Richter v. State

of plain propriety rise to the of error the of the prosecutor’s level reversible com- guilt since the of great.2 evidence was so the claim of not ments. If error is reviewa- doctrine, plain-error ble the under and I so, busi- strongly Even I feel about not, agree that then ignore we should prosecutorial ness of there- misconduct and that claim of error and with not treat its fore I file separate concurring opinion disposition. substance our Brown v. abiding in the fond hope prosecu- understanding tors will one to the day come justice that criminal is not a It manhunt. is, instead, a for truth justice search —a prosecutor

search in duty which the has the identify look for and innocence

accused with the same verve and vigor

he seeks guilt. profession- out his The true

al prosecutor man or can is the woman who vigorously inquiry undertake criminal RICHTER, Appellant Dean Ronald quiet rewarding sense hav- (Defendant), ing properly discharged the busi- people’s ness. regard Without to whether or not the gained

accused will finally or lost Appellee Wyoming, STATE freedom. (Plaintiff). Justice, RICHTER, Appellant THOMAS, Leroy specially concurring. Alvin (Defendant), agree I Barnes’ conviction must affirmed. I also am full accord with the majority opinion concerning the identifica- Appellee Wyoming, STATE tion charg- testimony propriety (Plaintiff). ing by information. Nos. 5498. I differently would treat claim with the of prosecutorial Appellant error. did not Wyoming. Court of Supreme object to the prosecutor’s comments at March 1982. time seeks they were made. He therefore Rehearing 1982. April Denied to induce this court review the matter of prosecutorial plain-er- misconduct under the majori-

ror doctrine. The conclusion of the

ty of the court argument is that

prosecuting attorney was not damaging appellant’s fairness of trial.

concurring Chief con- opinion, Justice Rose

cludes that the pros- comments made

ecutor plain did not to the rise level of error,

reversible error. This claim of there-

fore, should not be considered.

It is my position plain that if is not error

present, judicial proper then de- restraint

mands that we not examine the claim

error as to its I substance. therefore do

agree with majority opinion either Rose concurring opinion Chief Justice

insofar as encompassed there is a discussion that, perilously came to commit- would similar this case close add to the conclusion State, supra, ting grievous reached in Jones v. reversible error. Counsel, Schilling, Appellate

Michael H. Program, Public Defender Lara- mie, Hackl, Sylvia Lee Asst. Public Defend- er, Cheyenne, Brayton, and Jodi Public De- Intern, Cheyenne, signed fender brief on appellants. behalf of Ms. Hackl appeared argument. in oral Freudenthal, Gen., Atty. Steven F. Ger- Stack, ald A. Gen., Deputy Atty. Div., Crim. Johnson, and Allen C. Asst. Atty. Senior Gen., signed brief on appellee. behalf of appeared Mr. Johnson argument. in oral ROSE, J., RAPER, Before C. THOM- AS, BROWN, ROONEY and JJ. RAPER, Justice.

Appellants were each convicted of first degree sexual assault in violation of 6-4- 302(a)(ii), Both appealed W.S.1977.1 6-4-302(a), victim, provides: physical 1. Section W.S.1977 force or forcible confine- ment; or “(a) Any penetra- actor who inflicts sexual “(ii) The actor causes submission of the tion or sexual intrusion on a victim commits death, bodily inju- victim threat of serious degree sexual assault in the first if: ry, physical pain kidnapping extreme or to be “(i) The actor causes submission of the anyone reasonably inflicted on and the victim through victim application, the actual reason- present ability believes that the actor has the ably calculated to cause submission of the threats; to execute these convictions, refused, but, their ride. At first though different she when the grounds. Appellant, Richter, Ronald passenger persisted trying to convince a challenge mounts based violation accept her to saying the offer they were of his constitutionally guaranteed right to going party, agreed got she into He silence. contends it was reversible the truck. error for the to cross-examine Once placed inside she was between the him concerning his police failure tell the driver, passenger and the later as identified who officers arrested him the exculpatory Ronald Richter. the pickup stopped When story which he the jury. offered to The a stop sign, for the victim asked where the prosecutor’s questioning, appellant argues, party indicated, was. The driver “Right impermissible constituted comment upon point back there.” At this the victim asked guaranteed by silence the Fifth to be let responded, out. The driver “We Amendment to the United States Constitu- going tion and are to take out and you you.” Article 11 of the shoot Wyo- § ming Constitution.3 With this the the passenger driver and com- menced laughing. pleas The victim’s to be Appellant, Richter, Alvin attacks his con- let out were ignored, and she was driven viction basis that evidence several miles out of town. There the driv- against him was insufficient as a matter of er, hand, with a gun in his threatened to kill support law to Specifically, conviction. his victim unless she submitted to the two argues the trial court committed this, men’s To passen- sexual desires. reversible error when it denied his motion for once acquittal. ger again laughed delight. The victim then submitted to the sexual de- We will affirm. mands of the two men. July On the victim in this period time, After a considerable while the Mayflower in Chey- Tavern enne, up sitting victim ended in the front of the decided to walk to her home located driver, pickup across the with the while passenger railroad tracks and on the south side of town. blanket, As wrapped she crossed the Riner in a slept by the side of over yards, viaduct the railway she was patrol happened the road. A car by. The offered and she a ride accepted from a pulled alongside officer inside car passing motorist who her off dropped at the everything right. asked if was all The pas- Hill Denver Inn. senger everything indicated that was fine. However, patrol as the car started to back there, From she walking. continued Soon away pickup, yelled, behind the the victim pickup pulled truck alongside of her. passenger truck, go, got gun.” “Don’t he’s police later identified as Richter, Alvin asked her if she wanted a officer heard the door of the passenger “(iii) physically helpless, put jeopardy The victim is offense to be twice or life reasonably limb; compelled any the actor knows or should know nor shall he be crimi- physically helpless victim is against himself, the tim has not and the vic- nal case to be a witness nor consented; deprived life, liberty, property, [or] be or with- “(iv) The actor should law; knows or reason- process private out due nor shall ably illness, through know that the victim a mental use, property public just be taken without for deficiency developmental mental compensation.” disability incapable appraising the na- ture of the victim’s pro- conduct.” 3. Article Constitution vides: 2. The Fifth Amendment the United States person testify compelled “No shall be to case, provides: Constitution himself in criminal nor person “No shall be to answer held for a any person put jeopardy shall twice for be capital, crime, or otherwise infamous unless jury disagree, the same offense. If or if the presentment on a or indictment of a Grand judgment verdict, after a be arrested or if the Jury, except arising cases land or judgment law, be reversed error in forces, Militia, naval or in the when in actual accused deemed to shall not be have been public danger; service in time of War or nor jeopardy.” any person subject shall for the same had he made no threats to the victim nor open and close. Then he saw truck through any. the door on the driv- Alvin make exiting victim heard patrol car helped er’s side. He her into cross-examination, On for assistance. radioed Ronald, volunteer this ver- you asked “Did patrol two other cars be- Within minutes you deputies sion to the at that time gan arriving police on the scene. The then An immediate walked behind the truck?” the area for the two men. began search counsel that objection was made defense officer, what discussing An while needed com- improper amounted to question officer, be done with another observed an right to remain si- upon appellant’s ment individual, later identified as Ronald Richt- moved lent. The defense counsel further walking up er—the towards the contending that such is man- for a mistrial driver — carrying a pickup. back of the He was Wyoming by dated in the case of Clenin blanket, and, tossing as he was it into the State, (1978). The trial Wyo., 573 P.2d 844 truck, officer, bed of the revolver agreed improp- that the judge hand, freeze, hands, him to told show his saying: er and walk towards the officer. The individ- completely That is im- “THE COURT: lay ual was then forced to face down in counsel, it does tend to violate proper, patrol positioned front of a car which was place that time right he had at pickup. behind the Handcuffs were placed give silent. He doesn’t have to remain on pat-down the individual and a search any anything. statement or volunteer was conducted. A revolver was found the blanket. ruling, I will reserve “THE COURT: [on Appellant, passen- Alvin Richter—the now I the motion for a but for mistrial] ger apprehended that morning. later —-was jury disregard will direct the last He walking was discovered near the inter- question. Lampman section of Court and York Drive “(Proceedings concluded.) at the bench edge on the southern Cheyenne. have, “MR. FORWOOD: That’s all I Appellants charged were with first de- Your Honor. gree sexual assault. Their cases were con- disregard jury “THE COURT: The will solidated for a trial began which November question. I’m there the last not sure 24, 1980. it, disregard the any given answer but After the case both State’s defendants question, last and if there was an- moved for an acquittal. These motions also, will disregard swer and it were During denied. the defense’s stricken.” appellant Ronald Richter testified in his taking possible After time to assess the own night behalf. His version of the occurred, tri- prejudice may 19, 1980, July was substantially different judge al later denied the motion for a mis- from the story related the victim. He trial. Alvin, testified that he and nephew, his had jury At the conclusion of the trial the met the victim at the Mayflower Tavern. guilty. Accordingly, returned verdicts of They had decided go to leave and to a 10,1981, judgment on March and sentence party, but had failed to find it. Unsure of appellant. was filed each From next, what to do he—Ronald—had driven judgments appeals proc- those these the vehicle as directed the victim to a to this court. essed there, location country. out in the Once began Alvin and the victim “making out.” Ronald Richter further testified that he unable, The first we have to address is the

