(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.
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.
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.
[¶ 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.
[¶ 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.
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.
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.
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.
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:
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."