Brewster v. State

BREWSTER, Lynn Mark (Defendant),

Appellant Wyoming, STATE Munker, D. State Defend- Leonard Public (Plaintiff). Appellee McClain, er, Appellate and Martin J. Coun- sel, Wyoming No. 84-313. Program, Defender Public (defendant). Cheyenne, for Wyoming. Supreme Court McClintock, Gen., Atty. A. A.G. Gerald Stack, Gen., Renneisen, Deputy Atty. John 26, 1985. Dec. Gen., Atty. Asst. and Michael A.

Senior Gen., for Blonigen, Atty. Cheyenne, Asst. (plaintiff). appellee ROSE*, THOMAS, C.J., and Before CARDINE, **, JJ. ROONEY BROWN ROSE, Justice.

Appellant Mark Brewster was convicted by jury attempted first-degree sexual years to 20 assault sentenced to 25 penitentiary. He the fol- the state raises lowing appeal: issue on Appellant’s “Whether constitutional by imper- of silence was violated Appellant’s upon comment invo- missible right.” cation of that elicited Appellant objects police officers on direct examination remarks jury. closing argument Offi- Rogers concerning cer testified as follows interrogation at the department following arrest: with him that he discuss all incident? knew about the everything I attempted to discuss him, points many he became— sorry, you, speak I am I can’t hear little

up a louder. many points At emotion- became and difficult to discuss all al and evasive some allegations about, things things he talk some about, things he he refused to talk some stated didn’t remember. he refuse to talk about? What did ** * 1985. Retired November Retired November 1985. Well, point

A. statement, at one he refused to in this because what is writ- any talk here, further about what his inten- man, ten by this three hours were, tions further refused to about talk he changed before story. I never penis whether was out pants, of his any more sexual advances to her point at one kept— try other than to her. I kiss never hit “Q. deny Did he penis ever that his her her, or tried to choke never tried to out of pants? her, have intercourse with but when was, “A. asked, Never denied that it one you your penis out, I point stated he couldn’t remember it asked, don’t remember. But when was it was, denying, was as far as he came to encounter, effort, sexual sexual I don’t simply he he stated didn’t want talk course, want to talk about it. hap- Of about point. it at that pened way. that about that? “A. Yes. “Q. That is a quote, I don’t want to talk “ * * * ^[*] That is ^[*] it, ^[*] that is the law. It n ^{[*] [*]} is, all the is prove burden and the burden “Q. you everything Did he tell how de- beyond doubt, a reasonable there can be veloped top after was on he the floor on doubt, no there dispute, is no there’s not of her? story, story a different told to Rick “A. All state he would was that he is, Rogers yes, I fact did in have her floor, got didn’t recall how he to the floor, lay down on I did in fact top top attempt- he was on her and he was her, did, did, did, I I I I am not going ing felt, past how show her he more, to talk to about it I don’t point he wouldn’t elaborate on what penis, want to talk about I don’t want to his intentions were further.” did, did, part. talk about the sexual questioned appellant Officer Cashel also * * * ” did, things. I did all those after his arrest and testified as follows: prosecutor closing: to him further stated talk about the sexu- allegation? al This isn’t case of renunciation. Yes, sir, I did. Completed attempt, crime and did the you? What did he tell length talk at law defendant enforce- rejection, did, certainly ment about he “A. That he didn’t want to me talk to he about it. is all told them You can about. statement, see it in the written Judi deny He didn’t it? Cashel, and it is in the statement of Rick No, sir, he didn’t.” Rogers, his whole discussion was about his closing arguments jury, to the He rejection. rejec- wanted to talk about prosecutor referred officers’ tion, he didn’t want to talk about his testimony: trial details, penis of these or other assault, charged “He is with he sexual [appellant’s attorney] details knows the nature of the crime that [the [sic], these hasn’t talked seven details he leveled he victim] jumped right over that because that is didn’t, said, he I don’t want to talk about reality, reality uncontroverted remember, that not I is don’t but that happened.” what Rog- what he told Rick [Police Officer] ers, agree We these com- that is fact told what [Police Cashel, said, ments made trial on behalf State that is I what Judi Officer] require the reversal of his conviction under say did he this nature of about sexual said, encounter, holding I don’t want talk our Westmark v. (1984).1 beyond

