the prosecution would elicit a hearsay statement made by
    Gutierrez to Paulin that would implicate both defendants in the
    shooting. Because Gutierrez was the declarant, Sanchez’s counsel
    argued that he should be able to impeach Gutierrez’s statement by
    introducing his prior felony convictions. Later in the deposition,
    Gutierrez’s counsel agreed with Sanchez’s counsel and added, “I
    believe that . . . will force Mr. Gutierrez to make a choice between
    his constitutional rights, his right to a fair trial, as well as his right
    6
    to remain silent, and his right to confront.” Gutierrez’s counsel
    then renewed their motion to sever, which was denied.
    ¶ 15       At a later hearing, the parties re-raised this issue. Both
    defendants’ counsel explained that they were being placed in the
    untenable position of having to choose between fully confronting
    Paulin, or any other witness, and saving their respective clients
    from the prejudice of having the codefendant’s counsel impeach on
    prior felony convictions. Thus, both Gutierrez and Sanchez moved
    to sever, which was again denied.
    ¶ 16       At the end of the hearing, prior to jury selection, the trial court
    gave the prosecution fifteen peremptory challenges, Sanchez eight,
    and Gutierrez seven. Later, during jury selection, Gutierrez’s
    counsel argued that Gutierrez suffered prejudice because he had
    received fewer peremptory challenges than he would have received
    at a separate trial, and exhausted them before he could strike a
    juror who expressed a fear of retaliation from gang members.
    Gutierrez’s counsel made a record that she would have struck the
    juror had she been allowed to and, further, Gutierrez would have
    received more peremptory challenges had he been given a separate
    trial.
    7
    ¶ 17   In her opening statement, Gutierrez’s counsel began by
    arguing,
    Four bullets from one gun, shot by one person.
    That person was not Andrew Gutierrez. And
    Andrew Gutierrez was not an accomplice to the
    shooting and the murder of Eric Schnaare.
    Counsel then asked, “So what happened?” What happened,
    counsel later argued, was “John Sanchez [walked] in the door after
    Mr. Schnaare. And he immediately . . . starts shooting at Mr.
    Schnaare: 1, 2, 3, 4 shots, shoots Mr. Schnaare dead.” Then, in his
    opening statement, Sanchez’s counsel argued,
    [I]f you look at the evidence in this case, you’re
    going to see that John Sanchez didn’t shoot
    anyone. If you listen to all the evidence in this
    case, you’re going to see that the DA’s theory
    that there was a complicity going on here and
    there was some sort of agreement or
    conspiracy isn’t true. You will see that the
    shooter was Andrew Gutierrez.
    Sanchez’s counsel then reiterated, “There [are] not two shooters,
    there is one shooter, and evidence shows it’s not Mr. Sanchez.”
    ¶ 18   After opening statements, Sanchez’s counsel again moved for
    severance, arguing,
    [A]fter [having] now heard openings to the
    extent that there was some ruling that we did
    not have antagonistic defenses, I think [it is]
    8
    pretty clear that there are. Both sides opened
    that there was one shooter. The prosecution
    opened that there was one shooter . . . . [I]n
    order for [Sanchez] to be found not guilty, the
    jury must find Mr. Gutierrez guilty, and vice
    versa.
    The court again denied severance, but then gave the following
    limiting instruction to the jury:
    Although the defendants are being tried
    together, you must consider this case against
    each defendant separately. Each defendant is
    entitled to have their case decided solely on the
    evidence and the law that applies to that
    defendant.
    ¶ 19   During trial, Gutierrez’s counsel moved for severance twice
    more. The court denied severance both times. In addition, fifteen
    separate times during trial, both defendants’ counsel either objected
    or else drew the court’s attention to perceived prejudice resulting
    from the joint proceedings.
    ¶ 20   In closing argument, Sanchez’s counsel reminded the jury that
    “the physical evidence shows you that there is one shooter.”
    Counsel then went on to highlight the incriminating evidence
    against Gutierrez and again argued that Gutierrez was the sole
    shooter. In Gutierrez’s closing, his counsel began with, “Four shots
    from one gun and one shooter. Not Mr. Gutierrez.” His counsel
    9
    then proceeded to list all of the evidence tending to prove that
    Sanchez was the sole shooter. At the end, Gutierrez’s counsel
    argued,
    The bottom line is, minus the distractions, is
    that there were four bullets from one gun and
    one shooter. That [two witnesses] both told
    you that it was Mr. Sanchez . . . . Mr. Sanchez
    is the one who had the motive, and there is
    [no] actual evidence, aside of intention to
    cause fear in you and dislike for Mr. Gutierrez,
    that he actually participated in any way in this
    shooting.
