OWENS v. STATE

expand its scope beyond the trial setting. See Lane, 832 F.2d at 1017 (" Griffin . . . applies equally to a defendant's silence before trial, and indeed, even before arrest."); Burson, 952 F.2d at 1201 ("The general rule of law is that once a defendant invokes his right to remain silent, it is impermissible for the prosecution to refer to any Fifth Amendment rights which defendant exercised."). These courts frequently opine that the privilege against self-incrimination must be given a broad scope, quoting the Supreme Court: "`It can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used.'" Coppola, 878 F.2d at 1565 (quoting Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)); see also Combs, 205 F.3d at 283 ("The Supreme Court has given the privilege against selfincrimination a broad scope. . . . In a pre-arrest setting as well as in a post-arrest setting, it is clear that a potential defendant's comments could provide damaging evidence that might be used in a criminal prosecution; the privilege should thus apply.") (citations omitted); Burson, 952 F.2d at 1200 ("The invocation of the privilege against self-incrimination must be given a liberal construction."). Further, these courts note that the "right to remain silent, unlike the right to counsel, attaches before the institution of formal adversary proceedings." Lane, 832 F.2d at 1017; see also Coppola, 878 F.2d at 1565 ("[T]he privilege is not limited to persons in custody or charged with a crime; it may also be asserted by a suspect who is questioned during the investigation of a crime."). Significantly, many of the cases specifically address whether the defendant invoked the right to remain silent and answer that question in the affirmative. See Combs, 205 F.3d at 286; Burson, 952 F.2d at 1200; Coppola, 878 F.2d at 1567. Finally, the important policies of the Fifth Amendment are expounded upon:

The privilege against self-incrimination reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates "a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load"; our respect for the inviolability of the human personality and of the right of each individual "to a private enclave where he may lead a private life"; our distrust of self-deprecatory statement; and our realization that the privilege, while sometimes "a shelter to the guilty," is often "a protection to the innocent."

Combs, 205 F.3d at 285 (quoting Murphy v. Waterfront Comm'n, 378 U.S. 52, 55, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964)).

Even though the Lane Court did not specifically state that the defendant had invoked the right to silence, the defendant did make it clear that he did not want to talk by stating that "he didn't want to talk about it, he didn't want to make any statements." 832 F.2d at 1017.

On the other hand, some circuit courts have held that the use as substantive evidence of a defendant's pre-arrest, pre- Miranda silence does not run afoul of the U.S. Constitution. See United States v. Frazier, 408 F.3d 1102, 1111 (8th Cir. 2005) (holding that officer's testimony regarding defendant's silence when questioned during his arrest but before Miranda warnings were given was admissible, and prosecutor's comment on defendant's silence was proper because there was "no government-imposed compulsion to speak," and noting that it was not a case where defendant refused to answer questions in the face of interrogation), cert. denied, 546 U.S. 1151, 126 S.Ct. 1165, 163 L.Ed.2d 1130 (2006); United States v. Oplinger, 150 F.3d 1061, 1067 (9th Cir. 1998) (testimony of defendant's employer that defendant was silent when confronted with theft allegations was admissible as substantive evidence in State's case-in-chief and could be permissibly commented on by State in closing argument without offending any constitutional rights), overruled on other grounds by United States v. Contreras, 593 F.3d 1135 (9th Cir. 2010); United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996) (State could elicit testimony of and comment on defendant's failure to mention duress when cocaine was found in his suitcase during a customs search at the airport); United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991) (testimony of customs agent that defendant was not surprised during search of suitcase and discovery of cocaine and closing argument comment thereon did not violate defendant's due process rights because defendant had not been given Miranda warnings); United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985) (officer's testimony that defendants made no effort to explain their presence at scene of crime was admissible because they had not yet been given Miranda warnings), cert. denied, 474 U.S. 1081, 106 S.Ct. 848, 88 L.Ed.2d 890 (1986).

Generally, these decisions are based on the rationale that the defendant's pre-arrest silence may be used as substantive evidence by the State because the defendant was not under any government compulsion to speak or induced by the government to remain silent via Miranda warnings. See Frazier, 408 F.3d at 1111 ("The crux of our inquiry today is to determine at what point a defendant is under official compulsion to speak because silence in the face of such compulsion constitutes a statement for purposes of a Fifth Amendment inquiry.") (quotation marks omitted); Zanabria, 74 F.3d at 593 ("The fifth amendment protects against compelled self-incrimination, but does not . . . preclude the proper evidentiary use and prosecutorial comment about every communication or lack thereof by the defendant which may give rise to an incriminating inference."). The Oplinger Court underscored that the plain text of the Fifth Amendment states that "`no person shall be compelled in any criminal case to be a witness against himself.'" 150 F.3d at 1067. for further support, the Oplinger Court remarked that the Supreme Court has "`never on any ground . . . applied the Fifth Amendment to prevent the otherwise proper acquisition or use of evidence which . . . did not involve compelled testimonial self-incrimination of some sort.'" Id. (quoting Fisher v. United States, 425 U.S. 391, 399, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)). In addition, the Oplinger Court noted that it was following the reasoning of Justice Stevens's concurring opinion in Jenkins, in which he stated, "`For in determining whether the privilege is applicable, the question is whether petitioner was in a position to have his testimony compelled and then asserted his privilege, not simply whether he was silent'" Id. at 1066 (quoting Jenkins, 447 U.S. at 241, 100 S.Ct. 2124) (Stevens, J., concurring). See also Michael J. Hunter, The Man on the Stairs Who Wasn't There: What Does a Defendant's Pre-Arrest Silence Have to Do with Miranda, the Fifth Amendment, Or Due Process?, 28 Hamline L. Rev. 277 (2005) (discussing circuit court split and arguing that the courts that have excluded evidence of silence based on Griffin have done so on an unsupported constitutional analysis).

