IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

GIOVANI FUSTER MELENDEZ, Appellant.

No. 1 CA-CR 20-0066 

Appeal from the Superior Court in Maricopa County

No. CR2019-104831-001

The Honorable Stephen M. Hopkins, Judge (Retired)

REVERSED AND REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Eric Knobloch

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Dawnese Hustad

Counsel for Appellant

FILED 7-25-2023
STATE v. MELENDEZ

Opinion of the Court

2

OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which

Presiding Judge Jennifer M. Perkins and Chief Judge David B. Gass joined.

B R O W N, Judge:

¶1 Giovani Melendez appeals from his convictions and 

sentences for one count of aggravated assault and five counts of 

endangerment. Counsel for Melendez filed a brief in accordance with 

Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 

(1969), advising us there were no meritorious grounds for reversal. 

Melendez had the opportunity to file a supplemental brief in propria persona

but did not do so. Our obligation is to review the entire record for reversible 

error, State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999), viewing the 

evidence in the light most favorable to sustaining the convictions and 

resolving all reasonable inferences against Melendez, State v. Guerra, 161 

Ariz. 289, 293 (1989). 

¶2 After our initial review of the record, we ordered the parties 

to brief, inter alia, whether the State’s references to Melendez’s refusal to 

answer certain questions during custodial interrogation violated his

constitutional rights and whether fundamental, prejudicial error occurred. 

See Penson v. Ohio, 488 U.S. 75 (1988). Applying established principles from 

Arizona case law and Doyle v. Ohio, 426 U.S. 610 (1976), we hold that such 

error occurred when the State cross-examined Melendez about his selective 

silence and then asked the jury to hold that silence against him during 

closing argument. Thus, we reverse and remand for a new trial. 

BACKGROUND

¶3 While signing a new lease for an apartment together, 

Melendez and his mother met a pastor touring the same apartment 

building. After moving into the building, the pastor hosted services, which 

Melendez’s mother started attending and on occasion he joined her. 

Through this connection, Melendez briefly met the pastor’s son, A.G. 

Melendez and his mother later moved to a different apartment complex

after their lease ended. 
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Opinion of the Court

3

¶4 Several months after their move, A.G. was walking towards 

his apartment when he noticed a car drive up and park nearby. The driver, 

Melendez, exited the car and called out to A.G., asking if A.G. “was the 

pastor’s son.” A.G. walked towards Melendez, who pulled out a handgun

and fired at A.G. multiple times, without striking him. Police found bullet 

marks on the outside wall of a nearby apartment where a family of five 

were present when the shooting occurred. 

¶5 After Melendez was taken into custody, a detective read him 

his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 467–73, 479 (1966). 

The detective explained that she wanted to get Melendez’s “side of the 

story.” She then asked him several background questions, including his 

name, birthdate, phone number, information about his employment, and 

whether he had previous interactions with A.G. or the pastor. Melendez 

answered each of those questions, and he told the detective he had moved 

from Puerto Rico about 17 months earlier. 

¶6 The detective then asked why he went to the apartment 

complex and fired shots at A.G., to which Melendez responded, “I want to 

hold some stuff I want to say.” Several minutes later, she asked whether 

Melendez felt like he needed to protect himself from A.G. and Melendez 

repeated, “I still want to hold off on some information.” This pattern 

continued through much of the interview: 

Detective: Do you believe that you committed a crime today? 

Melendez: I still want to hold myself on some things. 

Detective: That’s fine. So did, did you shoot at somebody 

today? 

Melendez: I would hold information. 

Detective: Okay. So we’ll set that aside. 

¶7 About halfway through the 30-minute interview, the 

detective told Melendez that he would be going to jail because he 

committed a crime. Melendez replied that he felt blindsided, and the

detective asked Melendez to clarify which parts about the alleged crime he 

was not sure about so she could better explain things to him. Melendez

said he was confused about what the pastor was telling the police and the 

detective clarified that the pastor was not saying anything. The detective

explained that people heard Melendez ask A.G. if he was the pastor’s son,

so she asked, “do you have a problem with [A.G.]?” Melendez answered 
STATE v. MELENDEZ

Opinion of the Court

4

that he “barely talked to them,” and the detective inquired why he was 

asking about the pastor, to which Melendez replied, “I’m passing this

question.” The exchange continued as follows:

Detective: I’m just so confused then, why would you go over 

there with a gun?

Melendez: That’s all I want to say about my relationship with 

the pastor and the pastor’s son.

Detective: Okay. Is there somebody else that you were after 

and not them? 

Melendez: Sorry, I apologize, I don’t mean to ignore you. I 

want to pass again.

Detective: Okay. I’ll make sure I make that clear, you have 

no problem with the pastor or his family. 

Melendez: Yeah, I have never had any trouble with them. 

Detective: Okay. I guess I’ll just wonder why you went over 

there with a gun. You were upset today? 

Melendez: Um, I’ll pass again. 

Detective: Okay. Alright, is there anything else you want to 

tell me or you feel like I forgot to ask you about today? Did 

you work today? 

Melendez: Yes, I went to work. 

Detective: Okay. Did anything happen before you went to 

the pastor’s house or apartment? Did anything happen today 

to make you mad? 

Melendez: I’ll pass this question, I’m sorry. 

¶8 When the detective asked Melendez if he remembered what 

happened, he said he “just want[ed] to hold everything for now.” She 

responded, “[a]nd that’s fine. That’s your right.” The detective explained 

that Melendez had one last chance to tell her his side of the story, and then 

left the room. When the detective returned, she explained again that 

Melendez would be going to jail. Melendez then shared his version of what 

occurred. He explained it was his habit to drive around his old 
STATE v. MELENDEZ

Opinion of the Court

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neighborhood, and when he saw A.G., he got out of his car (because his 

window did not roll down) and asked if A.G. was the pastor’s son. A.G.

responded “Oh, que pasa cabron” and walked aggressively towards 

Melendez, while moving his hand as if he were “looking for something.” 

Melendez told the detective that he “reacted to [A.G.] being hostile towards

[me] and walking towards me.”

¶9 The State charged Melendez with aggravated assault, a class 

3 dangerous felony, and five counts of endangerment, all class 6 dangerous 

felonies. At trial, A.G. testified that he approached Melendez, who had his 

hand behind his back, and when A.G. moved his hand to greet Melendez, 

Melendez pulled out the gun. A.G. testified that Melendez fired at him 

several times, prompting A.G. to run away. A friend of A.G. who saw the 

incident testified to a similar version of events. 

¶10 Melendez elected to testify at trial and his testimony generally 

tracked his interview with the detective. Melendez explained that Spanish 

is his first language, and that the term ‘cabron’ represents a “male goat. . . .

So, you know, it can be used – at least in Puerto Rico it can be used as an 

offense.” Melendez also explained that the phrase could be used “if you 

are cool with a person and you’re friends” to convey a greeting, like “what’s 

up, dude?” Because he and A.G. were not well acquainted, Melendez 

testified that he was “worried” because A.G. “was walking towards me 

while he said the words” with a body expression and aggressive tone which 

made him feel as if A.G. “was going to attack” him. Melendez testified that 

A.G. moved his hand towards his waist “like he was going to look for a 

gun,” and Melendez fired his own gun because he believed his life was in 

danger. 

¶11 On cross-examination, the prosecutor questioned Melendez 

about his post-arrest, post-Miranda interview, including the following: 

Prosecutor: Isn’t it true that while you were talking to [the 

detective] you never claimed self-defense until after she told 

you[,] you were going to jail for shooting at the pastor’s son?

