Irvin v. State

560 P.2d 372, 1977 Wyo. LEXIS 231

Opinions

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 Doyle v. Ohio, 1976, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, 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.