*1 J., OAKS, GOULD, C. and HOWE and JJ. Judge: District Defendant was aggravated convicted of J., MAUGHAN, arguments, heard the counts, robbery, two appeals. and opinion but died before the was filed. cousins, Scott, Defendant’s three Donnie Elliott, and Vicki all entered the Hideout Lounge in City, Salt Lake between 12:30 p. and They joined 1:00 m. considerably younger, who is who testified that he had waited outside in the car for about one and one-half hours joining before his cousins in lounge. time, They left, drank for some and then allegedly pick up belonging a check WISWELL, William Steven one of the cousins. All returned to the later, Hideout and after drinking more beer, gun Scott drew and commenced a robbery of the bartender. During the Supreme Court Utah. robbery, course of the defendant was told get Scott to behind the bar and act like a women,
bartender. Two gone who had out food, for some reentered while defendant bar, inquired behind the he doing Apparently there. sensing that well, all was not one returning of the wom- en asked the defendant what he doing, upon receiving an answer to the effect that he charge,” was “in pushed she him in an get effort to to the telephone to summon police. Scott, point, At this shep- who had herded the other victims into another area returned, of the lounge, hand, gun in with a woman victim as hostage. point, At this one of the women who had been out for flee, food tripped or knocked to the floor by defendant. De- fendant claims he was “stop ordered to her” gun-wielding robber. Defendant and cousins eventually left the lounge, apprehended and were in a vehicle police after a chase which was possi- ble passers-by two agents. FBI Defendant contends that he was an un- willing participant events, about prior which he knowledge notice, had no or Fletcher, G. L. Lake City, Salt for de- and that his actions were taken at the di- appellant. fendant and gun-wielding rection of the robber. Wilkinson, Gen., David L. Atty. Salt Lake City, Craig Barlow, Gen., being placed L. After Atty. Asst. for under defend- plaintiff respondent. given warnings ant was in accordance with
147 decision, objection sustained, and chose to remain the Miranda Defendant’s by prosecutor admonition the court to the silent. followed. trial, During prosecutor put ques- the the prosecutor The argued to the jury:
tions to the defendant’s custodial officer
I
suggest
you
to
following the
as follows:
this defendant
was in the same frame of mind and that
Q.
you recall
he was
Do
how
dressed
frame of mind continued after his arrest.
you
when
saw him first?
I asked the officer who drove him to
blue, straight-legged
A. Yes. He had
places
those
the defendant said.
high
I
top
Levis and believe it was
black
He didn’t tell the officer that he was an
boots and he did not have a shirt.
unwilling participant.
Q.
happened
placed
after he
What
objected
and reserved a mo-
patrol
car?
mistrial,
tion for
but the court
the
ruled
rights
A.
I
to read him his
argument
proper.
to be
ruling
under the Miranda
from a card—
presented
The issue therefore
is whether
going
object,
I am
to
MS. FLETCHER:
this use of a defendant’s
silence
May
Honor.
I have a
Your
motion?
is a
right
violation of
to re-
sustained,
objection
Defendant’s
silent;
main
and secondarily, if it is a viola-
question
the
and answer stricken. A mo-
tion,
prosecutor’s
prejudi-
was the
conduct
thereupon
tion for mistrial was
right
cial to the defendant’s
to a fair trial.
and denied
the court.
appears
The case that
to be the control-
ling
Ohio,
Later,
witness,
Doyle
case is
426
examining
while
the same
U.S.
S.Ct.
post-arrest silence were overruled in,
court and the answers came whereas in objections
the instant sustained,
promptly and the only answer
that came in was stricken from the record jury
and the disregard was admonished to
it. is further by reason of the fact that the court did not rule as it observing: did without first “The State has not claimed that such use [of
post-arrest in the circumstances of silence] might this case have been harmless error.” McGEHEE, Jackie F. In the points instant State to the substantial guilt evidence of defendant’s support its contention that the mere refer-
ence to defendant’s silence con- Supreme Court of Utah. stitutes nothing more than harmless error. 4, 1981. As to the claim of error occasioned prosecutor’s closing argument, his com-
ments fall well within the usual latitude
afforded both in arguments sides their jury. Counsel have the to discuss
fully standpoint evidence, from their
inferences and deductions to be drawn
therefrom,2 and the determination whether
the improper remarks of counsel ar-
guments to the have influenced a ver-
dict lies within the discretion of the trial
court.3
The record reflects facts and circum- giving
stances rise to substantial evidence guilt. Further, supports the record
conclusion, beyond doubt, a reasonable
defendant was Any afforded a fair trial. crept
error that in at trial does not rise to prejudicial,
the level of reversible error. As
stated a unanimous Court in State v.
Hodges:4 should be no reversal of a convic-
[TJhere merely
tion irregulari- because of error or
ty, only but if preju- it is substantial and
dicial in the sense that in its absence
there is a reasonable likelihood that there
would have been a different result.
Valdez,
54,
2. State v.
30 Utah 2d