State v. Wiswell , 1981 Utah LEXIS 913 ( 1981 )

HALL, Chief Justice

(dissenting):

I do not view the case of Doyle v. Ohio¹ as dispositive of the issue in this case because Doyle is distinguishable on its facts.

In Doyle, defense counsel’s objections to the questions posed to defendant about his post-arrest silence were overruled by the court and the answers came in, whereas in the instant case, the objections were promptly sustained, and the only answer that came in was stricken from the record and the jury was admonished to disregard it.

Doyle is further distinguishable by reason of the fact that the court did not rule as it did without first observing: “The State has not claimed that such use [of defendant’s post-arrest silence] in the circumstances of this case might have been harmless error.” In the instant case, the State points to the substantial evidence of defendant’s guilt to support its contention that the mere reference to defendant’s post-arrest silence constitutes nothing more than harmless error.

As to the claim of error occasioned by the prosecutor’s closing argument, his comments fall well within the usual latitude afforded both sides in their arguments to the jury. Counsel have the right to discuss fully from their standpoint the evidence, inferences and deductions to be drawn therefrom,² and the determination whether the improper remarks of counsel during arguments to the jury have influenced a verdict lies within the discretion of the trial court.³

The record reflects facts and circumstances giving rise to substantial evidence of guilt. Further, the record supports the conclusion, beyond a reasonable doubt, that defendant was afforded a fair trial. Any error that crept in at trial does not rise to the level of prejudicial, reversible error. As stated by a unanimous Court in State v. Hodges:⁴

[TJhere should be no reversal of a conviction merely because of error or irregularity, but only if it is substantial and prejudicial in the sense that in its absence there is a reasonable likelihood that there would have been a different result.

I would affirm the conviction and judgment of the trial court.

1 . 426 U.S. 610 (1976).

2 . State v. Valdez, 30 Utah 2d 54, 513 P.2d 422 (1973); State v. Bautista, 30 Utah 2d 112, 514 P.2d 530 (1973).

3 . Id.

4 . 30 Utah 2d 367, 517 P.2d 1322 (1974).