[Copyrighted Material Omitted]
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.
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.
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.
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.
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
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[.]"
The jury found Rios guilty of accessory to menacing.
Admission of Guilty Plea
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
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