v. Rios

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

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 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

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 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).

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 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

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 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

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 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

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 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).

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 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”).

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¶ 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.

A. Preservation and Standard of Review

¶ 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

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 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

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 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

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 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.

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 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?

A. Yes.

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.

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