himself was due issue inability, to sexual We must part to take one raised Ronald Richter. activity sexual and that asleep lying he fell while off to consider whether the trial court erred on a blanket the side grant of the road. He stated that he had a mistrial after acknowl- it failed dwelt edging prosecutor’s question point during closing cross-examination infringed upon argument. Ronald The court there noted no differ- right ence right granted Richter’s to silence. between the to silence by Wyoming Constitution Article The Fifth Amendment to the United guaranteed 11 and right the Fifth guarantees States Constitution all citizens Amendment to the United States Constitu- country right of this silent to remain tion, and both it ruled had been violated. the face of criminal accusations. The Unit- was again issue before this court in has, Supreme ed States Court in a series of State, supra, Clenin v. 573 P.2d 844. There eases, recent considered whether this court again this once overturned a criminal impeach- violated when silence is used for conviction been that had obtained after the ment. important The first and most case of prosecution had conducted extensive line cross-examination of why defendant 2240,49 L.Ed.2d 91 There the exculpatory had not story told Court stated: result, reaching after his arrest. “We hold that use impeachment this court noted correctly that the purposes of petitioners’ warnings of whether giv- Miranda had been time of receiving arrest and after Miran- en was irrelevant since an individual’s warnings, da violated the Due Process depend upon to silence does not the individ- Clause of the Fourteenth Amendment. being ual’s has right. advised The State has not claimed that such use As this court stated that time: might circumstances of this case “ * * * right by Advice as to that law have been harmless error. Accordingly, by justice enforcement officers or the of petitioners’ convictions are reversed and peace or of by judge the the the district their causes remanded to the state courts only purpose expanding court is for the of for further proceedings not inconsistent protection assuring its that the ac- opinion.” (Emphasis this added and person cused is of it.” P.2d at aware omitted.) 619-620, footnote 426 U.S. at 846. 96 S.Ct. at 2245-2246. The court in Clenin was also called upon The door of harmless open. error was left by the State consider whether the error In its subject, most recent case the on the issue, majori- was harmless. As to that the high Court has explained Doyle further the ty this court from the rule of deviated holding. It drew a distinct line between adopted overwhelming majority an pre- post-arrest it silence when held: courts in sister states the federal “Thus, impeachment follows the defend- held system and that: ant’s own decision to cast aside his cloak “ * * * any upon comment an accused’s of silence and advances the truth-finding right exercise of his whether function of the criminal trial. We con- himself, by interrogation of the accused clude that the Fifth Amendment is not by interrogation inherently is others violated the use of prearrest silence to will an accused to prejudicial, and entitle impeach a criminal defendant’s credibili- reversal of his conviction. Such breach Anderson, ty.” Jenkins v. protections of the accused’s constitutional 2124, 2129, 100 S.Ct. 65 L.Ed.2d 86 per plain prejudicial error se. is (1980). While, light language of the Ohio, Doyle may represent has, The Wyoming Supreme Court on case, it an extension of the rule of that previous occasions, Doyle discussed the rule. prerogative applying our to so do our In Irvin Wyo., (1977), ”* * * (Emphasis state constitution. this court a criminal reversed conviction added.) at 573 P.2d prosecutor where the only not had been inquire why allowed to as to later, the defendant explain we hold that this As we shall not had told the police exculpatory his story prejudicial per erroneously se rule was arrest, the time but further had adopted. attempted argue The has also State considered recently has most

This court was directed prosecutor’s question in Park that the rule application the made at appellant that towards statements hurst and not towards the time of his arrest denied - U.S. -, cert. acknowledge that we However, Though the there silence. L.Ed.2d 216 to use such state- proper have been testi would that the officer’s court found ments, in the record there is no evidence was not a comment mony observation, position appeal. supporting the State’s merely silence where it was question that the witness, the trial court ruled the de When volunteered not make prosecutor did they improper, was say not anything fendants did statement or proof that some proce any offer were detained but not arrested —a fact, the scene. In had occurred at other permitted by Terry dure U.S. question prosecutor said 20 L.Ed.2d 889 state- exculpating to an “wasn’t directed show that In the case the facts present ment of total innocence.” why he asked the accused deputies trial court’s de story accepting did volunteer the “to So question you prosecutor’s time when walked behind that the termination sup was made objection improper Doyle, truck?” An immediate under which was Doyle; evidence, court con on the basis of the district we must now ported by the and that erred when it ruled that the defense was whether the trial court sider Ap question improper. appellant a mistrial. grant refused to language found points to the pellant attempted justify has State earlier, Clenin, quoted we have grant by arguing failure to a mistrial to reverse this argues requires that it us im- ruling court’s district However, hold that to the extent case. consider- proper appeal was erroneous. On the opinion requires in Clenin a new a trial court’s able deference is accorded every error, trial time there is findings of fact when are made broad. language too whether to connection with decision on approach should prejudicial-per-se find- suppress specific evidence. When no an affirmance of made, gener- prohibit not allowed to ings upholds are this court be where the criminal conviction cases ruling supporta- al of the trial court if it is a harmless. a rule clearly error was Such by any ble reasonable view of the evidence. legal system State, high too toll on Neilson v. 599 P.2d 1326 exacts evidence, be seen This can Here the trial court ruled the to be sustainable. admitted, observing jurisdictions other prosecutor sought surveying which the had inadmissible; have con however, overwhelming majority be the court did that an sidered harmless error though even light Doyle not state it so ruled. In explicitly why research discloses specifi- was violation was found. Our appellant’s objection, that, was handed appear it would decision cally Doyle, tied to that the since down, twenty-six states besides district court must have determined question post-arrest referred to silence.4 violations and have found have been Furthermore, upon overlook them because the crystal the evidence is clear called of those appellant Twenty-four that the Ronald under error was harmless. placed was arrest as he the truck.” have entertained the harmless-error “walked behind states appellant carried his burden examine whether Because the trial in the defend- court ruled already closely objection, when he had succeeded ant’s favor and sustained the was no reason there as convincing proof appellant in his the trial court of the merit to offer more ruling, question post-arrest position. it was After the trial court’s was addressed to say pre-arrest in fact the silence and appellant State’s burden to show that silence. To now carry proof pre-arrest question silence. was addressed to failed to his burden of you saying, State carried this We are unconvinced that the would amount to easily, you really because won so Therefore, we will not lost. burden.

