Tortolito v. State , 1995 Wyo. LEXIS 148 ( 1995 )

GOLDEN, C.J., delivers the opinion of the Court; THOMAS, J., files a dissenting opinion.

GOLDEN, Chief Justice.

In Tortolito v. State, 885 P.2d 864 (Wyo. 1994), a divided court affirmed Joseph Steven Tortolito’s (Tortolito) conviction and sentence for robbery. We granted Tortolito’s petition for rehearing and heard reargument on March 14, 1995.

We withdraw our earlier opinion, reverse the conviction and sentence for impermissible prosecutorial comments upon Tortolito’s pre-arrest silence, and remand for a new trial.

FACTS

On January 20, 1992, a passenger at the Greyhound bus station in Cheyenne accused Tortolito of robbery. When confronted by a bus driver about the passenger’s accusation, Tortolito allegedly admitted taking the passenger’s money. Police were summoned and were told by a bus station employee that Tortolito had robbed a passenger. Police detained, questioned, searched, and again questioned Tortolito, and then arrested him for robbery. Tortolito was tried before a jury which convicted him of the robbery on April 15, 1992. Following post-trial motions, the trial court granted a new trial because of an improper closing argument by the prosecutor. Tortolito was tried a second time and again a jury convicted him of robbery on June 23, 1992.

Tortolito’s subsequent appeal presented seven issues, but the primary concern involved his contention that during trial the prosecutor had impermissibly commented upon his pre-arrest silence. Our original majority opinion determined that prosecuto-rial comments about an accused’s silence were impermissible and required reversal only when the silence to which comments were directed occurred either after arrest or the giving of advice of the constitutional right to remain silent. Deciding that Tortolito was arrested only after the inquiries by the officers to which he remained silent, the court concluded that no comment upon his right to remain silent had occurred. The court then held that, in light of the “peculiar dynamics” of the case, viz., Tortolito’s affirmative admission to a bus driver before law enforcement officers arrived on the scene, once an accused has made a lawful affirmative admission to a non-law enforcement person, the reversible error rule of Clenin v. State, 573 P.2d 844 (Wyo.1978), is not applicable. Tor-tolito, 885 P.2d at 870.

We granted Tortolito’s petition for rehearing to reconsider this court’s determination of the comment-upon-silence question.

DISCUSSION

Standard of Review

1. Wyo. Const. Art. 1 § 11.

Before this court’s decision in Clenin, comment-upon-silence issues were resolved under the due process rationale articulated in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), adopted by this court in Irvin v. State, 560 P.2d 372 (Wyo.1977). However, in Clenin, this court departed from due process analysis and analyzed whether the self-incrimination provision of Article 1, Section 11 of the Wyoming Constitution offered greater protection.

In Clenin a unanimous court held:

The right of an accused to remain silent, however, under Art. 1, § 11 of the Constitution of the State of Wyoming ... does not depend upon his being advised of that right, but exists by virtue of the constitutional language. Advice as to that right by law enforcement officers ... is only for the purpose of expanding its protection by assuring that the accused person is aware of it.

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Historically, our Court has jealously guarded the right ... against any infringement. ... We hold that under this section of our state constitution any comment upon an accused’s exercise ... is prejudicial, and will entitle an accused to reversal of his conviction.

Glenm, 573 P.2d at 846.

Clenin held that, by virtue of the constitutional provision’s language itself, silence was afforded greater protection than that afforded under due process. Unfortunately, in subsequent comment-upon-silence cases, this court strayed from Clenin’s reliance on the constitutional provision and reverted to precedent based upon due process considerations, the result of which gives little guidance to litigants, counsel, or trial courts. Notwithstanding, Clenin clearly signifies Wyo. Const. Art. 1 § 11 is the basis for analysis of all comment-upon-silence issues.

The state constitutional prohibition against self-incrimination¹ states in relevant part:

No person shall be compelled to testify against himself in any criminal case.... Wyo. Const. Art. 1 § 11.

In Jerskey v. State, 546 P.2d 173 (Wyo.1976), we held the provision prohibited prosecutorial comment upon silence eventuated by a defendant’s failure to testify at trial. Jerskey, 546 P.2d at 176 n. 6. Following the United States Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court held the due process clause of the Fourteenth Amendment prohibited comment upon an accused’s pretrial silence,² judging it fundamentally unfair to assure an accused he can remain silent and then use that silence against him at trial. Doyle, 426 U.S. at 617-18, 96 S.Ct. at 2244-45; Brecht v. Abrahamson, — U.S. —, —, 113 S.Ct. 1710, 1716, 123 L.Ed.2d 353, 366 (1993). Irvin adopted Doyle, but this court in Clenin turned from due process analysis to analysis under the self-incrimination provision of the Wyoming Constitution when presented with the different factual situation involving a suspect who had not been advised of his Miranda rights. Clenin, 573 P.2d at 846.

Clenin held the state constitutional language itself protected an accused’s right to silence and the existence of that protection did not depend upon Miranda advice. Cle-nin, 573 P.2d at 846. Subsequent decisions limited Clenin to post-arrest situations without further analysis of the provision and without authority.³ We conclude the limitation was erroneous. Based upon the broader protection of our own state constitution, Cle-nin expanded the right to silence and surmounted not just part of the post-arrest limitation but all limitations imposed by due process analysis.

