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

2022COA101

No. 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 2022COA101

Court 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.

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¶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.

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¶ 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.

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¶ 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?

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¶ 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

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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

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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

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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

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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

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(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.

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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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