    C.    Analysis
    1.   The Defenses Were Antagonistic
    ¶ 21   Gutierrez contends that the trial court abused its discretion by
    failing to sever the trials because his and Sanchez’s defenses were
    antagonistic. The People contend that Gutierrez’s defense was not
    antagonistic to Sanchez’s defense, and even if it was, that alone did
    not require severance. For two reasons, we are persuaded that the
    defenses were antagonistic.
    ¶ 22   First, despite the People’s assertion to the contrary, Gutierrez
    did raise a defense that was mutually exclusive of Sanchez’s. While
    it is true that Gutierrez asserted general denial as his stated theory
    of defense in required written disclosures to the prosecution, it is
    10
    clear from counsel’s opening and closing statements and arguments
    on motions to sever, as well as the evidence presented at trial, that
    Gutierrez did more than simply deny involvement. Bolstered by
    undisputed evidence that Schnaare died from four bullets fired from
    one gun, Gutierrez’s counsel argued in his opening and closing
    statements that not only was Gutierrez unaware of Sanchez’s prior
    conflict with the victim and had no involvement with the shooting,
    but also that the evidence indicated that Sanchez was the sole
    shooter. Further, not only did Gutierrez’s counsel accuse Sanchez
    of being the sole shooter in arguments, she put on the testimony of
    two eyewitnesses at the party — Edward Yazzie and Anna Neal —
    who identified Sanchez as the one who shot Schnaare.2
    ¶ 23   Second, the fact that the prosecution charged Gutierrez with
    conspiracy in addition to first degree murder, and that one
    defendant could be complicit with the actions of another, does not
    2 We acknowledge that the prosecution also presented Yazzie’s
    testimony that Sanchez shot Schnaare. Our focus for the purposes
    of whether the defenses were antagonistic, however, is on the
    evidence and arguments that Gutierrez, not the prosecution, put
    forward.
    11
    preclude the conclusion that the defenses were antagonistic.3
    Relying on People v. Durre, 
    713 P.2d 1344
     (Colo. App. 1985), the
    People argue that Gutierrez’s “attempt to make the other look more
    culpable” was not antagonistic because that would not be a
    mutually exclusive defense to a conspiracy charge. The People’s
    reliance on Durre is misplaced. The defendant in Durre appeared to
    argue that he was just an accomplice to a robbery and that his
    codefendant was more culpable. 
    Id. at 1347
    . Gutierrez, by
    contrast, was not arguing to the jury that he was just an
    accomplice and that Sanchez was more culpable. Rather, he was
    blaming the entirety of the crime — both the shooting and the
    planning of it — on Sanchez. Were the jury to believe Sanchez’s
    defense — that Gutierrez was the sole shooter — that would
    preclude Gutierrez’s acquittal. Similarly, were the jury to believe
    3 The People point to the prosecution’s charging document as
    evidence that the very nature of the charges against Gutierrez mean
    his defense was not antagonistic. Again, our inquiry is centered on
    the defendants’ arguments and evidence, not the prosecution’s. See
    United States v. Green, 
    324 F. Supp. 2d 311
    , 325 (D. Mass. 2004)
    (“The issue is not the position the government takes. The issue is
    whether a jury will be able to hear the opposing position — the
    defense theory — and reliably consider all positions.”) (emphasis
    omitted).
    12
    Gutierrez’s defense — that Sanchez concocted the shooting and
    carried it out by himself — that would preclude Sanchez’s acquittal.
    Thus, the acceptance of one defendant’s defense would preclude the
    acquittal of the other defendant. See Maass, 
    981 P.2d at 184
     (A
    mutually exclusive, antagonistic defense means that “the
    acceptance of one defense would tend to preclude the acquittal of
    the other defendant.”).
    ¶ 24    In sum, considering the record before us, we conclude that
    Gutierrez put forward a defense antagonistic to Sanchez’s.
    2.    Gutierrez Suffered Reversible Prejudice
    ¶ 25    Having concluded that Gutierrez advanced an antagonistic
    defense, we now consider whether the joint trial in this case
    resulted in reversible prejudice. We conclude, for four reasons, that
    it did.
    ¶ 26    First, one of the concerns regarding the presentation of
    antagonistic defenses is that a defendant will, in effect, have to
    defend himself against both the prosecution and his codefendant.
