Richter v. State

Citation642 P.2d 1269
Decision Date18 March 1982
Docket Number5498,Nos. 5497,s. 5497
PartiesRonald Dean RICHTER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Alvin Leroy RICHTER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Michael H. Schilling, Appellate Counsel, Wyoming Public Defender Program, Laramie, Sylvia Lee Hackl, Asst. Public Defender, Cheyenne, and Jodi Brayton, Public Defender Intern, Cheyenne, signed brief on behalf of appellants. Ms. Hackl appeared in oral argument.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Allen C. Johnson, Senior Asst. Atty. Gen., signed brief on behalf of appellee. Mr. Johnson appeared in oral argument.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

RAPER, Justice.

Appellants were each convicted of first degree sexual assault in violation of § 6-4-302(a)(ii), W.S.1977. 1 Both have appealed Appellant, Alvin Richter, attacks his conviction upon the basis that the evidence against him was insufficient as a matter of law to support his conviction. Specifically, he argues that the trial court committed reversible error when it denied his motion for acquittal.

their convictions, though on different grounds. Appellant, Ronald Richter, mounts a challenge based upon a violation of his constitutionally guaranteed right to silence. He contends that it was reversible error for the prosecutor to cross-examine him concerning his failure to tell the police officers who arrested him the exculpatory story which he offered to the jury. The prosecutor's questioning, appellant argues, constituted impermissible comment upon the right to silence guaranteed by the Fifth Amendment to the United States Constitution 2 and by Article 1, § 11 of the Wyoming Constitution. 3

We will affirm.

On July 19, 1980, the victim in this case, while at the Mayflower Tavern in Cheyenne, decided to walk to her home located across the railroad tracks and on the south side of town. As she crossed the Riner viaduct over the railway yards, she was offered and she accepted a ride from a passing motorist who dropped her off at the Denver Hill Inn.

From there, she continued walking. Soon a pickup truck pulled alongside of her. The passenger in the truck, later identified as Alvin Richter, asked her if she wanted a ride. At first she refused, but, when the passenger persisted in trying to convince her to accept the offer by saying they were going to a party, she agreed and got into the truck.

Once inside she was placed between the passenger and the driver, later identified as Ronald Richter. When the pickup stopped for a stop sign, the victim asked where the party was. The driver indicated, "Right back there." At this point the victim asked to be let out. The driver responded, "We are going to take you out and shoot you." With this the driver and the passenger commenced laughing. The victim's pleas to be let out were ignored, and she was driven several miles out of town. There the driver, with a gun in his hand, threatened to kill his victim unless she submitted to the two men's sexual desires. To this, the passenger once again laughed with delight. The victim then submitted to the sexual demands of the two men.

After a considerable period of time, the victim ended up sitting in the front of the pickup with the passenger while the driver, wrapped in a blanket, slept by the side of the road. A patrol car happened by. The officer inside pulled the car alongside and asked if everything was all right. The passenger indicated that everything was fine. However, as the patrol car started to back away behind the pickup, the victim yelled, "Don't go, he's got a gun." The police officer heard the passenger door of the Within two minutes other patrol cars began arriving on the scene. The police then began to search the area for the two men. An officer, while discussing what needed to be done with another officer, observed an individual, later identified as Ronald Richter-the driver-walking up towards the back of the pickup. He was carrying a blanket, and, as he was tossing it into the bed of the truck, the police officer, revolver in hand, told him to freeze, show his hands, and walk towards the officer. The individual was then forced to lay face down in front of a patrol car which was positioned behind the pickup. Handcuffs were placed on the individual and a pat-down search was conducted. A revolver was found in the blanket.

truck open and close. Then he saw the victim exiting through the door on the driver's side. He helped her into the patrol car and radioed for assistance.

Appellant, Alvin Richter-the passenger-was apprehended later that morning. He was discovered walking near the intersection of Lampman Court and York Drive on the southern edge of Cheyenne.

Appellants were charged with first degree sexual assault. Their cases were consolidated for a trial which began November 24, 1980.

After the State's case both defendants moved for an acquittal. These motions were denied. During the defense's case, appellant Ronald Richter testified in his own behalf. His version of the night of July 19, 1980, was substantially different from the story related by the victim. He testified that he and his nephew, Alvin, had met the victim at the Mayflower Tavern. They had decided to leave and go to a party, but had failed to find it. Unsure of what to do next, he-Ronald-had driven the vehicle as directed by the victim to a location out in the country. Once there, Alvin and the victim began "making out." Ronald Richter further testified that he himself was unable, due to sexual inability, to take part in any sexual activity and that he fell asleep while lying on a blanket off to the side of the road. He stated that he had made no threats to the victim nor had he heard Alvin make any.

On cross-examination, the prosecutor asked Ronald, "Did you volunteer this version to the deputies at that time when you walked behind the truck?" An immediate objection was made by defense counsel that the question amounted to improper comment upon appellant's right to remain silent. The defense counsel further moved for a mistrial contending that such is mandated in Wyoming by the case of Clenin v. State, Wyo., 573 P.2d 844 (1978). The trial judge agreed that the question was improper saying:

"THE COURT: That is completely improper, counsel, it does tend to violate the right he had at that time and place to remain silent. He doesn't have to give any statement or volunteer anything.

"THE COURT: I will reserve ruling, (on the motion for a mistrial) but for now I will direct the jury to disregard the last question.

"(Proceedings at the bench concluded.)

"MR. FORWOOD: That's all I have, Your Honor.

"THE COURT: The jury will disregard the last question. I'm not sure there was any answer given to it, but disregard the last question, and if there was any answer disregard it also, and it will be stricken."

After taking time to assess the possible prejudice which may have occurred, the trial judge later denied the motion for a mistrial.

At the conclusion of the trial the jury returned verdicts of guilty. Accordingly, on March 10, 1981, a judgment and sentence was filed against each appellant. From those judgments these appeals were processed to this court.

I

The first issue we have to address is the one raised by Ronald Richter. We must consider whether the trial court erred when it failed to grant a mistrial after acknowledging The Fifth Amendment to the United States Constitution guarantees all citizens of this country the right to remain silent in the face of criminal accusations. The United States Supreme Court has, in a series of recent cases, considered whether this right is violated when silence is used for impeachment. The first and most important case of this line was Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). There the Court stated:

that the prosecutor's question on cross-examination infringed upon Ronald Richter's right to silence.

"We hold that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. The State has not claimed that such use in the circumstances of this case might have been harmless error. Accordingly, petitioners' convictions are reversed and their causes remanded to the state courts for further proceedings not inconsistent with this opinion." (Emphasis added and footnote omitted.) 426 U.S. at 619-620, 96 S.Ct. at 2245-2246.

The door of harmless error was left open.

In its most recent case on the subject, the high Court has further explained the Doyle holding. It drew a distinct line between pre- and post-arrest silence when it held:

"Thus, impeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial. We conclude that the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant's credibility." Jenkins v. Anderson, 447 U.S. 231, 238, 100 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 had not told the police his exculpatory story at the time of his arrest, but further had dwelt upon the point during his closing argument. The court there noted no difference between the right to silence granted by the Wyoming Constitution in Article 1, § 11 and the right guaranteed by the Fifth Amendment to the United States Constitution, and it ruled both had been violated.

The issue was again before this court in Clenin v. State, supra, 573 P.2d 844. There this court once again overturned a criminal...

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