Richter v. State , 1982 Wyo. LEXIS 313 ( 1982 )

RAPER, Justice.

Appellants were each convicted of first degree sexual assault in violation of § 6-4-302(a)(ii), W.S.1977.¹ Both have appealed their convictions, though on different grounds. Appellant, Ronald Richter, mounts a challenge based upon a violation of his constitutionally guaranteed right to silence. He contends that it was reversible error for the prosecutor to cross-examine him concerning his failure to tell the police officers who arrested him the exculpatory story which he offered to the jury. The prosecutor’s questioning, appellant argues, constituted impermissible comment upon the right to silence guaranteed by the Fifth Amendment to the United States Constitution ² and by Article 1, § 11 of the Wyoming Constitution.³

Appellant, Alvin Richter, attacks his conviction upon the basis that the evidence against him was insufficient as a matter of law to support his conviction. Specifically, he argues that the trial court committed reversible error when it denied his motion for acquittal.

We will affirm.

On July 19, 1980, the victim in this case, while at the Mayflower Tavern in Cheyenne, decided to walk to her home located across the railroad tracks and on the south side of town. As she crossed the Riner viaduct over the railway yards, she was offered and she accepted a ride from a passing motorist who dropped her off at the Denver Hill Inn.

From there, she continued walking. Soon a pickup truck pulled alongside of her. The passenger in the truck, later identified as Alvin Richter, asked her if she wanted a ride. At first she refused, but, when the passenger persisted in trying to convince her to accept the offer by saying they were going to a party, she agreed and got into the truck.

Once inside she was placed between the passenger and the driver, later identified as Ronald Richter. When the pickup stopped for a stop sign, the victim asked where the party was. The driver indicated, “Right back there.” At this point the victim asked to be let out. The driver responded, “We are going to take you out and shoot you.” With this the driver and the passenger commenced laughing. The victim’s pleas to be let out were ignored, and she was driven several miles out of town. There the driver, with a gun in his hand, threatened to kill his victim unless she submitted to the two men’s sexual desires. To this, the passenger once again laughed with delight. The victim then submitted to the sexual demands of the two men.

After a considerable period of time, the victim ended up sitting in the front of the pickup with the passenger while the driver, wrapped in a blanket, slept by the side of the road. A patrol car happened by. The officer inside pulled the car alongside and asked if everything was all right. The passenger indicated that everything was fine. However, as the patrol car started to back away behind the pickup, the victim yelled, “Don’t go, he’s got a gun.” The police officer heard the passenger door of the truck open and close. Then he saw the victim exiting through the door on the driver’s side. He helped her into the patrol car and radioed for assistance.

Within two minutes other patrol cars began arriving on the scene. The police then began to search the area for the two men. An officer, while discussing what needed to be done with another officer, observed an individual, later identified as Ronald Richter — the driver — walking up towards the back of the pickup. He was carrying a blanket, and, as he was tossing it into the bed of the truck, the police officer, revolver in hand, told him to freeze, show his hands, and walk towards the officer. The individual was then forced to lay face down in front of a patrol car which was positioned behind the pickup. Handcuffs were placed on the individual and a pat-down search was conducted. A revolver was found in the blanket.

Appellant, Alvin Richter — the passenger — -was apprehended later that morning. He was discovered walking near the intersection of Lampman Court and York Drive on the southern edge of Cheyenne.

Appellants were charged with first degree sexual assault. Their cases were consolidated for a trial which began November 24, 1980.

After the State’s case both defendants moved for an acquittal. These motions were denied. During the defense’s case, appellant Ronald Richter testified in his own behalf. His version of the night of July 19, 1980, was substantially different from the story related by the victim. He testified that he and his nephew, Alvin, had met the victim at the Mayflower Tavern. They had decided to leave and go to a party, but had failed to find it. Unsure of what to do next, he — Ronald—had driven the vehicle as directed by the victim to a location out in the country. Once there, Alvin and the victim began “making out.” Ronald Richter further testified that he himself was unable, due to sexual inability, to take part in any sexual activity and that he fell asleep while lying on a blanket off to the side of the road. He stated that he had made no threats to the victim nor had he heard Alvin make any.

