The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY January 2, 2020
2020COA2
No. 17CA1755, People v. Rios — Crimes — Menacing — Accessory to Crime; Criminal Law — Codefendants — Plea Agreements; Evidence — Admissibility
A division of the court of appeals holds 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. COLORADO COURT OF APPEALS 2020COA2
Court of Appeals No. 17CA1755 Weld County District Court No. 16CR1728 Honorable Thomas J. Quammen, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Gilberto Rios,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE GROVE Román and Graham*, JJ., concur
Announced January 2, 2020
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
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2019. ¶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
1 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
2 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
1Rios also asserts, without supporting authority or a developed argument, that the prosecutor “repeatedly used Mr. Vigil’s admission of guilt to create an inference that, because Mr. Vigil confessed to the underlying crime, Mr. Rios must be guilty as well.” Our review of the record reveals no such impropriety. And in any event, we will not consider a bald legal proposition presented without argument or development. See C.A.R. 28(a)(7)(B); see also People v. Simpson, 93 P.3d 551, 555 (Colo. App. 2003).
3 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
4 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
5 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
6 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 either of joint action or of the guilt of the accused.
Paine v. People, 106 Colo. 258, 261-62, 103 P.2d 686, 688 (1940)
(quoting 16 C.J. Criminal Law § 1341, at 670 (1918)).
¶ 14 In contrast to this case, in which Vigil and Rios were charged
with different crimes arising from the same incident, the defendants
in Cook and Paine were “jointly indicted” and charged with the same
offenses to which the codefendants pleaded guilty. Evidence of a
jointly charged accomplice’s guilty plea has little bearing on the
defendant’s guilt but carries with it a substantial risk that the jury
will unfairly infer that it does.2 See, e.g., United States v.
2 We hasten to add that the rule generally only bars the introduction of an accomplice’s guilty plea as substantive evidence of the defendant’s guilt. Evidence that a testifying accomplice
7 DeLucca, 630 F.2d 294, 298 (5th Cir. 1980) (“The problem of a
defendant’s guilt by association arises primarily when the jury
learns of a codefendant’s guilty plea entered either before or during
the trial proceedings.”). From an evidentiary perspective, while an
accomplice’s guilty plea is, in a strict sense, relevant to the question
of a defendant’s guilt, its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury. CRE 403; see also United States v.
Griffin, 778 F.2d 707, 710 (11th Cir. 1985).
¶ 15 But the concern that jurors will assume that “birds of a
feather are flocked together,” Krulewitch v. United States, 336 U.S.
440, 454 (1949) (Jackson, J., concurring in the judgment), largely
vanishes outside the context of accomplice or co-conspirator
liability. In this case, Vigil’s guilty plea, as a reliable admission of
factual guilt, was significantly probative of the key question whether
the antecedent offense of menacing occurred. And because Vigil
and Rios were not charged with the same crime or with acting as
pleaded guilty may still be introduced for other purposes, such as impeachment or to show acknowledgment of the accomplice’s participation in the offense. See People v. Brunner, 797 P.2d 788, 789 (Colo. App. 1990).
8 accomplices or co-conspirators, the risk that the jury would infer
Rios’s guilt from Vigil’s guilty plea was minimal.
¶ 16 Indeed, the supreme court recognized as much in Paine when
it noted the distinction between a case involving codefendants
charged with the same crime and a case that is “tried upon the
theory that [the codefendant who pleaded guilty] was the principal
and defendant an accessory.” 106 Colo. at 263, 103 P.2d at 689.
Paine, like every other similar Colorado case, involved the first
scenario. Id. (“[A]lthough defendants were charged jointly in the
information, the crime alleged was in its nature several, and one of
them could have been acquitted and the others convicted.”); see
also Craig, 179 Colo. 115, 118-19, 498 P.2d 942, 944 (codefendant
and defendant charged with conspiracy to commit murder); Rios, ¶
9 (codefendant and defendant jointly charged with victim’s death);
People v. Montalvo-Lopez, 215 P.3d 1139, 1145 (Colo. App. 2008)
(codefendant and defendant both charged with possession with
intent to distribute cocaine they were transporting in a vehicle);
People v. Brunner, 797 P.2d 788, 789 (Colo. App. 1990) (accomplice
testified as to guilty plea involving “the same LSD with which
defendant was charged with distributing”).