Melendez: She just happened to bring me that information as

I was already decided to come in that it was self-defense.

Prosecutor: Okay. But, again, after she told you you’re going 

to jail for shooting at the pastor’s son, that’s when you’re 

claiming that it was self-defense?
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Opinion of the Court

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Melendez: ‘Cause she told me: I will be right back, you know, 

and – and she told me that it was like my last chance to say 

something, and she went outside. And then when she came, 

I had decided to – to tell her that it was self-defense.

Prosecutor: Okay. I’m glad you brought that up. So isn’t it 

true that you were asked probably ten times direct questions 

such as: What made you go over there and shoot today? Do 

you remember her asking you that?

Melendez: Yes.

Prosecutor: Do you remember saying: I want to hold some of 

what I want to say?

Melendez: Yes.

Prosecutor: And do I understand correctly that when you’re 

saying: I want to hold some of what I want to say, that means I 

don’t want to answer that question right now?

Melendez: Well, I – I was passing on the opportunity to answer 

the question at the moment.

Prosecutor: Okay. So you passed on the opportunity to answer 

the question. And then, you know, she asked you, again: Did 

you feel like you had to protect yourself today from the 

pastor’s son, and then your answer was: I still want to hold to 

some of that information?

Melendez: Yeah.

Prosecutor: Right? That’s about ten minutes into the 

conversation. And then she asked you, you know: Is there 

anything you want to tell me? No answer at that point. Right?

Melendez: When she asked me that, I don’t recall exactly 

what I answered.

Prosecutor: Okay. Do you remember her asking you if you 

understood what is a crime, that it’s a crime to shoot at 

somebody? Do you remember her asking you that?

Melendez: Yes.
STATE v. MELENDEZ

Opinion of the Court

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Prosecutor: Okay. And then do you remember her asking 

you: Do you believe you committed a crime today?

Melendez: I think I do.

Prosecutor: And then your answer was: I still want to hold 

myself on some things?

Melendez: Yes, I guess that’s what I answer, yeah.

Prosecutor: And then, again, she asked you: Did you shoot at 

somebody today, and your answer was: I’d like to hold that 

information?

Melendez: Yes.

Prosecutor: And so this went on and on. She asked you –

well, you were telling her, you wanted to clarify something, 

you don’t have a problem with the pastor, you’ve never had 

a problem with his wife, never had a problem with his son. 

You know, one of them, I just saw him at the holidays. The 

other one, I just said hi. Then [the detective] asked you: Then 

why go over there with a gun, and, again, your answer was:

That’s all I want to say about the pastor and the pastor’s son; right?

Melendez: I don’t recall that answer.

Prosecutor: And then do you remember her asking you: Did 

anything happen before you went over to the pastor’s son to 

make you mad?

Melendez: I think I do, yeah.

Prosecutor: Okay. And your answer to that was: I’ll pass this 

question, I’m sorry?

Melendez: Yes.

Prosecutor: You mentioned that, you know, at some point she 

went – she was leaving, you said, and she said: Last 

opportunity?

Melendez: Yes.
STATE v. MELENDEZ

Opinion of the Court

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Prosecutor: That was before she walked out to go get you 

some more water?

Melendez: Yes.

Prosecutor: And then still there was no answer at that point?

Melendez: No answer.

Prosecutor: But then when she returned and she told you you

were going to be – going to jail for shooting at the pastor’s 

son, then you decided that you wanted to tell her that it was 

self-defense; right?

Melendez: I was already decided because I think she had told 

me that, you know – you know, I think there was a comment 

as in, I didn’t want to cooperate, and that wasn’t – that wasn’t 

– you know, as I didn’t want it – you know, after, you know, 

the comment was said, I don’t know how it was said about 

me not cooperating, and, you know, I didn’t want [her] to 

think that I don’t want to cooperate. I just saw it as a way of 

remaining silent at the moment ‘cause I have my right, and I was 

still, you know – my mind was still, you know – I – in this 

belief of what was going on, so I was just waiting, you know, 

for, you know, at least – you know, I wanted to – her to first 

talk to me about, you know, to tell me everything. You know, 

I want [her] to talk to me about the situation.

Prosecutor: So you wanted her to tell you what she knew 

before you would make a claim of self-defense; is that what 

you’re saying?

Melendez: I wanted to – you know, it’s like I had told my 

attorney, I don’t – I didn’t know what to say. I was – you 

know, I don’t know, I never been in this situation, so I was – I 

can say I was kind of lost.

(Emphasis added.) 

¶12 In closing arguments, the prosecutor played audio clips from 

the interview and emphasized Melendez’s decision not to answer certain 

questions posed by the detective and his failure to offer a timely 

explanation for his conduct: 
STATE v. MELENDEZ

Opinion of the Court

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I counted ten or 11 times that he is asked a direct question 

about: Why did you go over there and shoot? Why did you 

have a gun? Why did you ask that question?

And his answer was something along the lines of: I want to 

hold that information. I’m going to pass on that question. I mean, 

if you were shot at or if you believe that you were going to be shot 

at, and that’s why you discharge your own gun at somebody four 

times, once the police do get there, don’t you want to tell them that?

Wouldn’t you want to say: Hang on one second, you have me in 

handcuffs, you put me in here, but here’s what happened. But 

especially once you start getting asked these questions, it’s like 

- - can we have the audio now[?]

(Whereupon a recording was played, not taken down by the 

court reporter.)

If you remember when the Defendant was testifying 

yesterday and I asked him why, why are you saying: Hey are 

you the pastor’s son? His answer was: Well, I wanted to strike 

a friendly conversation with him. I was just going over there, 

saw him.

Why not tell the police that? Why did you ask that question? Why 

did you ask: Are you the pastor’s son? Wasn’t that the answer then 

as well, or is the Defendant still trying to figure out what his excuse 

is going to be as to why he went over there and asked: Are you the 

pastor’s son and then shot at [A.G.].

Another question: Was there someone else you were after? 

Just what would the reasonable person respond if you really justshot 

in self-defense? Would a reasonable person say: I would like to not 

answer that question, or would the answer be: Absolutely not. I was 

not after anyone. 

(Whereupon a recording was played for the jury, not taken 

down by the court reporter.)

Again, you do have the entire interview. These are just clips 

that I put on here, but you can listen to the entire thing.

Here’s another question: If he’s just driving and he just went 

over there for no reason looking for something to do and 

wanted to strike a friendly conversation, why are we 
STATE v. MELENDEZ

Opinion of the Court

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withholding information about did anything happen to make 

you go over or to make you mad? . . .

Notice how when he’s asked: Did you go to work today or did 

you work today, the answer is immediately “yes.” There is 

no problem with that question cause that’s not asking why 

you went over and shot at someone and – no, he doesn’t have to 

think about what he’s going to say.

(Emphasis added.) 

¶13 Defense counsel did not object at trial to the prosecutor’s 

references about Melendez’s refusal to answer certain questions during the 

interview. During deliberations, the jury informed the court that it could 

not reach a unanimous decision on one of the six counts and asked for

further guidance. Acknowledging that an impasse instruction should not 

be given prematurely, the court stated its inclination to give the instruction 

because the case was not “very complicated.” Neither party objected, and 

after receiving the impasse instruction the jury later found Melendez guilty 

as charged. 

