This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Philip John Reiling,




Filed June 22, 2004


Lansing, Judge


Clay County District Court

File No. K6-02-1207



Richard E. Edinger, 1024 Third Avenue South, Fargo, ND 58103 (for appellant)


Mike Hatch, Attorney General, Tibor Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and


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


            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Lansing, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from conviction of second-degree assault, Philip Reiling argues that the prosecutor committed prejudicial misconduct in his opening and closing statements and on cross-examination by referring to Reiling’s prearrest silence.  We conclude that the prosecutor’s cross-examination question to Reiling about his prearrest silence was constitutionally permissible impeachment, and, therefore, his response could properly be commented on in summation.  Although we agree with Reiling’s claim that the prosecutor improperly commented in his opening statement on Reiling’s prearrest silence, we conclude, on this record, that the comments were harmless beyond a reasonable doubt, and we affirm.


            Philip Reiling owns an establishment in Downer, Minnesota, called the Midway Bar.  In June of 2002, Reiling was involved in a dispute with patrons during which he wielded a .44-caliber handgun.  In response to the patrons’ report, law enforcement drove to the bar to investigate and found Reiling to be intoxicated and uncooperative.  Reiling interfered with the officer’s attempts to speak to the bar patrons and generally refused to answer any questions, but he denied that there was a gun on the premises.  The officer obtained contact information from potential witnesses and stopped attempting to question Reiling.  Two days later, other officers working on the case visited the Midway Bar.  They read Reiling a Miranda warning, obtained a statement from him, which he freely gave without benefit of counsel, and confiscated the handgun with his consent.

            Following the investigation, Reiling was charged with two counts of second-degree assault with a deadly weapon, in violation of Minn. Stat. § 609.222, subd. 1 (2002), and tried before a jury in Clay County District Court.  During opening and closing statements and in cross-examining Reiling, the prosecutor alluded to Reiling’s refusal to respond to the officer’s inquiries on the day of the alleged assault.

            The prosecutor first discussed Reiling’s silence in his opening statement, describing the scene at the Midway Bar shortly after the patrons had left:

[The officer] comes into the bar, attempts to talk to Mr. Reiling, approaches him and says, I want to talk to you about what happened out here tonight. Mr. Reiling refuses to talk to him in any fashion. He says, I’m not going to tell you nothing.


Within a few sentences, the prosecutor repeated that the officer tried to take a statement from Reiling and was refused.

            Reiling’s attorney made no objection at that point, but in a sidebar conversation during the presentation of the prosecution’s case, he recorded his objection to the content of the prosecutor’s opening statement.  He also moved for a mistrial based on prosecutorial misconduct or for a curative instruction to the jury to clarify the burden of proof in a criminal case, and for an admonition to the prosecutor that he not elicit testimony from the officer about Reiling’s refusal to provide a statement. 

The district court instructed the prosecution not to pursue that line of questioning and offered to give a curative instruction to the jury to draw no “adverse inference” from the statements about Reiling’s refusal to talk to the officer.  The defense rejected the court’s proposed curative instruction because it explicitly referred to Reiling’s silence.  The defense instead requested a more general instruction restating the burden of proof.  The court refused, citing its concern that the jurors, who had already been twice instructed on the burden of proof, would find a third instruction confusing.  The court denied the motion for a mistrial, finding that any prosecutorial misconduct committed in the opening statement had not caused reversible prejudice. 

            During direct examination, the prosecuting attorney heeded the court’s admonition and did not elicit testimony about Reiling’s silence.  The subject partially resurfaced during cross-examination of the officer, when the defense attorney inquired why the officer had not confiscated the handgun on his visit to Midway bar.  The officer responded that he “was told there was no pistol present.”  In his redirect examination, the prosecuting attorney elicited the officer’s testimony that it was Reiling who told him there was no pistol present.

