County District Court No. 16CR1728 Honorable Thomas J.
J. Weiser, Attorney General, Paul E. Koehler, First Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Patrick R. Henson, Alternate Defense Counsel, Denver,
Colorado, for Defendant-Appellant
1 A jury found defendant, Gilberto Rios, guilty of accessory
to menacing. On direct appeal, Rios contends that the trial
court erred by (1) permitting the guilty plea of a
codefendant to be used as substantive evidence of Rios's
guilt and (2) denying repeated requests for a mistrial based
on the prosecutor's references to Rios's refusal to
talk to a police officer at the scene. Alternatively, Rios
argues that the aggregate impact of these alleged errors
warrants reversal under the cumulative error doctrine.
2 We hold that the general rule barring the use of a
codefendant's guilty plea as substantive evidence of the
defendant's guilt does not apply where the defendant is
charged only with acting as an accessory to the
codefendant's offense. We also conclude that the
prosecutor's references to Rios's pre-arrest silence
were not improper. We therefore affirm the conviction.
3 During a large fight at a park, Marty Vigil pointed a black
BB gun at the victim and threatened to shoot him. A police
officer responding to the scene saw a person, later
identified as Rios, walk away from the fight and put a dark
object into a trash can. Another officer subsequently
searched the trash can and found a black BB gun. At the
conclusion of the investigation, Vigil was arrested and
charged with menacing; Rios was arrested and charged as an
accessory to Vigil's menacing.
4 Vigil pleaded guilty to menacing. The prosecutor mentioned
that plea during opening statement in Rios's trial and
then called Vigil to the stand in an effort to prove that the
antecedent to Rios's crime of accessory (i.e.,
Vigil's menacing) had occurred. Vigil was minimally
cooperative - he denied having any memory of the fight,
claimed not to remember agreeing to the factual basis for his
guilty plea, and failed to recall reviewing the facts of the
case with his attorney. He did eventually admit signing the
plea agreement, but only after the prosecutor confronted him
with a copy of it and asked him to acknowledge his signature.
5 The court admitted a redacted copy of the plea paperwork,
and during closing argument the prosecutor relied on it to
argue that the antecedent crime of menacing had occurred. As
relevant here, the prosecutor told the jurors that they were
"not deciding whether or not Marty Vigil committed the
menacing, because he's already stood right here in front
of this judge, in this courtroom, went through a Written
Waiver and Guilty Plea, and pled guilty to menacing,"
and that the plea paperwork "goes to prove that [Vigil]
menaced [the victim], and he placed him in imminent fear of
serious bodily injury[.]"
6 The jury found Rios guilty of accessory to menacing.
Admission of Guilty Plea
7 Rios contends that the trial court erred by permitting the
People to use Vigil's conviction as substantive evidence
of Rios's guilt during opening statement, the
prosecution's case-in-chief, and closing
argument. We discern no error.
Preservation and Standard of Review
8 The parties disagree as to preservation. With respect to
Rios's contention of evidentiary error, defense counsel
objected to the introduction of "evidence of the fact
that Mr. Marty Vigil pled guilty," arguing that "it
seems like [the prosecutor] is using the guilty plea in an
attempt to prove the underlying charge of menacing as opposed
to putting on witnesses to explain what happened." The
trial court ruled that evidence of the guilty plea was
admissible for precisely this purpose, because "the fact
that the offense occurred and he pled guilty to it is
evidence of the element that the People have to prove."
The trial court offered to instruct the jury as to the
limited purpose of this evidence, but defense counsel
9 We review a trial court's decision to admit evidence
for an abuse of discretion. People v. Sommers, 200
P.3d 1089, 1095 (Colo.App. 2008) (admission of evidence). A
trial court abuses its discretion when its ruling is
manifestly arbitrary, unreasonable, or unfair or is based on
an erroneous understanding or application of the law.
People v. Esparza-Treto, 282 P.3d 471, 480
(Colo.App. 2011). When a defendant raises a contemporaneous
objection to the admission or exclusion of evidence at trial,
we review for harmless error. People v. Curren, 2014
COA 59M, ¶ 49. An error is harmless if it did not
substantially influence the verdict or affect the fairness of
the trial proceedings. Id.
10 As for Rios's argument that the prosecutor committed
misconduct by improperly relying on Vigil's guilty plea
in opening statement and closing argument, defense counsel
failed to bring his concerns to the trial court's
attention by raising a contemporaneous objection. We
therefore review these statements for plain error and will
reverse only if they were flagrantly or glaringly or
tremendously improper, and "so undermine[d] the
fundamental fairness of the trial as to cast serious doubt on
the reliability of the judgment of conviction."
People v. Weinreich, 98 P.3d 920, 924 (Colo.App.
2004), aff'd, 119 P.3d 1073 (Colo. 2005).
11 To convict Rios of acting as an accessory, the prosecution
had to prove, among other things, that Vigil committed the
antecedent offense of menacing. Roberts v. People,
103 Colo. 250, 258, 87 P.2d 251, 255 (1938); see
also 2 Wayne R. LaFave, Substantive Criminal
Law § 13.6(a), Westlaw (3d ed. database updated
Oct. 2019) ("[T]o constitute one an accessory after the
fact . . . a completed felony must have been
committed."). Vigil's guilty plea to menacing was
proof that the antecedent offense actually occurred. See
Menna v. New York, 423 U.S. 61, 62 n.2 (1975) ("[A]
counseled plea of guilty is an admission of factual guilt so
reliable that, where voluntary and intelligent, it quite
validly removes the issue of factual guilt from the
case."). And the prosecutor used it as substantive
evidence with respect to that element of the accessory
charge, arguing that the jury could rely on Vigil's
guilty plea as proof that he had actually committed menacing.
12 Defense counsel objected - although not during opening
statement or closing argument - to the prosecution's use
of Vigil's guilty plea as substantive evidence against
Rios. Although Vigil and Rios faced different charges,
defense counsel pointed out that they were still
codefendants, and argued that the prosecutor planned on
"using the guilty plea in an attempt to prove the
underlying charge of menacing as opposed to putting on
witnesses to explain what happened." This, defense
counsel submitted, was at odds with the general rule that
"[t]he guilty plea of a codefendant may not be used as
substantive evidence of a defendant's guilt."
People v. Rios, 2014 COA 90, ¶ 24; see also
People v. Craig, 179 Colo. 115, 498 P.2d 942 (1972).
13 In Colorado, this rule can be traced back to at least
1914, when the supreme court held that while "admissions
of guilt made by one of several persons jointly indicted and
tried for the same offense are admissible against the person
making them, they are not admissible against his
codefendants, unless made in their presence and assented to
by them." Cook v. People, 56 Colo. 477, 487,
138 P. 756, 759 (1914). The supreme court later expanded the
rule beyond the context of joint trials, holding that
[w]here two persons have been jointly indicted for the same
offense, but are separately tried, a judgment of conviction
against one of them is not competent on the trial of the
other, inasmuch as his conviction is no evidence ...