¶14 The superior court sentenced Melendez to presumptive, 

concurrent terms of 7.5 years’ imprisonment for aggravated assault, a class 

three felony, and 2.25 years imprisonment for each count of endangerment, 

a class six felony. Melendez timely appealed, and we have jurisdiction 

under A.R.S. § 12-120.21(A)(1). 

DISCUSSION

¶15 Melendez argues the State violated his constitutional rights

under the Fifth and Fourteenth Amendments when the State attacked his 

“exercise of his right to remain silent,” even though he exercised it 

selectively. Melendez contends that under Doyle, 426 U.S. 610, the State’s 

cross-examination and comments during closing arguments violated his 

right to due process under the Fourteenth Amendment. Because Melendez 

did not object at trial, we review for fundamental error. State v. Escalante, 

245 Ariz. 135, 140, ¶ 12 (2018). Under that standard, we first determine 

whether trial error exists, and then whether the error is fundamental. Id. at 

142, ¶ 21. If fundamental error exists, the defendant must then show 

resulting prejudice. Id. The “defendant bears the burden of persuasion at 

each step.” Id. 
STATE v. MELENDEZ

Opinion of the Court

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I. Constitutional Rights Relating to Silence 

¶16 To safeguard a suspect’s right against self-incrimination

under the Fifth Amendment, a suspect in custody must be advised by police

of his right to remain silent, the right to retain or have an attorney 

appointed, and that anything the suspect says can be used against him in 

court. Miranda, 384 U.S. at 467–73, 479. The Miranda warnings are designed 

to ensure, in part, that a suspect understands he may exercise his rights 

throughout the interrogation as well as consequences of forgoing the Fifth 

Amendment privileges: 

It is only through an awareness of these consequences that 

there can be any assurance of real understanding and 

intelligent exercise of the privilege. Moreover, this warning 

may serve to make the individual more acutely aware that he 

is faced with a phase of the adversary system—that he is not 

in the presence of persons acting solely in his interest.

Id. at 469. A waiver of Miranda rights must be made voluntarily, knowingly, 

and intelligently. Id. at 444. 

¶17 After Miranda was decided, but before Doyle, our supreme 

court decided several cases involving the extent to which a prosecutor may 

comment on a defendant’s exercise of silence during custodial

interrogation. For example, in State v. Shing, 109 Ariz. 361 (1973), the 

defendant was apprehended by police at the scene of a crime, informed of 

his Miranda rights, and asked if he wanted to speak with the authorities, to 

which he responded “Yea.” Id. at 362–64. But when an officer began to ask 

specific questions about the crime, the defendant answered that he “didn’t 

want to discuss” how many people were involved, and when asked if he 

would identify other suspects he simply answered “no.” Id. at 364. At trial 

during closing arguments, the prosecutor commented: “Perhaps, the most 

significant thing about [defendant’s] behavior was his silence. He had an 

opportunity to explain his presence at the airstrip. He didn’t do so. He had 

an opportunity to identify someone else who might or might not be 

involved.” Id.

¶18 The supreme court held that the prosecutor’s comments about 

the defendant’s post-arrest silence constituted fundamental error, 

reasoning in part:

To hold that [a] defendant may, after being warned of his 

right to remain silent, have that silence used against him 

would nullify the warning required by Miranda, . . . the 
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Opinion of the Court

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warning would have to be amended to inform the defendant 

that not only what he says may be used against him, but what 

he doesn’t say will also be used against him.

Id. at 365 (emphasis added). Given the strength of the State’s evidence, 

however, the court determined the error was harmless beyond a reasonable 

doubt. Id.

¶19 In State v. Anderson, 110 Ariz. 238 (1973), the prosecutor asked 

the defendant a question about his failure to share his version of events 

before trial. Id. at 239. During closing, the prosecutor referred to the

exchange on cross-examination twice, emphasizing that the defendant had 

maintained his silence up until trial. Id. Acknowledging that cases were 

not unanimous on the issue, the Anderson court clarified that legitimate 

cross-examination serves to call attention to credibility, but that rationale 

does not support questioning a defendant about his “silence at the time of 

arrest” because it is “not an inconsistent or contradictory statement.” Id. at 

239–41 (citing Johnson v. Patterson, 475 F.2d 1066, 1067–68 (10th Cir. 1973)). 

Rather, silence at the time of arrest is the exercise of a constitutional right 

without qualification, and allowing the prosecutor to use that fact at trial 

would make the assertion of the right costly. Id. at 241. 

¶20 Our supreme court held that the “one question and answer,”

along with the prosecutor’s comments to the jury, constituted fundamental 

error, and disapproved of anything to the contrary in Benton and Belcher.

Id.; State v. Benton, 109 Ariz. 427, 428–29 (1973) (finding that defendant 

raised no question of fundamental error based on prosecutor’s question 

about whether defendant “had told this to anyone else”); State v. Belcher, 

108 Ariz. 290, 292 (1972) (rejecting defendant’s contention that the trial court 

erred by allowing prosecutor’s impeachment “by silence”). Based on

overwhelming evidence, the court concluded the error was harmless 

beyond a reasonable doubt but cautioned that by “approaching the 

precipice of fundamental error, the prosecution runs the risk of having an 

otherwise good case reversed when, on appeal, the evidence of guilt is less 

than overwhelming.” Anderson, 110 Ariz. at 241.

¶21 In State v. Ward, 112 Ariz. 391 (1975), the defendant argued he 

had been denied a fair trial when the prosecutor, while cross-examining 

him and during closing arguments, referred to the defendant’s post-arrest, 

post-Miranda silence. Specifically, after the defendant testified he had acted 

out of self-defense, the prosecutor asked him “whether a man acting in

self-defense would have naturally told the police of his defense.” Id. at 392. 

And during closing, the prosecutor raised this point twice. Id. While the
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Opinion of the Court

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State conceded the prosecutor’s statements were improper, it argued 

against reversal given the evidence against the defendant. Id. The court 

disagreed because it could not conclude, in the “presence of prosecutorial 

error of this nature and degree,” that the error was non-prejudicial. Id. 

¶22 In 1976, the United States Supreme Court considered whether 

the prosecution may use a defendant’s post-arrest, post-Miranda silence to 

impeach a defendant’s exculpatory testimony at trial. See Doyle, 426 U.S. at

610–11. After the defendants in Doyle were given Miranda warnings, the

defendants were mostly silent in the face of police questioning. See id. at 

612–14, 627–28 (Stevens, J., dissenting) (noting that one defendant briefly 

responded and asked why he was being arrested). In each of their trials the 

defendants testified, and on cross-examination the prosecutor impeached 

their exculpatory testimony with evidence of their silence during police 

questioning, such as asking whether they had protested their “innocence” 

to the police after being arrested. Id. at 613–14, 614 n.5. And in both trials, 

the prosecutor pointed out the post-arrest silence during closing 

arguments. Id. at 614 n.5. 

¶23 The Court held that the Miranda decision compelled rejection 

of the state’s position that such questioning and argument were needed “to 

present to the jury all information relevant to the truth” of the defendants’ 

exculpatory story. Id. at 617. The court explained that every post-arrest

silence is “insolubly ambiguous” based on what the government is required 

to advise a suspect under arrest. Id. at 617. And “it would be fundamentally 

unfair and a deprivation of due process” to allow a suspect’s silence to be 

used to impeach an explanation later offered at trial because the Miranda 

warnings do not inform him that his silence, just as his words, may be used 

against him. Id. at 618–19. “Indeed, anyone would reasonably conclude 

from Miranda warnings that this would not be the case.” Id. at 619 (citation 

omitted). The Court held that using the defendants’ silence at the time of 

arrest, for impeachment purposes at trial, violated the Due Process Clause 

of the Fourteenth Amendment because the Miranda warnings implicitly 

assure a suspect his silence will carry no penalty. Id. at 610, 619. The Court 

reversed the defendants’ convictions. Id. at 620. 

