People v. Mares

• Decision Date: 19 May 2011
• Docket Number: No. 06CA1450.,06CA1450.
• Citation: 263 P.3d 699
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee,v.Rogelio Manuel MARES, Defendant–Appellant.
• Court: Colorado Court of Appeals

263 P.3d 699

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Rogelio Manuel MARES, Defendant–Appellant.

No. 06CA1450.

Colorado Court of Appeals, Div. II.

March 31, 2011.Rehearing Denied May 19, 2011.

John W. Suthers, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.Thomas K. Carberry, Denver, Colorado, for Defendant–Appellant.Opinion by Judge CASEBOLT.

Defendant, Rogelio Manuel Mares, appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree murder, first degree assault, and felony menacing. We affirm.

I. Background

Late one night, defendant, who was armed with a sawed-off shotgun, parked his car across the street from a house where rival gang members were attending a party. Upon noticing defendant's vehicle, two people left the party and approached his car, carrying weapons. Defendant shot them both with the shotgun; one died at the scene and the other sustained serious injuries.

An investigator conducted an interview with a witness, O.M., who was at the party the night of the shooting. In previous interviews, she had admitted that she called defendant ten minutes before the shooting, but she had denied disclosing to defendant the location of the party or the fact that many attendees were members of the rival gang. During this interview, O.M. acknowledged telling defendant the location of the party and that there were members of the rival gang in attendance.

Before trial, defendant moved to suppress O.M.'s statements, asserting that they were a product of coercive governmental conduct. After reviewing a video recording of the interview, the trial court determined that the statements were voluntary and denied the motion.

While in custody, defendant placed various telephone calls using a jail telephone. Jail officials recorded these calls, which contained incriminating information. Before trial, defendant moved to suppress the statements contained in the recorded calls, asserting that they were obtained in violation of Colorado's wiretapping statutes, sections 16–15–102(10) and 18–9–303, C.R.S.2010, and that they were the fruit of warrantless searches under the Fourth Amendment. The trial court determined that defendant was on notice that all of his calls would be recorded and therefore he had no reasonable expectation of privacy in them. Accordingly, it denied the motion to suppress.

At trial, the prosecution's theory was that defendant went to the party location intending to exact revenge upon rival gang members for a previous gang-related murder. Defendant's theory was that he went with a friend, A.A., to the house across the street from the party, so that A.A. could purchase methamphetamine. He contended that he did not know when he arrived that a party attended by rival gang members was occurring across the street, and he asserted that he had acted in self-defense when approached by the two people from the party.

During trial, the prosecution called A.A. as a witness. Before he took the stand, defendant notified the court that he believed A.A. would assert his Fifth Amendment privilege against self-incrimination. The prosecutor indicated that she was unaware of the witness's purported intention and asked the trial court to inquire of the witness outside the presence of the jury. The court asked A.A. if he would assert a right not to testify. A.A. answered affirmatively. The following exchange then occurred:

THE COURT: Before you can invoke your Fifth Amendment right, you have to have some criminal liability. Has [A.A.] been charged with anything in regards to this matter?

[PROSECUTION]: He has not, Your Honor.

THE COURT: And is it the prosecution's intention to pursue any charges against [A.A.] related to any alleged drug purchase or drug sales on the date in question?

[PROSECUTION]: It is not, Your Honor.

THE COURT: Okay. [A.A.], the prosecution says that they have no intention of charging you with any crimes related to this incident that allegedly occurred on October 30th and 31st of 2004. So since you don't have any criminal liability you don't have any Fifth Amendment right not to testify.

A.A. still refused to testify, and upon the prosecution's request, the court ordered him to do so. When A.A. again refused, the court held him in contempt and had him removed from the courtroom.

The prosecution asked the court to instruct the jury that A.A. had been called and had refused to testify, stating that the jury had heard information about his being at the scene of the shooting and might wonder why he had not been called to testify. Defendant objected to such an instruction, arguing that it was not relevant and that it would prejudice him. The court determined that an instruction was appropriate. It brought the jury into the courtroom and told the jury:

Ladies and gentlemen of the jury, the prosecution called as their next witness [A.A.]. He appeared in the courtroom. He invoked his Fifth Amendment right not to testify. I made an inquiry and made a determination that he did not have a Fifth Amendment right not to testify.

