Jerskey v. State, 4465

Citation546 P.2d 173
Decision Date27 January 1976
Docket NumberNo. 4465,4465
PartiesPaul Steven JERSKEY, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
CourtUnited States State Supreme Court of Wyoming

Edward P. Moriarity of Urbigkit, Moriarity, Halle & Mackey, P. C., Cheyenne, for appellant.

David B. Kennedy, Atty. Gen., Timothy J. Judson, Sp. Asst. Atty. Gen., Cheyenne, and Robert Wilson, Sr. Law Student, for appellee.

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

ROSE, Justice.

I THE PRIVILEGE AGAINST SELF-INCRIMINATION

On June 11, 1974, a complaint was filed against the defendant, Jerskey, amending one formerly filed May 15, 1974. The later complaint contained two counts with which we are concerned here. The first alleged possession of a controlled substance with intent to deliver under § 35-347.31(a)(ii), of the Wyoming Controlled Substances Act of 1971; the second charged the appellant with attempting to possess a controlled substance with intent to deliver, in violation of § 35-347.42 of the Wyoming Controlled Substances Act of 1971. Both provisions of the statute are contained in W.S.1957, 1975 Cum.Supp.

The appellant was bound over and arraigned on both counts of the amended complaint. He pled not guilty to each, whereupon the trial was had commencing July 8, 1974, and Mr. Jerskey was found guilty and sentenced to prison on both charges. From this the appeal followed. Other facts will be discussed in the course of the opinion.

Right to Silence

One of the issues to which our attention is directed is described in appellant's brief as follows:

'B. The defendant's exercise of his constitutional Fifth Amendment right to remain silent was utilized to penalize him, and the result thereof has such a chilling effect on the appellant's use of his constitutional rights that it is fundamental reversible error.'

The problem is of interest-not because it is new or unique-but because the general The subject is considered in depth by the United States States Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 2 It pertains to some fundamental constitutional rights, both federal and state. Why the philsophy of the Fifth Amendment and the Miranda treatment of custodial interrogation present such a dilemma to the Bar and Bench is a guessing game in which there are as many guessers as there are lawyers and judges.

area with which it is concerned has been here so many times before. 1

Escobedo wasn't that vague-Miranda was definitive enough-and yet the privilege against self-incrimination, in its testing, continues to be stretched until it snaps so that new, expensive trials are necessary because the officials who are concerned with the problem are reluctant to accept the United States Supreme Court's mandates in Escobedo and Miranda and to adopt the spirit and letter of the decisions of this court as we have interpreted these Fifth Amendment doctrines.

The theory of the privilege against self-incrimination is a good, high-principled concept aimed at the preservation of the very most basic of the individual's rights in a democratic society and one which should be readily embraced by all of us. Why is it so difficult to accept and love? 3

In Miranda, referring to Escobedo, the United States Supreme Court said:

'. . . That case was but an explication of basic rights that are enshrined in our Constitution-that 'No person * * * shall be compelled in any criminal case to be a witness against himself,' and that 'the accused shall * * * have the Assistance of Counsel'-rights which were put in jeopardy in that case through official overbearing. These precious rights were fixed in our Constitution only after centuries of persecution and struggle. And in the words of Chief Justice Marshall, they were secured 'for ages to come, and * * * designed to approach immortality as nearly as human institutions can approach it,' Cohens v. Commonwealth of Virginia, 6 Wheat. 264, 387, 5 L.Ed. 257 (1821).' (384 U.S. 443, 86 S.Ct. 1611)

Justice McClintock, writing for this court in Dryden v. State, Wyo., 535 P.2d 'Section 11, Art. 1 of the Wyoming Constitution is specific that 'No person shall be compelled to testify against himself in any criminal case * * *.' In Miskimins v. State, 8 Wyo. 392, 58 P. 411, 415 (1899) this Court, citing Brown on Jurisdiction, Sec. 97, quoted with approval the statement that

483, 490, when considering the privilege against self-incrimination, said:

"'* * * error of a court in construing any constitutional immunity or right in a criminal case against the accused is as fatal to the judgment as assuming jurisdiction originally where the court had none. Error in either case destroys the power to render any valid judgment, and, if rendered, it is, not simply erroneous, but void.''