¶24 Since Doyle, the Court has reaffirmed that the use of a 

defendant’s post-arrest, post-Miranda silence, for impeachment purposes at 

trial, violates due process. See Greer v. Miller, 483 U.S. 756, 763 (1987); see

also Brecht v. Abrahamson, 507 U.S. 619, 628 (1993). The Court has also 

clarified when a suspect advised of Miranda rights may be impeached about 

his statements. See, e.g., Anderson v. Charles, 447 U.S. 404, 408–09 (1980) 

(holding that the government may cross-examine defendants about prior 
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Opinion of the Court

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inconsistent statements, because such questions merely seek to elicit an 

explanation, in contrast to questions that are “designed to draw meaning from 

silence”) (emphasis added). 

¶25 The principles announced in Doyle were not surprising, at 

least for Arizona courts. See State v. Calhoun, 115 Ariz. 115, 117 (App. 1977) 

(noting that our supreme court “had anticipated Doyle in a line of cases of 

which [Anderson, 110 Ariz. at 238], is exemplary.”). And for the most part, 

our appellate courts have continued to reinforce the principle that

prosecutors cannot penalize a defendant at trial by bringing to the jury’s 

attention that he exercised his right to decline to answer police questions.

See, e.g., State v. Carrillo, 156 Ariz. 125, 128 (1988) (“Arizona courts have 

recognized that the protection against self-incrimination includes freedom 

from adverse consequences flowing from defendant’s exercise of his right. 

Thus, the prosecutor may not raise an inference of defendant’s guilty mind 

by remarking upon the silence of a suspect who exercised his Miranda

rights.”). 

¶26 In State v. Sorrell, 132 Ariz. 328 (1982), our supreme court 

considered whether the prosecutor’s various references to the defendant’s 

post-arrest silence constituted reversible error. The arresting officer 

testified that after being informed of his Miranda rights, the defendant said 

he did not wish to speak and wanted to call his lawyer. Id. at 329. A second 

officer testified that about 90 minutes after being placed in a holding cell, 

the defendant contacted him and provided a statement about his innocence

after being re-read his Miranda rights. Id. Along with these references, the 

prosecutor emphasized during its opening and closing arguments the 

defendant’s failure to provide his exculpatory story until he had “a little 

time to think about what he was going to say to officers.” Id. 

¶27 Citing various Arizona cases, the court found the references 

to the defendant’s post-arrest silence were “clearly fundamental error, and 

it has been held so on numerous occasions.” Id. Recognizing the reasoning 

in Doyle—that such references are a deprivation of due process—the court 

rejected the State’s argument that the comments were permissible because 

the defendant “did not remain silent.” Id. at 329–30. The court explained 

that “an accused may change his mind after he has elected to remain silent 

and decide to speak . . . but we do not believe that he should be prejudiced by this 

later change of mind.” Id. at 330 (emphasis added). Whether a defendant 

speaks after remaining silent for some time, or never makes a statement, a 

comment on such silence is improper because he is relying on Miranda’s

promise that he had a right to remain silent. Id. “[C]omment on the exercise 
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Opinion of the Court

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of that right is proscribed by the opinions of this court and the United States 

Supreme Court.” Id. (emphasis added). 

¶28 In State v. Routhier, 137 Ariz. 90, 93 (1983), an officer read the 

defendant his Miranda rights before questioning him. The defendant said

he remembered a few details about the crime, but when asked to elaborate 

he requested an attorney and questioning ceased. Id. at 93–94. At trial, the 

prosecutor asked the defendant during cross-examination if at any point he 

had told police that he acted in self-defense, to which the defendant replied, 

“I don’t think so. No, I didn’t discuss any of the details with them.” Id. at 

95. The prosecutor continued to ask the defendant why he had not 

provided the police more information and referenced such silence on 

redirect examination of the interrogating officer. Id.

¶29 The defendant argued on appeal he was denied due process 

by the prosecutor’s references to his post-arrest silence. Id. Consistent with 

Arizona case law showing that a defendant’s silence “cannot be used 

against him,” our supreme court held that the prosecutor improperly asked

“questions on matters about which the [defendant] had not made any 

comment or given any information.” Id. at 95–96 (emphasis added). 

Explaining that “[Anderson, Shing, Ward] are grounded on the principle that 

the Miranda warnings implicitly assure a person that the exercise of his 

rights carries no penalty and cannot be used against him,” the court 

determined the State violated the defendant’s Fifth Amendment right to 

silence and the error was fundamental. Id. at 95–96. The court also rejected 

the State’s argument that the defendant had waived his constitutional 

rights, pointing out that a person is not “inextricably bound” by waiver. Id.

at 96.

¶30 Applying these principles, we turn to whether Melendez’s 

right to due process was violated when the State cross-examined him about 

declining to answer certain questions during his interview with the 

detective and urged the jury during closing arguments to draw inferences 

from that exchange. In doing so, we recognize that the Supreme Court has 

not yet addressed whether Doyle applies to selective silence, leaving federal 

and state courts divided on the question. See Chase Cunningham, Note,

Noncustodial Selective Silence: Existing Bases for Newfound Protection, 56 

U. Louisville L. Rev. 463, 472–78 (2018).

1 For the reasons explained below, 

1 For jurisdictions that have generally recognized the right of a 

defendant to selectively exercise silence during custodial interrogation, see, 

e.g., Hurd v. Terhune, 619 F.3d 1080, 1087 (9th Cir. 2010); United States v. 
STATE v. MELENDEZ

Opinion of the Court

16

we agree with courts holding that the prosecution may not penalize a 

suspect who has selectively exercised his right to remain silent in 

responding to certain questions or requests during custodial interrogation, 

whether by specifically declining to answer or by staying mute. The 

reasoning from those courts aligns more closely with Arizona’s case law

and reflects the principles of fundamental fairness and due process applied 

in Doyle.

II. Application of Arizona Case Law and Doyle

A. Waiver 

¶31 The State argues Melendez’s selective silence does not

warrant constitutional protection because he did not remain completely

silent; instead, he spoke. See, e.g., State v. Talton, 497 A.2d 35, 44 (Conn. 1985)

(“By speaking, the defendant has chosen unambiguously not to assert his

right to remain silent.”). Thus, the State contends he “voluntarily waived

his rights” by answering some questions and did not invoke his right to

remain silent when refraining from answering others. 

¶32 The State has the burden of proving waiver of a constitutional 

right. See Brewer v. Williams, 430 U.S. 387, 404 (1977). For waiver to be made 

“voluntarily, knowingly and intelligently,” the suspect must (1) choose to 

Moore, 104 F.3d 377, 389 (D.C. Cir. 1997); United States v. Scott, 47 F.3d 904, 

907 (7th Cir. 1995); United States v. Canterbury, 985 F.2d 483, 486 (10th Cir. 

1993); United States v. Williams, 665 F.2d 107, 109–10 (6th Cir. 1981); United 

States v. Ghiz, 491 F.2d 599, 600 (4th Cir. 1974); People v. Castro, 521 P.3d 1035,

1040, ¶ 29 (Colo. App. 2022); State v. McCallie, 369 P.3d 103, 109, ¶¶ 25–26 

(Utah Ct. App. 2016); Bartley v. Com., 445 S.W.3d 1, 9 (Ky. 2014); Coleman v. 

