People v. Fidel Castro

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 8, 2022
2022COA101No. 18CA1878, People v. Castro — Constitutional Law — Due
Process — Fourth Amendment — Searches and Seizures —
Custodial Interrogation — Miranda — Post-advisement Silence
— Fifth Amendment — Right to Remain Silent
In this case, following his arrest and receipt of Miranda
warnings, the defendant twice made very brief, exculpatory
statements to the police. At trial, the defendant testified to various
details consistent with those statements. The prosecutor cross-
examined the defendant about, and later commented in closing
argument on, why he had not given the police those details
following, or since, his arrest.
A division of the court of appeals considers whether Doyle v.
Ohio, 426 U.S. 610 (1976), and its progeny, prohibited the
prosecutor from cross-examining the defendant about, and
commenting in closing argument on, his failure to inform the
authorities of the details to which he testified at trial. Because the
division concludes that it did, the division reverses and remands for
a new trial.
COLORADO COURT OF APPEALS 2022COA101Court of Appeals No. 18CA1878
Morgan County District Court No. 17CR1
Honorable Carl S. McGuire III, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Fidel Castro,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE DAILEY
Berger and Tow, JJ., concur
Announced September 8, 2022
Philip J. Weiser, Attorney General, John T. Lee, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 An individual who has been arrested and advised of his or her
Miranda rights1 will sometimes say something to the police and
then testify somewhat differently at trial. In that situation, a
prosecutor will often want to ask about, and comment in closing
argument on, why the accused did not tell the police what he told
the jury. In some circumstances, though, the prosecutor’s
questions and comments will impermissibly penalize the accused
for not saying something after having been advised that he doesn’t
have to say anything. And because that was the case here, we
reverse the conviction of defendant, Fidel Castro, for sexual assault
and remand for a new trial.
I. Background
¶2 Castro and C.V., the victim, knew each other through two
other people who were a couple. The couple hosted a small New
Year’s Eve gathering in Brush, Colorado.2 Before that evening,
Castro and C.V. had been on at least one date together. At
midnight, they kissed.
1 Miranda v. Arizona, 384 U.S. 436 (1966).
2 Castro, C.V., and C.V.’s three minor children were the only guests
in attendance.
1
¶3 The host couple went to bed, leaving Castro, C.V., and C.V.’s
then-sleeping children in the living room. According to C.V., the
following then happened:
• Around 3 a.m., as she was heading to a couch to go to
sleep, Castro approached and kissed her, and put his
hands down the front of her pants.
• Castro then repeatedly kissed her, bit her genitals and
thighs, and digitally penetrated her, at first with his
fingers, and then with his whole hand.
• Although she told Castro to stop and that he was being
“too rough,” he did not stop, replying, instead, “Too
rough? Or not rough enough?”
¶4 The encounter ended when one of C.V.’s children woke up and
asked for a drink of water. Afterward, Castro asked C.V. for her
phone number. When she could not find a pen and paper in the
kitchen to write it down, C.V. told Castro to find her on Facebook
Messenger. Castro left shortly thereafter.
¶5 Around 9 p.m. that evening, C.V. went to the emergency room,
where she was treated for bruising and lacerations on her genitals,
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bite marks on her neck and genitals, and damage to her urethra. A
DNA test showed the presence of Castro’s saliva on those areas.
¶6 Castro was arrested the next day. During the arrest, a police
officer advised him of his Miranda rights. Castro declined to speak
with the officer. Subsequently, while being transported to jail,
Castro volunteered, very briefly, that the encounter with C.V. “was
consensual.” The following day, during a buccal swab collection,
Castro spontaneously told the swabbing officer the very same thing.
¶7 Castro’s theory of defense was that he and C.V. had previously
been sexually involved during a romantic relationship, and the
encounter that night had been consensual.
¶8 Nevertheless, the jury convicted Castro of sexual assault, and
the trial court sentenced him under the Colorado Sex Offender
Lifetime Supervision Act of 1998 (SOLSA), §§ 18-1.3-1001 to -1012,
C.R.S. 2021, to an indeterminate term of twenty-five years to life
imprisonment in the custody of the Department of Corrections.
