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People v. Cuellar.

2023 COA 20. No. 20CA1375. Sexual Assault—Prior Sexual Assault Evidence—Right to Counsel—Right to Remain Silent—Closing Arguments—Prosecutorial Misconduct—Misstatement of the Law—Denigration of Counsel—Cumulative Error.

March 2, 2023

Cuellar was charged with sexually assaulting B.W. Before trial, he made inconsistent statements to police about the incident. Cuellar sought leave pretrial to introduce evidence under the rape shield statute that B.W. had previously been sexually assaulted. The trial court ruled the evidence inadmissible. At trial, defense counsel argued that B.W. had consented to engage in sex with Cuellar but that she refused him when he had difficulty maintaining an erection. In her opening statement, one of the prosecutors mentioned that Cuellar had initially invoked his right to remain silent, and an officer and a detective who testified for the prosecution also referenced Cuellar’s invocation of that right. During rebuttal closing argument the prosecutor told the jury that to acquit Cuellar, it would have to believe that B.W. lied about the incident. The prosecutor also argued that defense counsel had improperly insinuated that B.W. had invited the sexual assault and stated that our society does not tolerate such insinuations against crime victims. Cuellar was convicted as charged.

On appeal, Cuellar contended that the trial court violated his right to present a complete defense by excluding evidence showing that B.W. had previously been sexually assaulted. He maintained that the prior sexual assault evidence was relevant to explain his inconsistent statements and would have bolstered his credibility. Here, the prosecution charged Cuellar under CRS § 18-3-402(1)(a), (4)(a), so it had to prove that he caused B.W.’s submission by the use of physical force or physical violence. Cuellar’s knowledge of B.W.’s sexual history was thus irrelevant to whether she consented to having sex with him. Accordingly, the trial court properly concluded that the prior sexual assault evidence was irrelevant to explain Cuellar’s inconsistent statements and, thus, to bolster his credibility. Therefore, there was no error.

Cuellar also argued that the court reversibly erred by (1) allowing the prosecutor to comment during opening statement on Cuellar’s invocation of his right to counsel and right to remain silent; and (2) admitting testimony from an officer and a detective that, while in custody, Cuellar invoked his right to remain silent. Here, the court erred in both respects, but the record shows that the references to Cuellar’s invocation of his rights were brief, were not the focus of the prosecutor’s comments or the officer’s and the detective’s testimony, and were not repeated in closing argument. Further, the evidence against Cuellar was overwhelming. Accordingly, the errors were harmless.

Cuellar further argued that the court reversibly erred by allowing the prosecutor to commit misconduct during closing argument by (1) misstating the law and lowering the burden of proof by arguing that the jury could acquit Cuellar only if the jurors believed that B.W. lied about the incident; and (2) denigrating defense counsel by arguing that counsel insinuated that B.W. invited the sexual assault and by saying that our laws do not tolerate that. First, it is improper argument for a prosecutor to argue that the jury must find that a witness lied to acquit the defendant, because this type of argument misstates the prosecution’s burden of proof. Second, defense counsel did not insinuate that B.W. invited the sexual assault; rather, defense counsel’s closing arguments supported the defense theory that B.W. engaged in consensual sex with Cuellar. While the prosecutor had the right to respond to the defense theory, by condemning defense counsel’s argument so harshly, he exceeded the wide latitude afforded to him by improperly characterizing the theory of defense. And the prosecutor’s characterization of defense counsel’s consent argument as intolerable created animosity against defense counsel and the theory of defense. Accordingly, the prosecutor committed misconduct. However, given the overwhelming evidence of guilt and the court’s proper instructions to the jury, the errors were harmless.

Lastly, Cuellar argued that the cumulative effect of the court’s errors deprived him of a fair trial. However, the prosecutor’s comments were brief and did not violate Cuellar’s constitutional rights, and the court correctly instructed the jury on the applicable law, including the burden of proof. Accordingly, the cumulative effect of the court’s errors does not show that the trial was unfair.

The judgment of conviction was affirmed.

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

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