2. Pre-arrest Silence

[3,4] In analyzing Clenin and the state constitutional language, we discern no rational reason to limit the protection embracing the citizen’s right to silence to the post-arrest or post-Miranda situation. The constitutional right to silence exists at all times — before arrest, at arrest, and after arrest; before a Miranda warning and after it. The right is self-executing.

Under the erroneous view that no constitutional right to pre-arrest silence exists, a citizen who stands mute in the face of accusatory interrogation about the crime during a law enforcement investigation and inquiry is without constitutional protection against law enforcement personnel who treat silence as probative evidence of guilt. Law enforcement personnel can time the citizen’s arrest to occur after the citizen stands mute in the face of the accusation. This practice, which encourages manipulative timing of arrests, does not serve the constitutional provision’s purpose of protecting the right to silence during pre-arrest, accusatory interrogation by the state’s agents. Permitting prosecuto-rial use of that silence discourages a law enforcement system’s reliance upon extrinsic evidence independently secured through skillful investigation and, instead, encourages reliance upon compulsory self-disclosure. See Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 1764 12 L.Ed.2d 977 (1964).

Since the right to remain silent is a self-executing right, an accused is presumed to be exercising the right by his silence, pre-arrest and pre-Miranda when questioned by the state’s agents for purposes of a criminal investigation.⁴ Accordingly, the prosecutorial use of the citizen’s silence to infer the guilt of the citizen is constitutionally prohibited.

Prosecutorial violations are subject to the Clenin rule’s mandate that failure to respect the constitutional right of the citizen-accused not to have his silence called to the jury’s attention will entitle the accused to a reversal of conviction. Westmark v. State, 693 P.2d 220, 221-22 (Wyo.1984), citing Cle-nin. A reference to silence which is not a “comment” will not be reversed absent a showing of prejudice. Parkhurst v. State, 628 P.2d 1369, 1382 (Wyo.1981).

Prosecutorial Comments on Tortolito’s Silence

The record indicates that following accusations against Tortolito by the robbery victim and a bus station employee, police detained and interrogated Tortolito about those accusations. At trial, the prosecutor’s questions to police officers elicited numerous answers that Tortolito remained silent when police officers accused him of taking the money.

[Prosecutor]: Did Mr. Tortolito respond in any way to Officer Pederson telling you about Mr. Tortolito taking the money?

A: He didn’t say a word.

[Prosecutor]: Mr. Tortolito didn’t say a word in response to “he took money from a passenger inside, a fifty and a twenty”?

A. No sir, he just stood there.

Testimony revealed that Tortolito was then searched, and when money was found, the police officers again asked Tortolito where he had gotten the money.

[Prosecutor]: And did Mr. Tortolito respond?

A: No.

Further trial questioning elicited additional testimony concerning Tortolito’s silence in the face of accusation but before the police officers placed handcuffs on him. During his opening statement, the prosecutor mentioned Tortolito’s silence in the face of police accusations; and during his closing argument, he characterized the silence as an admission.

A comment upon an accused’s silence occurs when used to the state’s advantage either as substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt. Parkhurst, 628 P.2d at 1382.

The prosecutor elicited this “silence” testimony as proof of guilt and then, during closing argument, characterized it as an admission of guilt. The prosecutor’s use of Tortolito’s constitutionally protected silence in the face of the officers’ accusations was impermissible comment, entitling Tortolito to reversal of his conviction.

Reversed and remanded for a new trial.

1 . In Abeyta v. State, 592 P.2d 705 (Wyo.1979), Justice Guthrie, Ret., explored the purpose of the federal and Wyoming constitutional prohibitions against self-incrimination. One reason for the enforcement of this right “is to safeguard against fear and torture so that there will not be extorted expressions of untruth.” Id. at 707-708. Another reason is to express the respect that a government must show to the dignity and integrity of its citizens. Id. at 708.

2 . Miranda and Doyle were based upon the United States Constitution’s self-incrimination provision which states:

No person shall ... be compelled in any criminal case to be a witness against himself,.... U.S. ConstAmend. V

Under the Federal Constitution, pre-trial silence encompasses post-arrest and post-Miranda silence.

3 . See Parkhurst v. State, 628 P.2d 1369 (Wyo. 1981), cert. denied, 454 U.S. 899, 102 S.Ct. 402, 70 L.Ed.2d 216 (1981); Clenin was overruled in Richter v. State, 642 P.2d 1269 (Wyo. 1982) and a harmless error rule adopted. Richter was overruled by Westmark v. State, 693 P.2d 220 (Wyo. 1984); Summers v. State, 725 P.2d 1033 (Wyo. 1986); Tortolito v. State, 885 P.2d 864 (Wyo. 1994).

4 . In contrast, see Abeyta v. State, 592 P.2d 705 (Wyo.1979), holding that the admission of evidence of a conversation between an apparent friend and the defendant did not violate the right to silence under the state provision because:

"[i]n this case, there is no custodial interrogation nor any activity of the state or its enforcement officers that did in any manner contravene the underlying purpose of these amendment[s]." Abeyta, 592 P.2d at 708.

Abeyta could have pointed out, but did not, that admission of nonverbal conduct (silence) as a statement, in this particular factual context, is an evidentiary question and not a constitutional argument. See Parkhurst, 628 P.2d at 1389 n. 16 (Rose, J., concurring). For a discussion of the evidentiary considerations, see James Duff, Jr., Annotation, Nonverbal Reaction to Accusation, Other Than Silence Alone, as Constituting Adoptive Admission Under Hearsay Rule, 87 A.L.R.3d 706 (1978).