Brewster v. State

712 P.2d 338, 1985 Wyo. LEXIS 623

• Court: Wyoming Supreme Court
• Decided: December 26, 1985
• Docket: 84-313
• Status: Published

Opinions

ROSE, Justice.

Appellant Mark Brewster was convicted by a jury of attempted first-degree sexual assault and sentenced to 20 to 25 years in the state penitentiary. He raises the following issue on appeal:

“Whether Appellant’s constitutional right of silence was violated by impermissible comment upon Appellant’s invocation of that right.”

Appellant objects to testimony elicited from police officers on direct examination and to remarks made by the prosecution during closing argument to the jury. Officer Rogers testified as follows concerning his interrogation of appellant at the police department following arrest:

“Q. Did you discuss with him all that he knew about the incident?

“A. I attempted to discuss everything with him, at many points he became— “Q. I am sorry, I can’t hear you, speak up a little louder.

“A. At many points he became emotional and evasive and difficult to discuss all of the allegations against him, some things he would talk about, some things he refused to talk about, some things he stated he didn’t remember.

“Q. What did he refuse to talk about?

A. Well, at one point he refused to talk any further about what his intentions were, further refused to talk about whether his penis was out of his pants, at one point kept—

“Q. Did he ever deny that his penis was out of his pants?

“A. Never denied that it was, at one point stated he couldn’t remember if it was, was as far as he came to denying, he simply stated he didn’t want to talk about it at that point.

“Q. That is a quote, I don’t want to talk about that?

“A. Yes.

“Q. Did he tell you how everything developed after he was on the floor on top of her?

“A. All he would state was that he didn’t recall how he got to the floor, that he was on top of her and he was attempting to show her how he felt, and past that point he wouldn’t elaborate on what his intentions were further.”

Officer Cashel also questioned appellant after his arrest and testified as follows:

“Q. Did you talk to him about the sexual allegation?

“A. Yes, sir, I did.

“Q. What did he tell you?

“A. That he didn’t want to talk to me about it.

“Q. He didn’t deny it?

“A. No, sir, he didn’t.”

In his closing arguments to the jury, the prosecutor referred to the police officers’ trial testimony:

“He is charged with sexual assault, he knows the nature of the crime that [the alleged victim] leveled against him, he didn’t, he said, I don’t want to talk about that not I don’t remember, but that is what he told [Police Officer] Rick Rogers, that is what he in fact told [Police Officer] Judi Cashel, that is I said, what did he say about this nature of sexual encounter, he said, I don’t want to talk about it. It went beyond what is written in this statement, because what is written here, signed by this man, three hours before he changed his story. I never made any more sexual advances to her other than to try to kiss her. I never hit her or tried to choke her, never tried to have intercourse with her, but when asked, did you have your penis out, I don’t remember. But when asked, was it a sexual encounter, sexual effort, I don’t want to talk about it. Of course, it happened that way.

* * * ⅜ * *

“ * * * That is it, that is the law. It is, all the burden is and the burden to prove beyond a reasonable doubt, there can be no doubt, there is no dispute, there’s not a different story, the story told to Rick Rogers is, yes, I did in fact have her down on the floor, I did in fact lay on top of her, I did, I did, I did, I am not going to talk to you about it any more, I don’t want to talk about penis, I don’t want to talk about the sexual part. I did, I did, I did, I did all those things. * * * ”

The prosecutor further stated in closing:

“ * * * This isn’t a case of renunciation. Completed crime and attempt, did the defendant talk at length to law enforcement about rejection, he certainly did, that is all he told them about. You can see it in the written statement, Judi Cashel, and it is in the statement of Rick Rogers, his whole discussion was about rejection. He wanted to talk about rejection, he didn’t want to talk about his penis or any of these other details, any of the details [appellant’s attorney] hasn’t talked these seven details [sic], he jumped right over that because that is the reality, the uncontroverted reality of what happened.”

We agree with appellant that these comments made at trial on behalf of the State require the reversal of his conviction under our holding in Westmark v. State, Wyo., 693 P.2d 220 (1984).¹

THE RIGHT OP THE ACCUSED TO REMAIN SILENT

In a long line of cases culminating in Westmark v. State, supra, this court has held that prosecutorial comments at trial concerning the accused’s silence following arrest violate rights guaranteed by the Fifth Amendment to the United States Constitution ² and Art. 1, § 11 of the Wyoming Constitution.³ In Westmark v. State we held that such errors are inherently prejudicial:

“We * * * hold that any comment upon the accused’s exercise of his or her right to remain silent is prejudicial error which will entitle the accused to a reversal of the conviction.” 693 P.2d at 222.