            Reiling testified in his own defense.  On direct examination, Reiling testified that he had provided a statement to the officers who visited the bar two days after the incident, even though he knew that he had no obligation to cooperate.  In a sidebar conversation before conducting cross-examination, the prosecuting attorney asserted that this line of questioning allowed him to cross-examine Reiling about his silence on the night of the incident.  The court agreed.  On cross-examination, Reiling testified that he refused to give a statement to the officer who responded to the patron’s report because he did not want a squad car in his parking lot during business hours.

            In his closing statement, the prosecutor revisited the issue of prearrest silence, stating that, although Reiling testified that he gave a statement to the police when he did not have to, he had earlier refused to give a statement.  The prosecutor also referred to Reiling’s silence in the context of Reiling’s claim that he called 911 following the incident to report the patrons with whom he had the dispute.  The prosecutor pointed out the apparent contradiction of a business owner who claims to have called 911 to report a threat, only to refuse to talk to law enforcement and to say that he wanted them to leave his property because they were harming his trade.

            Following the two-day trial, the jury found Reiling guilty of one count of second-degree assault with a deadly weapon.  Reiling appeals the district court’s determination that he was not prejudiced by prosecutorial misconduct.


            When assessing a claim of prosecutorial misconduct, we first examine the challenged conduct to determine whether the prosecutor erred, and, if error is established, then determine whether the defendant is entitled to a new trial.  State v. Ford, 539 N.W.2d 214, 228 (Minn. 1995).  We will reverse a district court’s denial of a motion for a mistrial for prosecutorial misconduct only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.”  State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000).  We will generally not grant a new trial if the prosecutorial misconduct is harmless beyond a reasonable doubt.  State v. Bradford, 618 N.W.2d 782, 798 (Minn. 2000); see also State v. Dunkel, 466 N.W.2d 425, 429 (Minn. App. 1991) (applying prearrest, harmless-beyond-a-reasonable-doubt standard to erroneous admission of pre-Miranda statement).  Misconduct is harmless beyond a reasonable doubt if the jury’s verdict is “surely unattributable to the error.”  State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).

            Reiling argues that the prosecution committed misconduct by alluding at trial to his silence when he was first interviewed by law enforcement on the night of the incident.  The right of a person to remain silent in a criminal matter is guaranteed by both the United States and Minnesota Constitutions.  U.S. Const. amend. V; Minn. Const. art. I, sec. 7.  Generally, the prosecution cannot at trial use the fact that the defendant “stood mute or claimed his privilege [to remain silent] in the face of accusation.”  State v. Roberts, 296 Minn. 347, 352, 208 N.W.2d 744, 747 (1973).  The common law has traditionally allowed witnesses to be impeached by their silence in circumstances when that silence is relevant.  Jenkins v. Anderson, 447 U.S. 231, 240, 100. S. Ct. 2124, 2130 (1980).  Impeachment with prearrest silence does not infringe on a defendant’s constitutional rights and “advances the truth-finding function of the criminal trial.”  Id. at 238, 100 S. Ct. at 2129.  The rule in Minnesota is narrower, requiring that the admissible prearrest (and thus pre-Miranda) silence also be uncounseled.  Dunkel, 466 N.W.2d at 428 (citing Jenkins, 447 U.S. at 238-39, 100 S. Ct. at 2129 and State v. Billups, 264 N.W.2d 137, 139 (Minn. 1978)).

            While we accept for purposes of our analysis the characterization of Reiling’s behavior as “silence,” this description is inapt for two reasons.  First, the officer testified that Reiling constantly interrupted attempts to speak to bar patrons with “inappropriate, intrusive-type comments.”  More importantly, during the brief interview, Reiling told the officer that the handgun involved in the complaint was no longer on the premises.  The officer left the bar after “a few minutes” without taking any official statements, and the investigation was continued two days later by other officers with whom Reiling freely cooperated following a reading of his Miranda rights. 

