State v. Lilienthal, A15-1713

• Decision Date: 01 February 2017
• Docket Number: A15-1713
• Citation: 889 N.W.2d 780
• Parties: STATE of Minnesota, Respondent, v. Adam John LILIENTHAL, Appellant.
• Court: Minnesota Supreme Court

889 N.W.2d 780

STATE of Minnesota, Respondent,

v.Adam John LILIENTHAL, Appellant.

A15-1713

Supreme Court of Minnesota.

Filed: February 1, 2017

Lori Swanson, Attorney General, Saint Paul, Minnesota; and Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant Anoka County Attorney, Anoka, Minnesota, for respondent.

Robert D. Sicoli, Sicoli Law, Ltd., Minneapolis, Minnesota; and Anthony M. Bussa, Bussa Law, LLC, Minneapolis, Minnesota, for appellant.

OPINION

HUDSON, Justice.

Following a jury trial, appellant Adam John Lilienthal was convicted of first-degree premeditated murder, Minn. Stat. § 609.185(a)(1) (2016), and sentenced to life in prison without the possibility of release. On appeal, Lilienthal contends that the district court committed reversible error when it admitted evidence of his post-arrest, pre-Miranda silence during the State's case-in-chief, when it allowed the prosecutor to discuss Lilienthal's silence in closing argument, and when it denied his request for a defense-of-dwelling jury instruction. Because we conclude that the district court did not commit reversible error, we affirm.

I.

Adam Lilienthal and Scott Yorek met through a mutual friend in February 2014. After learning that Yorek needed a place to stay, Lilienthal agreed to rent Yorek a room in his house in Andover. Yorek moved into Lilienthal's house later that month. Lilienthal and Yorek agreed that Yorek would pay $100 per week in rent, though disputes later arose as to whether and how timely those payments were made.

On June 17, 2014, Lilienthal and Yorek had a disagreement during which Lilienthal demanded that Yorek move out. Lilienthal called the police from a neighbor's house around noon to report that Yorek made threats on his life during their disagreement. The responding officer spoke to Yorek, found no reason to make an arrest, and then explained to Lilienthal that if he wanted Yorek to move out, he would have to use eviction procedures. Later that afternoon, Lilienthal went to the Anoka County courthouse to initiate an eviction action and obtain a restraining order. But after being told the eviction process required the payment of a fee and a hearing, Lilienthal left the courthouse with the uncompleted paperwork and returned home.

While Lilienthal was at the courthouse, Yorek left the house for an appointment. When Yorek returned to the house later that evening, he discovered that Lilienthal had changed the locks. Yorek knocked on the door and windows in an effort to have Lilienthal allow him inside. Lilienthal, wanting Yorek to leave, called two friends to ask for help. Shortly thereafter, he called the police to report that Yorek was trying to get into his house. Lilienthal called the police again 10 minutes later and told the dispatcher that he had let Yorek into the house to retrieve his belongings, but that Yorek was unwilling to leave. The officers who responded to Lilienthal's calls spoke to Yorek and advised him to stay in his room and avoid Lilienthal if he chose to remain in the house that night. The officers then left, leaving Yorek and Lilienthal alone in the house.

The parties' versions of events diverge regarding what happened next. At trial, Lilienthal testified that he found Yorek upstairs in his rented room, talking on the phone while a lit torch was burning on the bed. Lilienthal claimed that Yorek turned toward him while grabbing for the torch, and then, Lilienthal, in fear for his life, pushed Yorek onto the bed, which started the bed on fire. The State, however, offered testimony and forensic evidence to establish that Lilienthal first poured gasoline on Yorek and then lit the gasoline on fire.¹

The parties agree that after the fire started in Yorek's room, Lilienthal left the house and got into his truck. A friend whom Lilienthal had called before the fire began arrived at the house. As Lilienthal drove away, he shouted to his friend to "[g]et out of here" because his house was on fire. Lilienthal's friend called 911 to report the fire. The person who had been on the phone with Yorek during the confrontation also called 911 to report what he believed was a life-threatening altercation between Yorek and "his landlord."

The responding officers arrived to find Yorek severely burned, lying in front of the house. Yorek told the officers, paramedics, and other witnesses that Lilienthal had thrown gasoline on him. After speaking with neighbors, the officers obtained the license plate information for Lilienthal's truck and learned that he owned a cabin in northern Minnesota. The officers disseminated a statewide broadcast of Lilienthal's license plate information in an attempt to find him.

