Tortolito v. State

• Decision Date: 23 November 1994
• Docket Number: No. 92-237,92-237
• Citation: 885 P.2d 864
• Parties: Joseph Steven TORTOLITO, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 864

885 P.2d 864

Joseph Steven TORTOLITO, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 92-237.

Supreme Court of Wyoming.

Nov. 23, 1994.

Rehearing Granted Jan. 6, 1995.

Golden, C.J., filed a dissenting opinion in which Taylor, J., joined.

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender; Deb Cornia, Appellate Counsel, Wyoming Public Defender Program; and Tim Newcomb of Grant & Newcomb, Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen.; Sylvia Lee Hackl, Deputy Atty. Gen.; Barbara L. Boyer, Sr. Asst. Atty. Gen.; Keith Burron, Asst. Atty. Gen.; and Theodore E. Lauer, Director, Prosecution Assistance Program, Patrick M. Plank, Student Intern, for appellee.

Before GOLDEN, C.J., and THOMAS, CARDINE, ^* MACY, and TAYLOR, JJ.

THOMAS, Justice.

The most significant issue presented by Joseph Steven Tortolito (Tortolito) in this appeal is whether reversible error is to be found in comments upon Tortolito's failure to respond to questions by law enforcement officers. Tortolito presents a litany of other issues including assertions that the testimony of a police officer constituted impermissible vouching for the credibility of the complaining witness; the failure to instruct on a necessarily included lesser offense; a violation of due process in the failure to understand the value of certain evidence and its consequent loss to the defendant, which includes a claim that the State has a duty to preserve the evidence; the failure to instruct the jury it could infer the lost evidence would be favorable to the defendant; and error attributable to joining two separate robberies in one count. We hold there was no impermissible comment upon the silence of the accused in this case, and no other reversible error occurred. The judgment and sentence of the trial court is affirmed.

The following issues are included by Tortolito in his Brief of the Appellant:

I. The prosecutor's repeated comments on Mr. Tortolito's silence in the face of custodial interrogations require reversal.

II. The testimony of a veteran police detective that he knew the crime had been committed constituted an impermissible vouching for the credibility of the complaining witness.

III. The trial court erred by refusing to give a jury instruction on a necessarily included lesser offense.

IV. Under Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), federal due process was violated when Cheyenne police officers knew of the exculpatory value of the evidence before they relinquished control of potentially useful evidence and this loss was caused by a substantial deviation from established norms of criminal investigation.

V. The due process clause of the Wyoming Constitution requires the state to preserve potentially exculpatory evidence.

VI. The fundamental fairness component of due process of law under the Wyoming Constitution was violated when the court refused the defendant's request to instruct the jury that evidence lost by the State or its agents could be inferred as favorable to the defendant and unfavorable to the State.

VII. Mr. Tortolito was denied his state and federal constitutional right to present a defense, and to notice and confrontation, when two separate counts of robbery were merged into one conviction.

In its Brief of Appellee, the State of Wyoming sets forth the issues in this way:

I. Did counsel for the State impermissibly comment upon appellant's silence?

II. Did detective Reese improperly vouch for the credibility of the complaining witness?

III. Did the district court properly refuse to instruct the jury on the crime of larceny?

IV. Was appellant denied due process of law under the United States Constitution when law enforcement officers returned the money to the victim and did not retain it for trial?

V. Was appellant denied due process of law under the Wyoming Constitution when law enforcement officers returned the money to the victim and did not retain it for trial?

VI. Did the district court commit plain error in refusing to give appellant's offered instruction on inferences to be drawn from lost evidence?

VII. Did the district court correctly rule that there was one continuous course of conduct, and not two separate crimes of robbery?

On January 20, 1992, Tortolito and his victim became acquainted at the Greyhound bus depot in Cheyenne where they spent time drinking liquor together. They decided to purchase more liquor and walked over the viaduct to a liquor store on the south side. The victim was under the legal drinking age, and he gave $20 to Tortolito to purchase liquor. Tortolito walked to the drive-through window at the liquor store, purchased three bottles of liquor, and pocketed some of the change. They consumed one bottle of liquor and then began to walk back to the bus depot. While they were returning over the viaduct, Tortolito demanded another $20 from the victim. When the victim did not comply, Tortolito became angry and threatened the victim who then gave him a $20 bill. Following that, they returned to the bus depot and went into the restroom. There, Tortolito demanded more money and shoved his victim against the wall when he resisted. Tortolito then took the victim's wallet from his hand, took out a $50 bill, and placed the money in his pocket.