¶9 Castro now appeals, contending that (1) reversal is required
because the prosecutor’s use of his post-advisement silence violated
his due process rights and (2) SOLSA is unconstitutional.
3
¶ 10 Because we agree with Castro’s first contention, we do not
address his second one.
II. Evidence and Comments on Castro’s Post-Arrest Silence
¶ 11 Castro contends that the trial court reversibly erred when it
permitted the prosecutor to cross-examine him about, and
comment in closing argument on, his post-arrest silence. We agree.
A. Facts
¶ 12 Castro declined to speak with law enforcement after being
arrested and advised of his Miranda rights, but he later volunteered
to two officers that the sexual encounter with C.V. had been
consensual.
¶ 13 At trial, Castro testified that (1) he and C.V. had a prior
relationship; (2) C.V. initiated sexual contact earlier that evening by
putting her hands down his pants while kissing him; (3) he believed
she was inviting him to join her on the couch when he began
kissing her; (4) she never told him to stop during the encounter; (5)
he thought she was enjoying herself during the encounter; (6) he
was unaware, until the next day, that he had hurt her; and (7) he
thought the entire encounter was consensual.
4
¶ 14 On cross-examination, the prosecutor inquired of him as
follows:
PROSECUTOR: Did you tell that deputy . . .
everything you just told us here this morning?
CASTRO: No, I did not.
PROSECUTOR: Why not?
¶ 15 Before Castro could answer, defense counsel objected, arguing
that this line of questioning suggested that Castro was given the
opportunity to give his account and chose not to, and that it
“basically [sought] to punish Mr. Castro for exercising his right to
silence.” The court overruled defense counsel’s objection, holding,
based on People v. Davis, 312 P.3d 193 (Colo. App. 2010), aff’d,
2013 CO 57, and People v. Quintana, 665 P.2d 605 (Colo. 1983),
that because Castro had exercised only partial, and not complete,
silence, he could be impeached with his silence.
¶ 16 The prosecutor continued:
PROSECUTOR: We’re now in June of 2018.
Did you ever think to talk to law enforcement
and let them know your side of the story since
you were released from jail?
CASTRO: I’m saying it now.
PROSECUTOR: But you didn’t think it would
be important for law enforcement?
5
¶ 17 Defense counsel objected again, saying that the questions
“tread dangerously close to putting a burden on defendant to prove
his innocence.” The court, again, overruled the objection.
¶ 18 During closing arguments, the prosecutor said that Castro
“had a story. And he was going to stick to it. He stuck to it. He’s
had about 18 months to come up with it. He was given the
opportunity, not once but twice, to talk to law enforcement.”
¶ 19 Defense counsel objected, arguing, as pertinent here, that the
prosecutor’s statement impermissibly commented on Castro’s right
to remain silent. The trial court overruled the objection, saying it
was a fair comment on testimony presented at trial.
B. The Prosecutor’s Actions Violated Castro’s Due Process Rights
¶ 20 Ordinarily, “[a] trial court’s decisions to determine the scope of
cross-examination and closing arguments will be upheld absent a
showing of an abuse of discretion.” Davis, 312 P.3d at 198.
However, “[w]e review an alleged violation of constitutional rights de
novo.” People v. Scott, 2021 COA 71, ¶ 12; accord United States v.
Caruto, 532 F.3d 822, 827 (9th Cir. 2008) (“We review de novo
whether references to a defendant’s silence following the
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administration of Miranda warnings violate [his] right to due
process . . . .”).
¶ 21 Before any custodial questioning by the police, a “person must
be warned 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).
¶ 22 In Doyle v. Ohio, 426 U.S. 610 (1976), the United States
Supreme Court noted:
[W]hen a person under arrest is informed, as
Miranda requires, that he may remain silent,
. . . it does not comport with due process to
permit the prosecution during the trial to call
attention to his silence at the time of arrest
and to insist that because he did not speak
about the facts of the case at that time, as he
was told he need not do, an unfavorable
inference might be drawn as to the truth of his
trial testimony.