St. Louis County Deputy Andrew Feiro received the broadcast, located the truck, and stopped the vehicle. Deputy Feiro identified Lilienthal as the sole occupant of the vehicle and placed him under arrest. The record provides no evidence to indicate that Lilienthal ever made a statement in response to his arrest, except to deny that he needed medical attention. Deputy Feiro did not interrogate Lilienthal or read him a Miranda warning before he drove Lilienthal to the jail in St. Louis County. At the jail, Lilienthal received a Miranda warning. He was later transferred to the Anoka County jail.

Yorek was taken to the Hennepin County Medical Center, but died from his injuries 2 days later. A grand jury indicted Lilienthal, charging him with one count of first-degree premeditated murder, Minn. Stat. § 609.185(a)(1), and three counts of first-degree intentional murder while committing a felony, Minn. Stat. § 609.185(a)(3) (2016).

At various points during trial, the State referenced Lilienthal's silence while he was transported in Deputy Feiro's vehicle. First, in its case-in-chief, the State questioned Deputy Feiro about Lilienthal's post-arrest, pre-Miranda silence:

Q: Now, you told us about the circumstances of the stop and arrest, the stop of the vehicle and arrest of the defendant.

A: Yes.

Q: Okay. Did you ever Mirandize the defendant?

A: I did not.

Q: Now, during the time that the defendant was in your presence, did he ever say anything about what may have happened down in Anoka County.

A: He did not.

Notably, Lilienthal did not object to this exchange.

Second, the district court, over Lilienthal's objections, permitted the State to twice reference Lilienthal's post-arrest, pre-Miranda silence in its closing argument. The State noted, "He drives to extreme north St. Louis County, and when apprehended there, doesn't tell anybody anything about what happened in Anoka County." Next, the State claimed that, to accept Lilienthal's testimony that he fled in panic for his life, the jury would have to believe that after the 4-hour drive to St. Louis County, "he is still sufficiently panicked to not try to provide any explanation when Feiro arrests him."

Before the case was sent to the jury, Lilienthal requested a defense-of-dwelling jury instruction. The district court denied his request. The jury found Lilienthal guilty of all counts of the indictment. The district court sentenced Lilienthal to life imprisonment without the possibility of release on the first-degree premeditated murder count. This direct appeal followed.

II.

On appeal, Lilienthal argues that the district court erred in permitting the State to use his post-arrest, pre-Miranda silence during the State's direct examination of Deputy Feiro and in its closing argument. Lilienthal contends that the State's use of his silence against him at trial violated his Fifth Amendment right against self-incrimination. The State, by contrast, argues that Lilienthal's Fifth Amendment rights were not implicated because Lilienthal was never under a government-imposed compulsion to speak or remain silent because Officer Feiro did not interrogate Lilienthal. Cf. State v. Borg , 806 N.W.2d 535, 543 (Minn.2011) (holding that pre -arrest silence does not implicate the Fifth Amendment unless the government has compelled a defendant to speak or remain silent). Lilienthal further claims that, because he objected to the use of his post-arrest, pre-Miranda silence immediately before the State's closing argument, all alleged Fifth Amendment violations must be reviewed for harmless error, not plain error. The State, however, argues that because Lilienthal did not object to the first mention of his silence during the State's direct examination of Deputy Feiro, Lilienthal forfeited his Fifth Amendment claims, which means they are subject to only plain error review. Because the circumstances surrounding the alleged violations differ, our examination is not controlled by a single standard of review, and thus we consider each occurrence separately.

A.

Lilienthal first challenges the district court's admission of testimony regarding his post-arrest, pre-Miranda silence. The State asked Deputy Feiro, "Now, during the time that the defendant was in your presence, did he ever say anything about what may have happened down in Anoka County[?]" Deputy Feiro responded, "He did not." Lilienthal did not object to the prosecutor's question or Deputy Feiro's answer.

When a defendant fails to object at trial, the forfeiture doctrine generally precludes appellate relief.

State v. Beaulieu , 859 N.W.2d 275, 278–79 (Minn.2015). Lilienthal appears to argue that his objections before closing argument apply retroactively to the State's questioning of Deputy Feiro on direct examination, and thus he preserved his objection to the testimony for appeal. We disagree. We have held that an objection to the admissibility of evidence must be made at the first opportunity, and that the failure to do so forfeits the right to raise the question on appeal. Id. ("[A] constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.") (emphasis added) (quoting United States v. Olano , 507 U.S. 725, 731,...