1275 Franzen, argument len v. (7th and not ruled it out of hand: 659 1981); F.2d 745 Cir. State, Crist, Wilkinson v. 361 Ala.Crim.App., Quigg (9th v. 616 F.2d 1980), 1107 Cir. (1978); Davis, 400 v. Ariz. 922, 323, So.2d State 119 cert. denied 449 101 U.S. S.Ct. 66 529, 150; (1978); 582 People P.2d 175 v. Schin Williams, L.Ed.2d United v. States 556 dler, 178, 114 Cal.App.3d Cal.Rptr. (D.C.Cir.1977), 170 461 F.2d 65 cert. denied 431 U.S. 449, (1980); People Ortega, 972, 2936, v. 40 Colo.App. 53 L.Ed.2d 1070. The Zeko, (1978); 580 P.2d 813 177 jurisdiction which, State v. only besides Wyoming, 545, (1979); Conn. 917 v. 418 A.2d approach Smith has held harmless-error as un State, 814, (1979); 244 262 Ga. S.E.2d 116 to Doyle available violations is Florida. 444, 1, People Green, v. 74 Ill.2d 25 Ill.Dec. precedent That line of extends back to a State, (1979); 386 N.E.2d 272 Jones v. 265 Doyle. time even before See Monroe v. 447, Ind. (1976); 355 402 v. N.E.2d State State, Fla.App., 241 396 So.2d Satterfield, 212, Kan.App.2d 3 592 P.2d 135 light overwhelming weight (1979); Commonwealth, Ky., Darnell v. 558 authority, one must this court’s State, (1977); S.W.2d 590 Robeson 285 v. adherence to the rule that violation of 498, Md. (1979); 403 1221 A.2d Common Doyle always per prejudicial se. Where Grieco, 350, wealth v. 5 Mass.App. 362 there was but one comment trial to the (1977); Sain, N.E.2d 1204 People 407 v. fact though of defendant’s even 412, Mich. (1979); 285 772 N.W.2d v. State comment was ambiguous and the evidence Callahan, Minn., (1981); 310 N.W.2d 550 guilt overwhelming, it makes no Miss., Cooley v. (1980); 391 614 So.2d sense to reverse a conviction. The expense Walker, State v. Mo.App., 617 94 S.W.2d substantial, to the not only State in mon- (1981); 80, Callaway, State v. 92 582 N.M. terms, etary but also in terms of the (1978); People Savage, 67 amount confidence members of society A.D.2d (1979); 415 N.Y.S.2d 845 State possess in the system’s ability to dole out N.D., 253 Carmody, (1977); N.W.2d 415 justice protect law-abiding citizen- Maxville v. Okl.Crim.App., 629 P.2d ry. The constitutional to silence must (1981); Commonwealth, 1279 Schrum 219 but, jealously guarded; it is should Va. (1978); 893 S.E.2d State self-defeating recognize to refuse to error Evans, (1981); 96 Wash.2d as harmless when it is. Boyd, W.Va.App., State v. S.E.2d Here, asked Ronald (1977); Rudolph Wis.2d Richter whether he his version volunteered (1977), N.W.2d 471 cert. denied 435 U.S. police. the events his arrest L.Ed.2d 541. One objection immediately An made and state has at times considered harmless error The jury sustained. was not thereafter told and at times ruled it out. See Common he did tell whether or did not wealth v. Easley, Pa.Super. 369 A.2d Further, jurors anything. were in reversed in 483 Pa. 396 A.2d disregard question. structed No (1979); Flynn, Commonwealth v. again mention was made. Pa.Super. 62, 374 A.2d 1317 (1977). The exploited of silence not The matter was United Appeal States Circuit Courts of that Since it was one isolated com State. considered have all considered ambiguous, ment which was and since the harmless error ruled it to be una guilt of appellant’s evidence was over See, vailable. Morgan Hall, v. F.2d whelming, (1st appropriate we believe it is 1978), Cir. cert. denied 437 U.S. 1142; uphold this case the trial court’s determi 98 57 L.Ed.2d United Nunez-Rios, grant (2nd firmly nation not to a mistrial. We States 622 F.2d 1093 1980); Zahradnick, possi Cir. believe that there was no reasonable Williams 632 F.2d (4th Ylda, 1980); Cir. that the error made difference in bility United States v. (5th 1981); Accordingly 643 F.2d 348 the outcome of the trial. we Cir. Weir v. Fletch er, (6th (U.S. 1981) F.2d 1126 Cir. that the rule of harmless error is avail hold appeal pending); Al that the error United States ex rel. able and this case was theory The of the case was State’s doubt. beyond

