Irvin v. State, 4562
| Decision Date | 17 February 1977 |
| Docket Number | No. 4562,4562 |
| Citation | 560 P.2d 372 |
| Parties | Danny Lane IRVIN, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Gerald M. Gallivan, Laramie, signed the brief and appeared in oral argument on behalf of the appellant.
V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Thomas J. Carroll, Legal Intern, Cheyenne, signed the brief and Allen Johnson, Student Intern, Cheyenne, appeared in oral argument on behalf of the appellee.
Before GUTHRIE, C. J., RAPER, THOMAS and ROSE, JJ., and HAMM, District Judge.
During cross-examination of the defendant, the county and prosecuting attorney asked the defendant why he had not told the police about his alibi which he brought out for the first time in his defense. In closing argument the county attorney dwelt at length on the failure of the defendant to inform the police of his alibi, implying fabrication. After being given the Miranda warning following arrest, the defendant had elected to remain silent.
The tactic of the prosecutor is in violation of § 11, Article I, Wyoming Constitution, providing that 'No person shall be compelled to testify against himself in any criminal case, * * *.' Under Amendment V. to the United States Constitution, a parallel provision to that of Wyoming, providing that no person shall be '* * * compelled in any criminal case to be a witness against himself, * * *' the United States Supreme Court in Doyle v. Ohio, 1976, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, under a similar set of facts, stated that implicit in the Miranda warning is the assurance that silence will carry no penalty and held that use for impeachment purposes of defendant's silence, at time of arrest, after Miranda warnings violates the Due Process Clause of the Fourteenth Amendment. We are compelled to agree.
Reversed and remanded for new trial.
I concur in this opinion and the holding thereof because in my view the case of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91, is directly in point. However, this court, in Jerskey v. State, Wyo., 546 P.2d 173, and Gabrielson v. State, Wyo., 510 P.2d 534, had heretofore enunciated a similar rationale.
I concur in the result but would add these remarks:
The majority opinion fails to cite Wyoming Supreme Court decisions which I consider directly in point, namely Jerskey v. State, Wyo., 546 P.2d 173, and Gabrielson v. State, Wyo., 510 P.2d 534. In Jerskey, the right of the defendant to remain silent and not have his defense burdened with the jury's knowledge of his silence was at issue. The defendant was, therefore, asserting his rights under the Fifth Amendment to the United States Constitution, as is the defendant in the instant matter.
We said in Jerskey, at 546 P.2d, page 180, citing and quoting Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, with approval:
". . . The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in face of accusation. . . ." (With citations) (Emphasis in...
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Richter v. State
...S.Ct. 2124, 2129, 65 L.Ed.2d 86 (1980). The Wyoming Supreme Court has, on previous occasions, discussed the Doyle rule. In Irvin v. State, Wyo., 560 P.2d 372 (1977), this court reversed a criminal conviction where the prosecutor not only had been allowed to inquire as to why the defendant h......
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