On cross-examination, the prosecutor asked Ronald, “Did you volunteer this version to the deputies at that time when you walked behind the truck?” An immediate objection was made by defense counsel that the question amounted to improper comment upon appellant’s right to remain silent. The defense counsel further moved for a mistrial contending that such is mandated in Wyoming by the case of Clenin v. State, Wyo., 573 P.2d 844 (1978). The trial judge agreed that the question was improper saying:

“THE COURT: That is completely improper, counsel, it does tend to violate the right he had at that time and place to remain silent. He doesn’t have to give any statement or volunteer anything.

“THE COURT: I will reserve ruling, [on the motion for a mistrial] but for now I will direct the jury to disregard the last question.

“(Proceedings at the bench concluded.) “MR. FORWOOD: That’s all I have, Your Honor.

“THE COURT: The jury will disregard the last question. I’m not sure there was any answer given to it, but disregard the last question, and if there was any answer disregard it also, and it will be stricken.”

After taking time to assess the possible prejudice which may have occurred, the trial judge later denied the motion for a mistrial.

At the conclusion of the trial the jury returned verdicts of guilty. Accordingly, on March 10,1981, a judgment and sentence was filed against each appellant. From those judgments these appeals were processed to this court.

I

The first issue we have to address is the one raised by Ronald Richter. We must consider whether the trial court erred when it failed to grant a mistrial after acknowledging that the prosecutor’s question on cross-examination infringed upon Ronald Richter’s right to silence.

The Fifth Amendment to the United States Constitution guarantees all citizens of this country the right to remain silent in the face of criminal accusations. The United States Supreme Court has, in a series of recent eases, considered whether this right is violated when silence is used for impeachment. The first and most important case of this line was Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). There the Court stated:

“We hold that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. The State has not claimed that such use in the circumstances of this case might have been harmless error. Accordingly, petitioners’ convictions are reversed and their causes remanded to the state courts for further proceedings not inconsistent with this opinion.” (Emphasis added and footnote omitted.) 426 U.S. at 619-620, 96 S.Ct. at 2245-2246.

The door of harmless error was left open.

In its most recent case on the subject, the high Court has further explained the Doyle holding. It drew a distinct line between pre- and post-arrest silence when it held:

“Thus, impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial. We conclude that the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant’s credibility.” Jenkins v. Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124, 2129, 65 L.Ed.2d 86 (1980).

The Wyoming Supreme Court has, on previous occasions, discussed the Doyle rule. In Irvin v. State, Wyo., 560 P.2d 372 (1977), this court reversed a criminal conviction where the prosecutor not only had been allowed to inquire as to why the defendant had not told the police his exculpatory story at the time of his arrest, but further had dwelt upon the point during his closing argument. The court there noted no difference between the right to silence granted by the Wyoming Constitution in Article 1, § 11 and the right guaranteed by the Fifth Amendment to the United States Constitution, and it ruled both had been violated.

The issue was again before this court in Clenin v. State, supra, 573 P.2d 844. There this court once again overturned a criminal conviction that had been obtained after the prosecution had conducted an extensive cross-examination of why the defendant had not told the police his exculpatory story after his arrest. In reaching that result, this court noted correctly that the question of whether Miranda warnings had been given was irrelevant since an individual’s right to silence does not depend upon the individual’s being advised that he has that right. As this court stated at that time:

“ * * * Advice as to that right by law enforcement officers or by the justice of the peace or by the judge of the district court is only for the purpose of expanding its protection by assuring that the accused person is aware of it.” 573 P.2d at 846.

The court in Clenin was also called upon by the State to consider whether the error was harmless. As to that issue, the majority of this court deviated from the rule adopted by an overwhelming majority of courts in sister states and in the federal system and held that:

“ * * * 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, supra, this may represent an extension of the rule of that case, it is our prerogative to so do in applying our state constitution. * * * ” (Emphasis added.) 573 P.2d at 846.

As we shall explain later, we hold that this prejudicial per se rule was erroneously adopted.