In reaching this holding, we renounced our position in Richter v. State, Wyo., 642 P.2d 1269 (1982), that such constitutional violations might be dismissed as harmless error, and reinstated the prejudicial-per-se rule of Clenin v. State, Wyo., 573 P.2d 844 (1978). Under Clenin and Art. 1, § 11 of the Wyoming Constitution, any comment on the accused’s exercise of his right of silence requires reversal of his conviction, even though the United States Constitution might permit analysis under the harmless-error doctrine:

“ * * * Historically, our Court has jealously guarded the right provided in Art. 1, § .11 of the Constitution of the State of Wyoming against any infringement. Irvin v. State, [Wyo., 560 P.2d 372 (1977) ], Jerskey v. State, Wyo., 546 P.2d 173 (1976); Dryden v. State, Wyo., 535 P.2d 483 (1975); Moss v. State, Wyo., 492 P.2d 1329 (1972); Priestley v. State, Wyo., 446 P.2d 405 (1968); Dickey v. State, Wyo., 444 P.2d 373 (1968); and Miskimmins v. Shaver, 8 Wyo. 392, 58 P. 411, 49 L.R.A. 831 (1899). We hold that under this section of our state constitution any comment upon an accused’s exercise of his right of silence, whether by interrogation of the accused himself, or by interrogation of others inherently is prejudicial, and will entitle an accused to reversal of his conviction. Such a breach of the accused’s constitutional protections is plain error and prejudicial per se. While, in the light of the language of Doyle v. Ohio, [426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)], this may represent an extension of the rule of that case, it is our prerogative to so do in applying our state constitution. * * * ” Clenin v. State, supra, 573 P.2d at 846.

The State in its brief urges that our holdings in Westmark and Clenin do not control the outcome of this appeal because (1) the trial testimony and argument at issue were not impermissible comments on appellant’s silence, but were references to his evasive behavior during questioning; (2) appellant waived his right to remain silent; and (3) the comments, if impermissible, were harmless beyond a reasonable doubt. We find these positions untenable under the facts of this case and the law as developed in our prior opinions.

IMPERMISSIBLE COMMENT ON SILENCE

The State urges that the trial statements to which appellant objects, when considered in context, were not impermissible comments on silence but pertained to appellant’s evasive behavior following arrest. Appellee relies on this court’s opinion in Parkhurst v. State, Wyo., 628 P.2d 1369, cert. denied 454 U.S. 899, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981), where we held that a testifying police officer’s innocent references to the accuseds’ pre-arrest silence did not warrant reversal under Clenin v. State, supra. The officer in Parkhurst had described his roadside interrogation of appellants as follows:

“ ‘Q After that, what did you do?

‘ A I continued to talk to the subjects, tried to ascertain or to make certain where they had been, how they had gotten there, what roads they had travelled, whether they had passed through Glen-rock or not. Some questions were answered, some weren’t.

* * * * * *

“ ‘Q What did the two of you do after the parts you were testifying to?

“ ‘A When I returned from the vehicle, the second time, from my vehicle, Officer Dekmar advised that he had asked for consent to search. He advised me this in a loud enough toné of voise [sic] that both subjects could hear him at the front of the vehicle. We were standing about even with the front door, and neither subject said anything.’ (Emphasis added.)” 628 P.2d at 1380.

We said that these isolated remarks did not rise to the level of a “comment” on silence as that term is used in Clenin v. State, supra, and Jerskey v. State, Wyo., 546 P.2d 173 (1976), discussed infra:

“We believe that it is consistent with Jerskey and Clenin to read the term ‘comment’ as implying more than a reference to the accused’s silence. Implicit in the term is a reaction to that which is being mentioned which would present the possibility of the State exploiting the silence. Here the officer’s statements were: ‘Some questions were answered, some weren’t’ and ‘neither subject said anything.’ Those statements constituted the totality of any reference to silence. These isolated statements were never at any time intended to be used to the prosecutor’s advantage by the prosecution. Further, no later reference was made to any of them. There is nothing derogatory in those words; there is no expression of the police officer’s attitude towards such silence. They are not so much statements concerning appellants’ silence as they are testimony about behavior. Moreover, the silence referred to was of a passive nature; there was no affirmative exercise of the right to silence. Without more there is no reason to infer that the jury read the appellants’ silence as an admission of guilt. It is reasonable to conclude that the jury took the appellants’ unresponsiveness within the complete context of the stop as an indication that the appellants did not hear the question, the officer asked the question too fast, or they were frightened or confused — a state shared by most people upon being stopped by the police even though guiltless. There is nothing in these circumstances to indicate that appellants’ nonresponsiveness manifests an exercise of their right of silence.” 628 P.2d at 1382.

Thus, no error occurred where the ac-cuseds’ silence had not been used against them at trial, where the jury was unlikely to infer an admission of guilt from their nonresponsiveness, and where nothing indicated that the defendants had invoked their rights of silence.

The circumstances in the case at bar compel the opposite conclusion. Appellant refused to respond to questions during two sessions of interrogation at the police department. Prior to agreeing to participate in these sessions, appellant had signed a statement acknowledging his right to stop answering questions at any time.⁴ Appellant chose to exercise that right and the State penalized him at trial. During direct examination, the prosecutor asked about those areas that appellant had refused to discuss and emphasized the fact that appellant had not denied certain aspects of the alleged assault. In closing arguments, the prosecutor repeatedly directed the jury’s attention to appellant’s silence when asked certain questions, thereby inviting the inference that a truthful answer would have established guilt. In short, the State exploited appellant’s refusal to answer questions in order to prove its case. These statements constituted impermissible comment on appellant’s exercise of his right of silence and cannot be dismissed as isolated references to behavior under Parkhurst v. State, supra.

