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 crossexamined 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 

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.
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

¶ 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.
2

¶ 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, 
3

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.
4

¶ 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.
5

¶ 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?
6

¶ 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 
7

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 
8

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 
9

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 
10

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.’” 
11

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 crossexamination” 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 
12

testified to a more detailed version of events and, during crossexamination,” 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 
13

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 crossexamination 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 
14

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
15

(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.
16

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 
17

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 
18

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.