about it. 693 P.2d 220 It went what is written disposition concerning sufficiency appeal, we of the evidence 1. view of our of this lant by appel- support will not issue his conviction. address a second raised himself, rogation THE of the accused or THE OP ACCUSED TO RIGHT interrogation inherently prej- REMAIN SILENT others udicial, and will entitle an accused to culminating in long In a line of cases reversal of his Such a conviction. breach this has supra, court Westmark v. protec- of the accused’s constitutional at trial prosecutorial held that comments plain prejudicial per is error and se. tions following concerning the accused’s silence While, language in the light of the of rights by the guaranteed arrest violate Ohio, 610, Doyle v. U.S. 96 S.Ct. [426 Fifth Amendment the United States Con- 2 2240, (1976)], may 49 L.Ed.2d 91 this 1, Wyoming Art. 11 of the stitution and § represent an extension rule of v. Westmark State we Constitution.3 case, our in prerogative it is so do inherently preju- held that such errors are * ” * * applying our state constitution. dicial: * * * State, supra, v. 573 P.2d at 846. Clenin upon any “We hold that comment right or exercise of his her accused’s in urges The that our State its brief prejudicial error to remain silent which holdings in Westmark and Clenin do not to a of will entitle the accused reversal appeal control the outcome of this because 693 at 222. the conviction.” P.2d (1) argument the trial and reaching holding, this we renounced our impermissible issue not were comments on State, Wyo., 642 position in Richter v. P.2d silence, appellant’s were references to but (1982), 1269 that such constitutional viola- during questioning; his evasive behavior error, might tions be dismissed as harmless (2) right remain waived prejudicial-per-se and rule of reinstated comments, silent; (3) impermissi- State, (1978). Wyo., P.2d 844 Clenin v. 573 ble, beyond a were harmless reasonable 1, Wyo- and Art. 11 of the Under Clenin § positions doubt. We find these untenable Constitution, ming any comment on the of under the facts this case the law as accused’s exercise silence prior opinions. in our developed conviction, requires reversal of his even though the United States Constitution IMPERMISSIBLE COMMENT might permit analysis under harmless- ON SILENCE error doctrine: urges that the state State trial Historically, jeal our Court has appellant objects, ments to which when ously guarded right provided in Art. context, not impermissi considered were 1, of the Constitution of the State of .11§ pertained ble on silence but comments Wyoming against any infringement. Ir appellant’s following evasive ar behavior State, (1977) [Wyo., ], vin v. 560 P.2d 372 opinion Appellee rest. relies on this court’s State, Wyo., v. 546 173 Jerskey P.2d 1369, State, Wyo., v. 628 Parkhurst P.2d (1976); State, Wyo., v. Dryden 535 P.2d 899, 402, cert. 454 102 70 denied U.S. S.Ct. (1975); State, Wyo., 483 Moss v. 492 P.2d (1981), L.Ed.2d 216 where we held that (1972); Wyo., 1329 Priestley v. police testifying officer’s innocent referenc (1968); Dickey 446 P.2d 405 v. pre-arrest es the accuseds’ silence did (1968); P.2d 373 Miskim not under v. warrant reversal Clenin 392, Shaver, Wyo. mins 58 P. State, supra. The in Parkhurst had officer (1899). 49 L.R.A. 831 We hold that un interrogation ap his roadside described der this section our state constitution pellants as follows: upon comment exercise an accused’s “ that, silence, by ‘Q of his After whether inter- what do? Wyoming 2. The 3. 11 of the Constitution § Fifth Amendment to the Constitution of Article reads: the United States reads: * * * person compelled “No shall be person compelled testify shall be “No * * against criminal case to be witness himself criminal himself in case ‘ A subjects, I continued to talk to the passive nature; there was no affirma- tried to or ascertain to make certain tive exercise of the to silence. been, they they got- where had how had Without more there is no reason to infer there, they travelled, ten what roads jury appellants’ read the silence they passed through whether Glen- as an guilt. admission of It is reasonable questions rock or not. Some an- were to conclude that the jury took appel- swered, some weren’t. unresponsiveness lants’ within the com- both even with the front Dekmar advised that he had asked for consent to search. He advised me a loud of the vehicle. the second “ “ ‘A ‘Q ^[*] parts you subjects What did the two of IWhen returned from the enough ^[*] time, could hear him at the front were We were toné of voise ^[*] testifying door, my ^[*] vehicle, standing and neither ^[*] to? [sic] do after vehicle, Officer this about ^[*] that in these circumstances to indicate that ap- pellants’ nonresponsiveness manifests an P.2d at 1382. plete context exercise of their fused—a state shared though that the tion, the officer fast, upon being stopped by or guiltless. appellants were asked the right did not There is nothing in stop frightened of silence.” 628 as an indication hear the most question or con- people ques- even too Thus, subject (Emphasis no error occurred anything.’ said add- where the ac- ed.)” cuseds’ silence 628 P.2d at 1380. had not been used trial, jury them at the unlikely where We said that these isolated remarks did not guilt to infer an admission of from their rise to the level of a “comment” on silence nonresponsiveness, nothing and where indi- State, as term is used in Clenin v. cated that the defendants had invoked their supra, State, Jerskey and v. 546 P.2d rights of silence. (1976), discussed infra: “We believe in is consistent with circumstances the case at bar Jerskey compel opposite Appellant and Clenin to read the term the conclusion. as implying respond questions during ‘comment’ more than refer- refused to to two interrogation ence to the accused’s in Implicit silence. sessions police at the de- the term is a partment. agreeing reaction to that which is participate Prior to to being present sessions, mentioned appellant which would signed these possibility of exploiting si- acknowledging State statement right stop to lence. Here answering questions any the officer’s statements Appel- time.4 answered, questions right were: ‘Some were lant chose to exercise that and some weren’t’ subject penalized During and ‘neither said State him at trial. direct anything.’ examination, prosecutor Those statements constituted asked about totality any reference to silence. those areas that had refused to These isolated were emphasized statements never at discuss appel- and the fact that any pros- time intended to be to aspects used lant not denied certain prosecution. advantage ecutor’s closing arguments, assault. Further, no later prosecutor repeatedly reference was made to jury’s directed the any nothing derogato- of them. There is to appellant’s attention silence when asked words; ry in expression those there is no questions, thereby inviting certain the in- police officer’s attitude towards ference truthful answer would have They short, guilt. such silence. are not much so established the State ex- concerning appellants’ statements ploited appellant’s ques- silence refusal answer prove are about behavior. tions in order to its case. These Moreover, the silence impermissible referred was statements constituted com- part 4. This statement was of the waiver form lant. See discussion infra. signed provided by by appel- officers and imply right upon cused’s silence arrest exercise of his appellant’s ment on story his trial is a recent fabrication. be dismissed as isolated silence and cannot under These “direct” attacks on the defendant as Parkhurst v. references to behavior highly prejudicial a result his silence are supra. of a uniformly warrant reversal convic- THE RIGHT TO OF WAIVER submits, tion, appellee whereas the “indi- REMAIN SILENT rect” references to silence at issue in the present case should be reviewed under the interrogation by police Prior to Appellee harmless-error doctrine. reasons officers, a statement further of the rule of that restriction auto- questions waiving agreeing to answer involving egregious matic reversal to cases provided in rights. The statement certain purposes, satisfy errors its deterrent part: prosecutors readily since can avoid those now, questions to answer you “If decide sorts of errors. right stop an- still have will questions at time swering prejudical-per-se We reinstated the rule also interview. You this State, supra, because the Westmark answering time until stop a constitutional citizen-accused has attorney.” talk a trial free from and all comments on silence, prosecutors and because could recognized We Westmark v. violating gambling not resist this might supra, accused waive his that an Supreme that the Court find the rights to remain We constitutional silent. Accordingly, error we said that harmless. said: “ * * * any upon comment the accused’s exercise clear, a there is unmis- [U]nless right of the to remain silent would entitle takable, knowledgeable waiver of the de- the defendant to a reversal convic- right constitutional to remain fendant’s tion, rule and we adhere to that in the silent, against may not be used silence only present case as the viable means of him in trial—and to do so error. [Cita- giving right. effect to this constitutional P.2d at 223. 693 tion.]” concurring in his As Justice Guthrie said case, pro- the waiver form the instant opinion Wyo., in 510 Gabrielson department expressly by police vided (1973): P.2d 539-540 right appellant the to refuse to reserved to “ * * * guaranty A indeed constitutional any time questions during answer if by the becomes barren and valueless right that He invoked when interview. utilized assertion thereof it can be to his that informed the officers did not want detriment.” need to talk. He did not terminate past in the We have not hesitated in order to exercise his retained interview in reverse convictions obtained trials silence, right as the State contends. by prosecutorial marred comments similar any not waiver Since execute present in to those at issue case. right constitutional remain si- State, supra, 546 P.2d at Jerskey v. 178- clear, unmistakable, lent—let alone 179, appellant following objected to tes- in knowledgeable waiver—the State erred timony by police officers: against him trial. using his silence “ ‘Q. anything you ask him else concerning package [containing one PREJUDICIAL ERROR kilo of marihuana]? urges this to re The State court “ Yes, something ‘A. sir. We asked of the Westmark rule— application strict expected or the effect of if he had more upon the accused’s exer any comment anything missing if he had noticed right prejudicial cise of his of silence is reply to this was no comment.’ [Em- error —to those situations which phasis supplied] prosecutor comments on defendant’s testify at trial or the ac- failure to uses Roylance

