State v. Hoyle

Docket Number2020AP1876-CR
Decision Date31 March 2023
Citation406 Wis.2d 373,2023 WI 24,987 N.W.2d 732
Parties STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Tomas Jaymitchell HOYLE, Defendant-Appellant.
CourtWisconsin Supreme Court

For the plaintiff-respondent-petitioner, there were briefs filed by Jennifer L. Vandermeuse, assistant attorney general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Jennifer L. Vandermeuse, assistant attorney general.

For the defendant-appellant, there was a brief filed by Thomas B. Aquino, assistant state public defender. There was an oral argument by Thomas B. Aquino, assistant state public defender.

ZIEGLER, C.J., delivered the majority opinion of the Court, in which ROGGENSACK, REBECCA GRASSL BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring opinion, in which REBECCA GRASSL BRADLEY, J., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined.


¶1 This is a review of an unpublished decision of the court of appeals, State v. Hoyle, No. 2020AP1876-CR, 974 N.W.2d 893, 2022 WL 1218755 unpublished slip op. (Wis. Ct. App. Apr. 26, 2022), reversing the Chippewa County circuit court's1 judgment of conviction against Tomas Jaymitchell Hoyle for two counts each of second-degree sexual assault and second-degree sexual assault of a child, and also reversing the circuit court's order denying Hoyle's motion for postconviction relief. We reverse.

¶2 Hoyle argues that he is entitled to a new trial because the prosecutor at Hoyle's trial violated his Fifth Amendment right against self-incrimination under Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), by adversely commenting on his decision not to testify. According to Hoyle, the prosecutor argued "that Hoyle should be convicted because the alleged victim's testimony was ‘uncontroverted’ " and that this was a comment on Hoyle's decision not to testify because "[o]nly Hoyle could have contradicted [the alleged victim's] sexual assault allegations."

¶3 We conclude that Hoyle is not entitled to postconviction relief. The prosecutor at Hoyle's criminal trial did not violate Hoyle's Fifth Amendment rights under Griffin because the prosecutor did not comment on Hoyle's silence. The prosecutor instead described the State's evidence as "uncontroverted" to remind the jury that they could evaluate only the evidence presented at trial and not speculate about other possible evidence. Additionally, the jury likely would not have thought only Hoyle could have controverted the State's evidence because defense counsel explicitly identified other kinds of evidence not presented at trial. In context, the prosecutor's remarks that the State's evidence was "uncontroverted" were neither "manifestly intended to be" nor "of such character that the jury would naturally and necessarily take [them] to be" adverse comments on Hoyle's silence. Morrison v. United States, 6 F.2d 809, 811 (8th Cir. 1925). The prosecutor therefore did not comment on Hoyle's silence, and the circuit court was correct to deny Hoyle's motion for postconviction relief. We reverse the court of appeals.


¶4 On March 14, 2017, Hannah,2 then a 15-year-old minor, disclosed to her school resource officer, Officer Joseph Nelson of the Chippewa Falls Police Department, that she was sexually assaulted in February 2017. Officer Nelson emailed Investigator Kari Szotkowski, Chippewa County Sheriff's Department, that same day reporting the sexual assault. Investigator Szotkowski interviewed Hannah at Hannah's school on March 15, during which Hannah reported her account of the sexual assault but did not say who assaulted her. Hannah later disclosed to Officer Nelson in May 2017 that she was assaulted by Hoyle, who was a stepbrother to one of Hannah's friends and 20 years old at the time of the alleged assault. Hoyle was subsequently arrested and charged with two counts each of second-degree sexual assault contrary to Wis. Stat. § 940.225(2) (2021-22)3 and second-degree sexual assault of a child less than 16 years of age contrary to Wis. Stat. § 948.02(2).

¶5 The trial took place over two days in December, 2018. According to pretrial filings, Hoyle did not plan to call any witnesses during trial. Prior to the start of Hoyle's trial while discussing motions in limine, the prosecutor asked the circuit court if he would be permitted to refer to the State's case as "uncontroverted" during his closing argument should Hoyle invoke his right not to testify. The prosecutor argued,

So should the defendant not testify, I think the State is allowed to argue that the evidence is uncontroverted, meaning that you only have heard from [Hannah]. That's not commenting upon the defense's right to silence but commenting upon the evidence in front of the jurors at that time. I can't say it's uncontroverted because the defendant didn't testify, but I can say that her testimony is uncontroverted and that you haven't heard any testimony to the contrary.