This court has most recently considered the application of the Doyle rule in Parkhurst v. State, Wyo., 628 P.2d 1369 (1981), cert. denied - U.S. -, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981). However, there the court found that the police officer’s testimony was not a comment upon the right of silence where it was merely an observation, volunteered by the witness, that the defendants did not say anything when they were detained but not arrested — a procedure permitted by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In the present case the facts show that the prosecutor asked the accused why he did not volunteer the story “to the deputies at that time when you walked behind the truck?” An immediate objection was made on the basis of Doyle; the district court ruled that the defense was right and that the question was improper.

The State has attempted to justify the failure to grant a mistrial by arguing that the district court’s ruling the question improper was erroneous. On appeal considerable deference is accorded a trial court’s findings of fact when they are made in connection with a decision on whether to suppress evidence. When no specific findings are made, this court upholds the general ruling of the trial court if it is supportable by any reasonable view of the evidence. Neilson v. State, Wyo., 599 P.2d 1326 (1979). Here the trial court ruled the evidence, which the prosecutor had sought admitted, to be inadmissible; however, the court did not explicitly state why it so ruled. In light of appellant’s objection, which was specifically tied to Doyle, it would appear that the district court must have determined that the question referred to post-arrest silence.⁴ Furthermore, the evidence is crystal clear that the appellant Ronald was placed under arrest as he “walked behind the truck.”

The State has also attempted to argue that the prosecutor’s question was directed towards statements that appellant made at the time of his arrest and not towards his silence. Though we acknowledge that it would have been proper to use such statements, there is no evidence in the record supporting the State’s position on appeal. When the trial court ruled that the question was improper, the prosecutor did not make any offer of proof that some statement or other had occurred at the scene. In fact, the prosecutor said that the question “wasn’t directed to an exculpating statement of total innocence.”

So accepting the trial court’s determination that the prosecutor’s question was improper under Doyle, which was supported by the evidence, we must now consider whether the trial court erred when it refused to grant appellant a mistrial. Appellant points to the language found in Clenin, which we have quoted earlier, and argues that it requires us to reverse this case. However, we hold that to the extent that the opinion in Clenin requires a new trial every time there is Doyle error, the language is too broad.

The prejudicial-per-se approach should not be allowed to prohibit an affirmance of a criminal conviction in cases where the error was clearly harmless. Such a rule exacts too high of a toll on the legal system to be sustainable. This can be seen by surveying other jurisdictions and observing that an overwhelming majority have considered harmless error even though a Doyle violation was found. Our research discloses that, since the Doyle decision was handed down, twenty-six states besides Wyoming have found Doyle violations and have been called upon to overlook them because the error was harmless. Twenty-four of those states have entertained the harmless-error argument and not ruled it out of hand: Wilkinson v. State, Ala.Crim.App., 361 So.2d 400 (1978); State v. Davis, 119 Ariz. 529, 582 P.2d 175 (1978); People v. Schindler, 114 Cal.App.3d 178, 170 Cal.Rptr. 461 (1980); People v. Ortega, 40 Colo.App. 449, 580 P.2d 813 (1978); State v. Zeko, 177 Conn. 545, 418 A.2d 917 (1979); Smith v. State, 244 Ga. 814, 262 S.E.2d 116 (1979); People v. Green, 74 Ill.2d 444, 25 Ill.Dec. 1, 386 N.E.2d 272 (1979); Jones v. State, 265 Ind. 447, 355 N.E.2d 402 (1976); State v. Satterfield, 3 Kan.App.2d 212, 592 P.2d 135 (1979); Darnell v. Commonwealth, Ky., 558 S.W.2d 590 (1977); Robeson v. State, 285 Md. 498, 403 A.2d 1221 (1979); Commonwealth v. Grieco, 5 Mass.App. 350, 362 N.E.2d 1204 (1977); People v. Sain, 407 Mich. 412, 285 N.W.2d 772 (1979); State v. Callahan, Minn., 310 N.W.2d 550 (1981); Cooley v. State, Miss., 391 So.2d 614 (1980); State v. Walker, Mo.App., 617 S.W.2d 94 (1981); State v. Callaway, 92 N.M. 80, 582 P.2d 1293 (1978); People v. Savage, 67 A.D.2d 562, 415 N.Y.S.2d 845 (1979); State v. Carmody, N.D., 253 N.W.2d 415 (1977); Maxville v. State, Okl.Crim.App., 629 P.2d 1279 (1981); Schrum v. Commonwealth, 219 Va. 204, 246 S.E.2d 893 (1978); State v. Evans, 96 Wash.2d 1, 633 P.2d 83 (1981); State v. Boyd, W.Va.App., 233 S.E.2d 710 (1977); Rudolph v. State, 78 Wis.2d 435, 254 N.W.2d 471 (1977), cert. denied 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541. One state has at times considered harmless error and at times ruled it out. See Commonwealth v. Easley, 245 Pa.Super. 41, 369 A.2d 283 (1976), reversed in 483 Pa. 337, 396 A.2d 1198 (1979); Commonwealth v. Flynn, 248 Pa.Super. 62, 374 A.2d 1317 (1977). The United States Circuit Courts of Appeal that have considered Doyle have all considered harmless error and not ruled it to be unavailable. See, Morgan v. Hall, 569 F.2d 1161 (1st Cir. 1978), cert. denied 437 U.S. 910, 98 S.Ct. 3103, 57 L.Ed.2d 1142; United States v. Nunez-Rios, 622 F.2d 1093 (2nd Cir. 1980); Williams v. Zahradnick, 632 F.2d 353 (4th Cir. 1980); United States v. Ylda, 643 F.2d 348 (5th Cir. 1981); Weir v. Fletcher, 658 F.2d 1126 (6th Cir. 1981) (U.S. appeal pending); United States ex rel. Allen v. Franzen, 659 F.2d 745 (7th Cir. 1981); Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980), cert. denied 449 U.S. 922, 101 S.Ct. 323, 66 L.Ed.2d 150; United States v. Williams, 556 F.2d 65 (D.C.Cir.1977), cert. denied 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1070. The only jurisdiction which, besides Wyoming, has held the harmless-error approach as unavailable to Doyle violations is Florida. That line of precedent extends back to a time even before Doyle. See Monroe v. State, Fla.App., 396 So.2d 241 (1981).

