A Morgan County prosecutor undermined the fairness of a defendant’s trial by making improper comments about his decision to invoke his constitutional right to silence, Colorado’s second-highest court ruled last week.

The prosecution charged Ronald Wayne Gentry with felony menacing after he allegedly put a bullet in the chamber of a gun and pointed it at a neighbor who was feuding with Gentry’s mother. Jurors considered whether Gentry acted in self-defense, but convicted him. He received a sentence of probation, jail and community service.

Jurors heard Gentry had received a Miranda warning but then agreed to speak with a sheriff’s deputy. She told Gentry there were multiple eyewitnesses saying they saw Gentry point a gun, at which point Gentry invoked his right to silence. He believed the deputy already concluded he was at fault and decided to wait to speak with an attorney.

Gentry testified at his trial, where the prosecutor noted Gentry did not initially tell the deputy the amount of detail he recounted on the witness stand.

“You’re a schoolteacher, correct?” the prosecutor continued. “As a teacher, you know that if there’s information that would help somebody assess a situation, the best rule of thumb is to give up that information. Is that right?”

After Gentry responded he had “never been in that situation with the police before,” the prosecutor pressed Gentry to say whether it would have been “prudent of you to say, ‘But Officer, there’s a couple of other things that you should know that I’m not telling because I’m really nervous. Can I have a second to talk to you some more?’ Wouldn’t that have been a good idea?”

During closing argument, the prosecutor questioned why Gentry did not tell the deputy what happened if “he didn’t do anything wrong, according to him.”

On appeal, Gentry argued the prosecutor’s repeated comments on his decision to invoke his constitutional right to silence improperly suggested he was guilty. The Colorado Attorney General’s Office countered the prosecutor was merely calling attention to the fact that Gentry’s original statement to the deputy “contained a variety of details but omitted significant ones that Gentry later added at trial.”

A three-judge panel for the Court of Appeals agreed with Gentry, pointing out his statements during arrest and at trial were not so different as to warrant the commentary.

“The essence of the questioning was that, if Gentry really knew the facts that exonerate him, as he testified to at trial, he surely would have told police on the scene,” wrote Chief Judge Gilbert M. Román in the July 11 opinion. “The prosecution’s improper questions and comments attacked Gentry’s post-Miranda silence to undermine his credibility. This undermined the fundamental fairness of a trial that essentially boiled down to the credibility of Gentry.”

Even though defense counsel did not object at trial, the panel concluded the error was so obvious that District Court Judge Stephanie M.G. Gagliano should have intervened without an objection.

Elected District Attorney Travis Sides did not respond to an email asking for the identity of the prosecutor who made the improper comments, but court records showed Assistant District Attorney Rebecca Wiard to be the trial prosecutor.

Because the panel reversed Gentry’s conviction, it did not address his other allegations of prosecutorial misconduct.

The case is People v. Gentry.