harmless reasonable Richter were Campbell Alvin and Ronald that both Clenin, (1979). holding of We set aside the in vio degree of first sexual assault guilty comment on which decides that 6-4-302(a)(ii), lation of W.S.1977. and entitles inherently prejudicial silence is requires subparagraph in that language to reversal of his conviction. accused of the victim was that the submission through by the actor “threat gained II death, injury, physi extreme bodily serious is the The second issue must address kidnapping to be inflicted pain cal challenges one raised Alvin Richter who anyone reasonably and the victim [believed] the evidence him. sufficiency of ability present the actor [had] argument His is that the trial court erred in Further, jury threats.” execute these denying acquittal his motion for which was requirements was instructed as to made at both the close of the case State’s necessity of find subparagraph and the In particular, after the defense rested. ar Alvin Richter ing all elements therein. he contends that the evidence was insuffi- evidence there was insufficient gues prove cient to that he caused the submission personally that he had admitted to establish death, the victim threat of serious through submission caused the victim’s bodily injury physical pain or extreme to be threats. own anyone, necessary inflicted on element of the crime convicted. for he was disagree appellant’s analy- We must with testimony of the sis of the evidence. by which this court The standards threats victim did show that the verbal reviews the of a denial of a appropriateness chiefly through the mouth of Ronald came motion are acquittal for well established. (1) However, clear that Richter. it is also required We are to determine whether as a carrying Alvin was a knife which the victim matter of law substantial evidence was of; (2) laughed along was aware Alvin presented jury may which a reasonable (this victim it, killing Ronald at the idea of beyond have found sufficient to convince doubt, appellant’s guilt. altogether reasonable idea was not indicates Russell v. Wyo., 583 P.2d 690 (3) Alvin); laughed Alvin abhorrent evidence, In examining accept we must release; and, (4) pleas the victim’s true, the evidence of the as prosecution when, complet- after the sexual contact was leaving out of entirely consideration Alvin if ed and the victim asked evidence of the appellant in conflict there her, responded to kill he did not going with, give prosecution every favor not dem- Though know. this evidence does reasonably able inference which may threatened the victim in onstrate Alvin fairly be drawn from its evidence. McCar words, expressed can be many so a “threat” ty Wyo., 616 P.2d 782 This Bouldin, by acts or conduct. State court may only entry judg direct the of a (1969). Viewing Mont. ment of that: acquittal may be said whole, clear that the evidence as a it is “ * * * Viewing the evidence under the threatening within Alvin’s conduct * * * standard, proper the evidence is meaning of the statute. There was suffi- juror such that a reasonable must have a jury evidence to allow a reasonable cient reasonable doubt as the existence guilty of first appellant conclude any of the essential elements of the 6-4- degree sexual assault in violation of § Further, crime. if the evidence is such as find 302(a)(ii), supra. Accordingly, also permit to jury merely conjecture the to grant no error in the trial court’s refusal to speculate as the guilt, to defendant’s the judgment a appellant Alvin’s motion for trial judge go should not allow the case to acquittal. ” * * * State, to jury. the v. Chavez (1979). Wyo., appellants. 601 P.2d Affirmed as to both THOMAS, Justice, concurring. revolver and specially told Richter to freeze and to let him his hands. see He did hear a loud I am in complete accord with all that is clunk noise from the bed of the truck be- majority said in the opinion respect with to fore he ordered him to show his hands. the affirmance Alvin Richter’s convic- go Richter did to the rear of pickup the support tion. Other cases the truck before he came around the truck to- conclusion that Richter chargeable Alvin is arresting ward the deputy, who was sta- aspects with those of Ronald Richter’s con- tioned at the front of the driver’s side. It duct that constitute the elements of the follows that Richter did walk behind the State, crime in Wyo., this case. See Coca v. truck pickup before he was arrested. (1967); Lujan State, 423 P.2d 382 Wyo., v. (1967); Borrego 423 P.2d 388 Wyo., is regarded The as consti- (1967); 423 P.2d 393 Espy Wyo. tuting the error reads as follows: 291, 92 (1939). P.2d 549 you “Did volunteer this to version I agree that Ronald Richter’s conviction deputies you at that time when walked however, would, should be affirmed. I do added.) (Emphasis behind the truck T’ that on a different rationale than that es- The instant time to ques- alluded in that poused majority. opinion In my arrest, tion prior to Richter’s which of majority the court is far to too anxious preceded warning course given him of adopt the rule of harmless error this case. his rights respect constitutional to si- In satisfy the rush to anxiety that the ma- lence. jority present assumes that error is where majority opinion recognizes The making assumption none exists. Anderson, Jenkins v. Supreme the majority expands Doyle the rule of distinguished Court situation Ohio, 426 U.S. 96 S.Ct. 48 L.Ed.2d Ohio, supra, and held there is no viola- (1976), as espoused it was by this court in tion of the Fifth Amendment to Consti- State, Wyo., Clenin v. tution of the use United States following Irvin v. pre-arrest impeach a silence criminal de- The rule of supra, is this credibility. fendant’s Under decision post-arrest Anderson, rule. Jenkins v. clearly follows that here there was no fed- 65 L.Ed.2d eral constitutional error. majority The opinion extends important every- I think it to consider rule to pre-arrest situation. thing respect that the record discloses with A reading careful of the de- testimony question. follows: this record scribing the circumstances of Ronald Richt- “Q. this you Did volunteer version to er’s dep- arrest discloses that several of the deputies you at time when uty sheriffs observed Richter in way some the truck? walked behind prior placed being under arrest. One Honor, I “MR. Your would TRISTANI: deputies first something heard approach like the bench this time. then he thump heard a as out Richter came “THE for- COURT: Sustained. Come from around the back end pickup ward. truck the driver’s him side. He observed “(The following proceedings had at the truck, walking from along the rear bench, hearing of jury.) outside the it, side of at which time he was told freeze Honor, and was taken into custody. “MR. Your TRISTANI: deputy who actually the ar- on the accomplished time would move a mistrial rest interject- first observed Richter east- walking grounds prosecution that the ward from the field or the fence area snow of defendant’s ing element toward pickup the back of truck. the de- remain silent. It’s violation of silent, guar- About the time that got to the bed of fendant’s to remain as the pickup put through truck and or threw the blan- Fifth anteed Amendment bed, ket into the the arresting pulled officer the Fourteenth Amendment of the U. S. my I will stand on “MR. TRISTANI: as set forth It’s a violation Constitution. Irvin, ruling; is that cor- There’s no Danny vs. motion. in the case law of State Mankus’ also rect? and I believe Clenin —Lou has

case, Clenin, vs. He and Ohio. ruling, but I will reserve “THE COURT: silent, I think it is remain to disregard to jury I direct the for now will those and on improper prejudicial, question. the last for a mistrial— I would move grounds concluded.) the bench “(Proceedings his silence ask the witness about even to have, That’s all FORWOOD: “MR. any or kind. any version Your Honor. Honor, “MR. Your FORWOOD: disregard jury The will “THE COURT: exculpat- to an question wasn’t directed there was I’m not sure question. the last innocence, ing statement of total it, disregard given to but any answer offer you was directed to ‘did question any an- and if there question, last at the scene.’ deputies version to the any also, it will be it disregard swer im- completely That is “THE COURT: stricken.” counsel, tend to violate proper, does did prosecution Obviously counsel for the to place had at that time and right he proof or offer of appropriate not make an give have to remain silent. He doesn’t ade- question in an justify otherwise anything. statement or volunteer any the concern way. Consequently quate “I want me to you you will ask whether the trial court in the heat of the trial disregard ques- to jury instruct is not judge understandable. district tion. matter, ruling in the for his to be faulted we have a “MR. I believe FORWOOD: to respect commended with but rather to be ‘no’ answer. occurred. no error had recognition that have an an- “THE We don’t COURT: for the of the counsel the comments From swer. justi- however, inference is an prosecution, thought I heard him “MR. FORWOOD: I attempting lay to simply was fiable that he answer. Richter had establishing that foundation for that, you Reporter? check Mr. “Can time. version at that given a different Honor, my posi- “MR. Your TRISTANI: know whether Probably we never will question— tion is that when he asked not. did or did course, got whether or not he a re- event, hold, I would without mis- sponse, grounds I think this is in- that what occurred in this equivocation, is en- asking question trial. Even Richt- infringement upon not an stance was tirely improper, and I move for a mistrial to re- post-arrest right er’s exercise of as outlined. I would limit the rule of main silent. Honor, “MR. it’s the FORWOOD: Your and Irvin v. Clenin position state’s that while he made involving post-arrest to situations scene, exculpating statement at the not serve as a vehicle and this case would going are not versions on the compare error with re- a rule of harmless espouse question stand. The was to ask him if he fundamental constitutional spect version, offered not directed as right. why he did or didn’t. improper, “THE It’s counsel. COURT: that the court in Clenin I recall view, question improper my to this respect that with supra, concluded I have rule, so indicated. develop a strict problem it was best in a “I of which would result jury am to direct the the violation simply going the court thinking will reversal. It was the disregarded. last was, record, would be approach There an- time that so far as the no was, likely prosecuting our attor I will them most to induce swer. If there instruct of comment neys to avoid this kind disregard it.

