Incurable Comment On Defendant’s Silence Requires Reversal

The Wyoming Supreme Court has reversed a criminal conviction based on a prosecutor’s opening statement 

William Patterson was convicted after a jury trial of sexually abusing his girlfriend’s four-year-old niece. He argues the prosecutor impermissibly commented at trial on his exercise of his constitutional right to remain silent, requiring reversal of his conviction. We agree, reverse his conviction, and remand for a new trial. In doing so, we reaffirm that under article 1, section 11 of the Wyoming Constitution, an improper comment on a defendant’s constitutional right to remain silent or his exercise of that right is prejudicial per se and requires reversal of the defendant’s conviction. To the extent our cases apply a prejudice analysis in “right to silence” cases, they are overruled.

Facts

In her opening statement, the prosecutor recounted the twins’ accusations against Mr. Patterson. She told the jury the case was assigned to Detective Good and then said:

By September 26th, 2019, Detective Good has completed his interviews with Shelby Sandoval, Alex Seeger. The girls were interviewed at the CAP center, and [Detective Good interviewed] Morgan Rich, Aunt Morgan, who lives with Mr. Patterson. I will let you know a request to Mr. Patterson to discuss things was made. He declined, which is his right to do so.

(Emphasis added.) Mr. Patterson objected and moved for a mistrial. He argued the prosecutor’s statement constituted an impermissible comment on his exercise of his constitutional right to remain silent. The district court sustained Mr. Patterson’s objection, instructed the jury to disregard the statement, and ordered the prosecutor to refrain from mentioning law enforcement’s attempts to contact Mr. Patterson. It denied Mr. Patterson’s motion for a mistrial. It concluded the prosecutor’s statement was not an improper comment on Mr. Patterson’s exercise of his constitutional right to remain silent because the statement was brief, the court took curative actions in response to Mr. Patterson’s objection to the statement, and the prosecutor did not intend the statement to infer Mr. Patterson was guilty but rather to preempt any argument that Detective Good’s investigation was incomplete.

The court

In context, the prosecutor told the jury that all relevant players except the accused, Mr. Patterson, cooperated with law enforcement and were willing to share their side of the story, thereby inferring Mr. Patterson had exercised his right to remain silent because he was guilty. The prosecutor’s statement on Mr. Patterson’s refusal to meet with law enforcement was an impermissible comment on the exercise of his right to remain silent. While the district court took curative actions, the error could not be cured. Gomez v. State, 718 P.2d 53, 57 (Wyo. 1986) (“had there been any impermissible comment upon Gomez’ exercise of his right of silence[,] a cautionary instruction about the state having the burden of proof and the defendant having no duty to prove anything would not address the damage which we assume such a comment causes”).

                                                                            CONCLUSION 

The prosecutor impermissibly commented at trial on Mr. Patterson’s exercise of his constitutional right to remain silent. The error is prejudicial per se. We reverse Mr. Patterson’s conviction and remand to the district court for a new trial.

(Mike Frisch)