426 U.S. at 619 (quoting United States v. Hale, 422 U.S. 171, 182-
83 (1975) (White, J., concurring in the judgment)); see Davis, 312
P.3d at 198 (“In Doyle . . . the Supreme Court held that an
accused’s post-arrest silence after having been given a Miranda
advisement could not be used for impeachment purposes, because
7
the Miranda warnings implicitly assure the defendant that his
silence will carry no penalty.”); see generally 3 Wayne R. LaFave et
al., Criminal Procedure § 9.6(a), Westlaw (4th ed. database updated
Nov. 2021) (“Not only is ‘every post-arrest silence . . . insolubly
ambiguous’ because it ‘may be nothing more than the arrestee’s
exercise of [his] Miranda rights,’ but use of the silence to impeach
‘would be fundamentally unfair’ given the fact that the warnings
carry the implicit ‘assurance that silence will carry no penalty.’”
(quoting Doyle, 426 U.S. at 617-18)).
¶ 23 In Anderson v. Charles, 447 U.S. 404, 408-09 (1980), the
United States Supreme Court held that a defendant’s trial
testimony could be impeached by introducing prior inconsistent
statements made at the time of arrest, after Miranda rights had
been waived.
¶ 24 In that case, the defendant had argued that the discrepancy
between his trial testimony and his earlier statement resulted from
omissions in his initial statement, which, the defendant argued,
were tantamount to silence. Id. at 406-07. But
[t]he Supreme Court rejected this argument,
explaining that “a defendant who voluntarily
speaks after receiving Miranda warnings has
8
not been induced to remain silent. As to the
subject matter of his statements, the
defendant has not remained silent at all.” The
Court thus held that when a defendant makes
inconsistent statements, his omission of facts
from one statement (which facts he includes in
a later statement) does not constitute silence
under Doyle.
Hendrix v. Palmer, 893 F.3d 906, 924 (6th Cir. 2018) (citations
omitted).
¶ 25 The People argue that, having volunteered a statement to the
police, Castro chose not to remain silent, and, consequently, what
he said — and, correspondingly, what he didn’t say — became fair
game for evidence and comment.
¶ 26 We do have case law supporting that general proposition. See
Quintana, 665 P.2d at 610 n.7 (“The failure to make any statement
should be distinguished from the situation where an accused does
make a statement to law enforcement officials but the statement
omits significant details which are later included in a subsequent
statement. In the latter situation the accused has not elected to
remain silent, but instead has waived that right and made a
statement.”); Davis, 312 P.3d at 199 (“A testifying defendant may
also be cross-examined on his partial silence where he makes a
9
statement to law enforcement officials but the statement omits
significant details which are later included in a subsequent
statement.” (citing Quintana, 665 P.2d at 610 n.7)); People v.
Rogers, 68 P.3d 486, 492 (Colo. App. 2002) (“A defendant cannot
have it both ways. If he talks, what he says or omits is to be judged
on its merits or demerits.” (quoting United States v. Goldman, 563
F.2d 501, 503 (1st Cir. 1977))).
¶ 27 But, as always, the devil’s in the details.
¶ 28 “Doyle [does not go] out the window as soon as a defendant
makes any post-Miranda statement.” Hendrix, 893 F.3d at 924.
“‘[T]he mere fact that [the defendant] may have answered some
questions or volunteered some statements on his own does not
deprive him of his right to refrain from answering any further
inquiries . . . .’ or from volunteering further information, albeit
exculpatory information.” People v. Ortega, 198 Colo. 179, 184, 597
P.2d 1034, 1037 (1979) (quoting Miranda, 384 U.S. at 445).
¶ 29 “[T]he primary inquiry in cases where a defendant waives his
or her Miranda rights is whether the prosecutor’s question or
argument is ‘designed to draw meaning from silence’ or instead
merely ‘to elicit an explanation for a prior inconsistent statement.’”
