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Gomez v. State4/28/1986
The question of whether the prosecutor, during a trial of Elias Gomez for the offense of driving while under the influence of an intoxicating beverage, made a comment upon Gomez' exercise of his constitutional right of silence is the primary concern presented in this case. A secondary question is asserted which claims reversible error based upon the failure of the county court to give a cautionary instruction on the burden of proof at the time the alleged comment on the exercise of the right of silence occurred. On review by the district court the refusal of the county court judge to grant a mistrial and the refusal to give a cautionary instruction as contended for by Gomez both were affirmed. We find no error in the proceedings and, like the district court, we affirm.
Gomez was arrested in the early hours of the morning and charged with driving while under the influence of an intoxicating beverage in violation of § 31-5-233, W.S. 1977 (1983 Cum.Supp.). After a plea of not guilty, he was tried by a jury. The state presented evidence that Gomez was stopped initially because he had been observed driving erratically, and Gomez then was taken to the county jail after performing poorly in field sobriety tests which he was asked to accomplish. The evidence encompassed a blood alcohol level of 0.177% according to a breath test administered to Gomez. This level of blood alcohol is substantially above the 0.10% specified by § 31-5-233(b)(iii), W.S. 1977 as that level at which a person is presumed to be incapable of driving safely. The jury found Gomez guilty, and he was sentenced to six months on probation and fined $750 of which $250 was suspended. He appealed this judgment and sentence to the district court, and it was affirmed. He now has appealed to this court.
Gomez argues the following issues in this court:
"I. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING A MISTRIAL AFTER THE PROSECUTOR COMMENTED ON THE APPELLANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT.
"II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT'S REQUEST FOR A CAUTIONARY INSTRUCTION AFTER THE PROSECUTOR COMMENTED ON APPELLANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT."
The State of Wyoming in its brief asserts these issues:
"I. DID THE PROSECUTOR IMPERMISSIBLY COMMENT ON THE APPELLANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT, REQUIRING THE TRIAL COURT TO GRANT APPELLANT'S MOTION FOR MISTRIAL?
"II. DID THE TRIAL COURT ERR IN REFUSING TO GRANT APPELLANT'S REQUEST FOR A CAUTIONARY INSTRUCTION ON BURDEN OF PROOF?"
The parties stipulated that the following parts of the testimony are pertinent for purposes of this appeal:
"REESE: [Counsel for Gomez] When you walk in that jail, there is a sign about a videotape recorder, isn't there? It says you may be on camera or something like that? Have you ever seen that?
"YOUNG: [Police Officer] No, I don't remember seeing that.
"REESE: Are you aware that they have videotape recording equipment at the Sheriff's office?
"Young: I do not know that they video record. I am aware that there are surveillance cameras. Whether that's being recorded or not, I'm not aware.
"REESE: Have you attempted to get the videotape recordings of anybody else to show what they were really like at the time of the arrest?
"YOUNG: No, I have not.
"REESE: Has anybody ever trained you that tape recordings and videotape recordings might be a good thing to show what somebody's really like.
"YOUNG: Yes.
"REESE: None of those were used in the case, were they?
"YOUNG: No, th
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