Clenin v. State

CLENIN, Appellant Kenneth P.

(Defendant below), Wyoming, Appellee STATE

(Plaintiff below).

No. 4673.

Supreme Wyoming. Court of

Jan. Mankus, (with

Louis A. him on the brief Lorenzon, was Terri Legal Intern), Chey- enne, for appellant.

V. Mendicino, Frank Atty. Gen., and Ar- thur Hanscum, T. Gen., Asst. Atty. Chey- enne, appellee. for GUTHRIE, J., Before C. and McCLIN- TOCK, RAPER, ROSE, THOMAS and JJ. THOMAS, Justice. presented issue

arises out of interrogation of Clenin during prosecutor cross-examination con cerning his failure to advise law enforce officials, ment including prosecutor, his defense of alibi. Was impermis that an sible comment on the exercise of his consti tutionally protected right of silence? Cle- nin was convicted by jury delivering substance, a controlled amphetamine sul phate, to another in violation of 35-347. 31(a)(ii), W.S., prohibits which the delivery controlled substance classified in I, II, Schedule or III in the statutes and sets the penalty imprisonment for not more a fine of not more than cross-examination years only than ten and covered not a fail- $10,000 appeals He from the ure to tell or both.1 law enforcement officers of his alibi, and of the District Judgment Sentence but a failure to county advise the sentencing him to a term of not less attorney. Court in respect record this reads months and not more than three than 18 as follows: Penitentiary. We con-

years in “Q. you arrested, Now after were of prejudicial was questioning that clude you course then told you the —were plain the error was both and funda- questioned at that time? must reverse Clenin’s convic- mental. We No, sir, “A. I was not. tion. “Q. police And what you officers did tell The facts material to the resolution you there, that weren’t you that in- lengthy. the issue are not record were at this party? by the Justice of the a notation cludes “A. I police did not tell the officers a Peace, responsibilities who fulfilled thing, sir. Wyoming our Rules commissioner under “Q. anyone? You didn’t tell Procedure, that of Criminal my lawyer’s advice, “A. On I told no May him on appeared before one, sir. “ * * * he advised of his consti- and was “Q. You mean this is the first time that presume that notation rights.” tutional We you have told this to anyone besides that received the advice reflects Clenin your lawyer? which the commissioner must furnish him No, sir, “A. this isn’t the first time. Furthermore, 5(b), under Rule W.R.Cr.P.2 in, sir, When I myself turned I did arraignment upon the occasion of sir, not communicate nobody, with along oth- appellant court the with district except lawyer present who was following advice from the ers received when I myself turned in. judge: “Q. Well, you when were arrested you I need to advise is thing “The first it, though, you say, didn’t look charge pending to the that as me, be I party? couldn’t was at a you, you has a against each of each No, sir, “A. I didn’t. silent, remain to make no state- right to “Q. say You didn’t that? However, you should ment whatsoever. sir, No, “A. upon my lawyer’s advice. open your each be candid and discus- “Q. your attorney, any you my with discus- Did ever' notify sions office and you protected have with him is you sion that tell me that were— by privilege compelled and he cannot be No, “A. sir. If up left that to my law- you may give to release information that yer, sir. your attorney you to unless authorize him “Q. any witnesses, Did your so far as to do so. know, you police ever tell the or tell obligation “You are under no to furnish alibi, my you office that had an any information whatsoever to the Court you weren’t there and couldn’t have any or to law enforcement officials or to thing you done this are accused others.” of? Honor, point foregoing We out advice “MR. Your MANKUS: I am judicial object because in this instance the going questions, officers to these right Amphetamine sulphate request assignment is included in the stat- of counsel if he utory counsel, right definitions of Schedule II Sub- Controlled