10
Hendrix, 893 F.3d at 925 (quoting Caruto, 532 F.3d at 830); see
Anderson, 447 U.S. at 408 (“Doyle does not apply to cross-
examination” into or commentary about “prior inconsistent
statements.”); see also Caruto, 532 F.3d at 831 (“Even in [Miranda]
non-invocation cases in this and other circuits, the differences
between the post-arrest statement and the trial testimony must be
‘arguably inconsistent’; mere omissions are not enough to justify
cross-examination or argument regarding what was not said at the
time of arrest.”) (citation omitted); United States v. Casamento, 887
F.2d 1141, 1179 (2d Cir. 1989) (“[E]ven if a defendant has made
statements to the police after receiving Miranda warnings, he is
deemed to have maintained his silence, unless the post-arrest
statements are inconsistent with the defendant’s testimony at
trial.”).
¶ 30 In the present case, Castro volunteered very limited
statements that, in all respects other than the amount of detail
provided, were consistent with the testimony he gave at trial.
¶ 31 In People v. Hardiway, 874 P.2d 425, 427 (Colo. App. 1993),
the defendant, like here, spoke only briefly with an officer after
having been arrested and advised of her rights. At trial, “she
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testified to a more detailed version of events and, during cross-
examination,” was asked by the prosecution “why she had not told
the arresting officer this more elaborate version.” The trial court
ultimately ruled that “because [she] had made a post-Miranda
statement, she could be impeached with anything she omitted from
that statement.” Id.¶ 32 A division of this court reversed the trial court. It recognized,
consistent with the authorities mentioned above, that
use of an accused’s post-arrest silence for
impeachment purposes, after Miranda
warnings have been given, violates due process
of law.
However, a different rule applies if a defendant
makes a post-Miranda statement and then
testifies at trial to a different version of events.
Under those circumstances, the prosecution
may cross-examine the defendant on
inconsistencies between the two statements.
And, the prosecution also may cross-examine
the defendant on omissions in the first
statement insofar as such omissions are
inconsistent with the defendant’s testimony at
trial.
Id. (citation omitted).
¶ 33 But, the division recounted, where the “belatedly recollected
facts merely augment that which was originally described, the prior
12
silence is often simply too ambiguous to have any probative force
. . . and accordingly is not sufficiently inconsistent to be admitted
for purposes of impeachment.” Id. at 428 (quoting United States v.
Leonardi, 623 F.2d 746, 756-57 (2d Cir. 1980)). The division
determined that the “defendant’s initial volunteered statements did
not operate to waive her right of silence nor to authorize the
prosecutor’s cross-examination regarding any details that she
‘omitted’ after invoking that right.” Id.¶ 34 In this case, Castro did not testify to anything inconsistent
with what he had told the police. He told the police, and the jurors,
that his sexual encounter with C.V. was “consensual.” That he
added, at trial, details consistent with a consensual encounter did
not, under Doyle and its progeny, allow the prosecution to inquire
into, or comment about, why those details were missing from the
original statement.
¶ 35 Consequently, the trial court erred by permitting the cross-
examination and comment on Castro’s post-arrest silence. See
United States v. Ramirez-Estrada, 749 F.3d 1129, 1131-38 (9th Cir.
2014) (The defendant’s “statements, by themselves, are not directly
inconsistent with his testimony. It is only what he omitted from his
13
statements — in other words, his silence — that was relevant to
impeach him.”); United States v. Canterbury, 985 F.2d 483, 486
(10th Cir. 1993) (“The questions were not designed to point out
inconsistencies between Canterbury’s trial testimony and his
statements at the time of arrest. In fact, Canterbury’s post-arrest
statements are not inconsistent with his entrapment defense. . . .
The focus of the examination was therefore not on inconsistent
stories . . . but on Canterbury’s failure to present his exculpatory
story at the time of arrest.”).
¶ 36 In so concluding, we reject, as misplaced, the People’s reliance
on Davis. In Davis, the defendant had two telephone interviews
with a detective prior to his arrest, and Davis testified twice during
direct examination that he had “told [the detective] everything that
happened.” 312 P.3d at 200. Cross-examination, the division held,
appropriately pointed out that his silence on some things during the
interviews was inconsistent with his statement that he’d told the
officer “everything.” Id. at 200-01. Again, nothing Castro said to
the officers was inconsistent with anything he testified to at trial.
¶ 37 Nor are we persuaded by the People’s reliance on People v.
