People v. Rodgers

• Decision Date: 23 May 1988
• Docket Number: No. 86SC434,86SC434
• Citation: 756 P.2d 980
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Michael RODGERS, Respondent.
• Court: Colorado Supreme Court

Page 980

756 P.2d 980

The PEOPLE of the State of Colorado, Petitioner, v. Michael RODGERS, Respondent.

No. 86SC434.

Supreme Court of Colorado,

En Banc.

May 23, 1988.

Rehearing Denied June 13, 1988.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Clement P. Engle, Asst. Atty. Gen., Denver, for petitioner.

David F. Vela, State Public Defender, Linda Perkins, Kathleen Lord, Deputy State Public Defenders, Denver, for respondent.

VOLLACK, Justice.

The People appeal from the court of appeals' reversal of the defendant's convictions in People v. Rodgers, 734 P.2d 145 (Colo.App.1986). We reverse the court of appeals' ruling and remand for reinstatement of the defendant's convictions.

I.

The testimony at trial established the following sequence of events. On the evening of November 7, 1983, Kelly Pryor met the defendant-respondent, Michael Rodgers (Rodgers or the defendant). Pryor was working as a waitress in a restaurant in a Vail resort hotel and Rodgers was a customer in the restaurant. Rodgers told Pryor that his name was Eric Woolfson, and that he was the producer and keyboard player in the Alan Parsons Project, a rock band. He told Pryor a number of stories about his "wealthy, globe-trotting lifestyle" and explained to her that he and the band were in Vail to film a video.

Pryor testified that when she remarked to Rodgers that she didn't own a car, Rodgers told her he had two new cars that "he was going to be getting rid of very shortly if I would be interested in one. He would let me have it if I paid the tax on it." Rodgers explained to Pryor that he bought and sold late model cars for tax purposes, and that he was currently "getting rid of" a Mercedes-Benz and BMW for that reason. He offered to sell her either car if she would pay him only the amount of the tax on the car. Pryor agreed to buy Rodgers' Mercedes sport coupe for $2,360, the amount of tax he claimed was owed on the car.

Pryor left work that evening and accompanied Rodgers to have a drink and further conversation. Rodgers explained that he needed to call his accountant in California to determine if the cars were still available. While Pryor waited nearby, Rodgers dialed a collect call and seemed to be having a conversation with someone. After the telephone call he assured Pryor that neither car had yet been sold, and that she needed only $2,360 in cash in order to buy the Mercedes. Rodgers then explained to his accountant over the telephone that he and Pryor would fly to California the next day to get the car. Pryor never spoke with the accountant herself, nor did she hear a voice on the other end of the telephone call.

Pryor and Rodgers then walked to the apartment Pryor shared with her boyfriend, David Shastany. Rodgers convinced the couple that one of them must fly to California immediately--the next day--because he would be leaving for Hawaii in two days. The plan was for Pryor to withdraw cash from her joint bank account with Shastany the next morning, then fly to California with Rodgers and drive the car back herself.

Pryor had to fulfill another work obligation at a second job before leaving Vail, so she and Rodgers went to The Cookie Company together. While Pryor was working, Rodgers used the telephone in the store after explaining to her that he was calling the other members of the band, who were staying at a house in Vail. Pryor worked for about two hours and then used Shastany's truck to drive Rodgers to his hotel. Rodgers said he would call Pryor at 8:30 the next morning and they would depart on a 9:30 a.m. flight from Avon to Denver, then board a flight from Denver to Los Angeles.

Pryor returned to the apartment she shared with Shastany. She and Shastany discussed the events of the evening until 4:30 a.m., when they decided to call Shastany's father, who had many contacts in the music business. Shastany's father advised them to delay paying or leaving with "Eric Woolfson" until he could verify "Eric Woolfson's" story.

When Rodgers called at 8:30 a.m., Pryor told him that Shastany would be accompanying them to California. They withdrew $1,500 cash from the bank and made arrangements to have the balance of the money wired to them in California. A friend of Pryor's drove the couple to the airport, where they met Rodgers.

Rodgers bought airline tickets for the three of them, but because of inclement weather the 9:30 a.m. flight was cancelled. Because the next flight to Denver wasn't scheduled for departure until 4:30 p.m., Pryor's friend returned to the airport and retrieved all three. They left the airport and had lunch together. During lunch, Rodgers offered to sell his BMW to Shastany for $1,500, the tax on the car. Shastany agreed to this offer and when the others returned home, Shastany went to the bank to withdraw more cash for the purchase of the BMW. In the meantime, Shastany's father called at his apartment and left this message with Pryor: "[T]hat is not Eric Woolfson who is in your livingroom. He is not who he claims he is. The police have been notified. Just stall him until someone shows up."