“Officer “ testified: “No right constitutional of an accused person is more right sacred than his not ‘Detective Valdez asked if he wasn’t to make a testify against statement or selling smoke, that was awful lot himself, highly and it was improper for [Emphasis and he had no comment.’ question comment or to be or supplied] pertaining asked thereto.” “Officer Valdez Vincent Appellant Brewster exercised his consti- stand was asked he had con- tutional not to make a statement way versations with the defendant on the interrogating himself to officers. station, was, and his answer His assertion was subsequently in part: trial, used to his detriment at and he is “ plan- ‘... asked “You weren’t entitled to a reversal of his conviction. by ning yourself?” said, to smoke it all Reversed and for remanded trial. new pretty “You would to be heavy that,” smoker do And he no offered ROONEY, Justice, dissenting, with ’ reply question. [Emphasis sup- to this BROWN, Justice, whom joins. plied]” I believe by major the result reached We held these comments ity opinion under the facts this case State’s witnesses constituted er- reversible heavily absurdity underscore the ror: holding Westmark v. (1984), The elicited the testi- P.2d to the effect that com mony upon ment defendant remained silent an accused’s exercise of his prejudicial to silence is interrogation, per custodial error se. not specially concurring opinion of Justice that its show own evidence uncon- stood Westmark, Brown in joined, which I tradicted, but to create the inference that pointed to judicial the waste of time and an honest answer would have established resulting resources from reversals and mis appellant’s guilt. impermis- This was in trials in which guilt cases the evidence of privi- sible and violated the defendant’s overwhelming yet is and reversible error lege against self-incrimination.” 546 single ambiguous, results from a innocuous P.2d at 183. or inadvertent comment on the accused’s supra, 510 Gabrielson P.2d right The exercise of his to remain silent. 538, we respect improper said with to specially concurring opinion of Justice cross-examination of the defendant: quoted language Brown the cómmonsense “Particularly objectionable be the 1269, in 642 Richter v. P.2d following question which the (1982), by which was overruled West of asked defendant: mark: “ right to silence The constitutional by ‘When asked the Fort Po- Collins jealously guarded; must and should be Department 22,1968, lice on November but, self-defeating it to rec- refuse to concerning an homosexual act ognize as harmless when it is.” error Hotel, in at or the re- Northern statement, to a did you fused furnish Although assumption is of the doubtful validity,1 purposes not?’ I assume the of will for tions; rather, Appellant questions 1. had executed two waivers of his he continued to answer thus, silent; right agreed being to remain to answer with the to some them as answers such of questions and to in "I to talk that” or "I have his answers used court don’t want about don’t Accordingly, properly him. such These should be answers as "I remember.” answers evidence, "I don't remember” and don’t want talk about received into not as an admission of to guilt they pursuant obviously that" available for use in court to are not—but to ex- were —which waivers, plain his As in the he had the from natural course of waiver. recited variations a is, stop answering questions they to interview. be so received That should and should not be time. He did not terminate the interview or about behavior stop answering ques- silence. all considered as comments on Parkhurst exercise to Judith testified that impermissible com- Police Officer Cashel this dissent that some the victim and the she interviewed both by upon the exercise ments were made appellant police headquarters at the appellant his silence. Taken morning 2, early of March 1984. hours case, in this context with all evidence victim, taped She the interview with the prejudiced in appellant obviously not transcript tape and the was offered Any any way comments. testimo- by such concerning evidence. She testified “I ny such as appellant’s as to answers her, which was sub- which the victim told "Ior don’t want to talk don't remember” prior stantially the same as the victim’s insignificant in the deter- about that” was to the testimony. She testified scratches guilt. mination his apparent on appellant on and the bruises Following summary of is a brief the evi- She “waiver victim. secured written presented jury. dence rights” appellant, from and he executed statement, of which were both appellant The testified that rented victim into statement admitted evidence. by upstairs apartment an over that