by Douglas Ankney

The Supreme Court of Wyoming reversed a defendant’s sexual abuse conviction, holding that the prosecutor’s opening statement that the defendant “declined” to speak with police was an improper comment on his constitutional right to silence. In doing so, the Court clarified that such a comment inferring guilt is prejudicial per se under the Wyoming Constitution and expressly overruled its prior precedents that had distinguished between a “comment” and a “reference” to silence or had improperly used prejudice factors to determine if an error occurred.

Background

On September 15, 2019, Shelby Sandoval dropped off her four-­year-­old twin daughters, BR and BL, at the home of her sister, Morgan Rich. Because Rich was not home, her live-­in boyfriend, William Frederick Patterson, watched the twins. When Sandoval picked the girls up that afternoon, they told her that Patterson had made them touch his penis with their hands and feet and that he had touched their vaginas. Sandoval called 911.

Detective Terry Good of the Mills Police Department investigated. The twins were forensically interviewed at the Children’s Advocacy Project (“CAP”) center. BR did not disclose any sexual touching, but BL stated Patterson made her touch his “snake” with her hand and feet. Good also interviewed Sandoval, Rich, and Sandoval’s live-­in boyfriend, Alexander Seeger. Patterson initially agreed to be interviewed but ultimately refused to speak with the detective. Despite Good’s recommendation, the District Attorney decided not to charge Patterson in 2019.

Three years later, in December 2022, Sandoval and Seeger contacted Good, stating the twins continued to bring up the abuse and were remembering more details. On December 20, 2022, the girls, now seven years old, were re-­interviewed at the CAP center. This time, both girls told the interviewer that Patterson made them touch his penis with their hands. Good again recommended charges.

The District Attorney subsequently charged Patterson with four counts: second and third-­degree sexual abuse of a minor with respect to BR and second and third-­degree sexual abuse of a minor with respect to BL. Patterson pleaded not guilty, and a three-­day jury trial was held in January 2024.

In her opening statement, the prosecutor, after describing Good’s 2019 interviews, told the jury: “I will let you know a request to Mr. Patterson to discuss things was made. He declined, which is his right to do so.” Patterson objected and moved for a mistrial, arguing this was an impermissible comment on his constitutional right to remain silent. The trial court sustained the objection, instructed the jury to disregard the statement, and ordered the prosecutor to refrain from mentioning any attempts by law enforcement to contact Patterson. However, the trial court denied the motion for a mistrial.

During the trial, BR, now eight years old, testified that Patterson made her touch and rub his penis with her hand but denied that Patterson touched her vagina. BL, also eight, testified that Patterson touched her vagina with his penis but denied that he made her touch his penis with her hand.

The jury found Patterson not guilty of the two counts involving BR but guilty of the two counts relating to BL. At sentencing, the trial court stated that because the same act formed the basis for both convictions involving BL, a conviction would only be entered for second-­degree sexual abuse of a minor. The court imposed a sentence of 14 to 20 years in prison. Patterson timely appealed.

Analysis

The Court began its analysis by framing the central issue on appeal as the prosecutor’s comment on Patterson’s constitutional right to remain silent – “I will let you know a request to Mr. Patterson to discuss things was made. He declined, which is his right to do so” – and whether the comment constituted a prejudicial per se error requiring a new trial. The State argued that the statement was not an improper “comment” used to infer guilt but rather a mere “reference” to silence, which is reversible only upon a showing of prejudice that Patterson failed to make.

The Court agreed with Patterson, holding that the statement was an improper comment on his right to silence and that such an error is prejudicial per se under the Wyoming Constitution, requiring reversal. Before reaching its decision, the Court used the opportunity to “rectify” its complex and contradictory case law, specifically overruling precedents that had created a false distinction between a “reference” to silence and a “comment” on silence, and to clarify that prejudice plays no role in determining whether an improper comment occurred.

The Court discussed Article 1, Section 11 of the Wyoming Constitution, which states, “No person shall be compelled to testify against himself in any criminal case.” The Court noted its long construction of this language as prohibiting prosecutorial comment on both a defendant’s failure to testify at trial and a defendant’s pretrial silence to infer guilt. See Tortolito v. State, 901 P.2d 387 (Wyo. 1995). The Court reaffirmed that the “constitutional right to silence exists at all times” and that “[t]he right is self-­executing,” meaning an accused is presumed to be exercising that right, and “prosecutorial use of the citizen’s silence to infer the guilt of the citizen is constitutionally prohibited.” Id.

The Court then recounted the “whiplash” history of its precedent on the consequences of violating this right. First, in Clenin v. State, 573 P.2d 844 (Wyo. 1978), the Wyoming Supreme Court addressed a prosecutor’s cross-­examination of a defendant about his failure to provide his alibi to police post-­arrest. Rejecting the State’s argument that the error was not prejudicial, the Clenin Court established a strict rule under the state Constitution, holding: “any comment upon an accused’s exercise of his right of silence, whether by interrogation of the accused himself, or by interrogation of others inherently is prejudicial, and will entitle an accused to reversal of his conviction. Such a breach … is plain error and prejudicial per se.”

