People v. Apodaca-Zambori

410 P.3d 463
CourtColorado Court of Appeals
DecidedMarch 14, 2013
DocketNo. 10CA0418
StatusPublished
Cited by1 cases

This text of 410 P.3d 463 (People v. Apodaca-Zambori) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Apodaca-Zambori, 410 P.3d 463 (Colo. Ct. App. 2013).

Opinion

Opinion by JUDGE GRAHAM

*465¶ 1 Defendant, Theresa Marie Apodaca-Zambori, appeals the judgment of conviction entered on a jury verdict finding her guilty of assault in the first degree and reckless endangerment. She also appeals her sentence to serve ten years in the custody of the Department of Corrections. We affirm.

I. Background

¶ 2 On May 26, 2008, the victim, her husband, and children were driving through an alley that ran behind a store owned by defendant's boyfriend. The victim was forced to stop her car because defendant's car was blocking the path. The husband got out of the car, and there was a verbal altercation between the husband and several men, including defendant's boyfriend.

¶ 3 Evidence was presented at trial that defendant entered the store from the alley, returned with a dog, and as the victim opened her car door, told the dog to "get her." The dog bit the victim's leg, defendant attempted to pull the dog off of the victim, and the victim hit the dog on the snout. Eventually, the dog released the victim. The bite caused permanent nerve damage.

¶ 4 Immediately after the attack, defendant drove the dog to her father's house, located a few blocks away. When confronted by police, defendant denied knowing anything about an attack or the dog's location. Eventually, defendant told police the dog's location and helped them retrieve the dog.

¶ 5 Defendant was initially issued a summons for an animal control violation for refusing to produce an animal that was involved in a biting. The day after the attack, the police cancelled the summons, booked defendant on felony charges, and advised defendant of her Miranda rights. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

¶ 6 After a jury trial, defendant was convicted of assault in the first degree, a class three felony, and reckless endangerment, a class three misdemeanor. On January 15, 2010, the trial court sentenced defendant to ten years in the custody of the Department of Corrections and five years mandatory parole.

II. Miranda Issues

¶ 7 Defendant contends the trial court erred by admitting testimony and not striking references in the prosecution's closing argument to defendant's silence before and after receiving a Miranda advisement. We disagree.

¶ 8 When no contemporaneous objection is made, we review for plain error. People v. Taylor, 159 P.3d 730, 738 (Colo.App.2006). "Plain error is error that is so clear-cut, so obvious, a competent trial judge should be able to avoid it without benefit of objection." Id .

¶ 9 We review preserved claims for harmless error. People v. Allen, 199 P.3d 33, 37 (Colo.App.2007). A constitutional error is only harmless when the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the guilty verdict. Taylor, 159 P.3d at 739. "The constitutional harmless error test 'is not whether, in a trial, that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.' " Bernal v. People, 44 P.3d 184, 200-01 (Colo.2002) (quoting Blecha v. People, 962 P.2d 931, 942 (Colo.1998) ).

¶ 10 A defendant is constitutionally protected against self-incrimination and has the right to remain silent. U.S. Const. art. V ; Colo. Const. art. II, §§ 18, 25 ; People v. Herr, 868 P.2d 1121, 1124 (Colo.App.1993). A prosecutor should avoid making comments regarding a defendant's pre-arrest or post-arrest silence. People v.Hardiway, 874 P.2d 425, 427 (Colo.App.1993) ; Herr , 868 P.2d at 1124. However, such an error is only reversible when the prosecutor uses the defendant's silence as a means of implying guilt. Herr , 868 P.2d at 1124 ; Hardiway , 874 P.2d at 427.

¶ 11 Here, the arresting officer testified that defendant initially invoked her right to remain silent and asked if she could come back to the police station to make a statement *466if she changed her mind about remaining silent. She was informed that she could, but she did not. Additionally, an animal control officer testified that when defendant told police the location of the dog, she did not mention that the bite was an accident, that the dog got loose, or that she tried to get the dog under control and was not able to do so. During closing argument, the prosecutor stated that defendant "never once said anything or asked once if the victim was okay."

¶ 12 Defendant objected to each of these statements, and therefore, we review for harmless error. We conclude these statements were not made for the "purpose of suggesting the jury infer guilt from" defendant's silence. Rather, the statements addressed defendant's theory of the case, which was that she was attempting to pull the dog off the victim and help, rather than commanding the dog to attack. We also note that the trial court instructed the prosecution during a side bar, "You're not going to emphasize failure of a statement, because she has a right not to make a statement," and limited the questioning to whether defendant came back to the police department to make a statement.

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People v. Luna
410 P.3d 475 (Colorado Court of Appeals, 2013)

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