1279 silence, ultimately very would result in evidence” rule. The test and from that case is such being brought few errors us. Connecticut, before v. adopted Fahy from of State regard In this I believe that the comments 375 U.S. 84 11 S.Ct. L.Ed.2d 171 Lukowsky, of Justice in in his dissent Dar (1963), and the test whether there ais Commonwealth, nell v. Ky., 558 S.W.2d 590 possibility reasonable the evidence (1977), may prophetic. well Noting be complained of might have contributed to Kentucky court accepted impeach had the conviction. Other courts have followed ment of exculpatory stories of the defend discerning this test for harmless error even by upon ants comment their and though they have opted pursue to the harm justified court had ruling un People Green, less-error rule. 74 Ill.2d enunciated der harmless-error rule (1979); 386 N.E.2d 272 State v. Calla California, Chapman v. State of way, N.M. (1978); (1967), S.Ct. L.Ed.2d 705 Justice N.D., Carmody, State v. 253 N.W.2d 415 Lukowsky said that Kentucky since the (1977); Rudolph 78 Wis.2d court first did that it parade had seen a of (1977), N.W.2d cert. denied 435 U.S. cases which this error appeared. had He 944, L.Ed.2d 541 said at 558 S.W.2d 596: instance, As I see I applied it this have “ * * * Having pass seen the same error another as to of validity doubt many times, in review so I am compelled approach. harmless-error It seems to me prosecutors to conclude that are deliber subjective that the standard is in its entire- ately disregarding the teaching ‘Nie and, ty example, overwhelming evidence meyer’ [Niemeyer Commonwealth, Ky., turns out to whatever three members of (1976)] hope 533 S.W.2d 218 in the given this court believe to be in finding salvation in the harmless error I instance. Yet recall the case of Browder words, In doctrine. other they are more which in obtaining interested a conviction than the case was described as a close case and in obtaining a conviction that will stick. poten- the reason for the reversal was the may “It well be that we fathered this adjust improper argument tial attitude when we failed to reverse ‘Nie- result in a close case. Browder was a sexu- meyer.’ provided We tightrope al assault as is this case. In Browder perhaps harmless error and that was the victim and there testified was corrobo- enough encourage zealots walk it. complaint. ration in form of fresh Oth- “It seems to problem characterization of error as either harm- fully precise but less commission ^[*] or prejudicial ^[*] a case me that such error. ^[*] is but to sometimes nebulous case basis ^[*] encourage approach * * *” ^[*] by hope- ^[*] plishing peace officer came aspects of her er defendants nesses victim cally witnesses and make testified, boasting rape. Concededly impeached. story Browder prompt complaint upon she did behave were corroborated. of their feat in accom- testified about the the scene. Other In this case the those wit- hysteri- In I am constrained to wonder if we are not Browder both defendants took the stand launching ourselves the same trouble one claimed admitted intercourse but path consent; some when we had attained better the other denied intercourse. In route our rule in Glenin v. supra. this case one of the defendants testified I am particularly troubled to observe this the other had consensual intercourse occur a context in which the harmless-er with the victim and the defendant who California, ror Chapman rule of that he been offered State testified claimed had applies he was federal constitution oral sex the victim but error, al is not correctly adopted respond. struggled unable to majority. of Chapman The rule v. State made this discerning objective what factors California, supra, is not “overwhelming- one in which the evidence was over- case in detail majority opinion. scribed made the Browder case a

whelming yet Alvin, urge appeals, that I have un- these Ronald and each close case. I confess been consideration. single error for our differentiating factors. identify able These issues are: having adopted I do harmless believe that court, court, Kentucky error like the prosecutor commit reversi- 1. Did the significant will see the matter revisited in a questioning error when Ronald Richt- ble Ultimately a number of instances. serious by impermissibly commenting er on which, case will come before the court in right constitutional to remain silent? reasons, for a will con- majority whatever failing court err in 2. Did trial clude that was not harmless. error judg- Richter’s motion for grant Alvin Then, Browder, disap- as in there will be a grounded in acquittal ment of which is pointed who will find that if a community charge that there was insufficient strict rule had been in effect a lawful con- upon jury which a could find evidence obtained, viction would have been but that guilty beyond that he was a reasonable encouragement prosecut- of the court to doubt? ing attorneys being resulted in a conviction reversed the conviction of would have obtained that could not stand. Richter and remanded for a new Ronald I shall leave it to the reader to draw the join affirming trial and I will in the trial order, conclusion Boyd, as to whether State v. court’s of conviction of Alvin Richter. W.Va., (1977), S.E.2d 710 the State v. RONALD RICHTER STATE Virginia really adopted West a harmless-er No. 5497 Case ror rule upon as to a comment the silence of Right Ronald’s Prosecutorial Comment on danger relying upon defendant. The to Remain Silent respective conclusions reached courts appeal readily California can be dis Appellant urges Richter Ronald Schindler, by comparing People cerned upon prosecutor impermissibly commented 178, 170 (1980) 114 Cal.App.3d Cal.Rptr. 461 his constitutional to remain silent un- Redmond, People with 111 Cal.App.3d der the Fifth Amendment to the United Cal.Rptr. vacated 29 Constitution, applicable made to the States Cal.3d Cal.Rptr. pursuant states to the Fourteenth Amend- (1981). My final caveat is that the reader Wyoming ment and Art. 11 of the § should not assume that all of the cases cited Constitution.1 in the majority opinion respect to the trial, During the Ronald took the stand in actually applied harmless-error rule his own related his recollection defense and harmless-error rule. several of them July of the events that occurred on 18 and conviction was a upon holding reversed 19, 1980. He said that he and Alvin had the error was not harmless. girl Jacque Mayflower met a named at the in Cheyenne Cafe and that she had asked ROSE, Justice, dissenting Chief in State party them for a ride to a and her trailer. Richter, v. Ronald concurring No. Richter, According to Ronald this was Richter, in State v. Alvin No. 5498. reason the three individuals rode in the Appellants together. driving Alvin and Ronald Richter truck As south town, first-degree girl changed were convicted of sexual as- her about mind 6-4-302(a)(ii), sault going violation of W.S. to her house and directed Ronald frontage road. He then testi- stemming from an incident that oc- drive to the Jacque took a July curred 1980 and which is de- fied that Alvin and blanket pro- Art. 11§ Constitution The Fifth Amendment to the United States provides pertinent part: Constitution vides: * * * testify person compelled “No shall be person compelled “No shall * * against criminal himself, himself criminal case be a witness ” * * * pur- went behind a snowfence for the mistrial. That motion was denied with the pose love. making jury He further related admonition disregard was to Jacque join him asked Alvin and her and the was not to and, did, pursue further examination into attempted perform when he she the sub- ject. By this, alleged reason of this act of fellatio him. After he invasion silent, to remain appellant said he asks us asleep fell and when he awoke to reverse his conviction and remand was arrested. new trial. statute, Under consent is a defense to issue raised Ronald Richter charge first-degree sexual assault. We been new one. here As

