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State v. Costillo

Court of Appeals of New Mexico

September 26, 2019

STATE OF NEW MEXICO, Plaintiff-Appellee,
LEO COSTILLO, JR., Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY Karen L. Townsend, District Judge

          Hector H. Balderas, Attorney General Santa Fe, NM Laurie P. Blevins, Assistant Attorney General Albuquerque, N.M. for Appellee

          Bennett J. Baur, Chief Public Defender Aja Oishi, Assistant Appellate Defender Santa Fe, N.M. for Appellant



         {¶1} Defendant Leo Costillo, Jr., appeals from his convictions of twenty-one counts of criminal sexual penetration of a minor (CSPM), one count of attempt to commit CSPM, and one count of intimidation of a witness. Defendant argues that i his convictions must be reversed because during trial, the State impermissibly commented on his prearrest silence in violation of his Fifth Amendment right to; remain silent. Defendant also argues that due process and his right to be free from 1 double jeopardy require the reversal of all but one of his convictions for CSPM and i that his prosecution for intimidation of a witness was time-barred, requiring reversal of that conviction as well. We agree that the State's pervasive references to Defendant's invocation of his Fifth Amendment privilege, and the conclusion of guilt the State suggested be drawn therefrom, does not withstand constitutional scrutiny. We also agree with Defendant that all but one of his CSPM convictions violated his due process and double jeopardy rights and were not supported by ' sufficient evidence because the State's evidence established a course of conduct not anchored to specific offenses. We further agree that the State's prosecution of Defendant for intimidation of a witness was time-barred. We disagree, however, 1 with Defendant that the State is barred from reprosecution under State v. Breit, 1996-NMSC-067, 122 N.M. 655, 930 P.2d 792. We, therefore, reverse Defendant's convictions and remand for a new trial on one count of CSPM and one count of attempted CSPM.


         {¶2} During Summer 2008, when R.S. was six years old, she lived with her grandmother and Defendant, her grandmother's husband. According to the criminal information filed by the State and R.S.'s testimony at trial, Defendant repeatedly raped R.S. from August 2008 until April 2009; threatened to hurt R.S. or her brother if she told anyone; and attempted but failed to rape R.S. in April 2013. R.S. first told her mother of the sexual abuse in 2015 and six months later both reported it to police.

         {¶3} Defendant was charged by criminal information with twenty-six counts of CSPM and one count of intimidation of a witness.[1] At trial, R.S., her mother, and San Juan County Sheriffs Deputy Detective Robert Tallman, the detective who conducted a voluntary, non-custodial interview of Defendant prior to any charges being filed, testified for the State. Defendant testified in his own defense, as did his wife and R.S.'s grandmother, Rosita Costillo. The jury returned guilty verdicts on all counts submitted to it. Defendant appeals. We reserve further discussion of the facts for our analysis.


         I. The Prosecutor's Comments on and Use of Defendant's Invoked Silence Violated His Fifth Amendment Rights and Constituted Fundamental Error

         {¶4} Defendant argues that the prosecutor's "direct and extensive comment on constitutionally protected silence" contributed to the "[e]xtreme and pervasive prosecutorial misconduct" that deprived him of a fair trial. Detective Tallman interviewed Defendant at the San Juan County Sheriffs office, and the clear implication of Detective Tallman's questioning, which Defendant quickly learned, was that Detective Tallman believed Defendant had sexually abused R.S. Despite the setting, and consistent with the non-custodial nature of the interview, Defendant declined to answer Detective Tallman's questions and asked several times to end the interview. Defendant contends that at his ensuing trial the prosecutor then impermissibly commented on Defendant's invocation of his Fifth Amendment right to remain silent during his voluntary, prearrest interview with Detective Tallman. Indeed, during trial, the prosecutor commented on Defendant's silence during every phase of the proceeding: in opening statement, during direct examination of Detective Tallman, while cross-examining Defendant, during his closing argument, and finally in rebuttal. Defendant, however, failed to make any objections to this evidence or argument.

         {¶5} "[W]e review de novo the legal question whether the prosecutor improperly commented on [the defendant's silence." State v. Foster, 1998-NMCA-163, ¶ 8, 126 N.M. 177, 967 P.2d 852. "When a defendant fails to object at trial to comments made by the prosecution about his or her silence, we review only for fundamental error[.]" State v. DeGraff, 2006-NMSC-011, ¶ 21, 139 N.M. 211, 131 P.3d 61. "This review consists of two parts. We first determine whether any error occurred, i.e., whether the prosecutor commented on the defendant's protected silence. If such an error occurred, we then determine whether the error was fundamental." Id. Before we conduct our fundamental error analysis, however, we must answer two threshold questions-whether the State may use a defendant's prearrest silence as substantive proof of guilt when Defendant has invoked his right to remain silent, and whether Defendant did in fact invoke his right to remain silent in this case.

         A. Prosecutors in New Mexico May Not Use a Defendant's Invoked Prearrest Silence as Substantive Evidence of Guilt

         {¶6} The Fifth Amendment to the United States Constitution provides that "[n]o person ... shall ... be compelled in any criminal case to be a witness against himself[.]" U.S. Const, amend. V. That "guarantee against testimonial compulsion ... must be accorded liberal construction in favor of the right it was intended to secure." Hoffman v. United States, 341 U.S. 479, 486 (1951) (internal quotation marks and citation omitted). "It is the extortion of the information from the accused, the attempt to force him to disclose the contents of his own mind, that implicates the Self-incrimination Clause." Doe v. United States, 487 U.S. 201, 211 (1988) (internal quotation marks and citations omitted). "There are four relevant time periods at which a defendant may either volunteer a statement or remain silent: before arrest; after arrest, but before the warnings required by Miranda v. Arizona, 384 U.S. 436, ... (1966), have been given; after Miranda warnings have been given; and at trial." DeGraff, 2006-NMSC-011, ¶11.

         {¶7} It remains axiomatic in American jurisprudence that a defendant's exercise of his right to remain silent at trial may not be used as a basis to convict him. See id. ¶ 12 ("The Fifth Amendment protects a defendant's decision not to testify at trial from prosecutorial comment."); see also Griffin v. California, 380 U.S. 609, 615 (1965) ("[T]he Fifth Amendment... forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt."). It is also well established that "due process guaranteed by the Fifth Amendment protects post-Miranda silence." DeGraff, 2006-NMSC-011, ¶ 12 (citing Doyle v. Ohio, 426 U.S. 610, 618-19 (1976)). The law is "less clear" regarding a prosecutor's ability to comment on a defendant's invocation of his or her i right to remain silent post-arrest, pre-Miranda. Degraff, 2006-NMSC-011, ¶ 13. Even more uncertain is whether there exists a constitutional limitation on a prosecutor's ability to comment on a defendant's prearrest and pre-Miranda silence, the circumstance present in this case.

         {¶8} In Jenkins v. Anderson, the United States Supreme Court held that use of prearrest silence to impeach a criminal defendant's credibility does not violate the Fifth Amendment, but the Court expressly reserved the question of whether a defendant's prearrest silence can be used in circumstances other than impeachment. See447 U.S. 231, 236 n.2, 239 (1980) ("Our decision today does not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment."). That question has remained open since Jenkins, as evinced by the division among ...

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