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People v. Castro.

2022 COA 101. No. 18CA1878. Custodial Interrogation—Miranda—Post-Advisement Silence.

September 8, 2022

Castro was arrested as a result of a sexual encounter with the victim. During the arrest, a police officer advised him of his Miranda rights. Castro initially declined to speak with the officer, but while being transported to jail, he volunteered that the encounter with the victim was consensual. Castro spontaneously made the same statement to another officer the following day during a buccal swab collection. At trial, Castro testified in greater detail about his belief that the encounter was consensual. On cross-examination, the prosecutor asked Castro why he had not provided the same information initially to police, and defense counsel objected. The trial court overruled the objection. The prosecutor then asked Castro why he had not subsequently told law enforcement his side of the story. Defense counsel objected and the objection was again overruled. During closing argument, defense counsel objected to a statement the prosecutor made, arguing that the statement impermissibly commented on Castro’s right to remain silent. The court overruled the objection. A jury convicted Castro of sexual assault, and the trial court sentenced him under the Colorado Sex Offender Lifetime Supervision Act to an indeterminate term of 25 years to life imprisonment in the custody of the Department of Corrections.

On appeal, Castro argued that the trial court reversibly erred by allowing the prosecutor to cross-examine him about, and comment in closing argument on, his post-arrest silence. Here, 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,” which implied that Castro lied during his testimony. Therefore, the prosecutor’s comments sought to use Castro’s post-arrest silence to impeach his testimony and indirectly imply his guilt. Further, the trial court did not issue any curative or other jury instructions about how the jury should consider Castro’s post-arrest silence. Accordingly, the trial court erred. Further, because the evidence was not overwhelming and the case turned on Castro’s credibility, there is a reasonable possibility that the prosecutor’s improper questions and comments contributed to the jury’s verdict. Therefore, the error was not harmless and a new trial is required.

The judgment of conviction was reversed and the case was remanded for a new trial.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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