State v. Costillo, 475 P.3d 803

Background

Victim R.S. alleged repeated sexual abuse by her grandmother’s husband, Leo Costillo Jr., beginning when she was six (Aug 2008–Apr 2009) and an attempted rape in Apr 2013; she disclosed the abuse to her mother in 2015 and police six months later.
Costillo gave a voluntary, noncustodial interview to Detective Tallman before arrest and repeatedly invoked his right to remain silent and asked for counsel or to stop the interview.
The State charged Costillo by criminal information with 26 counts of criminal sexual penetration of a minor (originally all alleging conduct "on or about Aug 15, 2008") and one count of intimidation of a witness; after a trial the jury convicted on 21 CSPM counts, one attempt, and one intimidation count.
At trial the prosecutor repeatedly highlighted Costillo’s prearrest silence (in opening, direct, cross, closing, and rebuttal), played the interview tape, and argued the failure to proclaim innocence suggested guilt; Costillo did not object at trial.
On appeal the court considered whether prearrest, pre-Miranda silence—when invoked—may be used as substantive evidence, whether the prosecutor’s conduct constituted fundamental error or bars retrial under New Mexico double jeopardy law, and whether the intimidation conviction was time-barred.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutor’s comments on Costillo’s prearrest silence (Fifth Amendment)	State relied on interview and silence as probative and impeaching evidence	Costillo argued his invoked silence was protected and prosecutorial use violated Fifth Amendment and deprived him of a fair trial	Court: Use of invoked prearrest, pre‑Miranda silence as substantive evidence is impermissible; prosecutor’s pervasive comments were fundamental error -> reverse and remand for new trial
Whether retrial is barred by New Mexico double jeopardy doctrine (Breit)	State: retrial permitted because error does not rise to Breit bar	Costillo: misconduct was so extreme retrial should be barred	Court: Breit bar not met; no evidence prosecutor knowingly intended to provoke mistrial or acted with willful disregard -> retrial allowed
Statute of limitations for intimidation of a witness	State: limitations tolled under child‑victim tolling statute	Costillo: prosecution was time‑barred (intimidation occurred Aug 2008; charged 2016)	Court: Intimidation is a third‑degree felony with 5‑year limit; tolling statute cited by State does not apply -> intimidation conviction reversed as time‑barred
Due process / double jeopardy challenge to multiple identical CSPM counts (Lente framework)	Costillo: identical "carbon copy" counts and resident‑molester issues render multiple convictions invalid	State: no pretrial objections were made to charging instrument	Court: Declined to resolve on appeal because Costillo failed to seek pretrial specification/raise objection; issues may be pursued on remand under Lente

Key Cases Cited

Griffin v. California, 380 U.S. 609 (1965) (prosecution may not comment on defendant’s silence at trial)
Doyle v. Ohio, 426 U.S. 610 (1976) (post‑Miranda silence is protected from impeachment and comment)
Jenkins v. Anderson, 447 U.S. 231 (1980) (prearrest silence may be used to impeach credibility; left open other uses)
Salinas v. Texas, 570 U.S. 178 (2013) (plurality declined to decide prearrest‑silence substantive use; emphasized invocation requirement)
Hoffman v. United States, 341 U.S. 479 (1951) (broad construction of privilege against compelled testimonial compulsion)
State v. DeGraff, 131 P.3d 61 (N.M. 2006) (standards for prosecutorial comment on silence and fundamental‑error review)
State v. Breit, 930 P.2d 792 (N.M. 1996) (New Mexico test when prosecutorial misconduct can bar retrial under double jeopardy)
State v. Lente, 453 P.3d 416 (N.M. 2019) (framework for evaluating "resident child molester" cases, carbon‑copy charging, and evidentiary sufficiency)
United States v. Okatan, 728 F.3d 111 (2d Cir. 2013) (prearrest, pre‑Miranda invoked silence cannot be used as substantive evidence of guilt)