State, 75 A.3d 916, 924 (Md. App. Ct. 2013); State v. Silva, 81 P.3d 889, 893

(Wash. Ct. App. 2003).

For jurisdictions rejecting selective silence, see, e.g., McBride v. 

Superintendent, SCI Houtzdale, 687 F.3d 92, 103–05 (3rd Cir. 2012); United 

States v. Pando Franco, 503 F.3d 389, 396–97 (5th Cir. 2007); United States v. 

Burns, 276 F.3d 439, 441–42 (8th Cir. 2002); United States v. Pitre, 960 F.2d 

1112, 1125–26 (2d Cir. 1992); United States v. Goldman, 563 F.2d 501, 502–04

(1st Cir. 1977); People v. Bowman, 136 Cal. Rptr. 3d 119, 127–28 (Cal. Ct. App. 

2011); State v. Fluker, 1 A.3d 1216, 1222–23 (Conn. App. Ct. 2010); People v. 

King, 892 N.E.2d 1196, 1204–06 (Ill. App. Ct. 2008); People v. McReavy, 462 

N.W.2d 1, 7–9 (Mich. 1990); State v. Smart, 756 S.W.2d 578, 581 (Mo. Ct. App. 

1988). 
STATE v. MELENDEZ

Opinion of the Court

17

relinquish the right freely and (2) the waiver must be made with “full 

awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 

421 (1986). The record supports a finding of waiver under the first prong 

because Melendez voluntarily spoke with the detective and nothing 

suggests he was intimidated, coerced, or deceived. See id. On the second 

prong, however, during much of the interview, Melendez repeatedly told 

the detective he did not want to talk about the shooting, and the detective

affirmed that was his right. 

¶33 Nothing in the Miranda warnings informs a suspect that if he 

relies on his Fifth Amendment right to be silent, completely or partially, his 

exercise of that right can be used against him at trial. Logically, this means

a court cannot properly find a suspect has “waived” that consequence. See 

Moran, 475 U.S. at 421 (requiring “full awareness” of the right being 

abandoned and its consequences). Instead, a suspect would reasonably 

presume the opposite—that he can exercise his right to remain silent by 

refraining from answering all or some questions posed to him. See Doyle, 

426 U.S. at 617–19; see also Carrillo, 156 Ariz. at 131 (“By informing a suspect 

of the Miranda rights, the state makes an implied promise that there will be 

no penalties if the suspect uses those rights.”).

¶34 As our supreme court explained in Shing, the warnings

required by Miranda would have to be amended to inform a suspect that 

not only what he says may be used against him, but what he does not say 

will also be used against him. Shing, 109 Ariz. at 365. The warnings have 

not been amended, and allowing the State to penalize a defendant at trial 

for his earlier silence when he was not informed of that consequence would

improperly relieve the State of its burden to prove waiver. It would also

underscore the “imbalance in the delivery of Miranda warnings,” given that 

the warnings “emphasize the dangers of choosing to speak . . . but give no 

warning of adverse consequences from choosing to remain silent.” South

Dakota v. Neville, 459 U.S. 553, 565 (1983). 

¶35 While a suspect need not know and understand “every 

possible consequence of a waiver,” Colorado v. Spring, 479 U.S. 564, 574 

(1987), interpreting Miranda to allow the jury to hear comments at trial 

about a suspect’s silence, whether partial or complete, would make the 

assertion of the right more costly by, in essence, allowing a suspect to 

incriminate himself without being aware of doing so. See Carrillo, 156 Ariz. 

at 131 (explaining that courts do not penalize a “defendant for exercising 

his Miranda rights”). Thus, the State has not met its burden of showing that 

by answering some questions, and declining to answer others, Melendez 
STATE v. MELENDEZ

Opinion of the Court

18

knowingly and intelligently waived his right to refrain from answering 

certain questions throughout the interrogation and to be free from penalty 

at trial for exercising that right. See Miranda, 384 U.S. at 445 (“The mere fact 

that [a criminal suspect] may have answered some questions . . . does not 

deprive him of the right to refrain from answering any further inquiries.”);

Anderson, 110 Ariz. at 241 (allowing prosecutors to point to a defendant’s 

exercise of silence would make the assertion of the constitutional right 

costly).

¶36 When a suspect relies “on the express statement in the 

Miranda warnings that he had a right to remain silent,” then “comment on 

the exercise of that right is proscribed by the opinions of [the Arizona 

supreme] court and the United States Supreme Court.” Sorrell, 132 Ariz. at

330. A suspect who answers only some of law enforcement’s questions has 

not waived his ability, based on due process, to exercise his Fifth 

Amendment right to silence when responding to other questions. See, e.g.,

United States v. Williams, 665 F.2d 107, 109–10 (6th Cir. 1981). Melendez

exercised that right when he repeatedly told the detective he did not want 

to address certain questions. 

¶37 Like other jurisdictions declining to extend Doyle to selective 

silence, the State seems to argue that a defendant must remain completely

silent to claim the due process protections contemplated under Doyle. See, 

e.g., United States v. Burns, 276 F.3d 439, 441–42 (8th Cir. 2002). Apparently 

under that view, if a suspect utters one word during police questioning

—whether or not the statement has any relevance to his involvement in the 

crime—then any attempt to exercise silence throughout the rest of the

interview is futile, absent cutting off all questioning or requesting counsel. 

See Stephen Rushin, Comment, Rethinking Miranda: The Post-Arrest Right to 

Silence, 99 Cal. L. Rev. 151, 163–66 (2011). Reading Doyle in proper context, 

the State’s argument fails. 

¶38 In Anderson, the Court explained that Doyle “involved two 

defendants who made no postarrest statements about their involvement in 

the crime.” Anderson, 447 U.S. at 407; see also Jenkins v. Anderson, 447 U.S. 

231, 239 (1980) (stating that in Doyle, the defendant “made no statements”

to the police). But Anderson’s explanation, in a literal sense, is not true, at 

least as to one of the defendants. After being informed of his Miranda

warnings, Mr. Doyle asked the police, “What’s this all about?” and 

“exclaimed ‘you got to be crazy,’ or ‘I don’t know what you are talking 

about.’” Anderson, 447 U.S. at 407 n.2 (citations omitted); see Doyle, 426 U.S. 

at 613–614, 614 n.5. The later analysis in Anderson clarified why, in context, 

the Court treated the defendants as having made no statements when it 
STATE v. MELENDEZ

Opinion of the Court

19

explained that the relevant post-arrest statements for purposes of a Doyle

due process analysis are those “about [a defendant’s] involvement in the 

crime.” See Anderson, 447 U.S. at 407 (emphasis added); see also State v. 

McCallie, 369 P.3d 103, 108, ¶¶ 20–21 (Utah Ct. App. 2016) (considering 

whether the defendant’s post-arrest statements fell into the “category of 

comments about his involvement in the interrogation” or “whether they 

[could] be fairly described as comments about his involvement in the 

crime”).

¶39 Because Mr. Doyle’s statements were uniformly treated as the 

equivalent of silence, they were not considered statements about his 

involvement in the crime. See Anderson, 447 U.S. at 407 n.2 (“Both the Court 

and the dissent in Doyle analyzed the due process question as if both 

defendants had remained silent.”). Stated differently, the Court implicitly 

concluded that a suspect waives his Miranda rights on matters related to his 

involvement in a crime, but waiver is not triggered by comments about the 

interrogation itself. If the “you speak, you waive” rule (which the State in 

effect presses in its briefing) were viable, the Court presumably would have 

applied waiver and never reached the due process analysis in Doyle. 