The court granted the prosecutor's request over defense counsel's objection.

¶6 The State presented two witnesses at trial: Hannah and Investigator Szotkowski. Hannah testified that the day of the assault she "had taken some Vicodin

and drank some alcohol" and that she "obviously was high" but "still had a sense of what was going on." Hoyle drove up to Hannah while she was walking to a friend's house and asked if she "wanted to hang out," to which Hannah agreed. Hannah said that Hoyle "kept poking [her] legs" during the drive. At one point, Hoyle drove down a dead-end road and stopped in the middle of the road. Hannah exited the car, and Hoyle "told [her] to get back into the car." Hannah got into the "back seat passenger side" because she "was scared" and "didn't want [Hoyle] touching [her] any more." Hoyle then climbed into the back seat, pulled down Hannah's pants and underwear, and sexually assaulted her. Hoyle drove Hannah back home, dropped her off at "the bar across the street," and said to Hannah, "if anyone finds out about this, someone is going to end up dead."

¶7 Investigator Szotkowski testified that she determined the location of the sexual assault based on Hannah's description. She otherwise had difficulty investigating because she "didn't know who the suspect was" at the time.

¶8 Hoyle exercised his right under the Fifth Amendment not to testify. The defense did not present any other witnesses.

¶9 Before closing arguments, the court read instructions to the jury. As relevant to this case, the court gave the following standard jury instructions:

The burden of establishing every fact necessary to constitute guilt is upon the State. Before you can return a verdict of guilty, the evidence must satisfy you beyond a reasonable doubt that the defendant is guilty. If you can reconcile the evidence upon any reasonable hypothesis consistent with the defendant's innocence, you should do so and return a verdict of not guilty. [Wis. JI—Criminal 140 (2019).]
A reasonable doubt is not a doubt which is based upon mere guesswork or speculation.... While it is your duty to give the defendant the benefit of every reasonable doubt, you are not to search for doubt. You are to search for the truth. [Id. ]
... [E]vidence is the sworn testimony of witnesses both on direct and cross-examination regardless of who called that witness.... [T]he evidence in this case to be considered is the testimony of witnesses only. [Wis. JI—Criminal 103 (2000).]
... In weighing the evidence, you may take into account matters of your own common knowledge and your observations and experiences in the affairs of life. [Wis. JI—Criminal 195 (2000).]
It is the duty of the jury to scrutinize and to weigh the testimony of witnesses and determine the effect of the evidence as a whole. You are the sole judges of the credibility, that is, the believability of the witnesses and the weight to be given to their testimony. In determining the credibility of each witness and the weight you give to the testimony of each witness, consider these factors:
Whether the witness has an interest or lack of interest in the result of the trial; the witness’ conduct, appearance, and demeanor on the witness stand; the clearness or lack of clearness of the witness’ recollections; the opportunity the witness had for observing and for knowing the matters about which she testified about; the reasonableness of the witness’ testimony; the apparent intelligence of the witness; bias or prejudice, if any has been shown; possible motives for falsifying testimony, and all other facts and circumstances during a trial which tend either to support or to discredit the testimony. Then give to the testimony of each witness the weight you believe it should receive. [Wis. JI—Criminal 300 (2000).]
In this case the defendant has elected not to testify. In a criminal case, he has the absolute constitutional right not to testify. The defendant's decision not to testify must not be considered by you in any way and must not influence your verdict in any manner. [Wis. JI—Criminal 315 (2001).]

¶10 The prosecutor began his closing argument immediately after the court finished reading the jury instructions. He began by restating and emphasizing certain instructions:

[Y]ou are to decide this case solely, solely on the evidence offered and received at the trial. What that means is you're only to base it upon what you heard yesterday when the evidence was coming in at trial. You're not to speculate about other things that may be out there. You're not to think about other things. You're to focus solely on the evidence that was presented to you yesterday in this trial.
In fact, in order to reemphasize that, it's mentioned again in another instruction where it says, you are to consider only the evidence received during the trial. Once again, not to

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