    People v. Warren, 
    196 Colo. 75
    , 78, 
    582 P.2d 663
    , 665 (Colo. 1978);
    see also State v. Vinal, 
    504 A.2d 1364
    , 1368 (Conn. 1986) (noting
    that a guilty verdict in these circumstances can be the result of the
    13
    codefendant’s efforts just as much as the government’s satisfaction
    of its burden of proof); Silva v. State, 
    933 S.W.2d 715
    , 719 (Tex.
    App. 1996) (reversing because “[the] appellant was forced to defend
    himself not only against the State but against his codefendant as
    well”). In this case, Gutierrez was confronted with evidence from
    both the prosecution and Sanchez. Further, Sanchez’s evidence
    more clearly implicated Gutierrez as the sole shooter because the
    evidence presented by the prosecution focused more on proof that
    Gutierrez masterminded the shooting.
    ¶ 27     Specifically, Sanchez put forth the following evidence —
    independent from the prosecution — that tended to implicate
    Gutierrez:
    • A detective testified, while footage from the Lakewood police’s
    pole camera was played, that Gutierrez could be seen putting
    a gun in his waistband after the shooting.
    • While describing a still image from the pole camera footage
    taken prior to the shooting, another detective testified that
    Gutierrez could be seen in the photo with a gun.
    14
    • Irizarry testified that a police investigator informed her while
    she was in jail for the shooting that Gutierrez had threatened
    her.
    • Another detective testified that, during his interview with
    Irizarry, she accused Gutierrez of shooting Schnaare and was
    afraid for her life for having done so.
    • The same detective testified that, during his interview with
    Paulin, Paulin said he was afraid of Gutierrez and called him a
    “crazy son-of-a-bitch.”
    • Two of the arresting officers testified that a seven-hour
    standoff ensued between Gutierrez and the Lakewood police in
    which they had to use a negotiator, bullhorns, and projectiles
    to get him to surrender to the police.
    Also, in her closing, Sanchez’s counsel argued that the standoff
    referenced above was proof of Gutierrez’s consciousness of guilt.
    ¶ 28     Additionally, Sanchez’s counsel attacked Yazzie’s and Neal’s
    credibility after they testified that Sanchez was the sole shooter.
    Specifically, Sanchez’s counsel attempted to get Neal to testify that
    she and Gutierrez went shopping for a gun in the hours leading up
    to the shooting. Sanchez’s counsel also asked Yazzie numerous
    15
    questions about Yazzie’s prior felony convictions and pending
    charges. Not only were these attacks detrimental to Gutierrez’s
    case, they also largely eliminated the prosecution’s need to impeach
    Neal and Yazzie given that the prosecution’s theory was that
    Gutierrez ordered the shooting.
    ¶ 29     Comparatively, the prosecution put on less evidence against
    Gutierrez, often undermined the evidence introduced by Sanchez
    that Gutierrez was the shooter, or otherwise implicated Sanchez
    was the shooter:
    • Irizarry, who was the only witness to directly implicate
    Gutierrez in the shooting, testified that she had a prior
    relationship with Sanchez and that she was in love with him.
    Accordingly, it was possible she implicated Gutierrez alone to
    protect Sanchez.
    • Irizarry also testified that when Gutierrez shot Schnaare, he
    did so “western style” with two guns. This was inconsistent
    with the undisputed physical evidence and tended to
    undermine Irizarry’s credibility.
    16
    • Irizarry further testified that when she and Gutierrez arrived
    at the motel after the shooting, Gutierrez was laughing and
    smiling and stated that he “almost cum when he did it.”
    • Irizarry told an investigator that Yazzie also shot Schnaare.
    But when the investigator later informed her that forensics
    had established that there was only one shooter, Irizarry
    changed her story and accused Gutierrez alone.
    • Another investigator testified that, during his interview with
    Paulin, Paulin stated that on the night of the party he heard
    Gutierrez and Sanchez having “a discussion about how to get
    a job done” and putting “cop killer rounds” or “hollow-points”
    in a magazine. Paulin did not specify whether Gutierrez or
    Sanchez made these statements.
    • Neal testified that she observed Gutierrez and Sanchez having
    private conversations on the night of the party.
    • During and after the party, Gutierrez posted several photos on
    Facebook showing him flashing gang signs and carrying a gun.
    ¶ 30     The prosecution also introduced Sanchez’s prior statements
    made to Dustin Durando, a jail inmate with whom Sanchez shared
    a cell after his arrest. Sanchez purportedly told Durando that he (1)
    17
    was a member of the GKIs; (2) had a conflict with the victim over
    his (Sanchez’s) guns; and (3) fatally shot the victim. Prior to
    hearing this evidence, the jurors were instructed that they were to
    consider it only against Sanchez and not against Gutierrez. Later in
    closing argument, however, the prosecutor referenced these
    statements as evidence of both Sanchez’s and Gutierrez’s motive for
    the shooting (i.e., because the victim had a conflict with Sanchez, a
    member of Gutierrez’s gang, the victim had a conflict with the whole
    gang).