rented concerning having facts recited 21, 1984; victim; February met they on drinks the victim on the dinner and with and of the inci- between that date the date concerning evening going previous and (an dent, 2, interval March about they returned apartment to her after together, days), they had ten dinners He then home. said: dogs, gener- and looked after each other’s “I arms Barbara and tried took 28, together; ally February on socialized away her face kiss her. She turned 1984, requested sexual relations again. I to kiss her She turned tried victim, saying refused she she scratched away again. That’s when relationship only that she be wanted really feel when she me. didn’t friends; February ap- I told me. I was frustrated. scratched pellant to kiss victim she tried I felt her. We talked for her how about advances; 1, 1984, on March refused his upstairs bed. and then I went while they together went to a restaurant and ate my It when I set was around 3:30 [a.m.] drinking pizza, with the beer and alarm. wine; drinking after re- the victim “I more sexual advances never apartments, appellant turned to their en- try to her. to her other than to kiss apartment and tried to tered victim’s her. tried to have intercourse with never her; advances, kiss when she refused her.” hit her or tried choke never later he threw her on the couch and on the Cashel’s testi- quotation Officer attempt sexual inter- floor mony majority opinion contended to in the her; in detail to course with she testified impermissible comment on silence is be an ejaculat- he struggle the which ended when emphasized as it is in context the follow- telephoned leg; and she the ed her ing excerpt of her on direct ex- nearby motel and described police from amination: police. in detail to the incident According you “Q. this document to employee having to testified motel to gave rights him his to counsel and early the office door unlocked silence. 1984, 2, morning of March allow hours Yes, sir. “A. report telephone victim to “Q. you he in What condition was when the incident. him? interviewed slightly agitated, He was “A. Police Robert J. Palmatier testi- Officer a little nervous. seemed taking photographs fied to allega- obtaining “Q. you him that the apartment and to certain Did inform victim’s tion was of sexual assault? physical items as evidence. 402, (1981). S.Ct. 70 L.Ed.2d 216 U.S. 628 P.2d cert. denied Yes, Yes, sir, “A. “A. nervous, sir. he seemed when I tried to talk to him he “Q. would look you? tell What did he away, wouldn’t look me in eye, and I did, fact, “A. that he He told me just asked him if he would be more com- victim], know had been out [the talking Sgt. fortable Rogers, and he date, pizza on a had and drinks and had agreed to talk Sgt. Rogers. gotten approximately one or 1:30 hom[e] “Q. story? morning, and that he had in fact About whole apartment, come down to her which is “A. Sgt. He said he would talk Rog- apartment. below his story, ers about the whole and he would “Q. louder, you speak polygraph.” added.) Can a little I take a (Emphasis hearing a hard time have and don’t think And on cross-examination: this room is the best room to hear. “Q. long you How talking been Okay.. gone “A. He said he had down Mr. you Brewster when wrote out the apartment, to her apart- which was the handwritten statement that we have in his, ment below and that there had been evidence? altercation, in which he had tired [sic] Probably “A. talked for 20 to 30 min- her, point during to kiss and that at some utes. that, she had scratched him. “Q. you And went ahead and wrote it “Q. you Did talk to him about out? allegation? sexual again “A. Then we went over it Yes, sir, “A. I did. wrote down what he wanted me to write “Q. you? What did he tell exception down with paragraph, of this “A. That he didn’t want to talk to me beginning which is our normal and ex- about it. plained that wrote that down. “Q. He deny didn’t it? “Q. Did he seem to every- understand No, sir, “A. he didn’t. thing you told him? “Q. taped? Was that statement Yes, “A. sir. sir, No, “A. it wasn’t. “Q. you any difficulty under- “Q. do with What what told standing him? you? No, “A. sir. copy “A. I made a handwritten of what “Q. You mentioned at the time Mr. be, he wanted his statement to and then I Brewster, the words wrote down re-read, gave it to him to initial and then your testimony, slightly agitated. What sign, which he did. you say slightly agitated? Is that included in State’s Exhibit seat, him- “A. He moved his talked to 11? wrung self a little bit and his hands a Yes, sir. bit, agitated, extremely little he wasn’t pages? He has bouncing like off the wasn’t walls. Yes, sir. voice, voice, Was his the tone of his elevated?