The first before. injected time consent had been observe, the majority both the United into the evidence was through the testimo- Supreme States Court and this ny court have of Ronald Richter. dealt with questions similar on a of number cross-examination, On the prosecutor in- occasions. quired of Ronald about his of version what principle upon appel- law which happened and following dialogue the en- Doyle Ohio, lant relies in is articulated sued: 610, 2240, 426 U.S. 96 S.Ct. 49 L.Ed.2d 91 “Q. youDo any remember other articles (1976). In Doyle, the Court the addressed of clothing back there? could, question prosecutor of whether a for No, “A. I don’t. trial, impeach the first time at a defend- “Q. pants, maybe you up did roll story exculpatory by cross-examining ant’s the blanket? failing about his or her to relate the same “A. Yes. at the time and re- story of arrest2 after “Q. you’re But anything not sure about ceiving warnings.3 Miranda an- The Court else? question negative. Doyle, swered the in the “A. No. supra, 426 at U.S. 96 at 2245. “Q. you Did volunteer this version to The reason for this out conclusion set deputies the at the you time when walked as follows: added.) behind the (Emphasis truck?’ “Thus, every post-arrest silence is insolu- asked, When this last coun- ambiguous bly because of what the State sel for objected grounds the defense on the required to person is advise the arrested. of impermissible U.S., comment on defendant’s Hale, See United States v. U.S. [422 right silent, to remain and moved for at L.Ed.2d S.Ct. 2133 171] Doyle, supra, at to law U.S. S.Ct. at formation enforcement officials. The prosecutor questioned silent, right however, the both codefend- of an accused to remain following ants in the manner: under Art. the of the Constitution “ [By prosecutor.] Wyoming, provides: per- the ‘Q. Mr. Beamer did State of ‘No arrive on testify the compelled scene? son shall be him- “ ** [By Yes, ‘A. *,’ he Wood.] did. self criminal does not “ you And I assume ‘Q. told him all about depend upon being right, his of that advised happened you? what but lan- exists virtue constitutional ‘“A. No.”’ guage. right Advice en- as to law justice forcement officers or warnings 3. Whether Miranda were or were not peace judge of is the district court given, because, bar, case is irrelevant only purpose expanding protec- for its note, majority as the we held in Clenin by assuring person tion that the accused that the defendant’s aware of it.” 573 P.2d at 846. depend upon to silence does not his know- Therefore, any I make to Miranda reference right. ing said: has that In Clenin we he warnings with re- in connection “The record does disclose whether Clenin silent, my with main has to do need to relate rights by was advised constitutional precise- other rules relevant case law enforcement officer. There are com- ly rule —Miranda of the Clenin ments some of —but—because warnings precedent not a to this it, are condition following sig- the cases which discuss the right. reliance defendant’s nificance of that advice relation to trial interrogation about the failure to furnish in- Anderson The distinction between Moreover, it is true while [2137]. Anderson’s that after bar is case at express no warnings contain Miranda warn- receiving Miranda after arrest and penal- no carry will that silence assurance than remain rather speak chose to ings he per- implicit assurance ty, such Thus, the stand when he took silent. In such warnings. who receives son that which than version a different related fundamentally circumstances, it would be proper held to be police, it was told the process of due deprivation and a unfair the defendant impeach prosecutor to be silence person’s arrested allow the case, the record story. In this prior subse- explanation impeach used to Ronald whether or not reveal does not trial.” offered at quently after he received statements made Richter 617-618, at 2244. 96 S.Ct. In the absence warnings. his Miranda Doyle, announcing its decision Since no evidence, must assume such on to define gone has Supreme Court warning statements post-Miranda In Jenkins of the rule. the contours made.5 Anderson, U.S. case fall me, present the facts of For it was (1980), was held that L.Ed.2d Doyle v. parameters within the squarely right to of the defendant’s not a violation prosecutor shows that The record Ohio. cross-ex when the remain silent Richt- impeach Ronald undertaking to concerning his failure amined the defendant by trial time at for the first story told er’s inves story to the to relate his self-defense to tell failure him about his cross-examining and being arrested tigating officer before of arrest. story at the time the same The rule rights. Miranda apprised of his prosecu- how we felt about We described applicable announced in Jenkins is right to re- violating the defendant’s tors prosecutor’s at here the the case bar since con- when, in Justice Guthrie’s main silent Ronald Richt was not directed at question curring opinion Gabrielson post- silence but rather at his pre-arrest er’s (1973), we said: Wyo., 510 arresting offi relate to the arrest failure to with a clear “Thus, we are confronted told in court.4 story cers the that the latter exercise of wherein defendant’s case term, held that In the same Court the Fifth right under constitutional apply did not rule announced Consti- to the United States Amendment inconsistent inquiry prior into prosecutorial him. penalize was utilized to tution after he by an accused statements made procedure on of such a chilling effect Ander warnings. given had been Miranda no demon- right needs exercise of such 2180, Charles, 404, 100 S.Ct. son U.S. in- guaranty A constitutional stration. said: The Court L.Ed.2d by if and valueless becomes barren deed use of makes no unfair questioning “Such utilized to thereof it can be the assertion who volun- because a defendant this The nature of his detriment. Miranda receiving after

