Irvin v. State
560 P.2d 372
Wyo.
1977
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Danny Lane IRVIN, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4562.

Supreme Court of Wyoming.

Feb. 17, 1977.

372-374

these standards of preparation on counsel in this case it is obvious that he has not met them, but this is only because he could not possibly comply therewith in the impossibly short time that he had for preparation for trial. It follows that this court cannot say what defenses he might have been able to develop, what more effective cross-examination he might have conducted of key witnesses, what success he might have had in attacking the credibility of witnesses. Every reason then exists for presuming lack of effective counsel and prejudice to the accused and the State has done nothing to rebut that presumption.

Noting only that I have previously indicated that I cannot agree with the majority‘s characterization of Ash‘s indecision, I would now add that if this court accepts the pertinence of the DeCoster standards but denies Ash the right to a trial with the assistance of properly prepared and effective counsel, it improperly limits the constitutional right of effective assistance to only those accused who without attempting to procure counsel at their own expense promptly assert their financial inability to obtain counsel and request appointment thereof. This is a qualification of the right which I cannot accept.

In my first dissent I found it unnecessary to reach the constitutional question because I thought that the trial court was so clearly in abuse of its judicial discretion in denying the continuance that it was a matter of plain legal error justifying reversal of the conviction on that ground alone. While I am still of that opinion, I do not see how the matter can be considered in anything but a constitutional context, as was done by counsel for Ash in his brief on appeal, although not making specific reference to the federal or state constitutions. I find nothing in either of those constitutions that would limit the right of assistance and fair trial as has been done by the majority, and therefore can agree with my Brother Rose in the view expressed in his separate dissent to the original opinion that defendant was denied a fair trial, resulting in a violation of his constitutional rights of due process of law.

Gerald M. Gallivan, Laramie, signed the brief and appeared in oral argument on behalf of the appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Thomas J. Carroll, Legal Intern, Cheyenne, signed the brief and Allen Johnson, Student Intern, Cheyenne, appeared in oral argument on behalf of the appellee.

Before GUTHRIE, C. J., RAPER, THOMAS and ROSE, JJ., and HAMM, District Judge.

RAPER, Justice.

During cross-examination of the defendant, the county and prosecuting attorney asked the defendant why he had not told the police about his alibi which he brought out for the first time in his defense. In closing argument the county attorney dwelt at length on the failure of the defendant to inform the police of his alibi, implying fabrication. After being given the Miranda warning following arrest, the defendant had elected to remain silent.

* * *

The tactic of the prosecutor is in violation of § 11, Article I, Wyoming Constitution, providing that “No person shall be compelled to testify against himself in any criminal case, * * *” Under Amendment V to the United States Constitution, a parallel provision to that of Wyoming, providing that no person shall be “compelled in any criminal case to be a witness against himself, * * *” the United States Supreme Court in

, under a similar set of facts, stated that implicit in the Miranda warning is the assurance that silence will carry no penalty and held that use for impeachment purposes of defendant‘s silence, at time of arrest, after Miranda warnings violates the Due Process Clause of the Fourteenth Amendment. We are compelled to agree.

Reversed and remanded for new trial.

GUTHRIE, Chief Justice.

I concur in this opinion and the holding thereof because in my view the case of

, is directly in point. However, this court, in
, and
, had heretofore enunciated a similar rationale.

ROSE, Justice, specially concurring, in which HAMM, District Judge, joins.

I concur in the result but would add these remarks:

The majority opinion fails to cite Wyoming Supreme Court decisions which I consider directly in point, namely

, and
. In Jerskey, the right of the defendant to remain silent and not have his defense burdened with the jury‘s knowledge of his silence was at issue. The defendant was, therefore, asserting his rights under the Fifth Amendment to the United States Constitution, as is the defendant in the instant matter.

We said in Jerskey, at 546 P.2d, page 180, citing and quoting

, with approval:

“‘The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in face of accusation. . . .‘” (With citations) [Emphasis in Jerskey text]

In Jerskey we adopted the rule of

, where the United States Supreme Court said:

“’ . . . We . . . hold that the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused‘s silence or instructions by the court that such silence is evidence of guilt.‘” [Emphasis in Jerskey text]

The concurring opinion in

, holds for the same proposition.

I write this concurring opinion—not to burden the law books or the lawyers—but to point up and comply with a rule that I consider to be elementary and necessary in the appellate process—namely that where there is Wyoming authority which stands for or refutes propositions relevant to this court‘s current opinions, it should be cited and considered.