n n n n £ n me, “A. His voice sounded same to “Q. Why another * ** him, the whole time talked to that is the interview, Rogers go Rick him him, only time I talked to so don’t know through another interview? normally if sounds or that is how he him “A. asked first of all he would not.” willing polygraph, he he be to take a said would, Sgt. Rogers polygra- and was a Rogers Police Officer Rick testified that thought might phist duty, on and he be he at about 8:50 a.m. interviewed talking in- more comfortable to a male 2, 1984, police headquarters. on March vestigator. rights” He a written “waiver obtained “Q. form from which was admitted More comfortable? quotation into evidence. The Officer “A. All he stated to me was that she lying floor, was Rogers’ testimony majority opinion lying top on the he was on of her. impermissible contended to be an comment

on emphasized silence is as it is in context “Q. you whether, Did talk to him about following excerpt of his on terms of a sexual accusation? direct examination: I asked him about whether his “[A].

“Q. penis was out you pants, Did he tell whether he had of his he refused to that, unsure, talk about he was stated re- contact with then? [the victim] peatedly thought that he he would remem- Yes, they got “A. he said in a conversa- ber, just but he didn’t know for sure tion at time he which tried kiss [the whether it was or not. victim], and she him pushed away, “Q. He didn’t penis know whether his that, just trying he was to show her how he pants? was out of his her, her, felt about and he loved and she stated, “A. That is what he first he again pushed away, him and he was unable remember, know, didn’t then he didn’t then any type rejection. to handle remember, very didn’t was evasive about “Q. you, He told I am unable to handle question. rejection? “Q. you Did talk to him length for “A. Yes. you of time that recall? “Q. opposed What did he do as to han- say “A. approximately 30 or 40 dling rejection? minutes, I exactly don’t recall long how was, point but at a when Mr. Brewster “A. He trying told me he was to make requested attorney, an the interview was felt, her understand how he and that he terminated. wanted her to feel the way, same that he “Q. request attorney He did forcibly kitchen, at some kissed her in the and also point? living on the couch in the area and that she again pushed him away, and further stated “A. really He never refused to talk un- he, pushed away, she him he tried harder til he talked attorney, to his but he was felt,