In light of this overwhelming weight of authority, one must question this court’s adherence to the rule that a violation of Doyle is always prejudicial per se. Where there was but one comment at trial to the fact of defendant’s silence, even though the comment was ambiguous and the evidence of guilt was overwhelming, it makes no sense to reverse a conviction. The expense to the State is substantial, not only in monetary terms, but also in terms of the amount of confidence members of society possess in the system’s ability to dole out justice and protect the law-abiding citizenry. The constitutional right to silence must and should be jealously guarded; but, it is self-defeating to refuse to recognize error as harmless when it is.

Here, the prosecutor asked Ronald Richter whether he volunteered his version of the events upon his arrest to the police. An objection was immediately made and sustained. The jury was not thereafter told whether he did or did not tell the police anything. Further, the jurors were instructed to disregard the question. No mention of the question was again made. The matter of silence was not exploited by the State. Since it was one isolated comment which was ambiguous, and since the evidence of appellant’s guilt was overwhelming, we believe it is appropriate in this case to uphold the trial court’s determination not to grant a mistrial. We firmly believe that there was no reasonable possibility that the error made any difference in the outcome of the trial. Accordingly we hold that the rule of harmless error is available and that in this case the error was harmless beyond a reasonable doubt. Campbell v. State, Wyo., 589 P.2d 358 (1979). We set aside the holding of Clenin, supra, which decides that any comment on silence is inherently prejudicial and entitles an accused to reversal of his conviction.

II

The second issue we must address is the one raised by Alvin Richter who challenges the sufficiency of the evidence against him. His argument is that the trial court erred in denying his motion for acquittal which was made at both the close of the State’s case and after the defense rested. In particular, he contends that the evidence was insufficient to prove that he caused the submission of the victim by threat of death, serious bodily injury or extreme physical pain to be inflicted on anyone, a necessary element of the crime for which he was convicted.

