State v. Myers, 20050368.

• Decision Date: 28 November 2006
• Docket Number: No. 20050368.,20050368.
• Citation: 2006 ND 242,724 N.W.2d 168
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Daniel MYERS, Defendant and Appellant.
• Court: North Dakota Supreme Court

724 N.W.2d 168

2006 ND 242

STATE of North Dakota, Plaintiff and Appellee v.Daniel MYERS, Defendant and Appellant.

No. 20050368.

Supreme Court of North Dakota.

November 28, 2006.

Rehearing Denied December 13, 2006.

Cynthia Mae Feland, Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

Benjamin C. Pulkrabek, Mandan, N.D., for defendant and appellant.

VANDEWALLE, Chief Justice.

[¶ 1]Daniel Myers appealed from a judgment entered after a jury found him guilty of three drug-related offenses.We conclude the prosecutor's closing argument did not violate Myers's right against self-incrimination, the district court's failure to admonish the jury before a recess was not reversible error, and there was sufficient evidence to convict Myers of the three offenses.We affirm.

I

[¶ 2] In late March 2003, Bismarck police were investigating a drug transaction based upon information received from a confidential informant.The information concerned a shipment of methamphetamine from Minot to a motel in Bismarck.Police also had information about two individuals who were recipients of the methamphetamine.Two individuals were apprehended at the Bismarck motel, but a third individual eluded police.Police believed the third individual was Myers.Police investigators distributed flyers with Myers's picture to several local motels where they suspected Myers would be staying.

[¶ 3] Subsequently, Bismarck police received a telephone call from a manager at a Bismarck motel, informing them that Myers was staying in a room at that motel.Relying upon a previously obtained search warrant and the information from the manager that Myers was staying at the Bismarck motel, police sought and obtained a search warrant for room 336 at that motel.Police officers and a motel maintenance supervisor were proceeding to room 336 when they encountered an individual in the stairway leading up to the third floor.The maintenance supervisor identified the individual as Myers.A police officer stopped the individual and confirmed he was Myers.The officer then handcuffed Myers and escorted him to room 336.

[¶ 4] As the police officer and Myers walked to room 336, Myers told the officer he wanted to cooperate because, according to the officer, Meyers indicated he had "a lot of things hanging over his head."The officer informed Myers they would talk at the police department after the room was searched.Upon entering room 336, law enforcement officers found Myers's wife in the room.A search of the room yielded marijuana and various drug paraphernalia, in addition to approximately $866 in cash found on Myers's wife.Police officers also observed suitcases and both men's and women's clothing, including swim suits, in the room.

[¶ 5] Myers and his wife were taken to the Bismarck police department and interviewed in separate rooms.During Myers's interview, he was given his Miranda rights, including his right to remain silent, and he again indicated that he wanted to cooperate with the police.Myers provided information regarding two drug deals and individuals involved with those drug deals.Myers was charged with possession of marijuana with intent to deliver and two counts of possession of drug paraphernalia.A jury convicted Myers on all counts.

II

[¶ 6] Myers argues the prosecutor's reference to his post-arrest silence in closing argument violated his right against self-incrimination.

[¶ 7] It is a fundamental principle of constitutional law that a prosecutor may not comment on a defendant's failure to testify in a criminal case.State v. His Chase,531 N.W.2d 271, 273(N.D.1995);State v. Flohr,310 N.W.2d 735, 736(N.D.1981)."A comment on the silence of a defendant is an improper comment on the right to remain silent in violation of the Fifth and Fourteenth Amendments of the [United States]Constitution."State v. Ebach,1999 ND 5, ¶ 15, 589 N.W.2d 566.See alsoN.D. Const. art. I, § 12;N.D.C.C. § 29-21-11.This Court reviews de novo a claim of a constitutional rights violation.State v. Keyes,2000 ND 83, ¶ 9, 609 N.W.2d 428.

[¶ 8]We have also explained a district court's discretion in controlling closing argument.

In controlling the scope of closing argument, the district court is vested with discretion, and absent a clear showing of an abuse of discretion, we will not reverse on grounds the prosecutor exceeded the scope of permissible closing argument.Unless the error is fundamental, a defendant must demonstrate a prosecutor's comments during closing argument were improper and prejudicial.In order to be prejudicial, the improper closing argument must have "stepped beyond the bounds of any fair and reasonable criticism of the evidence, or any fair and reasonable argument based upon any theory of the case that has support in the evidence."

