This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Eric Joseph Houseman,




Filed October 9, 2001

Reversed and remanded
Klaphake, Judge


Clay County District Court

File No. KX00170


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and


Lisa Borgen, Clay County Attorney, Clay County Courthouse, P.O. Box 280, Moorhead, MN  56561 (for respondent)


John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Lindberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Eric Houseman, convicted of aiding and abetting fifth-degree controlled substance crime, Minn. Stat. § 152.025, subd. 1(1) (2000), argues that the district court erred by permitting introduction of a videotaped interview of appellant made prior to his arrest.  Because use of the videotape was a violation of appellant’s due process rights and because permitting use of the videotape was not harmless error, we reverse and remand for a new trial.


            The district court has considerable discretion in evidentiary matters and the appellate court will defer to the district court absent an abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  Where a constitutional right is violated, this court will not reverse if the error is harmless beyond a reasonable doubt.  Id.  Constitutional error “will be found prejudicial if there is a reasonable possibility that the error complained of might have contributed to the conviction.”  State v. Larson, 389 N.W.2d 872, 875 (Minn. 1986) (quotation omitted).  However, “[i]f the record contains overwhelming evidence of guilt, and the statement is merely cumulative and could not have played a significant role in the jury’s conviction, it is harmless.”  State v. Robinson, 427 N.W.2d 217, 224 (Minn. 1988).   

            The right of a person in a criminal matter to remain silent is guaranteed by both the United States and Minnesota Constitutions.  U.S. Const. amend. V; Minn. Const. art. I, sec. 7.  Comment on a person’s decision to exercise this right is a denial of due process, because the right to remain silent implicitly assures a person that there will be no penalty for silence.  Doyle v. Ohio, 426 U.S. 610, 618, 96 S. Ct. 2240, 2245 (1976).

            Federal law permits limited use of a defendant’s silence in certain circumscribed situations.  See, e.g., Fletcher v. Weir, 455 U.S. 603, 607, 102 S. Ct. 1309, 1312 (1982) (permitting use of defendant’s post-arrest, pre-Miranda silence on cross-examination); Jenkins v. Anderson, 447 U.S. 231, 238-39, 100 S. Ct. 2124, 2129 (1980) (permitting use of pre-arrest, pre-Miranda silence on cross-examination).  This court, however, has specifically held that use of pre-arrest, pre-Miranda silence is error when introduced in the state’s case-in-chief.  State v. Dunkel, 466 N.W.2d 425, 428 (Minn. App. 1991).  In Dunkel, the investigating deputy testified that she spoke briefly to the defendant and verified his name and date of birth, but that he “declined to be interviewed.”  Id. at 427.  We concluded that although this reference to counseled silence was error, it was harmless, because it was “innocuous,” “brief, quiet and undramatic,” and not elicited by the state.  Id. at 429; see also State v. French, 402 N.W.2d 805, 809 (Minn. App. 1987) (concluding that any error in admitting officer’s testimony regarding defendant’s post-Miranda silence was harmless where officer “did not focus on, nor unduly highlight, [defendant’s] silence”).

            Here, the district court allowed appellant’s entire videotaped interview to be admitted during the state’s case-in-chief.  The tape was played for the jury, and the jury was provided with transcripts of the interview.  The videotape disclosed no inculpatory information; the entire tape consisted of the officer’s questions, appellant’s requests that he be permitted to meet with his attorney before answering questions, and appellant’s statement that his attorney had told him to say nothing.  Unlike Dunkel, the state here deliberately emphasized appellant’s counseled silence.  Unlike Dunkel, the reference here was not brief, undramatic, or innocuous.  Thus, we conclude that allowing the state’s deliberate presentation of appellant’s decision to remain silent was error. 

            We further conclude that this error was not harmless.  The state’s case was based largely on circumstantial evidence.  The videotape was the only evidence presented by the state to prove that appellant knew the hidden box contained a controlled substance, or consented to aid and abet others in possessing a controlled substance.  The tape was not merely cumulative of other evidence and likely played a significant role in the jury’s conviction.  Because there is a reasonable possibility that the error contributed to appellant’s conviction, admission of the videotape was not harmless beyond a reasonable doubt.  We therefore reverse the conviction and remand for a new trial.

            Based on our decision, we decline to address appellant’s second argument that the district court abused its discretion in barring introduction of certain hearsay evidence of an excited utterance, particularly as the record on this issue is incomplete.

            Reversed and remanded.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.