WAIVER OF THE RIGHT TO REMAIN SILENT

Prior to his interrogation by police officers, appellant signed a statement agreeing to answer questions and waiving certain rights. The statement provided in part:

“If you decide to answer questions now, you will still have the right to stop answering questions at any time during this interview. You also have the right to stop answering at any time until you talk to an attorney.”

We recognized in Westmark v. State, supra, that an accused might waive his constitutional rights to remain silent. We said:

“ * * * [U]nless there is a clear, unmistakable, knowledgeable waiver of the defendant’s constitutional right to remain silent, silence may not be used against him in trial — and to do so is error. [Citation.]” 693 P.2d at 223.

In the instant case, the waiver form provided by the police department expressly reserved to appellant the right to refuse to answer questions at any time during the interview. He invoked that right when he informed the officers that he did not want to talk. He did not need to terminate the interview in order to exercise his retained right of silence, as the State contends. Since appellant did not execute any waiver of his constitutional right to remain silent — let alone a clear, unmistakable, knowledgeable waiver — the State erred in using his silence against him at trial.

PREJUDICIAL ERROR

The State urges this court to restrict application of the Westmark rule— that any comment upon the accused’s exercise of his right of silence is prejudicial error — to those situations in which the prosecutor comments on the defendant’s failure to testify at trial or uses the accused’s silence upon arrest to imply that his trial story is a recent fabrication. These “direct” attacks on the defendant as a result of his silence are highly prejudicial and uniformly warrant reversal of a conviction, appellee submits, whereas the “indirect” references to silence at issue in the present case should be reviewed under the harmless-error doctrine. Appellee reasons further that restriction of the rule of automatic reversal to cases involving egregious errors would satisfy its deterrent purposes, since prosecutors can readily avoid those sorts of errors.

We reinstated the prejudical-per-se rule in Westmark v. State, supra, because the citizen-accused has a constitutional right to a trial free from any and all comments on his silence, and because prosecutors could not resist violating this right and gambling that the Supreme Court would find the error harmless. Accordingly, we said that any comment upon the accused’s exercise of the right to remain silent would entitle the defendant to a reversal of the conviction, and we adhere to that rule in the present case as the only viable means of giving effect to this constitutional right. As Justice Guthrie said in his concurring opinion in Gabrielson v. State, Wyo., 510 P.2d 534, 539-540 (1973):

“ * * * A constitutional guaranty indeed becomes barren and valueless if by the assertion thereof it can be utilized to his detriment.”

We have not hesitated in the past to reverse convictions obtained in trials marred by prosecutorial comments similar to those at issue in the present case. In Jerskey v. State, supra, 546 P.2d at 178-179, appellant objected to the following testimony by police officers:

“ ‘Q. Did you ask him anything else concerning that package [containing one kilo of marihuana]?

“ ‘A. Yes, sir. We asked something to the effect of if he had expected more or if he had noticed anything missing and his reply to this was no comment.’ [Emphasis supplied]

“Officer Roylance testified:

“ ‘Detective Valdez asked if he wasn’t selling it that was an awful lot to smoke, and he had no comment.’ [Emphasis supplied]

“Officer Vincent Valdez was on the stand and was asked if he had any conversations with the defendant on the way to the police station, and his answer was, in part:

“ ‘... I asked him, “You weren’t planning to smoke it all by yourself?” I said, “You would have to be a pretty heavy smoker to do that,” And he offered no reply to this question. ’ [Emphasis supplied]”

We held that these comments by the State’s witnesses constituted reversible error:

“ * * * The prosecution elicited the testimony that defendant had remained silent during custodial interrogation, not to show that its own evidence stood uncon-tradicted, but to create the inference that an honest answer would have established the appellant’s guilt. This was impermissible and violated the defendant’s privilege against self-incrimination.” 546 P.2d at 183.

In Gabrielson v. State, supra, 510 P.2d at 538, we said with respect to improper cross-examination of the defendant:

“Particularly objectionable would be the following question which the prosecution asked of defendant:

“ ‘When asked by the Fort Collins Police Department on November 22,1968, concerning an alleged homosexual act at or in the Northern Hotel, you refused to furnish a statement, did you not?’

“No constitutional right of an accused person is more sacred than his right not to make a statement or testify against himself, and it was highly improper for any comment or question to be made or asked pertaining thereto.”

Appellant Brewster exercised his constitutional right not to make a statement against himself to interrogating officers. His assertion of his right was subsequently used to his detriment at trial, and he is entitled to a reversal of his conviction.

Reversed and remanded for a new trial.

1 . In view of our disposition of this appeal, we will not address a second issue raised by appellant concerning the sufficiency of the evidence to support his conviction.

2 . The Fifth Amendment to the Constitution of the United States reads:

“No person shall be * * * compelled in any criminal case to be a witness against himself

3 . Article 1, § 11 of the Wyoming Constitution reads:

“No person shall be compelled to testify against himself in any criminal case * *

4 . This statement was part of the waiver form provided by police officers and signed by appellant. See discussion infra.