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People v. Rios

Court of Appeals of Colorado, Fifth Division

January 2, 2020

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Gilberto RIOS, Defendant-Appellant.

          

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[Copyrighted Material Omitted]

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         Weld County District Court No. 16CR1728 Honorable Thomas J. Quammen, Judge.

          Philip 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.

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         OPINION

          GROVE, JUDGE

         [¶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.

         I. Background

         [¶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.

         II. 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.[1] We discern no error.

         A. 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

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jury as to the limited purpose of this evidence, but defense ...


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