People v. Garcia

• Decision Date: 03 May 2007
• Docket Number: No. 04CA2240.,04CA2240.
• Citation: 169 P.3d 223
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Nicholas G. GARCIA, Defendant-Appellant.
• Court: Colorado Court of Appeals

169 P.3d 223

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Nicholas G. GARCIA, Defendant-Appellant.

No. 04CA2240.

Colorado Court of Appeals, Div. III.

May 3, 2007.

Certiorari Denied October 1, 2007.

John W. Suthers, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Andrea R. Manning, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge ROMÁN.

Defendant, Nicholas G. Garcia, appeals the judgment of conviction entered on a jury verdict finding him guilty of sexual assault against a physically helpless victim, § 18-3-402(1)(h), C.R.S.2006. We reverse and remand for a new trial on the sexual assault charge. Defendant does not appeal his conviction for possession of marijuana, § 18-18-406(1), C.R.S.2006, and we do not address it.

According to the People's evidence, defendant, who was eighteen years old at the time, was at his teenage friend's house smoking marijuana and watching a movie. When the friend's mother (the victim) returned home, defendant hid on the balcony because he did not have permission to be at the house. The victim had been out celebrating her birthday and was intoxicated when she arrived home.

After the victim went to bed, she awoke to find defendant having sexual intercourse with her. Initially, she thought defendant was her boyfriend, whom she had seen earlier that night. When she asked how he got in the house, defendant responded that her son let him in. The victim did not recognize the voice as her boyfriend's and was confused about what was happening, but did not tell defendant to stop.

After ejaculating, defendant asked whether he could take a shower, and the victim agreed. When defendant returned to the bedroom, the victim recognized defendant, realized he was not her boyfriend, became upset, and grabbed her gun. Defendant then fled from the victim's home, and the victim called the police.

Defendant was arrested later that night in a nearby cemetery after hiding from the police for several hours. At the time of his arrest, defendant had a police scanner and marijuana in his possession.

After the jury trial, the court sentenced defendant to sex offense intensive supervision probation for twenty years to life. Defendant later admitted to violating his probation. As a result, the court revoked defendant's probation and sentenced him to an indeterminate term of six years to life in the Department of Corrections.

I. CRE 410

Defendant contends the trial court erred by admitting statements he made during the course of plea negotiations. We agree and remand for a new trial for sexual assault.

CRE 410 provides in relevant part:

[E]vidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in any connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer. This rule shall not apply to the introduction of voluntary and reliable statements made in court on the record in connection with any of the foregoing pleas or offers where offered for impeachment purposes or in a subsequent prosecution of the declarant for perjury or false statement.

The phrase "statements made in any connection with" plea bargains refers to actual offers to make a plea or statements made during plea negotiations with prosecutors. People v. Butler, 929 P.2d 36, 40 (Colo.App. 1996) (citing People v. Flores, 902 P.2d 417 (Colo.App.1994), and People v. Rollins, 759 P.2d 816 (Colo.App.1988)).

A trial court has considerable discretion in deciding the admissibility of evidence, and an abuse of that discretion occurs only when its ruling is manifestly arbitrary, unreasonable, or unfair. People v. Rath, 44 P.3d 1033, 1043 (Colo.2002); People v. Elie, 148 P.3d 359, 362 (Colo.App.2006). A trial court necessarily abuses its discretion when it bases its ruling on an erroneous view of the law. People v. Wadle, 97 P.3d 932, 936 (Colo.2004); People v. Pagan, 165 P.3d 724, 729 (Colo.App. 2006).

Here, after defendant was arrested, the prosecutor discussed with him and his counsel whether defendant "would be amenable to taking a polygraph to help resolve the case." After discussions with his counsel, defendant agreed to take a polygraph test "in an effort to try to resolve the case through those efforts." At the prosecutor's office, defendant received a Miranda advisement and signed a waiver in which he initialed the statement, "I understand that anything I say to the examiner giving the test can be used against me in a court."