    ¶ 31   The evidence the prosecution put on against Gutierrez was not
    overwhelming, as the People argue. Importantly, the evidence
    Sanchez put on added significantly to the overall weight of the
    evidence against Gutierrez.
    ¶ 32   Because Gutierrez had to defend himself against two accusers,
    only one of which had the burden of proof beyond a reasonable
    doubt, we conclude that Gutierrez suffered prejudice from the joint
    jury trial. See United States v. Romanello, 
    726 F.2d 173
    , 182 (5th
    Cir. 1984).
    ¶ 33   Our second reason for concluding that the prejudice suffered
    was reversible is that the joint trial at times prevented Gutierrez
    18
    from fully confronting the witnesses against him, and thus from
    presenting a complete defense. The prosecution sought to
    introduce Sanchez’s statements on multiple occasions. One way in
    which Gutierrez hoped to impeach the credibility of those
    statements was to introduce Sanchez’s prior convictions under CRE
    806. To be sure, Gutierrez was not necessarily prevented from
    introducing this evidence. However, as Sanchez’s counsel explained
    in pretrial proceedings, doing so would have resulted in Sanchez’s
    counsel introducing Gutierrez’s prior convictions as well. Thus,
    Gutierrez was faced with a prejudicial Hobson’s choice between
    impeaching the credibility of his codefendant’s statements and
    opening the door to his own convictions. Though this situation, as
    grounds for reversal, has not been addressed in Colorado, we find
    other jurisdictions’ discussions persuasive. See Silva, 
    933 S.W.2d at 719
     (concluding that the defendant’s inability to introduce
    impeachment evidence was a factor supporting reversal); United
    States v. Sherlock, 
    962 F.2d 1349
    , 1360 n.4 (9th Cir. 1989) (same).
    ¶ 34   Furthermore, on two separate occasions, Gutierrez’s counsel
    was prevented from going into the details of Sanchez and
    Schnaare’s prior conflict. Specifically, Gutierrez’s counsel sought to
    19
    introduce the fact that Sanchez and Schnaare were involved in a
    prior robbery in which Schnaare was supposed to “kill the guys and
    he didn’t, so that’s why [Schnaare] kept [Sanchez’s] guns.”
    Relatedly, Gutierrez’s counsel was also not allowed to elicit from
    Yazzie that he and Sanchez were once cellmates and that Yazzie
    was actually closer with Sanchez than Gutierrez, his own brother.4
    The court, based on a pretrial ruling limiting this testimony under
    CRE 404(b), instructed the jury not to consider any of this evidence
    because it touched on Sanchez’s prior criminal history.
    ¶ 35   Gutierrez’s counsel considered this evidence important
    because it helped show Sanchez’s motive for the shooting and
    bolstered Yazzie’s credibility as Sanchez’s accuser.5 Apparently the
    4 The relevance is the tendency to show that Yazzie — who
    implicated Sanchez as the sole shooter — did not have a motive to
    lie to protect his brother because he was actually closer with
    Sanchez.
    5 The People’s argument that this evidence would have bolstered the
    prosecution’s case is unpersuasive. For one thing, that argument
    depends on the People’s assertion that Gutierrez did not argue
    Sanchez was the sole shooter, but instead only denied involvement.
    Gutierrez did argue that Sanchez was the sole shooter; thus the
    excluded evidence would have tended to prove Sanchez was the sole
    shooter because he had a motive. Regardless, the fact that the
    evidence might have strengthened the prosecution’s case is also
    irrelevant. See Green, 
    324 F. Supp. 2d at 325
    .
    20
    jury was also concerned about Yazzie’s motives. Four times, the
    jury asked questions of witnesses who could provide more details of
    the nature of Sanchez and Schnaare’s relationship. Each time, the
    court declined to ask the jurors’ questions due to Sanchez’s
    counsel’s objection. Though we cannot know for sure whether the
    excluded evidence would have been admissible at a separate trial,
    we can say that Gutierrez’s inability to present a complete defense
    in this regard was another example of the prejudicial effect of the
    joint proceeding.
    ¶ 36   We pause briefly to address the People’s reliance on Zafiro v.
    United States, 
    506 U.S. 534
     (1993). Interpreting Fed. R. Crim. P.
