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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.

          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

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

         ¶ 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).

         B. Analysis

         ¶ 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 ...

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