I ordered him to testify. He informed me that he was continuing to refuse to testify. So I held him in contempt of court and ordered that he be removed from the courtroom.

A.A.'s refusal to testify was not mentioned again by the parties until the prosecutor's closing argument, when she stated, “You didn't hear from [A.A.], because he would have rather be [sic] held in contempt of court than testify.”

This appeal followed defendant's conviction.

II. Instruction on the Refusal to Testify

Defendant first contends that the trial court violated his due process right to a fair trial and his right to confront A.A. Specifically, he asserts that the trial court erred in not appointing counsel for A.A.; that contrary to the court's conclusion, A.A. did have a Fifth Amendment privilege against self-incrimination; and that the court's instruction to the jury constitutes reversible error because it placed an improper inference of defendant's guilt before the jury that was not subject to cross-examination. Reviewing these contentions in reverse order, we reject them.

A. Standard of Review

Defendant asserted a relevancy objection to the court's instruction at trial, but raises on appeal a due process and Confrontation Clause argument. Defendant did not raise any objection to the trial court's now asserted error in failing to appoint counsel for the witness or in its conclusion that the witness had no valid Fifth Amendment privilege. When, as here, a defendant fails to object or asserts on appeal a ground different from the ground asserted in the trial court, we review for plain error. See People v. Vigil, 127 P.3d 916, 929–30 (Colo.2006).

“Plain” in this context is synonymous with “clear” or “obvious.” Lehnert v. People, 244 P.3d 1180, 1185 (Colo.2010). Plain error is error that is so clear-cut, so obvious, that a competent trial judge should be able to avoid it without benefit of objection. People v. O'Connell, 134 P.3d 460, 464 (Colo.App.2005) (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Plain error requires reversal if, after a review of the entire record, a court can conclude with fair assurance that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Lehnert, 244 P.3d at 1185; People v. Miller, 113 P.3d 743, 748 (Colo.2005).

B. Law

Reversible error can occur where a prosecutor calls a witness to the stand knowing that the witness will invoke his or her privilege not to testify. People v. Newton, 966 P.2d 563, 569–72 (Colo.1998). The supreme court has recognized that the error in such a situation may be based on one of two principles. Id. at 569.

First, reversible error exists where the prosecution engages in misconduct consisting of a “conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege.” Id. (quoting Namet v. United States, 373 U.S. 179, 186–87, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963)). Second, reversible error exists when the inferences arising from the refusal to answer add “critical weight to the prosecution's case in a form not subject to cross-examination” and thus prejudice a defendant in violation of the Confrontation Clause of the Sixth Amendment. Id. (quoting Namet, 373 U.S. at 187, 83 S.Ct. 1151).

In determining whether an error has occurred in such situations and whether it is reversible, a reviewing court employs a five-factor totality of the circumstances test: (1) the prosecutor's intent in calling the witness; (2) the number of questions asked; (3) their importance to the state's case; (4) whether the prosecutor draws any inference in closing argument from the refusal to answer; and (5) whether the trial court gives a curative instruction. Id. at 570, 83 S.Ct. 1151 (citing Rado v. Connecticut, 607 F.2d 572, 581 (2d Cir.1979)).

C. Application

1. The Instruction

Defendant contends that the trial court's instruction constituted reversible error because it gave rise to an impermissible inference of his guilt. We disagree.

Here, the witness did not testify before the jury and the prosecutor therefore did not ask any questions. Rather, the only information the jury heard regarding the witness's refusal to testify was the court's instruction. Even so, we recognize that the reference to the Fifth Amendment in the court's instruction could give rise to an impermissible inference of defendant's guilt. Hence, we will analyze the instruction under the totality of the circumstances test to determine if it constituted reversible error. See Newton, 966 P.2d at 570.

The jury could draw one of two inferences from the witness's invocation of a privilege against self-incrimination. First, the jury might draw the impermissible inference of defendant's guilt if it believed...