tarily speaks importance of its the demonstration to remain has not been induced warnings character is settled and fundamental 436, Arizona, matter of his subject silent. As to the 384 U.S. Miranda 1602, footnote statements, (particularly has not re- 1624-1625 the defendant 694,10 408, 37), A.L.R.3d 974. See at 16 L.Ed.2d mained silent at all.” 447 U.S. Fla.App., So.2d also Jones at 2182. 100 S.Ct. responding Although ob- to defense counsel’s appeared 5. from be- 4. When Ronald Richter first question, jection alluded hind the truck he was ordered to freeze and appel- exculpating made ground, point statements he was hand- lie on the at which scene; alleged nature of these placed at the I do not think lant remarks is not cuffed and under arrest. record, apparent way— from the transcript can be read in other the the in fact assume that concurring opinion we cannot Thomas not- thus of Justice withstanding. made. 574, involving privilege A discussion inscribed in our Federal Con- Ritson, appears in State stitution, Constitution, our State Kan. 611: P.2d 7-244, W.S.1957, Cum.Supp., “ ‘There be no can doubt the inter the personification remedy of the for an jection of this evidence was error. Its evil which had its beginnings inquisi- purpose sole was to show that when de tional behavior and did some of its dirti- fendant was confronted with evidence est work in the ecclesiastical courts of contradicting his alibi he had refused to England. early protection was and talk and demanded It clear counsel. imperative still is it appear because would aly use of defendant’s invocation the inquisitions thing are not a constitutional rights to silence and to past if the manual directives counsel as substantive guilt— evidence of confessions, for eliciting as reviewed in no probative otherwise had value as Miranda, are an accurate reflection of story. rebuttal of defendant’s a use Such what has been going on. permissible is not under Miranda v. Arizo “It is because these ancient tendencies na, 1602, 16 fn. possession which men in powers * * of the * 974; L.Ed.2d 10 A.L.R.3d ” government seek, weaponry with the 510 P.2d at 539-540. [Citations].’ of government, impose will upon their In Jerskey v. Wyo., 546 P.2d 173 they govern (or ‘serve’) those whom (1976), we talked about a defendant’s protections embodied the Federal silent, to remain p. when we said: Fifth Amendment and the Con- theory “The the privilege self- stitution, Article Section were need- good, incrimination is high-principled ed. concept aimed the preservation “The evil is often spawned so in the name very most basic rights of the individual’s of the law and the pursuit public in a society democratic and one which expressed order as by officials who are should be readily embraced all us. doing in engaged ‘good,’ ‘right,’ what is Why is it so accept difficult to love? and ‘fair,’ interest,’ ‘in public the who or are Miranda, Escobedo, “In referring to ‘just so doing duty.’ often their How- Supreme United States Court said: “ ever, adopt when public officials their ‘... That case was an explication but morality own as ideas about standards for rights of basic that are in our enshrined * * adjudicating righteousness of oth- person constitution —that “No shall guidelines by ers —absent furnished be compelled in criminal case to be a against statutory pool the common and law of himself,” witness and that “the * * * experience accused shall Assistance contributed all civilized rights put people ‘good,’ ‘right,’ which were and the Counsel” — —the jeopardy through that case official ‘fair’ the expedient. become The stan- overbearing. precious These rights were society dard for the is successful then fixed our only Constitution after cen- judged according to the end result with persecution turies of struggle. and And precious little being paid attention to the in the Marshall, words of Chief Justice manner which it is achieved and to they come, “for ages secured and many may how heads have fallen into the ** * designed approach immortality process. basket Government be- as as nearly ap- human institutions can ultra powerful comes and the citizen is proach it,” v. Cohens Commonwealth of relegated to the least rather than the Virginia, 264, 264, 387, 6 U.S. Wheat. important most unit of social order. (1821).’ (384 443, L.Ed. 257 U.S. 86 S.Ct. fragile rights cobwebs of human be- 1611).” misty come visions which to blend tend pp.At 176-178 we said: ghosts public with the of some official’s ‘fair,’ “The right against private opinion to refuse to is testify ‘good,’ what oneself, proceeding, criminal ‘right,’ ‘just’ as this and until im- become State, we supra, In v. revisited rights no Clenin and —at last —are

perceptible Irvin, In Jerskey Gabrielson. rule of all. Clenin, subjected to the defendant was the law with which “These are forces concerning rather limited cross-examination contemplates when it is concerned defense before his failure to reveal an alibi privilege against self-incrimination.” holding impeachment In that such trial. Arizona, v. Miranda under Art. rights violated Clenin’s tactics 694, (1966), said; Chief 5.Ct. 16 L.Ed.2d Constitution, Warren, writing Justice for the Court and this section of our “We hold that under trial which referring English upon an constitution comment state spawned concept, our Fifth Amendment exercise of his accused’s high principles said that these by interrogation of the accused whether “ * * * worjie(j himself, interrogation of others in- way their over to herently prejudicial, and will entitle an implanted great Colonies and were after to reversal of his conviction. accused the Bill Those struggle Rights. into a breach of the accused’s constitu- Such Bill who framed our Constitution and the preju- error and protections plain tional were ever aware of subtle en- Rights While, light se. per dicial liberty. They croachments on individual Ohio, supra, language unconstitu- ‘illegitimate knew that the rule of represent an extension of may .. . practices got footing tional their first to so do in prerogative it is our approaches slight silent deviations our constitution.” Clenin applying state legal procedure.’ Boyd from modes of (Empha- at 846. supra, 573 P.2d States, United 6 S.Ct. U.S. added.) sis 524, 534, 29 L.Ed.2d though that even also noted in Clenin We privilege was elevated to constitutional closing argu in his prosecutor, in Irvin status and had been ‘as broad as always ment, the accused’s length upon dwelt at mischief which it seeks to alibi to inform the failure Hitchcock, guard.’ Counselman did not defense and that the facts Clenin 547, 562, 195, 197, U.S. 35 L.Ed. exploit effort Clenin’s show a similar depart We cannot cross-examination, silence, the mere fact of from heritage.” this noble U.S. itself, the rule of Irvin v. in and of invoked 459-460, 86 1619-20. supra, supra. Cle State, Wyo., In Irvin v. at 846. We nin v. 573 P.2d (1977), adopted authority proposi we the rule for this Doyle Ohio cited extensive opinion.6 tion in the Clenin in that we held case had violated defendant’s constitutional of the Irvin most recent discussion Our by asking why of silence he defendant in Parkhurst appears decisions Clenin failed to tell the about his alibi de- (1981). State, In dis- Wyo., 628 P.2d 1369 said; questioning fense. 560 P.2d at 373. Such cases, we cussing the Irvin and Clenin 1, violates the in Art. rights enumerated State, in supra, Irvin v. nor “In neither 11 Wyoming Constitution and the § State, pro- did this court Clenin v. Fifth to the and Fourteenth Amendments hibit all references to silence nor dictate Constitution, when, United as in Ir- States invocation of the stern rule unnecessary vin, the defendant has chosen to remain Application of the rule must of Clenin. silent given after was arrested and basis. be made on a case-to-case Cle- examina- warnings. may appear Miranda 560 P.2d at 373. nin it without close 118, (1976); State, Okl.Cr., 50 L.Ed.2d 111 Jones v. 6. See: Warthen v. P.2d 559 483 447, (1976); (1977); W.Va., Boyd, Ind. 355 N.E.2d 402 State v. 233 S.E.2d 710 265 Scott, 361, Mims, 726, (1977); Ariz.App. 556 P.2d 387 State v. 27 555 State v. 220 Kan. 195, (1976); White, Upton, Wash.App. (1976); P.2d 16 556 118 State v. 97 Idaho State v. den., 551 P.2d 1344 cert. any tion that statement two having reference cases control. Parkhurst v. su- to silence of the pra, defendant amounts to 628 P.2d at 1381. Once again, that rule prohibition absolute because he cannot states that a violation of and Irvin ‘compelled in any gives criminal case to be a to per prejudicial rise se reversible witness himself’ the pro- within error. tection of the Fifth Amendment to the now would turn aspects relevant United States Constitution and ‘com- of the case in light at bar of the above pelled testify against in himself discussion. As previously, mentioned I am criminal case’ within the language of opinion that the facts of this case fall 11, Art. I of the Wyoming § Constitu- squarely Doyle, within Irvin and Clenin. tion.” 628 P.2d at 1381. prosecutor’s only asking reason for We then went on to distinguish further question was to impeach Ronald Richter’s Irvin, Parkhurst from Clenin and when we story, which raised the consent issue for the said: first time this case. Although the record “We must look at the two cases of Irvin reflects that this only was the ref- and Clenin. Both were squarely within silence, erence made in relation to Ronald’s they because attempts clear (there only single reference to silence to impeach the defendants they because also) made Clenin this makes no differ- had failed to tell law enforcement offi- ence view our holding the mere cers they had alibis which at trial will, fact of cross-examination in and of were for the first time as raised defenses. itself, invoke the rule of Irvin Doyle. use defendant’s silence each Thus, Clenin v. P.2d at 846. case amounted indirectly compelling Clenin, under the comment violated Ron- him to testify. deciding, Without so ald’s to silence under Art. can say defense raised Constitution, and the Fifth defendant at trial for the first time with- Amendment to the United States Constitu- previous out advice to the State would tion, and was clear prejudicial per error and probably fall within the same category. se. are, Clenin therefore, and Irvin clearly I am aware that other states and several distinguishable from the case before us.” applied federal courts have the harmless-er 628 P.2d added.) at 1381. (Emphasis ror Doyle-type rule to circumstances. See: Therefore, we distinguished Irvin and Rowe, United ex States rel. Allen v. Parkhurst,7 Clenin from facts of Cir., (7th 1979); Chapman F.2d v. Unit observing Parkhurst reference did States, (5th Cir., 1977), ed 547 F.2d 1240 not result in compelling while, in testimony, cert. den. 431 U.S. breath, the same we continued to acknowl- Jordan, (1977); L.Ed.2d 393 State edge vitality of Clenin and It Irvin. (1977); People Kan. still remains the rule this state that when Sheperd, Colo.App. 551 P.2d comment is made an accused’s I acknowledge that are free to and such comment in compelling results do in construing so own their constitutions testimony, then such reference becomes im- or construing the Fifth Amendment proper and is reversible error. the United States Constitution since the It is important to note that Parkhurst Supreme question open did left that in Court nothing Clenin, more than clarify Ohio, Irvin and Doyle supra, v. U.S. and it proposition restated the that if a determining case at 2245. process This of arises wherein the facts squarely are within the transgressions Doyle effect of of the Doyle Ohio, State, supra, and Irvin v. rule is we exactly what decided in Clenin then the rules announced in those “prejudicial when we the announced rule of Parkhurst, any respond- In comment to the silence of recounted that neither defendant had through deputy’s the defendants was elicited the direct ed to another statement to him con- arresting cerning examination request of the an officers. In to his for consent search the prosecutor’s question concerning answer to the vehicle. defendants, stop deputy the initial of the the scene, officers, the reflects is that the ex we our per There admitted

