22CA1354 Peo v Gentry 07-11-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1354
Morgan County District Court No. 21CR225
Honorable Stephanie M.G. Gagliano, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ronald Wayne Gentry,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division A
Opinion by CHIEF JUDGE ROMÁN
Graham* and Richman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 11, 2024
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Julieanne Farchione, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2023.
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¶ 1 Defendant, Ronald Wayne Gentry, appeals the judgment of
conviction entered after a jury found him guilty of felony menacing.
We reverse and remand for further proceedings.
I. Background
¶ 2 Gentry visited his mother, Vita, to repair her security cameras.
At the same time, Vita’s neighbor was installing a privacy fence with
the help of J.K., a second neighbor. Vita and J.K. began arguing.
¶ 3 Gentry intervened and he and J.K. threatened each other.
J.K. held posthole diggers during the confrontation. After that,
Gentry crossed his mother’s yard and retrieved a gun from his car.
According to J.K., Gentry “racked a round” and pointed the gun at
him. J.K. fled and called the police.
¶ 4 When officers arrived, they arrested Gentry, advised him of his
Miranda rights, and ultimately charged him with felony menacing.
After a jury trial, Gentry was convicted as charged.
¶ 5 On appeal, Gentry contends that (1) the district court
reversibly erred when it permitted the prosecutor to use his
post-Miranda silence as substantive evidence of guilt; (2) the district
court reversibly erred by failing to declare a mistrial after prejudicial
testimony from a police sergeant came in; (3) the district court
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improperly allowed expert testimony from J.K. regarding what he
learned in his concealed carry class; and (4) prosecutorial
misconduct deprived him of his due process right to a fair trial by
an impartial jury.
¶ 6 We agree with Gentry’s first contention concerning his
post-Miranda silence and, therefore, reverse and remand for a new
trial. Because it is unlikely his other contentions will arise on
remand, we decline to address them.
II. Evidence and Comments on Gentry’s Post-Miranda Silence
¶ 7 Gentry contends that the district court reversibly erred when it
permitted the prosecutor to cross-examine him about, and
comment in closing argument on, his post-Miranda silence. We
agree.
A. Standard of Review and Applicable Law
¶ 8 We review de novo whether a prosecutor’s references to a
defendant’s post-Miranda silence violate their due process rights.
People v. Castro, 2022 COA 101, ¶ 20 (citing United States v.
Caruto, 532 F.3d 822, 827 (9th Cir. 2008)). Where, as here, the
issue is unpreserved, we reverse only if plain error occurred. Hagos
v. People, 2012 CO 63, ¶ 14.
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¶ 9 An error is plain if it is obvious and substantial. Id.; see also
Crim. P. 52(b). It is obvious if it contravenes a clear statutory
command, a well-settled legal principle, or Colorado case law.
Scott v. People, 2017 CO 16, ¶ 16. An error is substantial if it “so
undermined the fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the judgment of conviction.”
Hagos, ¶ 14 (quoting People v. Miller, 113 P.3d 743, 750 (Colo.
2005)).
¶ 10 Before conducting a custodial interrogation of a suspect, police
must inform the suspect “that he has a right to remain silent, that
any statement he does make may be used as evidence against him,
and that he has a right to the presence of an attorney, either
retained or appointed.” Miranda v. Arizona, 384 U.S. 436, 444
(1966); see also People v. Bonilla-Barraza, 209 P.3d 1090, 1094
(Colo. 2009). If the suspect “indicates in any manner, at any time
prior to or during questioning, that he wishes to remain silent, the
interrogation must cease.” Miranda, 384 U.S. at 473–74; see also
People v. Arroya, 988 P.2d 1124, 1131 (Colo. 1999).