'It is further pointed out, 58 P. at 420-421, that the 'constitutional privilege (against self-incrimination) is that the evidence shall not be extorted'; the privilege is that 'he shall not be compelled to testify'; the privilege is 'imbedded in the constitution, and embodies the wisdom of some centuries of experience upon the subject'; and the immunity is complete unless 'waived by the witness with knowledge of his rights.' This

'* * * is an ancient principle of the law of evidence that a witness shall not be compelled, in any proceeding, to make disclosures or to give testimony which will tend to criminate him, or subject him to fines, penalties, or forfeitures.'

citing Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. Violation of the constitutional right results in a void, not merely erroneous, judgment.'

The right to refuse to testify against oneself, in a criminal proceeding, as this privilege is inscribed in our Federal Constitution 4, our State Constitution 5, and § 7-244, W.S.1957, 1975 Cum.Supp. 6, is the personification of the remedy for an evil which had its beginnings in inquisitional behavior and did some of its dirtiest work in the ecclesiastical courts of early England. 7 The protection was and still is imperative because it would appear that the inquisitions are not a thing of the past if the police manual directives for eliciting confessions, as reviewed in Miranda, are It is because of these ancient tendencies by which men in possession of the powers of government seek, with the weaponry of government, to impose their will upon those whom they govern (or 'serve') that the protections embodied in the Federal Fifth Amendment and the Wyoming Constitution, Article 1, Section 11, were needed.

an accurate reflection of what has been going on. 8

The evil is so often spawned in the name of the law and the pursuit of the public order as expressed by officials who are engaged in doing what is 'good,' 'right,' 'fair,' 'in the public interest,' or who are so often 'just doing their duty.' 9 However, when public officials adopt their own ideas about morality as standards for adjudicating the righteousness of others-absent the guidelines furnished by the common and statutory law pool of experience contributed to by all civilized people-the 'good,' the 'right,' and the 'fair' become the expedient. 10 The standard for the successful society is then judged according to the end result with precious little attention being paid to the manner by which it is achieved and to how many heads may have fallen into the basket in the process. Government becomes ultra powerful and the citizen is relegated to the least rather than the most important unit of the social order. The fragile cobwebs of human rights become misty visions which tend to blend with the ghosts of some public official's private opinion of what is 'good,' 'fair,' 'right,' and 'just' until they become imperceptible and-at last-are no rights at all.

These are the forces with which the law is concerned when it contemplates the privilege against self-incrimination.

In Miranda the historical background of the ills giving rise to the embodiment of the privilege in our constitutional documents was recognized when the Chief Justice recounted the criminal trial of one John Lilburn who resisted the taking of an oath which would have bound him to answer all questions posed to him in 1638 England. He disclaimed the proceedings, stating

"Another fundamental right I then contended for was, that no man's conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so.' Haller & Davies, The Leveller Tracts 1647-1653, p. 454 (1944).' (86 S.Ct. 1619)

The Miranda opinion observes (86 S.Ct. 1619) that

'On account of the Liburn Trial, Parliament abolished the inquisitorial Court of Star Chamber and went further in giving him generous reparation . . ..'

The Chief Justice, writing for the Court, says that these high principles emerging from the Lilburn Trial

'. . . worked their way over to the Colonies and were implanted after great struggle into the Bill of Rights. Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty. They knew that 'illegitimate and unconstitutional practices got their first footing * * * by silent approaches and slight deviations from legal modes of procedure.' Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746 (1886). The privilege was elevated to constitutional status and has always been 'as broad as the mischief against which it seeks to guard.' Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 198, 35 L.Ed. 1110 (1892). We cannot depart from this noble heritage.' (86 S.Ct. 1620)

The Case Itself

We turn, then, to the precise issue raised by Jerskey's appeal and ask:

Were his constitutional rights violated as those rights are guaranteed by the Fifth Amendment to the Federal Constitution and the corollary Article 1, Section 11, of the Wyoming Constitution?

The...

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