 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Lancaster v. State3/28/2002
is reversible error. Nevertheless, we find that the facts of Tortolito are not similar to the facts of the instant case, and we also find that the ratio decidendi of Tortolito does not apply in this case. In Tortolito, the defendant was identified to the police as having committed a robbery. Following those accusations, officers detained and interrogated Tortolito. Tortolito "remained silent" in the face of those accusations. In direct examination of the officers, the prosecutor elicited numerous statements about Tortolito's failure to respond to the allegations, and in closing argument, the prosecutor characterized Tortolito's silence as an admission of guilt. Id. We found reversible error in these circumstances:
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 prosecutorial 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). Tortolito, 901 P.2d at 390.
[ ] In making his "right to silence" argument in his appellate brief, the appellant quoted only the two specific questions and answers from the arresting officer's testimony in which the emphasized responses occurred: "And he ignored me or at least I felt he ignored me. He didn't respond to me at all." "I felt that he ignored me, I felt that was suspicious." We have set out more of the officer's testimony to show the totality of the circumstances in which these words were spoken. *fn11 This was not a case where, faced with the accusations of investigating officers, the appellant made no response, only to have his silence used against him at trial as evidence of guilt. Instead, the fact that the appellant initially ignored the officer and failed to respond to him was presented in direct testimony simply as part of the circumstances under which the officer first encountered the appellant. It is significant that the questions and answers had nothing to do with the crime itself. It is also significant that, unlike in Tortolito, the prosecutor did not mention in opening or argue in closing that the appellant's silence somehow proved guilt.
[ ] There are many situations where, without reversible error, evidence may be adduced that a defendant "remained silent" at some point. Since Tortolito, we have had occasion to note several such situations: Shipman v. State, 2001 WY 11, 5, 17 P.3d 34, 36 (Wyo. 2001) (officer testified that, at murder scene, the defendant said that he "did not want to say anything else"); Robinson, 11 P.3d at 373 (prosecutor noted what the defendant "left out" when he made a statement to the police); Beartusk, 6 P.3d at 144 (officer testified that, after answe ring some innocuous questions, the defendant indicated he did not wish to answer any more questions); Helm v. State, 1 P.3d 635, 640-41 (Wyo. 2000) (prosecutor noted there was a lack of expert testimony to support the defendant's theory); and Emerson v. State, 988 P.2d 518, 522 (Wyo. 1999) (prosecutor n
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Wyoming DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|