9 ¶ 17 This case, however, involves the situation that Paine
contemplated but did not decide — a defendant who was “tried
upon the theory that [Vigil] was the principal and [Rios] an
accessory.” 106 Colo. at 263, 103 P.2d at 689. And while no
Colorado case has squarely addressed the admissibility of a
codefendant’s guilty plea for substantive purposes in this context,
Paine’s clear implication is that the evidentiary calculus is different
when the charges against the two defendants do not allege that they
acted in concert to commit the same offense.
¶ 18 While we acknowledge that a guilty plea from a defendant’s
“co-defendant or co-conspirator,” Brunner, 797 P.2d at 789, may
generally not be used as substantive evidence against the accused,
we read those cases in their historical context as applying the
prohibition only to situations in which the defendant and
codefendant have been charged as accomplices, complicitors, or
co-conspirators in the same offense. Because Vigil and Rios were
charged with different crimes stemming only from the same general
set of events, they were not “codefendants” in the sense
contemplated by the supreme court in Paine. As a result, we
discern no error, plain or otherwise, arising from the prosecution’s
10 reliance on Vigil’s guilty plea to prove that he committed the
antecedent offense to Rios’s charge of accessory to menacing.
III. Right to Remain Silent
¶ 19 Rios contends that the trial court erroneously denied his
motions for a mistrial after the prosecutor elicited testimony from
an investigating officer and from Rios himself that, when asked,
Rios had not explained his actions to the police. Rios also contends
that the prosecutor committed misconduct during closing argument
by commenting on Rios’s lack of response to the investigating
officer. Alternatively, Rios contends that we should remand the
case for further factual findings because the record does not reveal
when the investigating officer informed him of his constitutional
right to remain silent.
¶ 20 We address each contention in turn and conclude that the
trial court did not abuse its discretion by denying the motions for a
mistrial.
¶ 21 The parties partially disagree as to whether this argument is
preserved. Rios argues in favor of preservation, pointing out that
“defense counsel objected, three times, and requested a mistrial
11 after the government repeatedly commented or inquired about Mr.
Rios’ constitutional right to remain silent.” The People agree that
defense counsel moved for a mistrial during the investigating
officer’s testimony. However, they contend that Rios did not
preserve his objection to the prosecutor’s closing argument. The
People do not address preservation with respect to Rios’s own
testimony.
¶ 22 We review a trial court’s decision to deny a motion for a
mistrial for an abuse of discretion and will not disturb its ruling
absent an abuse of discretion and prejudice to the defendant. See
People v. Santana, 255 P.3d 1126, 1130 (Colo. 2011). Because a
mistrial is “the most drastic of remedies,” it is “only warranted
where the prejudice to the accused is too substantial to be remedied
by other means.” People v. Abbott, 690 P.2d 1263, 1269 (Colo.
1984).
¶ 23 Because Rios’s attorney objected to the investigating officer’s
testimony and to the questions that the prosecutor asked Rios on
cross-examination, we review those contentions for harmless error.
However, we apply plain error review to the prosecutor’s closing
12 argument because defense counsel did not contemporaneously
object to the statements that Rios now argues were improper.
B. Applicable Law
¶ 24 A prosecutor is prohibited from commenting on a defendant’s
constitutionally protected right to remain silent during trial. U.S.
Const. amend. V; Colo. Const. art. II, §§ 18, 25; People v. Herr, 868
P.2d 1121, 1124 (Colo. App. 1993). A prosecutor should also avoid
making comments regarding a defendant’s pre- or post-arrest
silence. People v. Hardiway, 874 P.2d 425, 427 (Colo. App. 1993);
Herr, 868 P.2d at 1124. “However, the Fifth Amendment
protections do not apply to conduct that occurs in a noncustodial
setting.” People v. Thomas, 2014 COA 64, ¶ 25. Even if the
prosecutor introduces the subject of pre-arrest silence, reversible
error exists only when the prosecutor uses the defendant’s silence
as a means of implying guilt. Hardiway, 874 P.2d at 427; Herr, 868
P.2d at 1124.
C. Analysis
¶ 25 At the threshold, Rios contends that because the record does
not reveal whether he received Miranda warnings before invoking
13 his constitutional right to remain silent, we should remand the case
for further factual findings. We disagree.
¶ 26 A defendant may be impeached with “his constitutionally
protected silence before receiving Miranda warnings, whether that
silence occurred before or after arrest.” People v. Chavez, 190 P.3d
760, 766 (Colo. App. 2007).
