Daily Weather Report Powered By:

Judge John Daniel Dailey speaks to attorneys appearing before the Colorado Court of Appeals in the Ralph L. Carr Colorado Judicial Center on Oct. 26, 2021, in Denver.

Judge John Daniel Dailey speaks to attorneys appearing before the Colorado Court of Appeals in the Ralph L. Carr Colorado Judicial Center on Oct. 26, 2021, in Denver.

A prosecutor in Morgan County crossed the line by implying a defendant was guilty because he chose to exercise his constitutional right to stay silent, Colorado's second-highest court ruled last week.

The Fifth Amendment protects a criminal defendant's right against self-incrimination, and it is part of the Miranda warning a suspect receives in custody. The U.S. Supreme Court has deemed it "fundamentally unfair" for prosecutors to use silence after an arrest to discredit a defendant's explanation at trial.

Consequently, a three-judge panel of the Court of Appeals reversed Fidel Castro's sexual assault conviction because the prosecutor at his 2018 trial questioned why Castro did not "talk to law enforcement and let them know your side of the story."

"Here, the prosecutor’s comments sought to use Castro’s post-arrest silence to impeach his testimony and indirectly imply his guilt," wrote Judge John Daniel Dailey in the panel's Sept. 8 opinion. "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."

There was little dispute about the details in Castro's case. Following a New Year's party where Castro and the alleged victim stayed overnight at another couple's house, they kissed on the living room couch while everyone else in the home was sleeping. Quickly, Castro forcefully fondled the victim's genitals with his hands. She told him to stop, as he was being too rough.

"Too rough or not rough enough?" Castro responded. He stopped when one of the victim's children awoke and asked for a drink.

After parting ways with Castro, the victim went to the hospital, where doctors identified lacerations to her vagina and swelling around her bladder. Police arrested Castro and charged him with sexual assault resulting in serious bodily injury.

Castro declined to speak with law enforcement after being read his Miranda rights, except for two comments he made — first while being taken to jail and again when he received a cheek DNA swab, he volunteered that the living-room encounter was consensual.

The victim testified she did not cry out during the alleged assault because she was frozen and did not want to wake her children. Castro testified in his defense at trial, reiterating he believed the encounter was consensual and he was unaware he had hurt the victim.

But prosecutor Travis Sides, who is now the elected district attorney for the 13th Judicial District, asked whether Castro had told police "everything you just told us here this morning?"

Castro's lawyer objected, arguing the questions were seeking to "punish Mr. Castro for exercising his right to silence." Chief Judge Carl S. McGuire III allowed Sides to continue, reasoning Castro had not been completely silent with his stray comments that the encounter was consensual.

"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?" Sides continued.

"I'm saying it now," Castro answered. Sides attempted to follow up, but Castro's lawyer again objected, believing the questioning was "dangerously close" to requiring Castro to prove his innocence. During closing arguments, Sides once more drew a link between Castro's post-arrest silence and his "story" on the stand.

"He’s had about 18 months to come up with it," said Sides. "He was given the opportunity, not once but twice, to talk to law enforcement."

The jury found Castro guilty and he received a sentence of 25 years to life in prison. On appeal, Castro reiterated his argument that the prosecution's questioning implied an innocent person would have spoken to police before trial.

Jurors "were allowed to consider Mr. Castro’s post-Miranda silence for any reason, including as substantive evidence of guilt," wrote Deputy State Public Defender Lynn Noesner to the Court of Appeals.

The government responded that Sides' remarks were short and the evidence against Castro was substantial. Further, Castro voluntarily made brief statements while in custody, and the prosecution rightfully used that conduct to rebut his testimony on the witness stand.

"Because the defendant elected to omit key details about the night as he recalled it," argued Senior Assistant Attorney General John T. Lee, "his trial testimony was inconsistent with his initial explanation."

Not so, the Court of Appeals responded.

"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," explained Dailey, noting Castro had testified he thought the encounter was consensual — exactly as he claimed in custody.

In contrast to the government, the appellate panel did not view the evidence against Castro as overwhelming, believing the criminal case hinged on the jury's beliefs about Castro's credibility. Because the prosecution suggested Castro should have disregarded his constitutional right and spoken with police, and the trial judge had not told jurors how to interpret Castro's post-arrest silence, the Court of Appeals ordered a new trial.

The case is People v. Castro.

Email notifications are only sent once a day, and only if there are new matching items.