At trial, the prosecutor introduced statements defendant made during the polygraph test through the testimony of the polygraph examiner. Defendant objected that they were not admissible because the statements had been made in the course of plea negotiations and were not used at trial to impeach him, but rather were used as substantive evidence of his guilt.

In response to defendant's objection, the prosecutor stated:

Here we don't have a plea agreement. The setup in this case was we offered a polygraph and that was I believe at mutual request, but I think I was the one who initiated those discussions and asked [defense counsel] if his client would be interested in taking such a test. I believe there was discussions [sic] and I was told that was something they were interested and willing to do.

My office never makes offers contingent on results and the specific discussion was something to the effect of we'll see what happens as a result of that. Then we will discuss what type of plea may or may not be made at that point. Judge, I can tell the Court that there was no plea — well, there was no offer improved based on those discussions.

(Emphasis added.)

The trial court found that no offer to plead guilty or nolo contendere was made and that "there was no statement made in connection with any actual offer or statement made during plea negotiations." The court further found that "[a]t best, there may have been a different offer than the one that was already made to [defendant] by [the prosecutor] if the defendant passed a polygraph." Because the court determined that the discussions related to "what the parties were going to discuss depending upon what happened at the polygraph," the court determined that CRE 410 was inapplicable because no plea negotiations had occurred.

In addition, the court found that in the "polygraph advisement and authorization form" defendant "fully acknowledged that he understands that anything he says to the examiner giving the test can be used against him in court."

A. Plea Negotiations

We first must consider whether defendant's statements were made during plea negotiations. We conclude they were, apply CRE 410 to the facts of this case, and further conclude the statements are inadmissible.

Here, the parties do not argue the existence of, and the record does not contain, a plea agreement signed by the parties. Therefore, we agree with the trial court's finding that no plea agreement was reached in this case. However, under CRE 410, "statements made in any connection with" guilty pleas or offers are inadmissible. This rule includes statements made during plea negotiations with prosecutors. See People v. Butler, supra, 929 P.2d at 40.

We initially reject the People's argument that defendant never asserted that a plea offer existed. Defense counsel began his objection to the evidence by stating that "the polygraph was conducted ... as part of the plea bargain negotiation." Therefore, counsel's subsequent references to "resolving the case" clearly related to plea negotiations.

Defense counsel's characterization of the parties' discussions as plea negotiations is supported by the prosecutor's representation to the court that "there was no offer improved based on those discussions" (emphasis added). Contrary to the People's argument on appeal, the prosecutor denied improving an offer based on those discussions, but did not deny that an offer had been made. The trial court recognized the existence of an offer when it found that "there may have been a different offer than the one that was already made to [defendant] by [the prosecutor] if the defendant passed a polygraph."

Even if the prosecutor had not made a specific plea offer before the polygraph, we conclude that the polygraph was part of the plea negotiations. The prosecutor stated that the essence of the parties' discussion was, "[W]e'll see what happens as a result of [the polygraph]. Then we will discuss what type of plea may or may not be made at that point." Thus, defendant was expected to take the polygraph before engaging in (further) plea negotiations.

This situation is similar to that in Gelfand v. People, 196 Colo. 487, 586 P.2d 1331 (1978) (discussing CRE 410 before it was formally adopted). There, the prosecutor had a practice of requiring every defendant seeking deferred sentencing to be interviewed and evaluated by the probation department. During her interview, the Gelfand defendant made statements to the probation officer that implicated her in the crime for which she was charged. A plea agreement was never formally concluded, and at trial the probation officer was called as a witness in the prosecution's case-in-chief and testified, over the defendant's objection, to the substance of her incriminating statements. The supreme court held that the trial court erred by allowing the prosecution to use the defendant's statements as substantive proof of guilt.

In considering the policy behind plea agreements, the Gelfand court reasoned:

If the effectiveness and integrity of the plea bargaining process are to be preserved admissions or confessions made in connection with plea offers and negotiations must not be admitted as...