When the opportunity presented itself, the victim left the restroom and informed a bus driver for Powder River Bus Lines that he had been robbed. The bus driver then confronted Tortolito and asked if he had taken money from the victim. Tortolito responded by admitting he had taken the money and stating he wasn't going to give it back. The bus driver then took Tortolito outside the bus depot and asked another employee to summon the police. Officer P arrived in response to the call and was told by the victim that Tortolito had taken from him a $50 bill, a $20 bill, and some change from the purchase of the alcohol. When Officer P asked Tortolito if he had taken the money, Tortolito remained silent. Officer P and Officer H, another law enforcement officer who arrived at the scene, then searched Tortolito and found a $50 bill, a $20 bill, and $11 in smaller bills on his person. After a fray with the officers, Tortolito was placed in custody.

A criminal complaint was filed in Laramie County Court charging Tortolito with robbery. He was tried and convicted of the robbery by a jury on April 15, 1992. A new trial was granted because the trial court concluded Tortolito did not receive a fair trial due to a closing argument on the part of the State suggesting, without supporting facts, that Tortolito had returned stolen merchandise to Wal-Mart for credit. Tortolito was tried a second time and, again, convicted of robbery by the jury on June 23, 1992. He was sentenced to a term of three to five years in the Wyoming State Penitentiary and ordered to pay $50 to the Crime Victims' Compensation Account. He appeals from that judgment and sentence.

The primary and major issue in this appeal is whether Tortolito was denied his constitutional rights under the pertinent language of the Fifth Amendment to the Constitution of the United States and Article 1, Section 11 of the Constitution of the State of Wyoming ¹ when the law enforcement officers testified about his failure to respond to their questions, and the prosecutor commented on that failure. Relying upon the decisions of this court in Clenin v. State, 573 P.2d 844 (Wyo.1978), and Westmark v. State, 693 P.2d 220 (Wyo.1984), Tortolito contends reversible error occurred due to comments upon his exercise of his right to silence. The comments relate to his failure to respond to questions by law enforcement officers concerning the theft of money.

Tortolito points to the following portions of the transcript of the testimony of a police officer:

Q. What then happened? Did Mr. Tortolito respond in any way to Officer [P] telling you about Mr. Tortolito taking the money?

A. He didn't say a word.

[DEFENSE COUNSEL]: Your Honor, I'm going to reiterate the objection I made at the side bar conference earlier during opening statement.

THE COURT: Overruled.

Q. Mr. Tortolito didn't say a word in response to "He took money from a passenger inside, a fifty and a twenty?"

A. No, sir, he just stood there.

Q. What happened then?

A. [Officer P] kept talking to him for a couple of minutes, receiving no understandable response. At that time we decided to search his pockets.

* * * * * *

Q. What was Officer [P] doing while you were searching in the right pocket of Mr. Tortolito?

A. He was searching Stevie's left pocket.

Q. Did Officer [P] find any money?

A. I believe he did, but I'm not totally certain.

Q. What happened then?

A. Well, he was talking to Stevie, "Where did you get this?" meaning the money I had in my hand.

Q. Who was questioning Stevie, "Where did you get this?"

A. Officer [P].

Q. And did Mr. Tortolito respond?

A. No.

* * * * * *

Q. What did you do?

A. I turned and asked him, "Stevie, what did you do with the money?" He said--he didn't say nothing.

* * * * * *

Q. How many times do you recall asking Mr. Tortolito if he had indeed taken the money from the passenger?

A. A couple of times.

Q. Did he ever respond.

A. No, he did not.

Q. In any way--yes, no?

A. Just stared at me.

In addition, Tortolito relies upon a portion of the closing argument by the prosecuting attorney:

[Officer P] says, "Where's the victim?" "Well, he's inside." "Bring him out." And so [the victim] was brought out, and he faced Mr. Tortolito and said, "He's the guy that took my money. A 50 and a 20 and he kept some change." He said that it was in his billfold and he had to stare at it to figure it out.

And in the face of that, how is Mr. Tortolito, what does he say? Nothing. He doesn't say, "That's my money."

[Officer H] arrives. "What's going on?" The same thing. "Stevie, where's this man's money?" Did you hear that question asked by Officer [P]? "Stevie, did you take...