State v. Schmidkunz,2006 ND 192, ¶ 7, 721 N.W.2d 387(citations omitted).Argument by counsel must be limited to the facts in evidence and the inferences that properly flow from those facts.Ebach,1999 ND 5, ¶ 10, 589 N.W.2d 566;City of Williston v. Hegstad,1997 ND 56, ¶ 8, 562 N.W.2d 91.Generally, where a prosecutor's statements have been improper, the appropriate remedy is a mistrial rather than dismissal.HisChase,531 N.W.2d at 273;State v. Nordquist,309 N.W.2d 109, 119(N.D.1981).

[¶ 9] Here, the prosecutor stated in her closing argument:

Well there is a definition in the instructions that you were given of possession and possession is in two forms.Actual possession meaning we found this on his person, which is not the case in this particular instance, or constructive possession, meaning he has access and ability to utilize this particular piece of paraphernalia.Did he?Absolutely.How do we know that?It was found in the motel room, not found on [Myers's wife], but found in the motel room.The same motel room that is connected with Mr. Myers.How do we know it's connected with Mr. Myers—because when the maintenance man pointed out yep, that's the guy from that room—we had that testimony through the officer.We have that.What else do we have?We have male clothing in the room, so is there any question that Mr. Myers is associated with that.Do we have any statements at this point where Mr. Myers said oh no, I have nothing to do with this room, I'm only a mere visitor?No.In addition we have him making all kinds of comments about drug activities, do we not?Absolutely.So is there really any reasonable doubt that he had the ability to utilize that?No. (Emphasis added.)

[¶ 10] Myers's trial counsel objected to the statement in a subsequent exchange with the court:

MR. GLASS: I don't know if this is appropriate or not but I'm going to object to part of her closing where she talks about Mr. Myers not testifying here today.She said he testified that he wasn't at the hotel.Did he come up here and tell ushe wasn't at the hotel?

MS. FELAND: No, I didn't say that.I didn't say that he testified, I said he didn't tell the officers.

THE COURT: Well regardless, you can—I'll allow the objection and you can preserve it for the record.

MR. GLASS: Pardon me?

THE COURT: I said I'll allow you to object to the comment.All right.Go ahead Mr. Glass.

(In open court)

MR. GLASS: Yes, Your Honor.I'd like to object to the part of Ms. Feland's closing statement where she referred to Mr. Myers not testifying here today.He has the absolute right not to testify.

MS. FELAND: State's position is that wasn't the reference to the comment.The comment was that he didn't give that information to the officers when he was questioned.

THE COURT: I recall you saying something about him not denying being in the hotel room or whatever.I don't recall if you used the word testified or not.If in fact Ms. Feland did use that term, you are to disregard it.As I'm going to instruct you shortly, the defendant does have no burden of proof in this case, has an absolute right not to testify and you are not to draw any inferences or conclusions from that, so if Ms. Feland did say that, you are to ignore that.Mr. Glass, is that acceptable?

MR. GLASS: Thank you, Your Honor.

[¶ 11] Myers asserts that when the prosecutor made the statement during closing argument, the prosecutor knew Myers had not testified, the time for Myers to testify had passed, and the testimony by the police officers established Myers had been given his Miranda rights.Relying on Hegstad,1997 ND 56, 562 N.W.2d 91, Myers argues the prosecutor's statement is reversible error because it was made after he elected not to testify and implied criticism because he did not testify.

[¶ 12] In Hegstad,at ¶¶ 9-10, this Court concluded that a prosecutor's reference in closing argument to the defendant's silence after he had received his Miranda warnings, or more generally to the defendant's failure to come forward with his version of events at any time before trial, violated the defendant's right to due process.In concluding the district court abused its discretion and the errors were not harmless beyond a reasonable doubt, we focused on the prosecutor's closing argument, which coupled improper comment on the defendant's post-arrest silence after receiving Miranda warnings with improper argument that a police officer's job was to tell the truth.Id.at ¶ 14.Myers's reliance on Hegstad, however, is misplaced.

[¶ 13] In this case, Myers has taken the prosecutor's statement out of context.See, e.g., Ebach,1999 ND 5, ¶ 15, 589 N.W.2d 566(prosecutor's statement merely drew attention to the inconsistency of accounts of what happened and was not a statement regarding defendant's silence before testifying).Rather than commenting on Myers's failure to testify at trial or exercising a right to remain silent, the prosecutor's statement refers to Myers's failure in his voluntary assertions to law enforcement before being given Miranda warnings to deny that it was his motel room where the drugs and drug paraphernalia were...