Likewise, our supreme court presumably would have applied waiver in 

Shing, given that the defendant there briefly spoke before he specifically 

declined to answer other questions. Shing, 109 Ariz. at 364–65. Here, the 

State repeatedly referenced Melendez’s refusal to answer certain questions, 

but his responses to those questions related to his involvement in the

interrogation. They cannot be fairly described as comments about his 

“involvement in the crime.” See Anderson, 447 U.S. at 407 (emphasis added).

¶40 And to the extent the State suggests that Melendez waived his 

right to exercise selective silence by saying “I’ll pass” or similar wording, 

in deciding whether the State can later point to those responses at trial, there 

is no meaningful difference if a suspect shakes his head “no,” says, “I don’t 

want to answer,” or is unresponsive. In each instance, a suspect is 

exercising his right not to respond, consistent with what he is told he can 

do at the outset of the interrogation. See Hurd v. Terhune, 619 F.3d 1080, 1089

(9th Cir. 2010) (stating that a suspect “need not utter a ‘talismanic phrase’ 

. . . . [I]t is enough if the suspect says that he wants to remain silent or that 

he does not want to answer that question”); United States v. Velarde–Gomez,

269 F.3d 1023, 1031–33 (9th Cir. 2001) (en banc) (holding that evidence of 

the suspect’s lack of physical or emotional reaction when confronted with 

crime details was tantamount to evidence of silence). Melendez, speaking 

in his non-native language, conveyed his intent to exercise his right not to 

answer certain questions by repeatedly stating he wanted “to hold” or “to 
STATE v. MELENDEZ

Opinion of the Court

20

pass” on some things, which the detective understood when she confirmed 

he had that right. See Hurd, 619 F.3d at 1089. 

¶41 Moreover, adopting a strict rule that uttering a single word

waives the due process protection recognized under Doyle would be 

unreasonable. For example, in Hurd, after answering various questions, the 

defendant declined the officer’s request that he demonstrate how he was

holding the gun during the alleged crime by saying, among other things, “I 

don’t want to do that,” “I can’t,” and “[n]o.” Hurd, 619 F.3d at 1088–1089.

In granting habeas relief, the Hurd court reasoned in part that when a 

suspect “remains silent or refuses to answer a question posed by police, that 

silence or refusal is inadmissible,” and the law allows him “to refuse to be 

interviewed in a particular manner even if he has already waived that right 

with respect to the subject matter of the interrogation.” Id. at 1082, 1088. To 

conclude that a suspect waives his right to Doyle’s due process protection 

merely by telling the police “no” in response to a request to show or explain 

how or why a crime was allegedly committed is untenable. See id. at 

1088–1089; see also State v. Beaudet-Close, 468 P.3d 80, 86 (Haw. 2020) 

(holding that the defendant, after he had provided “his side of the story” 

and answered the detective’s questions, could not be penalized at trial for

refusing to participate in reenactment of the alleged crime).

¶42 Finally, holding that a defendant automatically waives his 

right to decline to answer certain questions posed by police by merely 

speaking lacks compelling justification because it fails to recognize that a 

suspect should be permitted to exercise the right to silence without needing 

to cease cooperating with law enforcement altogether. See Sorrell, 132 Ariz.

at 330 (permitting the State to comment on the timing of a defendant’s 

silence “would mean that a defendant has more to lose by waiting and 

making a statement than he would if he never made a statement at all”); 

Hendrix v. Palmer, 893 F.3d 906, 924–95 (6th Cir. 2018) (explaining that Doyle

does not cease to apply just because a “defendant makes any post-Miranda

statement”).

B. Invocation v. Exercise 

¶43 According to the State, it is significant that Melendez never 

made “an unambiguous invocation of his right to remain silent and/or his 

right to counsel.” The State suggests that Melendez surrendered any right 

to claim he relied on his constitutional rights when he was selectively silent, 

citing the Supreme Court’s plurality opinion in Salinas v. Texas, 570 U.S. 178, 

183 (2013) (holding that the privilege against self-incrimination is not 

self-executing). 
STATE v. MELENDEZ

Opinion of the Court

21

¶44 The State improperly frames the right to remain silent as one

which can only be exercised to cut off questioning. But nothing in Doyle

suggests the right to silence is an “all or nothing proposition.” See Hurd, 

619 F.3d at 1087; State v. Fuller, 282 P.3d 126, 136, ¶¶ 36, 38 (Wash. Ct. App. 

2012) (explaining that a suspect “may invoke the right to silence in response 

to any question posed by law enforcement” without police necessarily 

needing to cease an interview). The notion that a suspect has only two 

choices (remain completely silent or invoke) overlooks what “invocation” 

commonly means in the context of custodial interrogation. Generally, when 

courts reference a suspect who has “invoked” his constitutional rights 

during police questioning, the description reflects a suspect’s assertion of 

either the Fifth Amendment privilege against self-incrimination or the Sixth 

Amendment right to counsel. See Salinas, 570 U.S. at 183–84 (explaining the 

privilege against self-incrimination and requirements for invocation); 

McNeil v. Wisconsin, 501 U.S. 171, 177–78 (1991) (describing the purpose of 

the right to counsel and requirements for invocation). Thus, the effect of 

invocation in those circumstances is the termination of all questioning. See,

e.g., Berghuis v. Thompkins, 560 U.S. 370, 381–82 (2010).

2 To end an 

interrogation through invocation, a suspect must unequivocally and 

unambiguously communicate his desire. Id.

¶45 Unlike invoking the right to cut off questioning and the right 

to speak with counsel, the privilege related to the due process right 

recognized in Doyle requires no affirmative communication; it is essentially 

self-executing. See McCallie, 369 P.3d at 109, ¶ 25 (rejecting assertion that a 

suspect must unambiguously invoke his right to remain silent to trigger 

Doyle’s “assurance that silence will carry no penalty”). A due process 

violation occurs when (1) state officials assure a defendant he has a certain 

right, (2) he exercises that right, and (3) “the prosecution uses the 

defendant’s exercise of the right as evidence against him at trial.” Engle v. 

Lumpkin, 33 F.4th 783, 793 (5th Cir. 2022) (“[I]t is the defendant’s frustrated 

reliance on an official assurance that violates the Constitution.”). Thus, a

suspect who declines to respond to a question or request by staying mute, 

or otherwise communicates his desire not to address the question or 

2 In Berghuis, the Supreme Court considered whether the defendant 

invoked his Fifth Amendment rights by remaining mostly silent for the first 

two hours and forty-five minutes of a three-hour police interview. Berghuis, 

560 U.S. at 375–76. The issue addressed was whether his silence was 

enough to indicate to police that he wanted to invoke his right, under the 

Fifth Amendment, to cut off all questioning. See id. at 380–81. The 

defendant’s silence was not introduced as substantive evidence at trial, nor 

did the Court decide its admissibility. 
STATE v. MELENDEZ

Opinion of the Court

22

request, has exercised his right to be free from the State using that conduct 

against him at trial. See Doyle, 426 U.S. at 617–18.

