Tortolito v. State

51 Citing cases

  1. Lancaster v. State

    2002 WY 45 (Wyo. 2002)   Cited 72 times
    In Lancaster we found that, "unlike in Tortolito, the prosecutor did not mention in opening or argue in closing that the appellant's silence somehow proved guilt."

    (Emphasis added.) [¶ 34] The appellant contends that the emphasized portions of the officer's testimony were improper comments on his right to remain silent. He cites to Tortolito v. State, 901 P.2d 387, 390 (Wyo. 1995) (footnote omitted), where we said: Since the right to remain silent is a self-executing right, an accused is presumed to be exercising the right by his silence, pre-arrest and pre- Miranda when questioned by the state's agents for purposes of a criminal investigation.

  2. Collins v. State

    2015 WY 92 (Wyo. 2015)   Cited 17 times
    Discussing Tortolito v. State, 901 P.2d 387, 391 (Wyo. 1995) and Spinner v. State, 2003 WY 106, ¶¶ 14-15, 17, 75 P.3d 1016, 1021-23 (Wyo. 2003)

    He asserts the comments were an improper comment on his right to remain silent. The Fourteenth Amendment to the United States Constitution and Wyo. Const. art. 1, § 11 provide that “no person shall be compelled to testify against himself in any criminal case...” Tortolito v. State, 901 P.2d 387, 389 (Wyo.1995). A prosecutor's use of a defendant's silence to infer guilt is constitutionally prohibited.

  3. State v. Tsujimura

    400 P.3d 500 (Haw. 2017)   Cited 41 times
    Holding the test in cases where the prosecution elicits information regarding a defendant's prearrest silence is whether the prosecutor intended for the information to imply the defendant's guilt or whether the character of the information suggests that the prearrest silence may be considered as inferential evidence of guilt

    It is therefore evident from the language of article I, section 10 that the right to remain silent attaches even before arrest is made.Cf. id. (holding that the right to remain silent attaches even before arrest and reasoning that, based on the language of the U.S. Constitution, "unlike the right to counsel," the right to remain silent "attaches before the institution of formal adversary proceedings").See also Tortolito v. State , 901 P.2d 387, 390 (Wyo. 1995) (holding that under Wyoming's constitution, there is "no rational reason to limit the protection embracing the citizen's right to silence to the postarrest or post-Miranda situation. The constitutional right to silence exists at all times—before arrest, at arrest, and after arrest; before a Miranda warning and after it.

  4. Abeyta v. State

    2003 WY 136 (Wyo. 2003)   Cited 13 times
    Recognizing the right “to be present during every stage of the criminal proceeding that is critical to its outcome.”

    [¶ 11] Abeyta argues in his appellate brief that this questioning "was an obvious attempt by the prosecutor to elicit testimony suggesting . . . Abeyta's silence was proof of guilt." Citing Tortolito v. State, 901 P.2d 387 (Wyo. 1995), Abeyta contends that the prosecutor's conduct was improper and his conviction must be reversed. In Tortolito, 901 P.2d at 390, we stated that pursuant to Wyo. Const. art. 1, § 11, an individual's "constitutional right to silence exists at all times before arrest, at arrest, and after arrest; before a Miranda warning and after it.

  5. Shipman v. State

    2001 WY 11 (Wyo. 2001)   Cited 10 times
    Upholding denial of continuance where new counsel entered case knowing trial date had been scheduled for months and concluding that “Appellant's decision to add additional counsel at that late date should not require the court to further delay the trial”

    [¶ 22] Later, during Officer Clark's testimony, the defense moved for a mistrial. Appellant argues that the denial of that motion was erroneous under the decision in Tortolito v. State, 901 P.2d 387 (Wyo. 1995). The Tortolito case states that prosecutorial use of the citizen's silence to infer the guilt of the citizen is constitutionally prohibited. 901 P.2d at 390.

  6. Emerson v. State

    988 P.2d 518 (Wyo. 1999)   Cited 11 times
    In Emerson, months passed between the discovery request, the order of production and the production of the padlock by the State.

