| In mid-September of 2013, Bobby Vialpando went on vacation in Mexico and asked his sister, Martha, to keep an eye on his trailer home in Greeley, Colorado.
The sister received a call on September 22 that the door to the trailer was open. She called the police and went to Vialpando’s trailer to meet the officers.
They found a back window had been broken and the backdoor pried open. Inside, a small hole had been sawed above the doorknob to the master bedroom, which Vialpando always kept locked. Near the door was a pile of sawdust, the blade of a kitchen knife, and pieces of a blue latex glove. Police found two steak knives on the bathroom floor along with more pieces of a latex glove with blood. The police collected the gloves and submitted them for DNA testing. They did not collect any fingerprints.
The police also found an empty five-gallon plastic water jug that appeared to have been opened with one of the knives.
When Vialpando returned, he told the police that the jug had contained about $3,000 in change. He also said several other items were missing, including: a jewelry box and several pieces of expensive jewelry; some expensive liquor; and the title to a trailer he rented. The burglar had not taken more conventional items, such as the TV or the computer.
Vialpando told the police that he suspected his niece, Sylvia Villalobos. She had lived in the trailer that Vialpando rented, the one with the missing title, and they had recently had a fight over rent that ended with Villalobos moving out. In addition, Vialpando said, Villalobos knew he was going to be away and where he kept his valuables.
Outside the trailer where Villalobos had lived, the police found miscellaneous coins on the ground. They tried to question Villalobos, but she could not be found. She was never ruled out as a suspect.
As the investigation continued, the police interviewed 36-year-old Nora Hilda Rios-Vargas and her ex-husband, Paciano Garcia-Escobar. They had already been cooperating with police about a robbery a few weeks earlier at a Walmart involving Villalobos’s boyfriend. Garcia-Escobar said he had overheard Villalobos talk about stealing from a family member.
Rios-Vargas told police she heard Villalobos say she would take revenge on Vialpando for evicting her. She and Garcia-Escobar said they both noticed Villalobos wearing new jewelry, and Rios-Vargas said she had been with Villalobos when she cashed in about $120 in coins.
The police asked Rios-Vargas for a buccal swab of her DNA, which she provided. The sample was sent to the state crime laboratory for testing, and the investigation stopped around the end of 2013.
More than a year later, in April 2015, the state crime lab reported that Rios-Vargas was the source of the blood found on the latex glove. Rios-Vargas was arrested on September 10, 2015, and charged with second-degree burglary.
Her trial in Weld County District Court began on December 11, 2017. Other than the DNA results, no evidence connected Rios-Vargas to the burglary. In pre-trial motions and opening statements, Rios-Vargas said that Villalobos had framed her because Rios-Vargas had cooperated with the police in the Walmart robbery case involving Villalobos’s boyfriend. (The two women had lived together at some point.) Vialpando had died in July 2015, although police testified about his suspicion that Villalobos was the burglar. One officer said she was “suspect number one.”
A forensic technician testified about the DNA results and said that the probability of the DNA randomly matching an unrelated individual other than Rios-Vargas was one in four quintillion.
Both the state and Rios-Vargas’s attorney had subpoenaed Villalobos as a possible witness. While presenting its case, the state said it would not call Villalobos to testify and had not given her immunity. Before she could be called as a defense witness, the state said, Villalobos needed to be advised of her Fifth Amendment rights against self-incrimination.
Judge Thomas Quammen appointed an attorney to represent Villalobos. The attorney spoke with Villalobos and then told Judge Quammen that Villalobos would be “taking the Fifth.”
Rios-Vargas’s attorney argued that this approach was wrong and that the court should instead allow the defense to ask Villalobos a question and then determine whether she had a valid privilege for not answering.
Judge Quammen said Villalobos’s exposure was too great; she was a prime suspect in the case, and he wouldn’t allow her to testify simply to invoke her rights against self-incrimination.
“The right to present a defense is not absolute and … the Fifth Amendment right of a witness is going to trump that, so that’s my finding,” Judge Quammen said. “And I recognize the defense vehemently disagrees with that and if there is a conviction—I don’t know whether there’s going to be a conviction in this case, but if there is a conviction the appellate courts can correct me if I’m wrong on this.”
Related to this ruling, Judge Quammen barred Rios-Vargas’s attorney from telling the jury why Villalobos didn’t testify. The defense then rested without calling any witnesses.
In closing arguments, the prosecutor said the DNA evidence was enough to convict. “There’s nothing that says one piece of glove with DNA is not sufficient,” the prosecutor said. The state also said that Rios-Vargas’s attempt to pin the burglary on Villalobos was “a story without support” and the “very definition of imaginary and speculative.”
The jury convicted Rios-Vargas of second-degree burglary on December 13, 2017. She received a sentence of four years in prison.
Rios-Vargas appealed. Now represented by Casey Klekas with the Colorado State Public Defender’s Office, Rios-Vargas argued that Judge Quammen violated her Sixth Amendment rights to due process and presenting a defense. The motion said that the judge erred in allowing Villalobos to make a “blanket invocation of the privilege against self-incrimination,” and compounded the error by barring Rios-Vargas’s attorney from telling the jury what happened.
“This was not a peripheral issue—it was Ms. Rios-Vargas’s theory of defense,” the motion said. “The trial court, while simultaneously acknowledging the overwhelming evidence of the alternate suspect’s guilt, prohibited Ms. Rios-Vargas [from] putting the alternate suspect before the jury.”
The Colorado Court of Appeals affirmed the conviction on May 6, 2021, basing its ruling in part on a 1976 decision by the Colorado Supreme Court that said neither the state nor the defense could call a witness to testify if the witness planned to assert their Fifth Amendment rights. While the appellate court said that Judge Quammen should have held a hearing outside the jury’s presence to determine the merits of Villalobos’s Fifth Amendment claim, the error was harmless.
Rios-Vargas appealed. On June 12, 2023, the Colorado Supreme Court, ruling 4-3, granted Rios-Vargas a new trial. The majority said the 1976 ruling had been “erroneously decided” and “failed to consider defendants’ rights to present a defense.” The new ruling still barred prosecutors from calling witnesses who planned to assert their Fifth Amendment rights, but set out new procedures for how trial judges should handle these issues for defense witnesses.
Applying these procedures to Rios-Vargas’s case, the court said that Judge Quammen should have held a hearing regarding Villalobos’s potential testimony and that his failure to do so likely contributed to Rios-Vargas’s conviction.
There was ample evidence connecting Villalobos to the burglary, the court said, and the prosecution took advantage of her absence when it argued to the jury that Rios-Vargas’s efforts to blame Villalobos for the crime were without merit.
“‘[T]here is nothing that moves [Villalobos] from the suspect column to the column that the defendant is in,’’ the prosecutor said. “Notably, the prosecution’s statements to the jury contrast sharply with the concerns it raised to the judge,” the Supreme Court said. “To the court, the prosecution argued that Rios-Vargas should not be allowed to call Villalobos to the stand precisely because any questioning of Villalobos would undoubtedly elicit incriminating information—whether Villalobos committed the burglary, lied about the burglary, or lied about framing Rios-Vargas.”
The dissent said the court lacked a sound reason for disturbing the 1976 ruling, which it said was legally sound and consistent with rulings on Fifth Amendment privileges in more than half the states and many federal jurisdictions.
Rios-Vargas was already out of prison by the time of the court’s ruling, released in late 2021. The state dismissed her charge on September 26, 2023.
– Ken Otterbourg
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