This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Lawrence John Whittet,
Filed August 6, 1996
Isanti County District Court
File No. K394465
Hubert Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
William J. Robyt, Isanti County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008 (for respondent)
Allan H. Caplan, Harlan M. Goulett, Allan H. Caplan & Associates, 525 Lumber Exchange Building, Minneapolis, MN 55402 (for appellant)
Considered and decided by Norton, Presiding Judge, Parker, Judge, and Harten, Judge.
U N P U B L I S H E D O P I N I O N
This appeal is from a judgment of conviction for misdemeanor disorderly conduct. Minn. Stat. ' 609.72, subds. 1(1), (3) (1994).
Appellant Lawrence Whittet argues the trial court erred in admitting evidence that he refused to give a statement to police and that the court abused discretion in admitting Spreigl evidence and excluding evidence of prior assaults by the victim. We reverse.
D E C I S I O N
Whittet argues that his right to a fair trial was violated, along with his Fifth Amendment privilege, when the prosecutor used his post-arrest silence as affirmative evidence of guilt. See generally Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct. 2240, 2245 (1976) (it is fundamentally unfair to use a defendant's post-Miranda silence against him at trial). We agree.
Whittet was charged with two counts of fifth-degree assault and one count of disorderly conduct for allegedly striking his girlfriend, Cynthia Volk, who told police at the scene that Whittet assaulted her, banging her head against the floor. She later recanted, however, and testified at trial that she started the altercation with Whittet. The jury acquitted Whittet of assault but found him guilty of disorderly conduct. When a police officer at the scene placed Whittet under arrest, Whittet stated, "I didn't touch her." The police officer testified that Whittet repeated this claim several times on the way to jail, then refused, upon arrival at the jail, to give a statement. Although this initial reference to Whittet's exercise of his Fifth Amendment right appears to have been inadvertent, the prosecutor made extensive use in closing argument of Whittet's silence as support for the inference that he was guilty.
The Miranda warning gives a suspect an implicit assurance that his silence will not be used against him. Wainwright v. Greenfield, 474 U.S. 284, 291, 106 S. Ct. 634, 638 (1986). Whittet chose not to testify at trial. Therefore, the prosecutor was using his silence not to impeach his testimony but independently, to raise an inference of guilt.
The state failed to file a brief, thereby waiving oral argument and depriving this court of the benefit of its analysis of the issue. See Minn. R. Civ. App. P. 128.02, subd. 2; 142.03. We acknowledge there may be here an element of selective invocation of the Fifth Amendment privilege, because Whittet spoke to police, denying the offense, before he refused to give a statement. See generally State v. Darveaux, 318 N.W.2d 44, 49 (Minn. 1982) (defendant has no right to "remain silent selectively"). But it appears that Whittet's denials occurred before he was given a Miranda warning.
We cannot conclude that this error was harmless. The record does not contain overwhelming evidence of guilt, nor was the erroneously admitted evidence merely cumulative. See State v. Moore, 493 N.W.2d 606, 610 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). The credibility of Whittet's claim of self-defense, compared with that of the victim's initial statement to the police, was the critical issue before the jury.  Given the prosecutor's extensive use in closing argument of Whittet's silence, we cannot conclude that an average jury would not have changed its verdict had the evidence of Whittet's silence been excluded. See id.
We need not address Whittet's other claims of trial error.
 Whittet has not raised the issue of whether mere "brawling or fighting" occurring outside the presence of others who might be disturbed by it fits within the statutory definition of disorderly conduct. See Minn. Stat. ' 609.72, subd. 1(1) (1994).