¶ 11 The prosecution can neither present evidence of, nor comment
on, a defendant’s post-Miranda silence. See Griffin v. California,
4
84 (1979). But not every reference to a defendant’s post-Miranda
silence warrants reversal. “To determine whether a prosecutor’s
comment on the defendant’s silence constitutes reversible error, we
should consider ‘(1) whether the improper remarks were used as a
means of creating an inference of guilt; and (2) whether the
prosecution argued that the defendant’s silence constituted an
(Colo. App. 2010) (quoting People v. Hall, 107 P.3d 1073, 1078
(Colo. App. 2004)), aff’d, 2013 CO 57.
B. Additional Facts
¶ 12 A police officer arrested Gentry and advised him of his right to
remain silent pursuant to Miranda. After a short interaction with
the officer, Gentry exercised his right to remain silent and made no
further statements.
¶ 13 At trial, on cross-examination, the prosecutor asked Gentry a
series of questions. After discussing the incident, the prosecutor
asked, “And [the police officer] comes along and she interviews you
and you don’t say any of that to her?”
¶ 14 Gentry’s testimony proceeded as follows:
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GENTRY: I was waiting for questions. I, again,
have never been in that situation before. I
didn’t . . . . Sorry. Never been in that
situation before. I didn’t know what to expect.
PROSECUTOR: Okay. Mr. Gentry, you’re a
school teacher, correct?
GENTRY: Correct.
. . . .
PROSECUTOR: So as a teacher you know that
if there’s information that would help
somebody assess a situation the best rule of
thumb is to give up that information; is that
right?
GENTRY: Again, I wasn’t thinking. I was
scared. And I have never been in that
situation with the police before. I didn’t know
how it worked.
PROSECUTOR: Okay. And that’s
understandable. But you’re sitting in the back
of a patrol car with your hands behind you in
handcuffs having an officer Mirandize you. As
a teacher, as somebody who knows the
best . . . rule of thumb is to give information
that will help somebody make a better
assessment of the situation would it have been
prudent of you to say, but, Officer, there’s a
couple of other things that you should know
that I’m not telling because I’m really nervous?
Can I have a second to talk to you some more?
Wouldn’t that have been a good idea?
GENTRY: When I was told that there was three
witnesses who said that I pointed a gun at him
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that’s when I realized that it didn’t matter what
I said.
PROSECUTOR: But, Mr. Gentry, you know
that you did nothing wrong?
GENTRY: Correct.
PROSECUTOR: So fifteen eyewitnesses
wouldn’t have mattered because you knew the
truth, right?
GENTRY: Correct.
PROSECUTOR: So because you knew the truth
that was the time to say I don’t care if you’ve
got three or fifteen eye witnesses I know what
happened and let me tell you what happened.
GENTRY: At that point in time it wasn’t going
to matter and I figured that my best course of
action was to wait until I could get with a
lawyer.
¶ 15 The prosecutor stayed with this message in the closing
argument to the jury:
Why didn’t [Gentry] tell [the police] all of these
things eight minutes after it happened? Eight
minutes. . . . [H]e didn’t do anything wrong
according to him. He did absolutely nothing
wrong. Why couldn’t he have told her exactly
what happened? It’s fresh in his memory right
then and there. Why not tell her absolutely
everything that happened?
¶ 16 Even during rebuttal argument, the prosecutor persisted with
this line of attack by asserting that “[t]here were many
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inconsistencies between what [Gentry] said to [the police officer]
and what he said on the stand. He had a very long involved
explanation on the stand. A very short explanation to [the police
officer].”
C. The Prosecutor Improperly Referred to Gentry’s Post-Miranda
Silence
¶ 17 The prosecutor’s line of questioning and comments regarding
Gentry’s post-Miranda silence were intended to suggest Gentry’s
guilt. The essence of the questioning was that, if Gentry really
knew the facts that exonerate him, as he testified to at trial, he
surely would have told police on the scene. However, Gentry had
chosen to exercise his right to remain silent at some point during
his discussion with the officer, at which point the prosecution was
not free to talk about his post-Miranda silence to infer guilt. But
that’s exactly what the prosecutor did by suggesting that Gentry
should have discussed the circumstances that led to his arrest in
more detail with the officer even after he chose to exercise his
constitutional right to remain silent. See People v. Hardiway, 874
P.2d 425, 427 (Colo. App. 1993) (“Prosecutorial comment that
creates an inference of guilt by referring to the defendant’s silence
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during custodial interrogation effectively penalizes the defendant for
exercising a constitutional privilege.”).
