This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-378

 

State of Minnesota,
Respondent,

vs.

Jim NMN Rogers,
Appellant.

 

Filed December 21, 2004

Affirmed

Wright, Judge

 

Hennepin County District Court

File No. 03056573

 

 

John M. Stuart, State Public Defender, Marie Wolf, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN† 55414 (for appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN† 55487 (for respondent)

 

 

††††††††††† Considered and decided by Kalitowski, Presiding Judge; Wright, Judge; and Crippen, Judge.*

U N P U B L I S H E D† O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges his conviction of possession of a firearm by a prohibited person, arguing that the district court erred in refusing to grant a mistrial when a police officer testified that appellant had refused to answer questions upon his arrest.† Appellant argues that his counsel did not open the door, as found by the district court, when his counsel questioned the officer on whether appellant denied any knowledge of the gun.† We affirm.†

FACTS

 

A pedestrian flagged down Minneapolis police officer Stephen Moore and informed him that, at a nearby corner, a man dressed in white was carrying a gun.† Officer Moore approached the intersection in his squad car and saw a man fitting the description who was later identified as appellant Jim Rogers.† Based on Rogersís awkward stride and the movement of Rogersís pants, Officer Moore believed that Rogers was indeed carrying a gun in his left pocket.†

When Officer Moore asked Rogers to stop, Rogers took off running.† Officer Moore saw Rogers hide behind a car in a parking lot, drop something shiny, and resume running.† Officer Moore exited his squad car and chased Rogers on foot.† When Officer Moore finally caught up with Rogers, Rogers denied any wrongdoing.† After a short struggle, Officer Moore handcuffed Rogers and placed him in the back of the squad car.† But Officer Moore did not advise Rogers of his Miranda rights.† Officer Moore then returned to the location where he saw Rogers drop something and discovered a large, silver handgun.†

Rogers was charged with possession of a firearm by a prohibited person, a violation of Minn. Stat. ß 624.713, subd. 1(b) (2002).† The matter proceeded to trial.† The parties stipulated that Rogers was legally prohibited from possessing a handgun, making possession the only contested issue at trial.

During cross-examination of Officer Moore, Rogersís counsel inquired about the questions Officer Moore asked Rogers after he placed him in the squad car.† Specifically, Rogersís counsel asked Officer Moore whether he had asked Rogers, ďWhere is the gun?Ē† Rogersís counsel later asked if it were correct that Rogers told the officer, ď[Rogers] didnít know anything about a gun . . . .Ē† On redirect, the prosecutor elicited testimony from Officer Moore that Rogers refused to answer any of the officerís questions.† Rogersís counsel did not object to Officer Mooreís testimony.† But Rogersís counsel later moved for a mistrial based on the prosecutorís question and Officer Mooreís response that Rogers, ďrefused to answer my questions.Ē† The district court denied the motion for a mistrial on the grounds that Rogersís counsel opened the door during cross-examination of Officer Moore.† The district court ruled alternatively that any error was harmless.† The jury found Rogers guilty of the charged offense.† This appeal followed.


D E C I S I O N

 

Rogers argues that, because his right to a fair trial was violated when the prosecutor elicited testimony that he refused to answer an officerís postarrest questions, the district court erred in denying his motion for a mistrial.† We review the denial of a motion for a mistrial for an abuse of discretion.† State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003).† To prevail on appeal, Rogers must establish that the district court abused its discretion and thereby deprived him of a fair trial.† State v. McNeil, 658 N.W.2d 228, 233 (Minn. App. 2003).†

Both the United States and Minnesota constitutions guarantee a criminal defendant the right to remain silent.† U.S. Const. amend. V; Minn. Const. art I, ß 7.† Because exercising this right may be erroneously interpreted as an admission of guilt, admitting evidence of a defendantís silence may deprive the defendant of a fair trial.† Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245 (1976); State v. Parker, 585 N.W.2d 398, 403-04 (Minn. 1998).† Thus, a prosecutorís reference to a defendantís postarrest, post-Miranda silence has been deemed a violation of due process because it commented on the defendantís exercise of a constitutional right.† Doyle, 426 U.S. at 619, 96 S. Ct. at 2245.† Use of postarrest, pre-Miranda silence in the stateís case-in-chief may also result in constitutional error.† See State v. Dunkel,466 N.W.2d 425, 428 (Minn. App. 1991) (holding that use of counseled prearrest, pre-Miranda silence in the stateís case was erroneous).† Thus, with limited exception, evidence of postarrest silence is improper, regardless of whether the accused has been advised by police pursuant to a Miranda warning, has been counseled by an attorney to remain silent, or has otherwise elected to say nothing.† See State v. Beck, 289 Minn. 287, 292, 183 N.W.2d 781, 783-84 (1971) (noting that evidence of postarrest silence, whether accused is Mirandized or not, is improper because it may encourage jury to speculate that defendant remained silent because he was guilty).† One such exception relates to impeachment of a defendant who chooses to testify.† Impeachment using a defendantís silence prior to arrest, Jenkins v. Anderson, 447 U.S. 231, 238, 100 S. Ct. 2124, 2129 (1980), or after arrest if no Miranda warnings were given, Fletcher v. Weir, 455 U.S. 603, 607, 102 S. Ct. 1309, 1312 (1982), is not prohibited.†††

