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Defense win! DA’s closing argument was improper comment on defendant’s exercise of right not to testify

State v. Tomas Jaymitchell Hoyle, 2020AP1876-CR, 4/26/22, District 3 (not recommended for publication); case activity (including briefs)

Hoyle chose to remain silent at his trial for child sexual assault. During closing arguments, the prosecutor repeatedly argued that the testimony from “Hannah” (the complaining witness) was “uncontroverted” and told the jury it had “heard no evidence” and that there was “absolutely no evidence” disputing her account of the alleged sexual assault. Under the circumstances of this case, the court of appeals holds that the prosecutor’s arguments violated Hoyle’s Fifth Amendment rights.

The State may not comment—directly or indirectly—on a defendant’s exercise of the Fifth Amendment right not to testify. Griffin v. California, 380 U.S. 609, 615 (1965); Bies v. State, 53 Wis. 2d 322, 325-26, 193 N.W.2d 46 (1972). One way a prosecutor may indirectly comment on the defendant’s exercise of the right is to use language that is “of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” State v. Johnson, 121 Wis. 2d 237, 246, 358 N.W.2d 824 (Ct. App. 1984) (quoted source omitted).

To determine whether a prosecutor has crossed this constitutional line, a court applies a three-factor test established in State v. Jaimes, 2006 WI App 93, ¶21,  292 Wis. 2d 656, 715 N.W.2d 669. First, “the comment must constitute a reference to  the defendant’s failure to testify.” Second, “the comment must propose that the failure to testify demonstrates guilt.” Third, “the comment must not be a fair response to a defense argument.” Id. (¶12).

The court of appeals holds that the prosecutor’s comments in Hoyle’s case meet the first factor. The prosecutor’s repeated argument that the charged sexual assault was “uncontroverted”—especially with his telling the jury that it had “heard no evidence,” and that there was “absolutely no evidence” that controverted the charge—crossed the line of impermissibly leading the jury to infer Hoyle’s silence was evidence of his guilty because, given the nature of the allegations and the dearth of other evidence at trial, the only person who could have controverted the alleged victim was Hoyle, the non-testifying defendant.  (¶¶13-17).

For similar reasons, the court of appeals found the second factor satisfied as well. “…[T]he prosecutor specifically argued that the lack of evidence disputing Hannah’s testimony—which again, under the facts of this case, could have only come from Hoyle—was what demonstrated Hoyle’s guilt. ” (¶19).

The State did not argue the third factor, so the court of appeals does not address it. (¶19). Based on its application of the first two factors, the court reverses Hoyle’s conviction and orders a new trial.

The State defended its use of the term “uncontroverted” based on Bies. In that case, the defendant was tried for murder and robbery and chose to remain silent. He did not contest that the crimes occurred. Instead, his defense was that his intoxication negated his intent to commit the crimes. During closing arguments, the prosecutor observed that certain evidence was “uncontroverted.” Given that context, the prosecutor’s comment was permissible because it didn’t refer to any aspect of the case the defendant actually disputed and so would not be seen as a comment on the defendant’s failure to testify. Hoyle, in contrast, disputed the charged acts and expressly argued that the State failed to meet its burden of proving that the sexual assault occurred. (¶¶14-16).

As we noted here, the court of appeals previously issued a decision in this case, but withdrew it after the state filed a petition for review. This reissued decision reaches the same conclusion as the withdrawn decision, but emphasizes that the holding is based on the application of Jaimes‘s well-established rule to the circumstances of this case and dispenses with discussion of the other issues Hoyle raised on appeal because the case is decided on the narrowest possible ground. (¶¶1-2 & n.1 and ¶6 n.4).

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