[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Pueblo County District Court No. 09CR1585. Honorable David W. Crockenberg, Judge.
John W. Suthers, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Darol C. Biddle, Pueblo, Colorado, for Defendant-Appellant.
Opinion by JUDGE BERGER. Graham and Bernard, JJ., concur.
[¶1] Defendant, Anthony Louis Paglione, appeals the judgment of conviction entered on a jury verdict finding him guilty of theft of twenty thousand dollars or more. We affirm.
[¶2] Defendant is a mortgage broker and banker. In November 2005, defendant helped the victim refinance his house to obtain cash needed to purchase a second house, which he intended to use as a rental property.
[¶3] In March 2006, the victim took out a home equity loan on the rental property to pay down his mortgage on his primary residence so that his mortgage liability would be redistributed equally between his two houses. Defendant also assisted the victim with this home equity loan transaction. The proceeds fro the home equity loan were approximately $76,000.
[¶4] Defendant arranged for the victim to make payments on both mortgages directly to defendant, who represented that he was an agent for the mortgage lender. The lender mailed the victim's statements to defendant's business address. When the victim requested statements, defendant generated his own receipts and statements for the victim, rather than providing copies of the lender's statements.
[¶5] In February 2008, the victim attempted to pay the remaining balance of both loans in the amount that he believed was outstanding, after accounting for the $76,000 that he thought had been applied to the mortgage on his primary residence. He later discovered that the mortgages had not been fully paid, and he reported defendant to the police for theft.
[¶6] At trial, defendant testified that he had received the victim's money from the March 2006 home equity loan but did not apply it to the mortgage on the victim's primary residence. His explanation was that the victim loaned him the $76,000 in a transaction outside of the March 2006 home equity loan closing. Defendant claimed that the supposed loan transaction was evidenced by a promissory note that he had signed and given to the victim, although he was able to produce only an unsigned copy of the note. Defendant also testified that he had paid interest on the note directly to the victim from June until August 2006, and thereafter to the victim's mortgage lender. The victim testified that no such loan arrangement existed and that he had never seen the note before legal proceedings were commenced against defendant.
[¶7] Based on the alleged loan transaction involving the $76,000 proceeds from the home equity loan, defendant argued that he and the victim had a debtor-creditor relationship. He admitted at trial that he had been unable to pay the balance of the loan when the victim called the note, but argued that his inability to repay the victim was a civil dispute, not a crime.
[¶8] After a four-day trial, the jury found defendant guilty of theft of twenty thousand dollars or more. The trial court sentenced defendant to five years of probation.
II. Defendant's Right to Present Evidence and Use Immunity
[¶9] Defendant contends that (1) he was denied his constitutional rights to a fair trial and to present evidence on his own behalf and (2) the trial court erred by not requiring the prosecutor to request use immunity for a defense witness.
A. Trial Court Proceedings
[¶10] Defendant called to testify a former employee of the title company who was the loan closer at the March 2006 closing of the home equity loan. After the witness was sworn, the prosecutor asked for a bench conference. The following colloquy occurred:
[Prosecutor]: [The loan closer] needs to be advised of her Fifth Amendment Rights if she is going to testify that she notarized those documents. [The victim] is prepared to testify that she wasn't there when he signed those documents.
[Defense counsel]: Are you threatening her with prosecution?
[Prosecutor]: No. I think she needs to have an attorney to advise her if she is going to testify.
[Defense counsel]: If you are planning on prosecuting, it's past the statute of limitations.
The Court: All right. Let's talk to her in chambers. Let's send the jury out for a while.
[¶11] The court then retired to chambers with the witness and counsel. The following additional colloquy occurred:
[Prosecutor]: Your Honor, if she plans to testify that she notarized the document from [the March 2006 closing] as the notary -- it does state that she notarized it on 4-18 -- or, excuse me, she did notarize it. [The victim] and [the victim's father] are prepared to testify that she was not in the room when they signed the documents. There was a heavier lady, Mr. Paglione, and just the two of them. She was not present when the documents were signed. They've never met her and they don't know who she is.
The Court: So what would she be subjected to?
[Prosecutor]: Perjury first and foremost.
[Defense counsel]: What?
The Court: It's a Class 4 --
[Defense counsel]: It'll take more than one witness to ...