is unable to obtain and of his 35-347.16(d)(i), stances W.S. preliminary consult counsel and to have a ex- amination. He shall also inform the defendant 5(b), provides 2. Rule W.R.Cr.P. as follows: required that he is not to make a statement and The com- “Statement the Commissioner. statement made him be used missioner shall inform the defendant of the against (Emphasis added) him.” complaint against him and of affidavit filed therewith, counsel, right of his to retain of his and he discuss the argumentative significance are of that they advice in else can relation interrogation what someone to trial doesn’t know about the fail- He acted advice ure to call or do. furnish information to law enforce- I wasn’t counsel —and ment officials. The of an accused to just I think he is silent, however, either. the time remain under Art. 11§ this witness. badgering of the Constitution of the Wyo- Well, ming, provides: which person for not neces- “No shall be “THE COURT: compelled testify against but for the himself in grounds, those sarily * * case, criminal right to remain does depend that his not grounds upon being that cannot be in- advised right right, is a of that silent but into, objec- exists I will sustain virtue of the quired constitutional lan- guage. Advice as right by tion.” to that law enforcement justice officers or of the in this case is the contention Clenin’s peace judge or of the district court is during cross-examination questions quoted only purpose of expanding pro- its Fifth Amend rights under the violated his by assuring tection that the person accused of the United of the Constitution ment is aware of it. States, applicable to the states as made Amendment, to the Fourteenth pursuant Wyoming suggests 1, 11 of the Constitution under Art. and we are free to examine this record and for Wyoming. basis of the State reach a determination that the error was Doyle in the case of claim is found Clenin’s prejudicial. not The state calls to our at 610, 2240, Ohio, 96 49 426 U.S. S.Ct. v. language Doyle Ohio, tention from v. supra, (1976). already This Court has L.Ed.2d 91 suggests which possibility. might This that rule in Irvin v. adopted applied and appropriate be an conclusion if our determi (1977). we State, Wyo., 560 P.2d 372 While nation were limited to the Fifth Amend State, supra, v. noted in Irvin ment to the Constitution of the United length in his County Attorney dwelled Historically, jealous States. our Court has circumstance, closing argument upon this ly guarded provided 1, in Art. 11§ disclose the record in this case does not and of the Constitution of the of Wyoming State silence, exploit similar effort Clenin’s against any infringement. State, Irvin v. we hold that the cross-examination in and supra, State, Jerskey v. Wyo., 546 P.2d 173 State, of Irvin v. of itself invokes the rule (1976); State, Dryden v. Wyo., 535 P.2d 483 Ohio, supra, Doyle supra. and v. A number (1975); State, Moss Wyo., v. 492 P.2d 1329 applied of states have that rule to circum (1972); State, Priestley v. Wyo., 446 P.2d stances which were similar to the facts of (1968); Dickey State, 405 v. Wyo., 444 P.2d this case and to those shown in Irvin v. (1968); 373 Shaver, and Miskimins v. 8 State, Scott, supra. 27 Ariz.App. State v. 392, Wyo. 411, 58 P. 49 (1899). L.R.A. 831 361, (1976); White, 555 P.2d 118 State v. 97 We hold that under this section of our state 708, den., (1976), Idaho 551 P.2d 1344 cert. constitution any comment an ac 842, 118, 50 111 429 U.S. 97 S.Ct. L.Ed.2d cused’s exercise of his right silence, State, Ind., (1976); Jones v. 355 N.E.2d 402 by interrogation whether of the accused Mims, 726, (1976). v. 220 Kan. 556 State himself, by interrogation of others inher State, Okl.Cr., (1976); Warthen v. P.2d 387 ently prejudicial, and will entitle an ac (1977); Upton, 559 P.2d 483 v. 16 State cused to reversal of his conviction. Such a 195, Wash.App. (1976); 239 556 P.2d State breach of the pro accused’s constitutional W.Va., Boyd, (1977). v. 710 233 S.E.2d plain tections is error prejudicial per and se. While,