¶46 And no matter how we label a suspect’s decision not to 

answer questions, just because a suspect does not affirmatively invoke his 

Fifth Amendment or Sixth Amendment rights does not mean the State may 

later penalize the suspect for whenever he exercises his due process right to 

refrain from answering certain questions during the interview. See, e.g.,

United States v. Garcia-Morales, 942 F.3d 474, 476 (9th Cir. 2019) (“[A] suspect 

who remains silent in response to certain questions may still claim 

protection under Doyle even if his silence falls short of the unambiguous 

declaration required to invoke the right to counsel under Davis or the right 

to cut off questioning.”); see also Hendrix, 893 F.3d at 925 (holding that 

protecting a defendant’s exercise of silence reflects the rule that the 

prosecution cannot try to “‘draw meaning from silence,’ which Doyle and 

its progeny strictly forbid”) (citation omitted).

¶47 The policy concerns that require a suspect to unambiguously 

and unequivocally invoke his right to end questioning or speak with 

counsel are not implicated by the exercise of selective silence. See Berghuis, 

560 U.S. at 382 (“If an ambiguous act, omission, or statement could require 

police to end the interrogation, police would be required to make difficult 

decisions about an accused’s unclear intent and face the consequence of 

suppression if they guess wrong.”) (internal quotation omitted). Protecting 

the exercise of silence does not change the nature of custodial interrogations 

because nothing in Doyle suggests that if a suspect is selectively silent, the 

interviewer must decide whether to proceed or risk having the 

interrogation suppressed. Rather, upholding a suspect’s right to due

process under Doyle rests with defense counsel, prosecutors, and judges, 

because Miranda implicitly promises that a defendant’s silence will not be 

used against him at trial. See Doyle, 426 U.S. at 619 (explaining that “it does 

not comport with due process to permit the prosecution during the trial to 

call attention to [the defendant’s] silence”) (citation omitted). 

¶48 Here, when the detective asked about more specific details on

the shooting, Melendez exercised his right to silence at several points, 

responding to certain questions by stating he wanted to “pass” some 

questions and “hold” certain information. In response, the detective 

affirmatively acknowledged that it was his right not to answer a specific 

question. The detective also affirmed Melendez’s decision to exercise his 

right to silence by stating she would not force him to talk and setting those 

topics “aside” by switching to a different line of questioning. Nothing in 

the record shows the detective was deterred by Melendez’s exercise of 
STATE v. MELENDEZ

Opinion of the Court

23

partial silence, could not understand Melendez’s intent, or felt as if she had 

to make a decision on how to proceed with the interrogation. Nor does the 

record suggest the detective did anything improper by continuing to ask 

questions given that Melendez never unequivocally and unambiguously 

“invoked” by asking to end questioning or speak with counsel. 

C. The State’s Other Arguments

¶49 Citing a few cases, the State contends that Arizona courts 

have already rejected constitutional protection for selective silence. See,e.g.,

State v. Ramirez, 178 Ariz. 116 (1994); State v. Corrales, 161 Ariz. 171 (App. 

1989); State v. Reinhold, 123 Ariz. 50 (1979). But we do not read these cases, 

or other decisions discovered through our own research, see, e.g., State v. 

Maturana, 180 Ariz. 126, 130 (1994), as affecting our analysis. None of these 

cases involve circumstances remotely similar to this case; nor do they 

distinguish or disagree with the concepts outlined in Doyle, as well as Shing, 

Anderson, Ward, and related Arizona appellate opinions. 

¶50 The State’s comparison to Garcia-Morales is also unavailing. 

There, the defendant refused to answer certain questions, stating “he was 

not ‘feeling cool with that camera.’” Garcia-Morales, 942 F.3d at 476. The 

interviewerthen said, “alright well, well later on I’ll turn off the camera and 

you can tell me[,]” and the defendant nodded in agreement. Id. The Ninth 

Circuit held that the defendant was not relying on his right to remain 

selectively silent but was merely expressing his discomfort with speaking 

in front of the camera. Id. at 476–77. Unlike Garcia-Morales, Melendez 

communicated no conditions on his willingness to respond to specific 

questions during his interview. And even though Melendez later admitted 

his unwillingness to answer some questions was motivated in part by 

wanting to hear what the police already knew about the shooting incident, 

the reason a suspect may decline to respond to certain questions does not 

alter his inherent right to due process. See Doyle, 426 U.S. at 617–19; State v. 

O’Dell, 108 Ariz. 53, 56 (1972) (explaining that when a suspect “responds to 

several questions, then lapses into silence when asked an embarrassing 

question . . . [i]t is much more likely that he is simply asserting his right to 

remain silent”); People v. Williams, 31 N.E.3d. 103, 107–08 (N.Y. 2015) (“A 

defendant who agrees to speak to the police but refuses to answer certain 

questions may have the same legitimate or innocent reasons for refusing to 

answer as a defendant who refuses to speak to the police at all.”). 

¶51 Finally, the State suggests that recognizing a suspect’s right to

exercise selective silence would conflict with cases that have recognized

permissible areas of impeachment. See, e.g., State v. Henry, 176 Ariz. 569,
STATE v. MELENDEZ

Opinion of the Court

24

580 (1993). But extending Doyle to selective silence does not undermine the

well-established principle that a defendant may be impeached with his

prior inconsistent statements. See Anderson, 447 U.S. at 408 (“Doyle does not

apply to cross-examination that merely inquires into prior inconsistent

statements.”).

¶52 We hold that the basic principles underlying Doyle—due 

process and fundamental fairness—apply regardless of whether a 

defendant is completely or partially silent during custodial interrogation. 

Melendez exercised his right to decline to answer various questions during 

the interview, and the detective confirmed it was Melendez’s right to 

exercise his rights in that way. It would be inconsistent with the legal 

authorities discussed above to conclude the State could penalize Melendez 

at trial for exercising his right not to answer questions, especially when he 

had not been warned that his silence could be used against him. 

III. Fundamental, Prejudicial Error

¶53 The State used Melendez’s partial silence against him during

cross-examination and in closing arguments, which violated his right to due

process. See Doyle, 426 U.S. at 618. The prosecutor’s improper focus

penalized Melendez for exercising his right not to answer some of the

detective’s questions and created fundamental error. See Escalante, 245

Ariz. at 141, ¶ 19 (explaining fundamental error goes to the foundation of

defendant’s case or deprives him of a right essential to his defense); Sorrell,

132 Ariz. at 329 (finding that comment on defendant’s post-arrest silence

“was clearly fundamental error, and it has been held so on numerous

occasions”); Carrillo, 156 Ariz. at 128 (“Normally, any reference by judge or

prosecutor to a defendant’s protected silence will constitute fundamental

error.”).

¶54 To establish reversible error, Melendez must also establish he 

was prejudiced by the State’s improper use of his partial silence. See

Escalante, 245 Ariz. at 142, ¶ 21. He must show that without the error, a 

reasonable probability exists he “could have” received a different verdict. Id.

at 144, ¶ 29. The standard is objective and “requires a showing that without 

the error, a reasonable jury could have plausibly and intelligently returned 

a different verdict.” Id. at ¶ 31. A reasonable jury is “composed of persons 

of average intelligence and judgment” who use “common sense in 

considering the evidence presented in connection with the instructions 

given by the court.” Id. (citation omitted). Because the jury that decided 

the case “and a hypothetical ‘reasonable jury’ share the same presumptive 
STATE v. MELENDEZ

Opinion of the Court

25

traits,[] any questions posed by jurors during trial or deliberation may be 

pertinent in applying the standard objectively.” Id. at ¶ 32. 

¶55 This standard is not “easily satisfied.” Id. at ¶ 31. In applying 

this standard, we “examine the entire record, including the parties’ theories

and arguments as well as the trial evidence.” Id. “Establishing prejudice 

from fundamental error varies depending on the nature of the error and the 

unique case facts.” Id. at ¶ 29.

