People v. Castro

• Decision Date: 08 September 2022
• Docket Number: Court of Appeals No. 18CA1878
• Citation: 521 P.3d 1035,2022 COA 101
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Fidel CASTRO, Defendant-Appellant.
• Court: Colorado Court of Appeals

521 P.3d 1035

2022 COA 101

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Fidel CASTRO, Defendant-Appellant.

Court of Appeals No. 18CA1878

Colorado Court of Appeals, Division I.

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

Opinion by JUDGE DAILEY

¶ 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.

¶ 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, 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.

¶ 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.

¶ 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, 310 P.3d 58, 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?

¶ 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, 494 P.3d 651 ; 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 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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

¶ 22 In Doyle v. Ohio , 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (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, 96 S.Ct. 2240 (quoting United States v. Hale , 422 U.S. 171, 182-83, 95 S.Ct. 2133, 45 L.Ed.2d 99 (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 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, 96 S.Ct. 2240 )).

¶ 23 In Anderson v. Charles , 447 U.S. 404, 408–09, 100 S.Ct. 2180, 65 L.Ed.2d 222 (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, 100 S.Ct. 2180. But

[t]he Supreme Court rejected this argument, explaining that "a defendant who voluntarily speaks after receiving Miranda warnings has 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 .

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