to show her how he and he and her continually asking me for advice as to up ended top on floor with him on of whether he attorney, needed an and at that point her. I felt I attorney would make his available and terminated the interview. “Q. you Did talk to him they about how “Q. you Do recall more of the con- up ended on the floor? versation with him? to, I attempted very vague, “A. he was No, basically forcibly that he had he being said he can remember on the floor her, rejected him, tried to kiss she had her, top on but couldn’t remember how physically he couldn’t rejection face that got he there. up top ended on the floor him on “Q. you long Did he tell how of her. the floor? you Did injuries discuss the to his quite “A. He was unclear about that face? too, repeatedly stated to me he couldn’t discussing injuries, those men- there, got remember how what the cir- those, allegations tioned and mentioned the were, cumstances but he had been on the against him was that she had scratched couch, pushed he kissed her and her back point he had me told at one that she couch, against the up had ended advances, attempt refused his to show on the floor. felt, her how he and she had scratched him. Did he position they tell what discuss with him all were in on the floor? he knew about the incident? attempted, everything I to discuss

A. with attorney he would return for a him, many points with at he became— polygraph examination and for a formal statement, Painter, at which time Mr. after “Q. sorry, you, am can’t hear conversing him— speak up a little louder. “Q. right.” (Emphasis added.) All many points At he became emo- “A. tional and evasiveand to discuss In addition to the rights two waivers of difficult allegations all some statement, and the handwritten pho- of about, he things things would talk some tographs showing the about, things he to talk some he scratches on his photographs face and refused stated he didn’t remember. the victim showing the bruises on her were admitted into evidence. didWhat

“Q. he to talk about? refuse Appellant made only objections two dur- Well, “A. point at one he refused ing presentation of the State’s case. talk about what his inten- further pertained Neither to appellant’s right were, tions to talk about further refused remain silent. A hearsay objection was penis pants, whether his was out question made to the asked Police Officer point kept— one Palmatier: “What did tell [the victim] deny penis Did he ever “Q. that his you?” objection The was overruled. The pants? was out objection other was to receipt into evi- was, “A. Never denied that it at one dence taped interview with the vic- point stated he couldn’t remember tim was, was as as he to denying, came he far because things other writ- [are] simply stated he didn’t want to talk in, ten there is evidence this was altered point. about it at that since the transcript was made. would quote, That is a I don’t want to object to the in any material case be- talk about that? hearsay cause it is and because there is “A. Yes. no foundation.” Did he objection The was everything tell how sustained. developed top he was on the on after floor put The defense did not evidence her? after the State rested. “A. All he would state was that he comments the witnesses got floor, didn’t recall how he silence, on the exercise of the top attempt- he was on her and he was context, absolutely taken in are irrelevant ing felt, past to show her how he pertaining guilt contributing or as point he wouldn’t elaborate on what his finding Moreover, they thereof. no are intentions were further. more comments on the exercise of the Parkhurst v. silence than were those in Is statement in a written 1369, Wyo., 628 P.2d cert. denied 454 form? U.S. 102 S.Ct. 70 L.Ed.2d 216 No, “A. Casper it isn’t. It is on a Po- (1981). quotation See therefrom the ma Department Supplemental Report, syn- lice jority opinion. onymous prepared. of it that I Appellant seemingly recognized that the “Q. You didn’t ask him to make a writ- testimony presented by statement, ten of it? only portrayal was an accurate of that No, I didn’t. jury Appel- which the should consider. “Q. Why was that? attempt lant’s denial of an to have inter- Well, jury course with the victim before the point requested agreed attorney, and I to contact an his second statement to Officer Cashel. case, requested speak attorney, At the State’s to his he stat- close of the conversing to me upon ed conclusion with said:

