Martinez v. People, 244 P.3d 135

Martinez was charged with first degree assault and conspiracy to commit first degree assault arising from an incident at a sports bar on September 24, 2002.
Video evidence and witness testimony depicted Martinez allegedly swinging a flashlight and striking the victim; Martinez testified he punched the victim and observed Fernandez assaulting the victim.
During closing rebuttal, the prosecutor stated Martinez could tailor his testimony by listening to other witnesses, referencing his trial presence but not tying to specific record evidence.
Martinez objected on general grounds; the trial court implicitly allowed the argument as mere argument, not evidence.
The jury convicted Martinez of lesser included offenses: second degree assault and conspiracy to commit second degree assault; sentences were consecutive (16 and 6 years).
On appeal, Martinez challenged the closing argument under the Colorado Constitution and, alternatively, under state law; the court of appeals affirmed on different grounds; the Colorado Supreme Court granted certiorari.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are tailoring arguments improper closing argument?	Martinez argues tailoring remarks improperly attack credibility.	People argues tailoring arguments are permissible if tied to record evidence.	Generic tailoring arguments are improper; specific tailoring tied to record evidence may be proper.
Did Martinez preserve Colorado Constitution claim for appeal?	Martinez preserved a Colorado constitutional challenge on appeal.	Court should examine preservation and only address properly preserved issues.	Martinez failed to preserve a Colorado Constitution claim; the issue was dismissed.
If improper, is the error harmless beyond a reasonable doubt?	The error could have affected credibility determinations.	There was other strong evidence (e.g., video) undermining credibility, making error harmless.	Harmless error; the totality of circumstances did not render prejudicial impact probable.

Portuondo v. Agard, 529 U.S. 61 (U.S. 2000) (tailoring arguments not per se federal constitutional violation; state law considerations unresolved)
Vigil v. People, 300 P.2d 545 (Colo.1956) (preservation requirements for constitutional objections)
Domingo-Gomez v. People, 125 P.3d 1043 (Colo.2005) (prosecutor closing argument standards and reasonable inferences)
Gaudette v. Commonwealth, 808 N.E.2d 798 (Mass. 2004) (tailoring arguments tied to record evidence; distinction generic vs specific)
Swanson v. State, 707 N.W.2d 645 (Minn.2006) (tailoring arguments—generic improper; specific tied to record evidence permissible)
Crider v. People, 186 P.3d 39 (Colo.2008) (harmless error standard under Crim. P. 52(a))
Portuondo v. Agard (note), 159 F.3d 46 (2d Cir. 1998) (distinguishes between generic and specific tailoring; cited in Portuondo)