¶ 27 The investigating officer testified that he and several other
officers approached Rios “to try to get information,” but that Rios
declined to answer his questions. The prosecutor asked whether
“at this point in time, was the defendant seated on the ground
against one of the basketball posts?” This was a reference to a
photo taken later in the investigation, which depicted Rios in
handcuffs and seated against a basketball post. The officer
answered, “No. Not at that time.” The prosecutor then asked, “[A]t
some point was he?” To which the investigating officer responded,
“Yeah.”
¶ 28 Thus, Rios was not under arrest or in custody when he told
police he did not want to answer questions, and his pre-arrest
silence could be used to impeach him. See id.
14 1. Investigating Officer’s Testimony
¶ 29 We next address Rios’s contention that his “silence was not
relevant” and the prosecutor used his silence “to create an
implication that [he] was guilty because he refused to speak with
the investigating officers . . . .”
¶ 30 During direct examination the investigating officer and
prosecutor engaged in the following colloquy:
Q. And now specifically with regard to the defendant, was he cooperative with you?
A. No, he wasn’t.
Q. What was his demeanor like towards you?
A. Just that he didn’t wish to answer any of my questions, including giving me his name.
¶ 31 Defense counsel objected and moved for a mistrial because the
testimony was “directly commenting on Mr. Rios’ . . . right to
remain silent . . . .” Finding that the officer’s answer was not
responsive to the question, the trial court sustained the objection
but denied the request for a mistrial. Defense counsel declined the
trial court’s offer to instruct the jury to disregard the question.
¶ 32 Because the trial court sustained the objection to the
challenged testimony and defense counsel declined the trial court’s
15 offer to further instruct the jury, there was no error. CRE 611.
Therefore, the trial court properly denied the motion for a mistrial.
See People v. Vigil, 718 P.2d 496, 506 (Colo. 1986) (affirming denial
of motion for mistrial where defense counsel declined trial court’s
offer to instruct the jury to disregard “forbidden words”).
2. Rios’s Testimony
¶ 33 During the prosecutor’s cross-examination of Rios, in response
to Rios’s description of the events leading up to his arrest, the
prosecutor asked, “[T]his is actually the first time that you’ve
actually brought any of this to anybody’s attention, right?” Defense
counsel objected (“commenting on a constitutional right”), and the
trial court sustained the objection. The prosecutor then continued
his cross-examination of Rios:
Q. So as far as being contacted at Sunrise Park . . . there was a number of officers there, right?
A. Yeah.
Q. And a few of them tried to get some information from you?
A. Yes.
Q. And you refused to speak with them?
16 ¶ 34 Defense counsel renewed the objection and, after it was
overruled, requested a bench conference and unsuccessfully moved
for a mistrial.
¶ 35 As noted, “Fifth Amendment protections do not apply to
conduct that occurs in a noncustodial setting.” Thomas, ¶ 25. Our
review of the record reveals that Rios was not in custody when he
“refused to speak” with the investigating officers. Thus, contrary to
Rios’s contention, admission of his silence did not violate his
constitutional right against self-incrimination because his silence
did not occur during a custodial interrogation.
3. Closing Argument
¶ 36 We next address Rios’s argument that the prosecutor violated
his right to remain silent when he “argued that Mr. Rios was guilty
of the crime alleged because he refused to provide the police with
information.”
¶ 37 During closing argument, the prosecutor argued that the
police had a “[d]ifficult time getting any information, even
identifying information, out of the defendant and Marty Vigil. . . . In
fact, [Rios and Vigil] thought it was humorous. . . . Thought it was
17 funny to impede his investigation when there was just chaos that
broke out.” Defense counsel did not object.
¶ 38 The parties stipulated to the fact that Rios “refuse[d] to give
his name,” and the prosecutor’s argument that the police had a
difficult time getting information specifically referred to “identifying
information.” Under these circumstances, we perceive no plain
error.
IV. Cumulative Error
¶ 39 We conclude that the trial court did not err by admitting the
evidence of the codefendant’s guilty plea or by denying requests for
a mistrial based on the alleged violations of Rios’s right to remain
silent. Because there was no error, there can be no cumulative
error. People v. Shanks, 2019 COA 160, ¶ 76 (the cumulative error
doctrine applies only if numerous errors were committed, not
merely alleged).
V. Conclusion
¶ 40 The judgment is affirmed.
JUDGE ROMÁN and JUDGE GRAHAM concur.