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Lancaster v. State3/28/2002
A: Pardon me, sir?
Q: What kind of clothing was he wearing?
A: He was wearing what appeared to be a plaid shirt or an overcoat, like a flannel shirt, with khaki, tan pants.
Q: Now, I interrupted you. You started to say he asked you - what did he ask you?
A: He asked me if I knew where the interstate was at, at which time I pointed. The interstate is south, and I gave the direction.
Q: Did you make any attempt to determine if this was the individual being sought by the Casper Police Department?
A: I did. I contacted the Casper Police Department via my dispatch to contact their dispatch. And I was advised, with the description I gave them, that this was not the guy they were looking for.
Q: Because the clothing didn't match or what?
A: Because the clothing didn't match. They said it was similar but not the same.
Q: All right. So then what did you do?
A: I advanced forward, continued driving on Lathrop Road probably at 1, 2 miles an hour. As I was watching my rearview mirror, I saw the gentleman run across the street to a road called Elkhorn Road, which is a dirt road, and he began walking that.
Q: Heading towards the interstate?
A: Heading towards the interstate.
Q: So what did you do then?
A: I then turned my patrol vehicle around, further up towards the Lathrop Feed and Equipment, and I went back to make contact with the gentleman for a third time.
Q: Okay. Did you have some suspicions or concerns?
A: Yes.
Q: And what was that?
A: Based on the fact that he ran across the road; and from the first attempt where I tried to contact him and he - I felt that he ignored me, I felt that was suspicious. The fact that his clothing was soaked and that his skin was pale, I was concerned. I didn't understand what - where the guy had been, so I wanted to gain more information. (Emphasis added.)
[ ] The appellant contends that the emphasized portions of the officer's testimony were improper comments on his right to remain silent. He cites to Tortolito v. State, 901 P.2d 387, 390 (Wyo. 1995) (footnote omitted), where we said:
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. 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 [v. State, 573 P.2d 844 (Wyo. 1978)] 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.
[ ] In Tortolito, we reinvigorated Clenin's reliance on the Wyoming Constitution's prohibition against self-incrimination rather than on due process analysis in "right to silence" cases, and we extended that protection to pre-arrest silence. *fn10 Tortolito, 901 P.2d at 389-91. We continued to recognize, however, that a "reference to silence which is not a 'comment' will not be reversed absent a showing of prejudice." Id. at 390. A "reference" to silence is a "comment" upon the exercise of the right to silence when it is "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." Id. at 391.
[ ] We continue to adhere to the specific rule of Tortolito; that is, prosecutorial comment upon a defendant's pre-arrest exercise of his constitutional right to remain silent
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