error se.” after immediately our Ronald Richter noting while arrested pansion of All the offi- was of “per presence se” his detected. prejudicial to the error right make not appellant was the construing Wyoming the Constitu cers testified when by the however, were startled Now, majority violates until tion. the observed the rule the of weapon hitting harmless-error bed applying the sound of Clenin clearly point falls within Richter to a which truck. At that pickup fact situation freeze, as and and then the structure immediately same factual ordered rejecting for majority’s Clearly, nothing reason custody. Irvin. The placed in is it makes no sense com- the that the rule of Clenin the assertion supports record se per of error pre-arrest to have a rule reversible to a question referred plained-of I was harmless. clearly the error I have Therefore, agreement situation. directly in suggest this rationale flies discus- arises from his Justice Thomas with the for the the face of reasons rule rule, I and the need for the Clenin sion of Clenin, in and prejudice per se announced the in do concur his characterization long-standing in also the face this court’s question or the facts. the jealously guard tradition to would majority, I If I had written for silence Art. 11 of the guaranteed by § attempt prosecutor’s held that su Wyoming Constitution. Clenin Ronald, his commenting upon impeach Gabrielson v. pra; Jerskey supra; silence, violated constitutional earlier Worse than makes supra. that —it that such error to silence and impossible lawyers law under practice for therefore, would, se, I per and prejudicial changes which authority the case a court and remanded have reversed conviction precedential whenever holdings its trial. for a new mood strikes. RICHTER ALVIN STATE re- reason for our rule of automatic Case No. 5497 deterrence, versal if we are now going appeal according to every affirming to decide join majority I with the prejudice whether or not there was in com- the conviction judge’s upholding trial order pros- menting upon accused’s Richter. Alvin continuing us temptation ecutor’s test REHEARING overwhelming. will be DENYING ORDER having previously The issue raised been Now position we are back to a which consideration, upon careful considered rejected as being in Clenin unworkable and it is contrary protection to the afforded all indi- viduals Art. Constitu- for appellant’s Petition ORDERED sorry tion. I am about that —we had Rehearing hereby be and is denied. Clenin, good but, the majority rule in opinion destroyed. in this it is ROSE, J., and files statement. C. concurs I would make this comment about Justice THOMAS, J., and files state- dissents concurring opinion. Thomas’ accordance ment. with my position relative to the need for ROSE, Chief Justice. per se”, am “prejudice Clenin rule of I petition appellant’s I have reviewed in full portion accord with the of Justice it rais rehearing having for found that discussing injustice in- opinion Thomas’ facts law propositions es no new herent applying the harmless-error rule court originally considered were not However, my to these circumstances. must, reason appeal, I for this the case agreement aspect limited alone, petition concur the denial pic- concurring opinion because factual well- is, rehearing. rely solely ture upon which Thomas Justice relies reason my only rule that where judgment judgment of those established joining majority unsup- rehearing reargument advanced for opinion, totally by this ported formerly views considered by the record. All the record counsel’s court grant we will a rehearing. Hos State, kins v. (1976); 553 P.2d 1390

Town of Chicago Glenrock v. & North Co., Ry.

Western 73 Wyo. 281 P.2d 455

(1955); Mayor v. Board of Land Commis

sioners, Wyo. 430, 431, 195 P.2d 752

(1948); Watts Lawrence, 26 Wyo.

185 P. 719 (1919), (1920). reh. den. 188 P. 34 must, however, reiterate my disagree-

ment with opinion the majority in this case

because of the death blow delivered to an

accused’s right remain silent —a

which we have previously guarded jealously

and without State, reservation. Clenin Wyo., 573 (1978); P.2d 844 Irvin v. Wyo., 560 (1977); P.2d 372 Jerskey v.

Wyo., 546 (1976); Gabrielson v. State, Wyo.,

THOMAS, Justice.

I would grant the Petition for Rehearing because, this instance for the reasons

stated in my concurring opinion, “there

reasonable probability that may court

have arrived at an erroneous conclusion or

overlooked some important question or mat-

ter necessary to a correct decision.” Elmer Wyo., 466 P.2d

In re SCOTT, ESTATE OF John E.

Deceased. SCOTT,

John Jr., E. Appellant (Executor

under Beneficiary), Will and TOBIN,

Richard Special A. Administrator Scott, Estate of John E. Deceased, Appellee (Petitioner), Grieve,

Eulah Appellee Ann

(Beneficiary).

No. 5598.

Supreme Court Wyoming.

April 1, 1982.

Rehearing Denied May

Case Details

Case Name: Richter v. State

Court Name: Wyoming Supreme Court

Date Published: Mar 18, 1982

Citation: 642 P.2d 1269

Docket Number: 5497, 5498

Court Abbreviation: Wyo.