Similarly, the state may use evidence of postarrest silence if the defense has ďopened the door.Ē† In other words, the state may use otherwise improper evidence of postarrest silence to rebut a false impression created by the defense during witness examination.† See State v. Goar, 295 N.W.2d 633, 635 (Minn. 1980) (eliciting evidence of postarrest silence proper to rebut testimony from police officer that defendant denied guilt and cooperated with police); State v. Hjerstrom, 287 N.W.2d 625, 628 (Minn. 1979) (admitting evidence of postarrest silence to rebut false impression created by defendant that police did not allow defendant to give complete version of what happened).

†The statements at issue here refer to Rogersís postarrest, pre-Miranda invocation of silence.† The prosecutor asked Officer Moore on redirect examination:

Q.††††††† Did you ask [Rogers] for his address and phone number when he was arrested?††††††††

A.††††††† Yes, I did.†

Q.††††††† Did he provide that to you?†

A.††††††† No, he did not.

Q.††††††† What happened?

A.††††††† He refused to answer my questions.

 

††††††††††† Eliciting testimony that Rogers ďrefused to answer my questionsĒ is equivalent to eliciting testimony that Rogers invoked his right to remain silent.† Because the prosecutor elicited testimony that Rogers invoked his right to remain silent after he was arrested, albeit not yet Mirandized, we consider whether this otherwise improper line of questioning is permissible because Rogersís counsel opened the door.†

The following cross-examination of Officer Moore by Rogersís counsel preceded the prosecutorís questions in redirect: †

Q.††††††† Now, at the time that you placed Mr. Rogers in his squad, you also asked him, ďWhere is the gun?Ē did you not?

A.††††††† I donít remember if I asked him that or not.

Q.††††††† You donít remember if you asked him anything at all?

A.††††††† Iím sure I asked him his name and his address and all that.† I donít remember if I asked him if he had a gun or where the gun was.

Q.††††††† Okay.† But you were concerned that he did have a gun?

A.††††††† Yes.

Q.††††††† And you wanted to find it, right?

A.††††††† Yes.

Q.††††††† Okay.† Now, Mr. Rogers told you that he didnít know anything about a gun, correct?

A.††††††† I donít remember if he said he had a gun or not.

Q.††††††† You donít remember what Mr. Rogers told you?

A.††††††† Well, I donít remember if I asked him.

Through this questioning, Rogersís counsel created the false impression that Rogers denied knowledge and possession of the gun, which Officer Moore either forgot or refused to admit at trial.† It was, therefore, appropriate for the state to rebut this false impression by establishing that Rogers did not deny either knowledge or possession of the gun because he refused to answer any of Officer Mooreís questions.† See Hjerstrom, 287 N.W.2d at 628 (use of silence in stateís case-in-chief appropriate when rebutting an impression created by defense counsel).† The district court correctly concluded that Rogersís counsel ďopened the door,Ē thereby permitting testimony regarding Rogersís silence in order to rebut a false impression as to the existence of exculpatory, postarrest statements by Rogers.† Accordingly, the district court did not abuse its discretion in denying Rogersís motion for a mistrial.[1]

Affirmed.



*† Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.

[1]† Although not essential to our analysis, we also agree with the district courtís alternate determination that, based on the facts of this case, any error would have been harmless.† We agree with the district courtís determination that Officer Mooreís statement was ďbrief, quiet, and undramatic.Ē† See Dunkel, 466 N.W.2d at 429 (setting forth factors for assessing prejudicial effect, including manner in which the statement was made, whether the statement was used later during trial, and the strength of the stateís case).† Officer Moore made this statement in the midst of redirect examination, and the prosecutor immediately moved on to a different line of questioning.† See State v. French, 402 N.W.2d 805, 809 (Minn. App. 1987) (holding that reference to silence harmless because remaining testimony neither focused on nor unduly highlighted silence).† Because Rogersís counsel did not object, there was no interruption in the testimony that could have unduly attracted the juryís attention.† And our review of the record establishes that a strong case against Rogers mitigated any prejudicial effect arising from Officer Mooreís reference to Rogersís silence.†