Jan. 14, 2022 – A Wisconsin appellate court has ruled that a prosecutor who repeatedly argued that a victim’s testimony was “uncorroborated” violated the constitutional right of a criminal defendant who did not testify during the trial.
State v. Hoyle, 2020AP187-CR, (Jan. 11, 2022), the Court of Appeals District III held that the multiple mentions of the uncorroborated testimony constituted improper references to the defendant’s decision not to testify and violated his Fifth Amendment right against self-incrimination.
‘Someone is Going to End Up Dead’
In 2018, a Chippewa County jury convicted Tomas Jaymitchell Hoyle on two counts of second-degree sexual assault and two counts of second-degree sexual assault of a child less than sixteen years of age.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
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Hoyle did not testify during the trial. The state’s main witness was Hannah, Hoyle’s alleged victim.
Hannah testified that she was on her way to a friend’s house when Hoyle, the stepbrother of another friend, drove by and asked her if she wanted to hang out. Hannah got in the car with Hoyle.
According to Hannah, Hoyle drove toward Chippewa Falls, then turned down a dead-end road. After she stepped of the car, Hannah testified, Hoyle told her to get in the back seat. She complied.
Hoyle then got in the back seat and sexually assaulted her, Hannah testified. When he took her home, Hannah said, Hoyle told her that “if anyone finds out about this, someone is going to end up dead.”
Post-conviction Relief Denied
During his closing argument, the prosecutor argued repeatedly, over the objections of Hoyle’s lawyer, that Hannah’s testimony was “uncorroborated.” He also told the jury that they “heard no evidence disputing [Hannah’s] account of the sexual assault.”
After Hoyle was convicted, he filed for post-conviction relief.
Hoyle made several arguments, including that the prosecutor improperly commented on his decision not to testify by stating that the evidence against him was “uncorroborated.” The circuit court denied Hoyle’s motion.
In an opinion written by Judge Gregory Gill, a three-judge appellate panel reversed the circuit court.
The Fifth Amendment bars a prosecutor from commenting on a defendant’s decision not to testify, Gill explained.
“Even indirect comments about the defendant’s silence will violate the privilege, such as when a prosecutor points out a lack of evidence that only the defendant could provide by waiving that privilege.”
Wisconsin Court of Appeals precedent establishes a three-factor test for determining whether a prosecutor’s remarks about a defendant’s failure to testify is constitutionally improper, Gill explained.
The remarks must reference the failure to testify, propose that that failure demonstrates guilt, and not be a fair response to an argument advanced by the defendant.
Arguments on Appeal
On appeal, Hoyle argued that because he and Hannah were the only witnesses to the alleged sexual assault, he was the only one who could controvert Hannah’s testimony.
That meant, Hoyle argued, that the only way the jury could accept the prosecutor’s suggestion that it draw a negative inference from the lack of testimony contradicting Hannah’s testimony was by drawing a negative inference about Hoyle’s decision – one protected by the Fifth Amendment – to not testify.
In reply, the state relied on State v. Bies, 53 Wis. 2d 322, 193 N.W.2d 46 (1972).
In that case, the Wisconsin Supreme Court held that held that the prosecutor did not violate the defendant’s right against self-incrimination when he stated that the evidence against the defendant was “uncontroverted.”
Additionally, the state argued that under a different supreme court case, a prosecutor’s argument regarding a defendant’s failure to testify is improper under only one of two conditions: 1) it was made with the manifest intention that the jury necessarily take it to be a comment on the defendant’s failure to testify; or 2) it was natural that the jury would necessarily take it so.
Bies Not On Point
The state’s reliance on
Bies was incorrect, the appellate panel held.
In that case, Gill explained, the supreme court ruled that the prosecutor’s use of the word “uncontroverted” was not improper because the prosecutor used that term with reference to an aspect of the case that the defendant did not dispute – namely, that he committed the armed robbery and murder.
Rather than disputing that the alleged criminal acts had occurred, Bies argued that the fact he was intoxicated negated his intent.
Hoyle, by contrast, did dispute that the criminal acts with which he had been charged had occurred, Gill wrote.
“In fact, Hoyle expressly argued at trial that the State failed to meet its burden of proving that a sexual assault occurred.”
Consequently, the prosecutor’s remarks violated Hoyle’s right against self-incrimination.
“Under these circumstances, the prosecutor’s repeated arguments that the evidence regarding the charged assault was uncontroverted ignored the fact that Hoyle was innocent until proven guilty and could have led the jury to infer that his silence was evidence of his guilt,” Gill explained.
All Three Factors Met
Hoyle also met the other two factors of the three-factor test, Gill wrote.
The second factor was met “because the prosecutor specifically argued that the lack of evidence disputing Hannah’s testimony—which again, could only have come from Hoyle—demonstrated Hoyle’s guilt.”
The third factor was met, Gill explained, because the state made no argument about it.
The appellate panel remanded the case to the circuit court and ordered a new trial.