348 say any “(b) person can’t than

“Defendant more has A is not liable under this said, Honor, if, already Your we rest been under section circumstances manifest- as well.” ing voluntary complete a renun- intention, of ciation his criminal he avoid- jury Included in instructions to the ed the commission of attempt- the crime following: was the by abandoning ed his criminal effort. “It is a constitutional of defend- meaning subsection, Within the of this may ant in a criminal trial that he not be purpose of renunciation criminal is not compelled testify. not to You draw must motivated, voluntary if it is in whole or in any inference from the fact he does part, by circumstances, present not or Further, testify. not must neither apparent at the inception person’s of the permit matter nor discuss this it enter conduct, of course which increase the your way.” into deliberations in probability of apprehension detection or juryA presumed is to have followed or make which more difficult the accom- instructions of the court. Agency, Hursh plishment of the criminal intention. Re- Homes, Inc., Wigwam Inc. v. 664 complete nunciation is not if it is motivat- (1983). P.2d by ed a decision postpone the criminal argument The final of the advantageous until conduct a more time ap- not contain sufficient references or to transfer the criminal effort to an- pellant’s exercise of his silence to but objective other similar or victim.” objection taint No the case. made to was jury fully was instructed as to this it. It question was directed more to of appellant’s and to statute contention of a attempt rape whether the accom- was defense renunciation it. under plished. premised Appellant’s defense was on an by appellant of abandonment jury rejected Once this contention of attempt prior completion of the appellant, the attempt evidence of the was attempted rape. crime posture was This In opting almost without contradiction. appellant’s the basis of motion to dismiss base the defense on renunciation of the which was made at the close of the State’s attempt, acknowledgment of the fact that Appellant’s case. argument final was not attempt instigated acknowledged. an is directed toward denial of the facts reject- When the renunciation defense was placed Rather, incident jury. before the jury, ed conclusion follows that it was directed at the that the contention instigated attempt was fulfilled. The facts reflected abandonment the at- ap- statements to be comments on tempt provisions 6-l-301(b), under the of § pellant’s exercise of the to silence can (June Replacement). W.S.1977 Sec- said to prejudicial never be have been to his 6-1-301, (June Replace- tion W.S.1977 of innocence contention based renun- ment), provides: attempt. Nevertheless, ciation of un- “(a) person A is guilty attempt of an holding der the Westmark su- commit a crime if: pra, this commonsense resolution of the

“(i) the intent possible. With to commit the matter is not possi- It should be crime, is ble, he does act which holding sub- and makes the in Westmark step stantial towards commission to be unwarranted. A step' is con- crime. ‘substantial I would affirm. strongly duct which corroborative person’s

the firmness of the intention complete commission crime; or

“(ii) intentionally engages He con- duct which would crime constitute the had the attendant circumstances been person

as the to be. believes them

Case Details

Case Name: Brewster v. State

Court Name: Wyoming Supreme Court

Date Published: Dec 26, 1985

Citation: 712 P.2d 338

Docket Number: 84-313

Court Abbreviation: Wyo.