The standards by which this court reviews the appropriateness of a denial of a motion for acquittal are well established. We are required to determine whether as a matter of law substantial evidence was presented which a reasonable jury may have found sufficient to convince it, beyond a reasonable doubt, of the appellant’s guilt. Russell v. State, Wyo., 583 P.2d 690 (1978). In examining the evidence, we must accept the evidence of the prosecution as true, leaving out of consideration entirely the evidence of the appellant in conflict therewith, and give the prosecution every favorable inference which may reasonably and fairly be drawn from its evidence. McCarty v. State, Wyo., 616 P.2d 782 (1980). This court may only direct the entry of a judgment of acquittal when it may be said that:

“ * * * Viewing the evidence under the proper standard, * * * the evidence is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime. Further, if the evidence is such as to permit the jury to merely conjecture or speculate as to the defendant’s guilt, the trial judge should not allow the case to go to the jury. * * * ” Chavez v. State, Wyo., 601 P.2d 166, 170 (1979).

The State’s theory of the case was that both Alvin and Ronald Richter were guilty of first degree sexual assault in violation of § 6-4-302(a)(ii), W.S.1977. The language in that subparagraph requires that the submission of the victim was gained by the actor through “threat of death, serious bodily injury, extreme physical pain or kidnapping to be inflicted on anyone and the victim reasonably [believed] that the actor [had] the present ability to execute these threats.” Further, the jury was instructed as to the requirements of this subparagraph and the necessity of finding all elements therein. Alvin Richter argues that there was insufficient evidence admitted to establish that he had personally caused the victim’s submission through his own threats.

We must disagree with appellant’s analysis of the evidence. The testimony of the victim did show that the verbal threats came chiefly through the mouth of Ronald Richter. However, it is also clear that (1) Alvin was carrying a knife which the victim was aware of; (2) Alvin laughed along with Ronald at the idea of killing the victim (this indicates that idea was not altogether abhorrent to Alvin); (3) Alvin laughed at the victim’s pleas for release; and, (4) when, after the sexual contact was completed and the victim asked Alvin if they were going to kill her, he responded he did not know. Though this evidence does not demonstrate that Alvin threatened the victim in so many words, a “threat” can be expressed by acts or conduct. State v. Bouldin, 153 Mont. 276, 456 P.2d 830 (1969). Viewing the evidence as a whole, it is clear that Alvin’s conduct was threatening within the meaning of the statute. There was sufficient evidence to allow a reasonable jury to conclude that appellant was guilty of first degree sexual assault in violation of § 6-4-302(a)(ii), supra. Accordingly, we also find no error in the trial court’s refusal to grant appellant Alvin’s motion for a judgment of acquittal.

Affirmed as to both appellants.

1 . Section 6-4-302(a), W.S.1977 provides:

“(a) Any actor who inflicts sexual penetration or sexual intrusion on a victim commits a sexual assault in the first degree if:

“(i) The actor causes submission of the victim through the actual application, reasonably calculated to cause submission of the victim, of physical force or forcible confinement; or

“(ii) The actor causes submission of the victim by threat of death, serious bodily injury, extreme physical pain or kidnapping to be inflicted on anyone and the victim reasonably believes that the actor has the present ability to execute these threats; or “(iii) The victim is physically helpless, and the actor knows or should reasonably know the victim is physically helpless and the victim has not consented; [or]

“(iv) The actor knows or should reasonably know that the victim through a mental illness, mental deficiency or developmental disability is incapable of appraising the nature of the victim’s conduct.”

2 . The Fifth Amendment to the United States Constitution provides:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

3 . Article 1, § 11, Wyoming Constitution provides:

“No person shall be compelled to testify against himself in any criminal case, nor shall any person be twice put in jeopardy for the same offense. If a jury disagree, or if the judgment be arrested after a verdict, or if the judgment be reversed for error in law, the accused shall not be deemed to have been in jeopardy.”

4 . Because the trial court ruled in the defendant’s favor and sustained the objection, there was no reason for appellant to offer more proof that the question was addressed to post-arrest silence and not pre-arrest silence. To now say appellant failed to carry his burden of proof would amount to saying, because you won so easily, you really lost. Therefore, we will not examine whether appellant carried his burden as closely when he had already succeeded in convincing the trial court of the merit in his position. After the trial court’s ruling, it was the State’s burden to show that in fact the question was addressed to pre-arrest silence. We are unconvinced that the State carried this burden.