     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.

               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


                                     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?

             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.




                                     18
