Clenin v. State

• Decision Date: 12 January 1978
• Docket Number: No. 4673,4673
• Citation: 573 P.2d 844
• Parties: Kenneth P. CLENIN, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 844

573 P.2d 844

Kenneth P. CLENIN, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4673.

Supreme Court of Wyoming.

Jan. 12, 1978.

Louis A. Mankus, (with him on the brief was Terri Lorenzo, Legal Intern), Cheyenne, for appellant.

V. Frank Mendicino, Atty. Gen., and Arthur T. Hanscum, Asst. Atty. Gen., Cheyenne, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

THOMAS, Justice.

The issue presented in this appeal arises out of interrogation of Clenin during cross-examination by the prosecutor concerning his failure to advise law enforcement officials, including the prosecutor, of his defense of alibi. Was that an impermissible comment on the exercise of his constitutionally protected right of silence? Clenin was convicted by the jury of delivering a controlled substance, amphetamine sulphate, to another in violation of § 35-347.31(a)(ii), W.S., which prohibits the delivery of any controlled substance classified in Schedule I, II, or III in the statutes and sets the penalty at imprisonment for not more than ten years and a fine of not more than $10,000 or both. ¹ He appeals from the Judgment and Sentence of the District Court sentencing him to a term of not less than 18 months and not more than three years in the State Penitentiary. We conclude that the questioning was prejudicial and the error was both plain and fundamental. We must reverse Clenin's conviction.

The facts material to the resolution of the issue are not lengthy. The record includes a notation by the Justice of the Peace, who fulfilled the responsibilities of the commissioner under our Wyoming Rules of Criminal Procedure, that the defendant appeared before him on May 16, 1975, " * * * and he was advised of his constitutional rights." We presume that notation reflects that Clenin received the advice which the commissioner must furnish him under Rule 5(b), W.R.Cr.P. ² Furthermore, upon the occasion of his arraignment in the district court the appellant along with others received the following advice from the judge:

"The first thing I need to advise you of is that as to the charge that is pending against each of you, each of you has a right to remain silent, to make no statement whatsoever. However, you should each be candid and open in your discussions with your attorney, and any discussion that you have with him is protected by a privilege and he cannot be compelled to release information that you may give to your attorney unless you authorize him to do so.

"You are under no obligation to furnish any information whatsoever to the Court or to any law enforcement officials or to others."

We point out the foregoing advice by judicial officers because in this instance the cross-examination covered not only a failure to tell law enforcement officers of his alibi, but a failure to advise the county attorney. The record in this respect reads as follows:

"Q. Now after you were arrested, of course then you told the were you questioned at that time?

"A. No, sir, I was not.

"Q. And what police officers did you tell that you weren't there, that you were at this party?

"A. I did not tell the police officers a thing, sir.

"Q. You didn't tell anyone?

"A. On my lawyer's advice, I told no one, sir.

"Q. You mean this is the first time that you have told this to anyone besides your lawyer?

"A. No, sir, this isn't the first time. When I turned myself in, sir, I did not communicate with nobody, sir, except the lawyer who was present when I turned myself in.

"Q. Well, when you were arrested though, didn't you say, look it, this couldn't be me, I was at a party?

"A. No, sir, I didn't.

"Q. You didn't say that?

"A. No, sir, upon my lawyer's advice.

"Q. Did you ever notify my office and tell me that you were

"A. No, sir. If left that up to my lawyer, sir.

"Q. Did any of your witnesses, so far as you know, ever tell the police or tell my office that you had an alibi, that you weren't there and couldn't have done this thing that you are accused of?

"MR. MANKUS: Your Honor, I am going to object to these questions they are argumentative and he doesn't know what someone else can call or do. He acted upon advice of counsel and I wasn't attorney at the time either. I think he is just badgering this witness.

"THE COURT: Well, for not necessarily those grounds, but for the grounds that his right to remain silent is a right that cannot be inquired into, I will sustain the objection."