    In regard to the remaining allegation that the prosecutor improperly commented on Appellant's right to remain silent, we have stated that direct prosecutorial comment upon a defendant's exercise of his right to silence will entitle the defendant to reversal. Tortolito v. State, 901 P.2d 387, 390 (Wyo. 1995). However, a mere reference to his silence will not require reversal absent a showing of prejudice to the defendant.

  7. State v. Lewis

    130 Wn. 2d 700 (Wash. 1996)   Cited 247 times
    Finding no error, the court noted that the officer did not testify that the defendant refused to talk

    Most jurors know that an accused has a right to remain silent and, absent any statement to the contrary by the prosecutor, would probably derive no implication of guilt from a defendant's silence. See Tortolito v. State, 901 P.2d 387, 390 (Wyo. 1995) (citing Parkhurst v. State, 628 P.2d 1369 (Wyo.), (a mere reference to silence which is not a "comment" on the silence is not reversible error absent a showing of prejudice), cert. denied, 454 U.S. 899 (1981)). A comment on an accused's silence occurs when used to the State's advantage either as substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt.

  8. State v. Henderson

    100 Wn. App. 794 (Wash. Ct. App. 2000)   Cited 26 times
    Holding the defendant failed to establish prejudice to support a mistrial when mere mention of his silence came up during testimony, but that error, coupled with other prosecutorial misconduct, constituted prejudicial cumulative error

    Lewis, 130 Wn.2d at 705; see Easter, 130 Wn.2d at 236. But `a mere reference to silence which is not a `comment' on the silence is not reversible error absent a showing of prejudice.' Lewis, 130 Wn.2d at 706-07 (quoting Tortolito v. State, 901 P.2d 387, 390 (Wyo. 1995)); State v. Sweet, 138 Wn.2d 466, 481, 980 P.2d 1223 (1999). `Comment' means that the State uses the accused's silence to suggest to the jury that the refusal to talk is an admission of guilt.

  9. Commonwealth v. Molina

    628 Pa. 465 (Pa. 2014)   Cited 58 times
    Holding that admission of a defendant's pre-arrest silence as substantive evidence violates the constitutional privilege against self-incrimination

    rrest period in Miranda was based on the need for all defendants to be aware of their rights, not to suggest that the rights do not exist prior to arrest. Defendant relies upon the following decisions of our sister courts: Combs v. Coyle, 205 F.3d 269 (6th Cir.2000) ; United States v. Burson, 952 F.2d 1196 (10th Cir.1991) ; Coppola v. Powell, 878 F.2d 1562 (1st Cir.1989) ; United States ex rel. Savory v. Lane, 832 F.2d 1011 (7th Cir.1987) ; People v. Rogers, 68 P.3d 486 (Colo.App.2002) ; People v. Welsh, 58 P.3d 1065 (Colo.App.2002) ; State v. Moore, 131 Idaho 814, 965 P.2d 174 (1998) ; Commonwealth v. Thompson, 431 Mass. 108, 725 N.E.2d 556 (2000) ; State v. Rowland, 234 Neb. 846, 452 N.W.2d 758 (1990) ; State v. Cassavaugh, 161 N.H. 90, 12 A.3d 1277 (2010) ; State v. Leach, 102 Ohio St.3d 135, 807 N.E.2d 335 (2004) ; State v. Palmer, 860 P.2d 339, 349 (Utah Ct.App.1993) ; State v. Easter, 130 Wash.2d 228, 922 P.2d 1285 (1996) ; State v. Fencl, 109 Wis.2d 224, 325 N.W.2d 703 (1982) ; Tortolito v. State, 901 P.2d 387 (Wyo.1995). He avers that if the prosecution is allowed to argue pre-arrest silence as evidence of guilt, then:

  10. Cazier v. State

    2006 WY 153 (Wyo. 2006)   Cited 32 times
    In Cazier v. State, 2006 WY 153, 148 P.3d 23 (Wyo. 2006), the State presented evidence that the victim was hospitalized for several days after being whipped with a cable.

    2004). The right to silence provided by Article 1, Section 11 of the Wyoming Constitution is self-executing, existing pre-arrest when an individual is questioned by the state's agents for purposes of a criminal investigation.Tortolito v. State, 901 P.2d 387, 390 (Wyo. 1995). "Accordingly, the prosecutorial use of the citizen's silence to infer the guilt of the citizen is constitutionally prohibited."