The Colorado Court of Appeals issued its opinion in People v. Paglione on Thursday, April 24, 2014.
Theft—Fair Trial—Use Immunity.
Defendant, a mortgage broker and banker, helped the victim refinance his house to obtain cash needed to purchase a second house to use as a rental property. Later, defendant helped the victim take out a home equity loan on the rental property. The net proceeds of the home equity loan were approximately $76,000. Defendant arranged for the victim to make payments on both mortgages directly to defendant, who represented he was an agent for the mortgage lender. The victim requested statements, and defendant generated his own receipts and statements for the victim. When the victim attempted to pay the remaining balance of both loans in the amount he believed was outstanding, he discovered the mortgages had not been fully paid and reported defendant to the police for theft.
Defendant testified he had received the victim’s money from the home equity loan but did not apply it to the victim’s primary residence, claiming the victim loaned him the $76,000 in a transaction outside the home equity loan closing. Defendant claimed this loan was evidenced by a promissory note, which he was unable to produce. Defendant also testified he had paid interest to the victim and to victim’s mortgage lender. A jury found defendant guilty of theft of $20,000 or more and sentenced him to five years of probation.
On appeal, defendant claimed he was denied his constitutional rights to a fair trial and to present evidence on his own behalf. He also alleged it was error not to require the prosecutor to request use immunity for a defense witness.
At trial, defendant called to testify a former employee of the title company, who was the closer of the second loan. The prosecutor asked for a bench conference, during which he advised the court that the employee should be advised of her Fifth Amendment rights because if she testified that she notarized the loan documents, the victim and his father were prepared to testify she wasn’t there when he signed. Following additional colloquy in chambers, the court advised the closer of the possible penalties for a first-degree perjury conviction. The court offered to appoint counsel for the loan closer, and she agreed. Following consultation with the attorney, she exercised her Fifth Amendment right and refused to testify.
The Court of Appeals looked to the totality of the circumstances to determine whether the prosecution’s actions constituted substantial governmental interference with a defendant’s right to present a defense. The Court reviewed six factors and concluded that defendant had not established by a preponderance of the evidence that this perjury warning and advisement deprived him of a fair trial.
Defendant also had requested that the court grant immunity to the loan closer or, alternatively, order the prosecutor to request immunity for the loan closer pursuant to CRS § 13-90-118. The court denied the request, and the prosecutor stated it would be “inappropriate” to grant immunity. The Court agreed that only the prosecutor may request immunity for a witness and neither the court nor the defense can require the prosecutor to make such a request.
The Court reviewed and rejected a number of other arguments made by defendant concerning jury instructions, challenge for cause, juror misconduct, and cumulative error. The judgment was affirmed.
Summary and full case available here.