¶ 18 We reject the People’s assertion that the cross-examination
and closing argument were proper impeachment of Gentry’s
statements to the police before he exercised his Miranda right to
silence. A defendant’s exercise of his right to silence is not
considered an “omission” that may be impeached. See id.; cf.
People v. Quintana, 665 P.2d 605, 610 n.7 (Colo. 1983) (citing
Anderson v. Charles, 447 U.S. 404 (1980)).
¶ 19 Here, Gentry’s limited post-Miranda statements to the police
were consistent with his trial testimony and “merely augment[ed]”
(concluding that defendant’s post-Miranda statements or
subsequent silence were not impeachable where the defendant’s
testimony elaborated on, but did not contradict, her limited
post-Miranda statements to police). Accordingly, Gentry’s initial
volunteered statements did not operate to waive his right to silence
or authorize the prosecutor’s cross-examination regarding any
details that he omitted after invoking that right. See id. (because
defendant’s more elaborate trial testimony merely augmented his
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initial statement, the details omitted from the prior statement were
not sufficiently inconsistent to be admitted for impeachment
purposes).
¶ 20 Having concluded that allowing the prosecutor’s
cross-examination and statements was error, we must still decide
whether the error was plain. We conclude that it does rise to the
level of plain error.
D. Plain Error
¶ 21 The error was obvious because the case law disallowing the
prosecution’s use of a defendant’s post-Miranda silence is well
settled.
1
See Hall, 107 P.3d at 1077 (“It is well established that the
prosecution may not refer to a defendant’s exercise of his right to
remain silent.”); see also People v. Coleman, 2018 COA 67, ¶ 35
1
While Gentry relies heavily on People v. Castro, 2022 COA 101, we
begin by noting that we will not rely on Castro for a plain error
analysis because it was decided after Gentry was convicted. See
People v. Crabtree, 2024 CO 40, ¶ 6; see also People v. Thompson,
2018 COA 83, ¶ 34 (because the error must be obvious, “we only
consider the status of the law at the time of the trial”), aff’d, 2020
CO 72. And, contrary to the People’s assertion, Castro did not
“unsettle” the law regarding post-Miranda silence; it clarified and
was consistent with People v. Hardiway, 874 P.2d 425, 427 (Colo.
App. 1993), and its progeny.
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(“[T]he law prohibiting use of post-arrest silence as substantive
evidence of guilt was settled.”).
¶ 22 The error was also substantial. The cross-examination
regarding Gentry’s silence was not fleeting, and the prosecution
repeated the inference that Gentry should have spoken with police
after the incident in the opening statement as well as during closing
and rebuttal arguments. Cf. Coleman, ¶ 36.
¶ 23 Moreover, the evidence against Gentry was not overwhelming.
The trial primarily focused on conflicting testimony from a witness
favorable to Gentry, J.K., and Gentry. The prosecution’s improper
questions and comments attacked Gentry’s post-Miranda silence to
undermine his credibility. This undermined the fundamental
fairness of a trial that essentially boiled down to the credibility of
Gentry and J.K.
III. Other Contentions
¶ 24 In light of this disposition, we decline to address Gentry’s
other contentions, which are unlikely to arise on retrial. See
Gambrell v. Ravin, 764 P.2d 362, 365 (Colo. App. 1988) (declining to
address issues unlikely to arise on retrial), aff’d, 788 P.2d 817
(Colo. 1990).
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IV. Disposition
¶ 25 The judgment of conviction is reversed, and the case is
remanded for further proceedings.
JUDGE GRAHAM and JUDGE RICHMAN concur.
