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Gomez v. State4/28/1986
id the defendant ever ask to be taped so he could preserve that for evidence at trial?
"[POLICE OFFICER]: No, he did not."
The question and answer certainly reflect the prosecution's contention that appellant should have made the request and did not. The obvious conclusion is that if he had made the request and the tape was available for evidence, it would have helped convict him.
The trial judge thought it was a comment on the exercise of the right to silence. He overruled appellant's objection and motion for mistrial, not because there was not an impermissible comment but because the defense had "opened the door," and the question was a "natural" response.
This Court noted in Clenin at page 846 that the comment could result from "interrogation of the accused himself, or by interrogation of others." There is no marked distinction between the attempt here to rely on appellant's silence in not requesting preservation of the tape to suggest the inference of guilt and the reliance on appellant's silence to suggest an inference of guilt in not raising another defense or not raising a self-defense defense at a time before trial, as in Clenin, Westmark, and Irvin v. State, Wyo., 560 P.2d 372 (1977).
Although I believe there was a comment upon appellant's constitutional right to remain silent, I find the comment to have been harmless error. Rule 49(a), W.R. Cr.P., defines harmless error as:
"Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."
Rule 7.04, W.R.A.P., provides:
"Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded."
We have held that before a constitutional error can be held harmless, the burden is on the State to demonstrate, and the Court must be able to declare a belief, that it was harmless beyond a reasonable doubt. Campbell v. State, Wyo., 589 P.2d 358 (1979). There must be a reasonable possibility that in the absence of the error the verdict might have been more favorable to the defendant. Reeder v. State, Wyo., 515 P.2d 969 (1973); Hoskins v. State, Wyo., 552 P.2d 342, reh. denied 553 P.2d 1390 (1976), cert. denied 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977).
As recited in the majority opinion, the facts in this case were such that there was no reasonable possibility that the verdict might have been more favorable to appellant absent the error in allowing the question and answer relative to appellant's having exercised his right to silence. The evidence against him was overwhelming. He was driving erratically, and his blood alcohol level was well above the statutory level at which it is presumed that he was under the influence of intoxicating liquor to a degree rendering him incapable of driving a motor vehicle. The officers testified concerning his appearance, actions, and performance of the field sobriety tests. Under these circumstances, the error arising from the comment on appellant's exercise of his constitutional right to silence in this case was harmless. There was no reasonable possibility that the verdict would have been more favorable to appellant if the impermissible comment had not been made.
On this basis, I concur with the result reached by the majority opinion.
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