    14, which is substantively identical to our rule, the Supreme Court
    held that “[m]utually antagonistic defenses are not prejudicial per
    se.” Zafiro, 
    506 U.S. at 538
    ; see also Crim. P. 14. It explained that
    Fed. R. Crim. P. 14 “does not require severance even if prejudice is
    shown; rather, it leaves the tailoring of the relief to be granted, if
    any, to the district court’s sound discretion.” Zafiro, 
    506 U.S. at 538-39
    . It then went a step further:
    [W]hen defendants properly have been joined
    . . . a district court should grant severance . . .
    only if there is a serious risk that a joint trial
    21
    would compromise a specific trial right of one
    of the defendants, or prevent the jury from
    making a reliable judgment about guilt or
    innocence.
    
    Id. at 539
    .
    ¶ 37   Zafiro was decided after many of the Colorado cases on
    antagonistic defenses, and although it is not controlling, it does
    provide guidance. It would appear, however, that Gutierrez’s case
    would satisfy the Zafiro test. As we have explained, Gutierrez was
    denied a specific trial right (the right to present a complete defense),
    and we are not convinced that the jury made a finding of guilt
    based on the prosecution’s efforts alone. Furthermore, in Zafiro the
    Court was not so much concerned with the precise contours of
    antagonistic defenses, but rather with when the prejudice stemming
    from a joint proceeding would require reversal. Thus, Zafiro does
    not change the result we reach today.
    ¶ 38   Third, during jury selection, Gutierrez received only seven
    peremptory challenges and was denied an eighth when confronted
    with a potential juror who expressed concern over retaliation given
    that the case involved gangs. The People are correct that the
    supreme court has concluded the denial of extra peremptory
    22
    challenges, by itself, does not require severance. People v. Lesney,
    
    855 P.2d 1364
    , 1366 (Colo. 1993). We are not, however, dealing
    with an argument for severance based on a lack of peremptory
    challenges alone. Rather, we may consider this fact in conjunction
    with the examples of prejudice already discussed. See Eder v.
    People, 
    179 Colo. 122
    , 125, 
    498 P.2d 945
    , 946 (1972) (finding no
    single example of prejudice dispositive but reversing based on the
    cumulative effect).
    ¶ 39   Last, we conclude that the number of limiting instructions
    given in this case defeats any curative effect they may have had on
    the prejudice resulting from a joint trial. The People argue, relying
    on Zafiro, that limiting instructions cured any prejudice resulting
    from the joint proceeding. But here, the jury heard differing
    iterations of five limiting instructions twenty-one times throughout
    the course of a two-week trial. We need not decide today just how
    many limiting instructions are too many. What we can say is that,
    after instructing the jury to limit its consideration of the evidence
    twenty-one times, any curative power a limiting instruction may
    have had was lost. See Bruton v. United States, 
    391 U.S. 123
    , 135
    (1968) (“[T]here are some contexts in which the risk that the jury
    23
    will not, or cannot, follow instructions is so great, and the
    consequences of failure so vital to the defendant, that the practical
    and human limitations of the jury system cannot be ignored.”);
    State v. Zadeh, 
    226 A.3d 463
    , 478 (Md. 2020) (ten limiting
    instructions in a joint trial is a factor indicating prejudice).
    ¶ 40   Sanchez’s counsel summed this case up quite nicely in a
    pretrial hearing:
    [T]he prosecution has blamed two people for
    one murder involving what the physical
    evidence seems to show was one gun involved.
    They’re throwing the gun in the middle of the
    room and saying: You guys get a trial
    together, you figure it out and figure out
    what’s going on.
    This gladiator-style trial is not one that we can condone. It is quite
    clear from counsel’s arguments and the evidence presented at trial
    that Gutierrez’s defense was antagonistic to Sanchez’s. Further,
    the prejudice resulting from a joint trial under these circumstances
    was made clear to the court on multiple occasions. While any one
    of the instances of prejudice described above might not be sufficient
    by itself to warrant reversal, we hold that their cumulative effect
    24
    does so and requires a new, separate trial. See Eder, 179 Colo. at
    125, 
    498 P.2d at 946
    .
    III.   Remaining Contentions
    ¶ 41   Because we conclude that Gutierrez’s first claim of error
    warrants reversal, we need not reach his other claims, which might
    not recur on retrial and, even if they did, might arise under different
    circumstances.
    IV.   Conclusion
    ¶ 42   We reverse Gutierrez’s convictions and remand for a new trial.
    JUDGE BROWN and JUDGE GRAHAM concur.
    25