As he returned to the apartment, Shastany was intercepted by Vail Police Department Investigator Richard Cleveland. Cleveland accompanied Shastany back to the apartment. As the group left the apartment together, Rodgers was arrested by Cleveland and another officer who had been waiting outside.

A complaint was filed charging the defendant with theft, section 18-4-401, 8B C.R.S. (1986), ¹ a class 4 felony, and criminal impersonation, section 18-5-113(1)(e), 8B C.R.S. (1986), ² a class 5 felony. A jury trial was held in July 1984 and Rodgers was convicted of both charges. The judge imposed an eight year sentence for the theft conviction and a four year sentence for the criminal impersonation conviction, sentences to run concurrently.

The defendant appealed, and the court of appeals reversed his convictions and remanded for a new trial in People v. Rodgers, 734 P.2d 145 (Colo.App.1986). The court of appeals' reversal was based on its determination that the defendant's request for a mistrial, which was made after the prosecutor's closing argument, should have been granted. The prosecution filed a petition for writ of certiorari with this court, and we granted certiorari to decide whether the court of appeals correctly held that the prosecutor's remarks constituted reversible error because they violated the defendant's free exercise of his constitutional right to a jury trial and operated to deny him a fair trial.

II.

During closing argument, the prosecutor made these statements:

"Juries are very controversial entities. As far as attorneys, some attorneys at least, there is a feeling which I will share with you that if you are innocent--rather, if you are guilty, you would want to request a jury because they just may not convict you and if you are innocent you never want to request a jury because they just might convict you."

734 P.2d at 145.

The issue on certiorari as announced by this court is:

Whether the court of appeals erred in reversing the defendant's convictions on the basis of an improper comment made by the prosecutor during closing argument without undertaking a plain error or harmless error analysis and without evaluating the prejudicial impact of the comment within the context of the entire trial and overwhelming evidence of guilt.

In reviewing remarks to which there was not a contemporaneous objection, a two-part analysis applies. The reviewing court must first consider whether the remarks violated a constitutional right of the defendant. If so, the court must decide whether the violation constituted plain error. United States v. Robinson, 485 U.S. ----, ----, 108 S.Ct. 864, 867, 99 L.Ed.2d 23 (1988). ³

A.

The defendant argued, and the court of appeals agreed, that "these comments on his constitutional right to a trial by jury are analogous to a prosecutor's impermissible comments on an accused's exercise of his constitutional right to remain silent and denied him his right to a fair trial." 734 P.2d at 146. In arriving at this conclusion, the court of appeals applied People v. Ortega, 198 Colo. 179, 597 P.2d 1034 (1979). Thus, the first issue we must address is whether the prosecutor's comments on the defendant's exercise of his right to a jury constituted a violation of a constitutional right of the defendant.

"The fundamental right to trial by a jury in criminal cases is a paramount constitutional right guaranteed by the United States Const., Amend. VI and the Colo. Const., Art. II, Sec. 23." People v. Evans, 44 Colo.App. 288, 612 P.2d 1153, 1155 (1980); § 16-10-101, 8A C.R.S. (1986). It is well-established that a defendant may not be penalized by the exercise of his fifth amendment right to remain silent when he has been accused of a crime. Hines v. People, 179 Colo. 4, 7, 497 P.2d 1258, 1260 (1972). Because a defendant's constitutional right to remain silent cannot be used against him to draw an inference of guilt, it follows that a defendant's exercise of his constitutional right to a trial by jury cannot be used against him to create an inference of guilt. By analogy, therefore, it is impermissible for a prosecutor to make comments "which ha[ve] the effect of creating an inference of guilt by reference" to the defendant's exercise of his right to a trial by jury. Ortega, 198 Colo. at 182, 597 P.2d at 1036.

We note that the United States Supreme Court has drawn certain limitations on claims that the prosecution impermissibly commented upon a defendant's silence. In Robinson, the Court distinguished between a holding which "would forbid the prosecutor from fairly responding to an argument of the defendant" in contrast to a holding that the prosecution may not treat a defendant's "exercise of his right to remain silent as substantive evidence of guilt." 485 U.S. at ----, 108 S.Ct. at 870 (emphasis added). In the context of the fifth amendment,...