Clenin's contention in this case is the quoted questions during cross-examination violated his rights under the Fifth Amendment of the Constitution of the United States, as made applicable to the states pursuant to the Fourteenth Amendment, and under Art. 1, § 11 of the Constitution of the State of Wyoming. The basis for Clenin's claim is found in the case of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). This Court already has adopted and applied that rule in Irvin v. State, Wyo., 560 P.2d 372 (1977). While we noted in Irvin v. State, supra, that the County Attorney dwelled at length in his closing argument upon this circumstance, and the record in this case does not disclose a similar effort to exploit Clenin's silence, we hold that the cross-examination in and of itself invokes the rule of Irvin v. State, supra, and Doyle v. Ohio, supra. A number of states have applied that rule to circumstances which were similar to the facts of this case and to those shown in Irvin v. State, supra. State v. Scott, 27 Ariz.App. 361, 555 P.2d 118 (1976); State v. White, 97 Idaho 708, 551 P.2d 1344 (1976), cert. den., 429 U.S. 842, 97 S.Ct. 118, 50 L.Ed.2d 111 (1976); Jones v. State, Ind., 355 N.E.2d 402 (1976). State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976); Warthen v. State, Okl.Cr., 559 P.2d 483 (1977); State v. Upton, 16 Wash.App. 195, 556 P.2d 239 (1976); State v. Boyd, W.Va., 233 S.E.2d 710 (1977).

The record does not disclose whether Clenin was advised of his constitutional rights by a law enforcement officer. There are comments in Doyle v. Ohio, supra, and in some of the cases following it, which discuss the significance of that advice in relation to trial interrogation about the failure to furnish information to law enforcement officials. The right of an accused to remain silent, however, under Art. 1, § 11 of the Constitution of the State of Wyoming, which provides: "No person shall be compelled to testify against himself in any criminal case, * * *," 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 or by the justice of the peace or by the judge of the district court is only for the purpose of expanding its protection by assuring that the accused person is aware of it.

The State of Wyoming suggests that we are free to examine this record and reach a determination that the error was not prejudicial. The state calls to our attention language from Doyle v. Ohio, supra, which suggests that possibility. This might be an appropriate conclusion if our determination were limited to the Fifth Amendment to the Constitution of the United States. Historically, our Court has jealously guarded the right provided in Art. 1, § 11 of the Constitution of the State of Wyoming against any infringement. Irvin v. State, supra, Jerskey v. State, Wyo., 546 P.2d 173 (1976); Dryden v. State, Wyo., 535 P.2d 483 (1975); Moss v. State, Wyo., 492 P.2d 1329 (1972); Priestley v. State, Wyo., 446 P.2d 405 (1968); Dickey v. State, Wyo., 444 P.2d 373 (1968); and Miskimmins v. Shaver, 8 Wyo. 392, 58 P. 411, 49 L.R.A. 831 (1899). We hold that under this section of our state constitution any comment upon an accused's exercise of his right of silence, whether by interrogation of the accused himself, or by interrogation of others inherently is prejudicial, and will entitle an accused to reversal of his conviction. Such a breach of the accused's constitutional protections is plain error and prejudicial per se. While, in the light of the language of Doyle v. Ohio, supra, this may represent an extension of the rule of that case, it is our prerogative to so do in applying our state constitution. See, e. g., Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); People v. Disbrow, 16 Cal.3d 101, 127 Cal.Rptr. 360, 545 P.2d 272 (1976); State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975). To the extent that we have gone beyond the factual background for the rule of Doyle v. Ohio, supra, in discussing the effect here of questioning about the failure to advise the county attorney of the alibi defense in the light of the advice by the justice of the peace and the district judge, we deem that error also to be plain error and fundamental error.

The State of Wyoming also urges that the rule of Doyle v. Ohio, supra, need not be given retroactive effect, pointing out that Clenin was tried prior to the promulgation of the decision of Doyle v. Ohio, supra, the state urges that that rule be given prospective application only. In Irvin v. State, supra, however, while the concept was not specifically discussed, the rule of Doyle v. Ohio, supra, was applied in the case of an accused who had been tried prior to the promulgation of the rule. We already are committed to a retrospective application of the rule, at least insofar as those cases which come to us on direct appeal.

The State of Wyoming finally urges that the appellant failed to preserve the error by not including this violation of his constitutional rights as a ground for his motion for a new trial, citing Valerio v. State, Wyo., 429 P.2d 317 (1967); and Dickerson v. State, 18 Wyo. 440, 111 P. 857 (1910), reh. den. 18 Wyo. 440, 116 P. 448 (1911). In Valerio v. State, supra, the error urged on appeal never was called to the attention of the district court. While it would appear in Dickerson v. State, supra, that...