Nonetheless, to the extent that Reiling failed to cooperate with the first officer, he had a constitutionally guaranteed right to decline to give a statement.  But he forfeited that right—and the court properly allowed the prosecution to impeach him on the basis of credibility—when he testified on direct examination that he had cooperated with police.  See State v. Folkert, 354 N.W.2d 583, 585 (Minn. App. 1984) (quotation omitted) (stating that a defendant who takes the stand “is subject to cross-examination impeaching his credibility just like any other witness”).  At that point, the substance of Reiling’s silence (i.e., whether one could infer guilt from a refusal to answer questions) is no longer paramount; rather, his claim that he was a willing participant in the investigation becomes relevant and takes precedence.  Once a defendant has decided to make a claim of cooperation before the jury, a trial court would be remiss, and its truth-finding function compromised, were it not to admit readily available evidence to the contrary.

The propriety of the cross-examination question also determines the propriety of the prosecutor’s references to Reiling’s prearrest silence in his closing statement.  A primary purpose of a closing statement is to explain to a jury what evidence is relevant to its decision.  Sandoval v. Calderon, 241 F.3d 765, 776 (9th Cir. 2001).  Therefore, a prosecutor permissibly frames a closing statement on properly admitted evidence and inferences reasonably drawn from that evidence.  State v. Clark, 296 N.W.2d 359, 371 (Minn. 1980).  The prosecutor’s references to Reiling’s prearrest silence were within the bounds of a proper closing statement.

We agree, however, with Reiling’s contention that the prosecutor committed misconduct in the opening statement to the jury by commenting on Reiling’s decision not to make a statement to police on the night of the incident.  Obviously, impeachment cannot occur before a defendant has chosen to testify.  The district court recognized this misconduct in response to the protest of Reiling’s attorney but found that it was not prejudicial.  The prosecuting attorney heeded the district court’s admonition that any testimony about Reiling’s silence could not be introduced in the state’s case-in-chief and only resurrected the issue when the court ruled that it was permissible for purposes of impeachment.  The prosecutorial misconduct—two brief allusions to Reiling’s prearrest silence in the opening statement—did not occupy a significant place in the trial as a whole, but we recognize that it implicates a specific constitutional right—the right against self-incrimination.

We conclude, however, for five reasons, that the improper references were harmless beyond a reasonable doubt.  First, Reiling testified in his own defense and introduced the issue of his cooperation with law enforcement; at that point, as we have already concluded, the issue of Reiling’s silence became relevant and admissible for purposes of impeachment and the improper references essentially became cumulative.  Second, the testimony was undisputed that Reiling freely cooperated with law enforcement when they returned two days after the incident, thus it is unlikely that his initial “silence” retained significant probative value in the aftermath of a statement provided willingly following a Miranda warning.  Third, Reiling claimed at trial that he initiated contact with law enforcement on the night of the incident; at the very least, this admission undermines Reiling’s claim to constitutionally protected silence.  Fourth, Reiling rejected an opportunity for a curative instruction.  The district court offered to instruct the jury that the prosecutor’s comments on Reiling’s silence must be disregarded.  Reiling’s attorney resisted any further mention of his client’s silence, even in a corrective instruction to the jury.  The district court reasonably rejected, as redundant and confusing, the defense’s alternative request that the jury be re-instructed on the burden of proof.  The defense’s decision may have been strategically sound, but the court’s proposed curative instruction was reasonably tailored to address any potential prejudice, and a complaint of prejudice cannot now be predicated on a declined instruction.  Fifth, and most importantly, the trial record contains an abundance of evidence to sustain the assault conviction, much of it provided by Reiling’s own testimony.

When applying the harmless-error test, the court must “look to the basis on which the jury rested its verdict and determine what effect the error had on the actual verdict.”  State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996) (citing Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S. Ct. 2078, 2081-82 (1993)).  On this record, the minimal references to Reiling’s prearrest silence in the prosecutor’s opening statement were harmless beyond a reasonable doubt.