The record does not light disclose whether language Doyle of the Ohio, supra, Clenin was advised of his constitutional v. may represent an exten rights by a law enforcement officer. There case, sion of the rule of that it is our Ohio, Doyle are comments in v. supra, prerogative to so in applying do our state it, following See, in some of the cases which g., Oregon Hass, constitution. e. v. 420

847 714, 1215, part 43 L.Ed.2d 95 S.Ct. 570 trial, U.S. motion for a new it does Disbrow, (1975); 101, v. 16 People Cal.3d not appear that the claimed prej- error was 360, (1976); Cal.Rptr. 127 545 P.2d 272 udicial nor was it constitutional error nor Santiago, v. 53 Haw. P.2d 657 plain fundamental error. Rule (1971); v. Triplett, Commonwealth 462 Pa. W.R.Cr.P. was vehicle, intended as a tradi- (1975). A.2d 62 To the extent nature, tional in permit the trial court an gone we beyond have the factual back- opportunity to correct an error in the trial Ohio, ground Doyle supra, for the rule of resulting in a conviction. It was not in- discussing the effect here of questioning procedural tended as a device to foreclose about the failure to advise the county attor- consideration on of trial errors which ney light of the alibi defense in the for might reason not be included justice advice of the peace and the among grounds for a motion for a new judge, district we deem that error also to be trial. Failure to include fundamental and plain error and fundamental error. constitutional error in a motion for a new trial does not inhibit the examination of Wyoming The also urges State such error this appeal. Court on Ohio, the rule Doyle supra, that v. need effect, given not be retroactive pointing out judgment The reversed, of conviction is prior that Clenin was tried to the promulga and the case is remanded to the district Doyle Ohio, tion of the decision of supra, v. court for a new trial. urges state given the that that rule be prospective application only. In Irvin v. RAPER, Justice, specially concurring. State, however, supra, while concept the freely I can agree that the cross-examina- discussed, specifically was not the rule of tion of the defendant with respect to his Ohio, Doyle supra, applied v. was post-arrest silence reached a point of no case an prior accused who had been tried return and there prejudice was to him that promulgation to the of the rule. We al could not be rescued by application of the ready are committed to a retrospective ap harmless error join rule.1 I in the opinion rule, plication of the least insofar as of the court but wish to comment on the those cases which come to us on direct problems posed by a showing defendant appeal. up day on the alibi, of the trial with an The Wyoming finally urges which, reasons, for conspicuous he has elect- appellant that failed to preserve the ed to keep secret and not advise the prose- including error not this violation of his cutor or those concerned with the adminis- rights ground constitutional as a for his justice tration of and court management. trial, citing motion for a new Valerio v. State, In (1967); recognition position Wyo., 429 P.2d 317 Dick unfair- State, 440, ness in which Wyo. placed erson v. 18 the State is 111 P. 857 in order to protect (1910), 440, and not Wyo. reh. den. 18 116 dilute a P. 448 sacred (1911). State, silent, In Valerio v. accused to supra, the remain Supreme error urged States, on never was Court of the called to the United with some attention of the district court. by Congress, While it amendment given has its appear State, would in Dickerson v. supra, blessing pretrial discovery by prose- objection that was made to the admission of cution of proposed by defendant, alibi a certain alleged evidence and the through error in adoption 12.1, of Rule F.R.Cr.P., on ruling objection was not made a 1, effective December 1975.2 major single 1. Chapman States, When there is but a 1977, reference at trial v. United 5 Cir. 547 silence, to the fact of defendant’s the reference F.2d 1240. repeated is neither nor linked with defendant’s 12.1, F.R.Cr.P., exculpatory story, provides: 2. exculpatory Rule story and the is transparently guilt “(a) frivolous and evidence of is Upon Notice defendant. written de- overwhelming, otherwise the reference to government de- mand of the time, stating date, fendant’s silence place constitutes harmless error. at which the prosecutor, upon learning rule was to of the alibi de- of the notice-of-alibi purpose prosecution. fense, surprise investigates prospective to the unfair witnesses. prevent reliable, Federal Practice —Criminal If he will reexamine his case Moore’s and a 12.1.02, to 12.1- Rules, pp. hand, ¶ 12.1-6 may 2nd Ed. dismissal result. On the other inquiry may reveal the alibi to be contrived subject impeachment. and the witnesses of the United States Supreme Court situation, In defense counsel this wish Florida, 1970, 399 in Williams and, case if to reexamine his false testimo- con- 26 L.Ed.2d 90 S.Ct. U.S. ny proposed, seek to withdraw as counsel every other court cluded, along with try persuade plead client to guilty. privilege question, had considered moving away a rule would assist in Such is not violated against self-incrimination “sporting contest” idea of criminal from give no- requirement a add, justice. predic- I would as a further his alibi defense and disclose tice of an alibi tion, would fewer alibi that there be defens- given court observed that witnesses. The attempted. es which an alibi can be fabri- the ease with cated, protect- in the interest of the State3 My purpose ultimate concurring this against an eleventh-hour defense ing itself opinion strongly is to recommend that legitimate. obvious and It noted is both rules, adopt part court as a of its criminal adversary system of trial is “not the federal notice-of-alibi rule or something enjoy game players in which an yet poker in a similar context and thus remove a their right always to conceal cards absolute long-standing from our system unfairness played.” until jurisprudence. criminal of rule, problem a notice-of-alibi the of

With possibly case would never have arisen. Burger

As noted Chief Justice in his

concurring opinion Williams, co a notice-of-

alibi rule has added benefits. It will serve disposing

the function of of cases without appropriate

trial circumstances. committed, party notify alleged promptly party offense was defend- shall the other or days, attorney identity ant shall serve within ten or at such his of the existence and of direct, may upon different time as the court the notice alibi. Such notice state defendant claims to have been at the time of such additional witness. attorney government a written “(d) comply. Upon Failure to the failure of of his intention to a of offer defense party comply requirements either with the the defendant shall rule, of this the court exclude the testi- place places specific or which the mony any undisclosed witness offered party such as to the defendant’s absence alleged offense and the names ad- at, presence alleged from or the scene of the upon dresses of the witnesses whom he in- offense. This rule shall not limit the rely tends to to establish such alibi. testify the defendant to in his own behalf. “(b) Disclosure of Information and Witness. “(e) shown, Exceptions. good For cause thereafter, days but in Within ten less than ten no event may grant exception any court requirements an days trial, before unless the for the (a) through (d) of subdivisions directs, attorney court otherwise government of this rule. upon shall serve “(f) Inadmissibility of Withdrawn Alibi. Evi- stating a written notice or names and addresses of the witnesses rely upon dence of an intention to an alibi defense, withdrawn, later or statements rely government whom the intends to to es- intention, made in connection with such presence defendant’s at the tablish the scene any pro- not admissible in civil or criminal alleged offense and other witness- ceeding against person gave who notice testimony es to be relied on to rebut the of the intention.” defendant’s alibi witnesses. duty “(c) Continuing prior to disclose. If states, Florida, 3. At least 15 have alibi besides trial, party during a learns of an addi- or requirements notice of one sort or another. known, identity, witness whose if tional Florida, Footnote II to Williams supra. v. State should have been included in the information furnished under subdivision (a) (b),

Case Details

Case Name: Clenin v. State

Court Name: Wyoming Supreme Court

Date Published: Jan 12, 1978

Citation: 573 P.2d 844

Docket Number: 4673

Court Abbreviation: Wyo.