Three years later, the Supreme Court “attempted to temper” the Clenin rule in Parkhurst v. State, 628 P.2d 1369 (Wyo. 1981). In that case, an officer testified that during a stop, “Some questions were answered, some weren’t.” The Parkhurst Court determined that this was not an improper comment on silence but rather “testimony about behavior.” However, the Parkhurst Court then went on (in what the Court in the current case identified as dictum) to create a distinction between a “comment” on silence and a mere “reference” to it, stating that “Merely observing that the defendants had not said much is not comment.” This dictum introduced the novel idea that a “reference” to silence would not be reversed absent a showing of prejudice.

The Court observed that its adoption of a harmless error rule became explicit in Richter v. State, 642 P.2d 1269 (Wyo. 1982), which formally overruled Clenin and held that improper comments on a defendant’s silence were subject to harmless error review. However, this standard was “short-­lived” because only two years later, in Westmark v. State, 693 P.2d 220 (Wyo. 1984), the Supreme Court overruled Richter and expressly reinstated Clenin’s prejudicial per se rule. The Court explained that Westmark effectively determined that an improper comment on a defendant’s right to silence is a “structural error,” requiring automatic reversal without regard to prejudice. See Person v. State, 526 P.3d 61 (Wyo. 2023) (“Structural error is an error so grave and fundamental that it requires automatic reversal, without regard to prejudice.”).

Despite Westmark’s clear reinstatement of the prejudicial per se rule, the Court explained that its subsequent jurisprudence “unfortunately” continued to rely on Parkhurst’s legally unsound distinction between a “comment” and a “reference.” See, e.g., Tortolito, 901 P.2d 387 (Wyo. 1995); Teniente v. State, 169 P.3d 512 (Wyo. 2007). Worse, the Court noted that it had also begun “invoking prejudice and prejudice factors to assist in deciding whether an improper comment on the right to remain silent occurred” in the first place. See Beartusk v. State, 6 P.3d 138 (Wyo. 2000). This led to a line of cases where, to determine if a comment was improper, the court would “consider whether the prosecutor asked improper questions, whether he emphasized or followed up on the silence issue, and whether he attempted to exploit the issue in any way.” Lancaster v. State, 43 P.3d 80 (Wyo. 2002); see also, e.g., Lessard v. State, 158 P.3d 698 (Wyo. 2007); Bogard v. State, 449 P.3d 315 (Wyo. 2019). This improperly merged the prejudice analysis (which should have been irrelevant under Westmark) into the initial determination of whether an error occurred, the Court explained.

Turning to the present case, to resolve this contradiction, the Court issued two clear holdings to “rectify” its precedent. First, the Court held, “To the extent our cases distinguish between an improper ‘comment’ on a defendant’s constitutional right to remain silent, which is prejudicial per se, and a ‘reference’ to silence, which is only reversible upon a showing of prejudice, they are overruled.” The Court labeled this distinction “dicta and legally unsound,” reasoning that if a statement is not an improper comment, “there is no error, prejudicial or otherwise.” See Gonzalez-­Ochoa v. State, 317 P.3d 599 (Wyo. 2014). Second, the Court held, “[T]o the extent our cases hold that prejudice or prejudice factors are relevant to the determination of whether an improper comment on the constitutional right to silence occurred, they are overruled.”

The Court thus clarified the new, singular standard: A prosecutor’s improper comment on a defendant’s silence is prejudicial per se and entitles the defendant to reversal. Westmark. The Court instructed that an improper comment occurs “when the prosecutor uses the silence 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.” Lessard. This determination is an objective inquiry based on “the entire context in which the statements were made,” not a subjective one based on the prosecutor’s intent. See Robinson v. State, 11 P.3d 361 (Wyo. 2000).

Applying this clarified standard, the Court concluded that the prosecutor had impermissibly commented on Patterson’s right to silence. The Court first reviewed the trial court’s decision, noting that it had correctly “identified the tension in our case law.” However, the trial court ultimately denied the mistrial by relying on the very prejudice factors the Court had just overruled. The trial court ruled the prosecutor did not act in “bad faith” (subjective intent), that the statement was made to preempt an “incomplete investigation” argument, that the statement was “brief,” and that the court took “curative actions.”

The Court ruled that this analysis was legal error. It ruled that “a prosecutor’s subjective intent is irrelevant” to the objective determination of whether a comment was improper. Additionally, the brevity of the statement and the trial court’s curative instructions are factors relevant only to a prejudice analysis, which “is not relevant to the question of whether there has been an improper comment on the right to silence which is prejudicial per se.” Instead, analyzing the statement objectively within the context of the opening, the Court concluded: “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.” Thus, the Court concluded that this was an impermissible comment on Patterson’s exercise of his right to remain silent. Because the error is prejudicial per se, the curative instructions given by the trial court could not fix the “structural error.”

Conclusion

Accordingly, the Court reversed Patterson’s conviction and remanded the case for a new trial. See: Patterson v. State, 565 P.3d 692 (Wyo. 2025).   

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