¶56 Melendez argues he was prejudiced by the State’s misuse of 

his partial silence because the State’s violation of his right to due process

“went to the heart” of his defense by undermining his credibility. He 

argues his credibility was “key” to establishing his assertion of self-defense,

and his response to the situation he perceived to be a threat was reasonable. 

The State counters that references to Melendez’s “hesitancy to answer 

questions,” were only made on cross-examination and that the references 

were “brief” and “tangential.” The State also argues that Melendez cannot 

show the requisite prejudice because his self-defense theory was 

implausible. We disagree.

¶57 First, the State ignores the impact of the prosecutor’s 

comments during its closing argument on credibility issues. For example, 

the prosecutor asked jurors to consider various aspects of Melendez’s 

interview with the detective, including: (1) why, in ten or eleven instances, 

Melendez failed to respond to direct questions about why “did [he] go over 

there and shoot,” and instead said he wanted to hold the information or 

pass on the question; (2) why, if he believed someone was going to shoot

him, did he not tell the police when they arrived; (3) why did he not tell the 

police, when he was in handcuffs, “here’s what happened”; (4) whether he 

was still trying to figure out what his excuse was going to be; and (5) why 

he was “withholding information” about whether anything happened to 

make him mad. 

¶58 A reasonable jury would understand these comments to mean 

that because Melendez failed to timely explain his version of events, it is 

more likely he was hiding the truth. See State v. Downing, 171 Ariz. 431, 433 

(App. 1992) (“The potential implication flowing from a defendant's claim 

of silence is that he has something to conceal, and has not been open and 

forthright concerning his conduct.”); State v. Scott, 27 Ariz. App. 361, 363 

(1976) (explaining that silence at the time of arrest is “generally not very 

probative of a defendant’s credibility, . . . has a significant potential for 

prejudice, . . . [and] the jury is likely to assign much more weight to the 
STATE v. MELENDEZ

Opinion of the Court

26

defendant’s previous silence than is warranted”) (quoting United States v. 

Hale, 422 U.S. 171, 180 (1975)). 

¶59 Also, the prosecutor’s repeated references to Melendez’s 

failure to timely and adequately answer the detective’s questions were not 

inadvertent. See State v. Keeley, 178 Ariz. 233, 235–36 (App. 1994) (reversing 

conviction where comments about defendant’s post-Miranda silence arose 

from prosecutor’s “deliberate trial strategy” rather than “inadvertent slip” 

by testifying officer). Through those references, the prosecutor challenged 

Melendez’s credibility by contrasting his responses, or “hesitancy,” with 

what a “reasonable person” would have told the police. The prosecutor 

intensified her argument by playing specific portions of the taped interview 

for the jury. Cf. State v. Earley, No. 2 CA-CR 2019-0069, 2020 WL 1870111,

at *1, *7, ¶¶ 1, 28 (Ariz. App. Apr. 14, 2020) (mem. decision) (finding 

reversible error based in part on the prosecutor’s repeated improper 

suggestions that the defendant was guilty because he failed to profess his 

innocence to police).

¶60 Second, although the State’s references to Melendez’s silence 

were brief in the context of the entire trial, Melendez’s self-defense theory 

was largely dependent on his credibility. Thus, the jury had to decide 

whether it believed Melendez’s version of events or A.G.’s (or if there was 

reasonable doubt as to both versions), and whether the State met its burden 

of proving the absence of justification for Melendez’s conduct. By 

repeatedly pointing out on cross-examination that Melendez declined to 

answer many questions bearing directly on the issue of self-defense, 

Melendez’s credibility was undermined by the prosecutor’s impermissible 

references. See Escalante, 245 Ariz. at 146, ¶ 41 (“It is appropriate to consider 

how inadmissible evidence impacted a defense theory when considering 

prejudice.”); Carrillo, 156 Ariz. at 128 (“[T]he prosecutor may not raise an 

inference of defendant’s guilty mind by remarking upon the silence of a 

suspect who exercised his Miranda rights.”). Those references, which were 

neither brief nor tangential in the context of whether Melendez acted in 

self-defense, caught the attention of at least one juror. Following 

Melendez’s testimony, the court asked him the following juror question: 

“Why would you tell the detective: ‘I still want to hold onto some things’?”

Melendez then replied, “I was just keeping silent.” 

¶61 Third, the State fails to account for various portions of the trial 

record bearing on the question of prejudice. See Escalante, 245 Ariz. at 144, 

¶ 31. Melendez testified he was acting in self-defense when he fired shots 

at A.G., and the superior court determined the evidence was sufficient to 

warrant jury instructions on (1) self-defense (“reasonable person in the 
STATE v. MELENDEZ

Opinion of the Court

27

situation would have reasonably believed that immediate deadly physical 

danger appeared to be present”) and (2) use of force in crime prevention 

(“the defendant reasonably believed he/she was preventing the 

commission of the crime[s]).” Those instructions informed the jury the 

State had the burden to prove beyond a reasonable doubt that Melendez 

did not act with justification. During deliberations, the jurors sent a note 

stating they had reached a decision on five of the counts, but not on the 

sixth. In discussion with counsel, the court noted the case was not 

complicated and that in “reading the tea leaves,” the jury was likely hung 

on the aggravated assault charge, so it provided the jury with an impasse 

instruction. 

¶62 After further deliberation, the jurors sent a note stating that 

“[s]ome of us are hung up on the conflict” between the self-defense 

instruction (what a reasonable person in the situation would have believed) 

versus (what the defendant reasonably believed). The court discussed the 

note with counsel, and then instructed the jury that reasonableness as to 

self-defense “is different from” reasonableness for crime prevention. The 

jury then returned guilty verdicts on each of the six counts. 

¶63 Although Melendez’s self-defense claim had weaknesses, the 

State does not contend the evidence against him was overwhelming. See

Anderson, 110 Ariz. at 241 (finding fundamental error but affirming the 

judgment because the evidence was so overwhelming that the error did not 

contribute significantly to the verdict). And the exchanges between the jury 

and the court outlined above reasonably establish that the jury likely 

struggled with resolution of the aggravated assault count, the most serious 

charge. Because resolving the justification issues depended heavily on 

witness credibility, and the State bore the burden of proving Melendez was 

not justified in firing the shots at A.G., we reject the State’s suggestion that 

Melendez’s defense was so implausible that he cannot possibly prove 

prejudice. See State v. Almaguer, 232 Ariz. 190, 193, ¶ 6 (App. 2013) (noting 

a “defendant is entitled to a jury instruction on justification when he 

presents the ‘slightest evidence’ tending to prove a ‘hostile 

demonstration’”) (citation omitted). Melendez has met his burden of 

showing a reasonable probability exists that a reasonable jury could have 

plausibly and intelligently reached a different verdict without the 

prosecutor’s improper references to Melendez’s selective silence. 
STATE v. MELENDEZ

Opinion of the Court

28

CONCLUSION

¶64 Fundamental error occurred when the State cross-examined 

Melendez about his refusal to speak on certain topics during the police 

interview, and the State compounded the error by emphasizing during 

closing argument that he withheld information during the interview.

Because the error was prejudicial, we reverse Melendez’s convictions and 

sentences and remand for a new trial. Accordingly, we do not address

Melendez’s argument that his refusal to answer some of the detective’s 

questions should have been precluded under Arizona Rule of Evidence 403.