Lewis, 2017 COA 147, as rejecting the ongoing viability of Ortega
14
(and, consequently, Hardiway, which relied on Ortega). The Lewis
division distinguished Ortega by noting that “[u]nlike the defendant
in Ortega,” Lewis “did not make a brief statement, answer only some
questions, or volunteer only limited statements. Instead, he talked
at length, and he never attempted to refrain from answering [police]
inquiries.” Id. at ¶ 36.3
C. The Error Was Not Harmless
¶ 38 The question at this point is whether the error requires a new
trial. Because the error was preserved and of constitutional
dimension, reversal is required unless we are “able to declare a
belief that [the error] was harmless beyond a reasonable doubt.”
Hagos v. People, 2012 CO 63, ¶ 11 (quoting Chapman v. California,
386 U.S. 18, 24 (1967)).
¶ 39 “An error is not harmless beyond a reasonable doubt ‘[i]f there
is a reasonable possibility that the defendant could have been
prejudiced.’ Alternatively, an error is harmless beyond a reasonable
doubt ‘if there is no reasonable possibility that it affected the guilty
3 People v. Lewis, 2017 COA 147, ¶ 32, noted that the defendant
had given an approximately fifty-minute, videotaped statement to
the police.
15
verdict.’” People v. Stroud, 2014 COA 58, ¶ 6 (quoting People v.
Orozco, 210 P.3d 472, 476 (Colo. App. 2009)); cf. People v. Phillips,
2012 COA 176, ¶ 93 (“The inquiry in a harmless error analysis is
‘whether the guilty verdict actually rendered in this trial was surely
unattributable to the error,’ and ‘not whether, in a trial that
occurred without the error, a guilty verdict would surely have been
rendered.’” (quoting People v. Fry, 92 P.3d 970, 980 (Colo. 2004))).
¶ 40 When evaluating the effect of a prosecutor’s improper remarks
on a defendant’s silence, a court may consider the following factors:
(1) the prosecutor’s use of the post-arrest silence; (2) which party
elected to pursue the line of questioning; (3) the quantum of other
evidence of guilt; (4) the intensity and frequency of the reference;
and (5) the trial court’s opportunity to grant a motion for mistrial or
to give curative instructions. People v. Welsh, 58 P.3d 1065, 1072
(Colo. App. 2002), aff’d, 80 P.3d 296 (Colo. 2003); cf. Caruto, 532
F.3d at 831 (“When addressing comments on silence, we consider in
turn three factors, ‘(1) the extent of comments made by the witness,
(2) whether an inference of guilt from silence was stressed to the
jury, and (3) the extent of other evidence suggesting defendant’s
16
guilt.’” (quoting United States v. Velarde-Gomez, 269 F.3d 1023,
1034 (9th Cir. 2001))).
¶ 41 Here, the prosecutor’s comments sought to use Castro’s
post-arrest silence to impeach his testimony and indirectly imply
his guilt. The prosecutor implied in his cross-examination that an
innocent person would have talked with the police sooner and in
more detail. And during closing argument, the prosecutor said that
Castro “had a story” and he was “going to stick to it,” implying that
Castro lied during his testimony.
¶ 42 Next, it was the prosecution that injected the issue into the
case on cross-examination of Castro and in closing argument, and
the trial court did not issue any instructions, curative or otherwise,
about how the jury should consider Castro’s post-arrest silence.
¶ 43 Of great significance, the evidence against Castro was not
overwhelming. There was, to be sure, evidence of sexual conduct,
some of it very “rough.” But the determinative issue was whether
the sex was consensual or not, and there were no other witnesses to
the critical events that night. The case hinged, then, on the jury’s
assessment of Castro’s and C.V.’s credibility. The prosecution’s
17
questions and comments were directed at undermining Castro’s
credibility and posturing him as an untrustworthy witness.
¶ 44 Given that the case turned on Castro’s credibility, we conclude
that there is a reasonable possibility that the prosecutor’s improper
questions and comments contributed to the jury’s verdict finding
Castro guilty. Thus, we conclude that the error was not harmless
and that, consequently, a new trial is required.
III. Disposition
¶ 45 The judgment of conviction is reversed, and the case is
remanded for a new trial.
JUDGE BERGER and JUDGE TOW concur.
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