Roderick v. State

BROWN, Justice (Retired),

specially concurring in Part VII, with whom MACY, C.J., joins.

I believe that the holding in Birr v. State, 744 P.2d 1117 (Wyo.1987), to the effect that multiple punishments are permissible, best reflects the intent of the legislature and the will of the citizens of Wyoming and is not constitutionally infirm. If the issue of multiple punishments were important, I would vote to reinstate the law set out in Birr.1 Under the circumstances of this case, stare decisis seems to me to be a more compelling principle.

We do a disservice to Wyoming citizens, the trial bench, and lawyers if we switch back and forth and the law changes depending on the composition of the court. Were I to vote to reinstate Birr, a court with a slightly different composition next month or next year would likely again overrule Birr. I found myself in an identical position several years ago. In Clenin v. State, 573 P.2d 844, 846 (Wyo.1978), the Wyoming Supreme Court adopted a rule that “any comment upon an accused’s exercise of his right of silence, * * * is prejudi*553cial, and will entitle an accused to reversal.” By 1982, the composition of the Wyoming Supreme Court had changed, and in Richter v. State, 642 P.2d 1269, 1274 (Wyo.1982), Clenin was overruled and a majority of the court held that the prosecutor’s improper comment on defendant’s exercise of his right to remain silent was not prejudicial per se, but may be found to be harmless error. The composition of the court changed again, and in 1984 along came Westmark v. State, 693 P.2d 220, 222 (Wyo.1984). In that case, three members of the court seized upon Westmark to overrule Richter and reestablish the rule of Clenin. By 1986, the composition of the court again changed. A majority of the court could now overrule Westmark and reestablish the rule in Richter. In Summers v. State, 725 P.2d 1033, 1048 (Wyo.1986), I declined to join a potential majority to overrule Westmark, although I always favored the rule that a comment on an accused’s exercise of his right of silence is not prejudicial per se. In Summers, my vote was influenced by the principle of stare decisis.2

If stare decisis means anything in Wyoming, I must follow the law set out in Cook, Peterson, and Castle, and not vote to reinstate Birr. In my view, stare deci-sis under the circumstances of this case is the more important principle.

THOMAS, Justice,

specially concurring.

I am in complete accord with the resolution of the issues in this case according to the majority opinion, with two exceptions. First, I have never believed that Black v. State, 820 P.2d 969 (Wyo.1991), stood for any legal proposition. It simply serves to demonstrate that, from time to time, this Court is compelled to manage some local police department.

Second, I hope that my views in Castle v. State, 842 P.2d 1060 (Wyo.1992), and Cook v. State and Peterson v. State, 841 P.2d 1345 (Wyo.1992), are adequately set forth in my dissenting opinions. I once puckishly remarked that the doctrine of stare deci-sis should prevail in Wyoming, at least, for six months. Upon reflection, I recognize that I was impulsive, and I now am satisfied that the doctrine should apply for a full year. Since we are still within that year, we should not overrule Cook, Peterson, and Castle at this time. When that is done, it is best that it be accomplished by a majority of the regularly appointed or elected members of the Court.

. It seems that multiple punishments under the circumstances of this case are not very important. On the face of it, nothing is gained by adding 15 to 25 years to a life sentence. Of course, it may have some significance when the appellant appears before the Board of Parole.

. In Summers, the majority avoided the harsh rule in Westmark by simply declaring that there was no comment on silence.