Indiana courts have not squarely addressed the issue. In Clancy v. State, 829 N.E.2d 203 (Ind.Ct.App. 2005), trans. denied, Clancy argued on appeal that "the State violated his Fifth Amendment right to silence when, during its case-in-chief, it questioned a police officer regarding Clancy's failure to contact the officer to provide his version of the accident while the investigation was ongoing but before Clancy was charged." Id. at 211. At trial, Clancy objected and moved for mistrial, which the trial court denied. The Clancy Court began by noting that "[r]eference to Clancy's pre-arrest silence during the State's case-in-chief was, at best, highly dubious, and the State proceeds at it peril in such situations." Id. However, because the trial court had admonished the jury, the court concluded that the admonishment "cured any error in the State's elicitation of Clancy's pre-arrest silence during its case-in-chief." Id. at 212. Thus, the Clancy Court was not required to make a definitive ruling on the constitutionality of the State's use of the silence.

On a related matter, we note that the Indiana Supreme Court has granted transfer in Akard v. State, 924 N.E.2d 202 (Ind.Ct.App. 2010), in which another panel of this Court held, among other things, that the State's use as substantive evidence of a police officer's testimony regarding defendant's pasfarrest, pre- Miranda silence violated the Fifth Amendment.

We now confront the issue as presented before us. First, we recognize that the privilege against self-incrimination serves laudable values and to promote these values we must not unduly burden the assertion of the privilege. Second, we observe that Griffin specifically addressed the situation where the defendant chose not to testify at trial. However, the right can be invoked outside the courtroom: "[the privilege against self-incrimination] can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used." Kastigar, 406 U.S. at 444, 92 S.Ct. 1653; see also Lane, 832 F.2d at 1017 ("right to remain silent, unlike the right to counsel, attaches before the institution of formal adversary proceedings.").

Under the line of cases holding that the Fifth Amendment is not offended by the State's substantive use in its case-in-chief of a defendant's pre-arrest, pre- Mranda silence, Owens's silence would not be protected by the Fifth Amendment. In these cases there was no "government-imposed compulsion to speak." Frazier, 408 F.3d at 1111. Here, Owens's "silence" consists of his lack of response to Detective McKinney's efforts to make contact with him. Although Owens's silence occurred within the context of a criminal investigation, Owens was clearly under no governmental compulsion to speak at that point. However, in our view, the Frazier, Oplinger, and Zanabria Courts express an overly restrictive notion of when government compulsion to speak takes place. Government compulsion to speak occurs not only when one is taken into custody to be questioned or after the provision of Miranda warnings; it also occurs when the State uses at trial a defendant's choice to remain silent to imply guilt. See Combs, 205 F.3d at 285 ("[T]he violation of the Fifth Amendment occurred not when the defendant remained silent, but when that silence was later used against him at his criminal trial."). The very threat that the State may use a person's silence as self-incriminating evidence of guilt at trial places one on the horns of a dilemma during even investigatory proceedings: that is, whether to make statements that could later be used to incriminate oneself or to remain silent. See id. ("But the prohibition against compelled self-incrimination is another way of expressing the right not to incriminate oneself. After all, the only means of compelling a person to incriminate himself is to penalize him if he does not."). Such a dilemma erodes the privilege against self-incrimination because the State's comment on one's silence makes the assertion of that privilege more costly. In addition, the use of the defendant's silence at trial puts pressure on the defendant to take the stand to explain his silence further burdening the privilege.

Nevertheless, even under the cases holding that a defendant's pre-arrest, pre- Miranda silence is protected by the Fifth Amendment, Owens's lack of response to Detective McKinney is outside the ambit of the Fifth Amendment. Recall that in the majority of those cases, the court specifically considered whether the defendant invoked the right to remain silent and concluded that the defendant's statement or action was an invocation of the right. See Combs, 205 F.3d at 286; Burson, 952 F.2d at 1200; Coppola, 878 F.2d at 1567; see also Berghuis v. Thompkins, ___ U.S. ___, 130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098 (2010) (holding that during police interrogation right to remain silent must be invoked unambiguously). Based on these cases and the particular circumstances present here, Owens's mere lack of response does not support a finding that he invoked the right to remain silent. Perhaps Owens did not respond because the wind blew Detective McKinney's cards away, or perhaps Owens was very ill or too busy, or perhaps he just did not like the police. Also, since Detective McKinney never told Owens why he wanted to talk to him, there is no basis to conclude that Owens even would have known that he was the subject of an investigation. Based on the foregoing, we conclude that the State did not infringe upon Owens's Fifth Amendment privilege against self-incrimination by introducing evidence that Detective McKinney did not hear from Owens. It follows that no error, let alone fundamental error, occurred in the admission of the testimony.

We emphasize that we do not today determine that all pre-arrest, pre- Miranda silences are unprotected by the Fifth Amendment and that our holding is strictly limited to the particular facts currently before us. On another note, we observe that in situations such as this one, the Rules of Evidence may be applied without unnecessarily invoking the Constitution. Detective McKinney's testimony regarding Owens's lack of response, given that he was under no compulsion to respond and may not even have been aware of the reason for Detective McKinney's communication, may well have been inadmissible based upon relevancy or unfair prejudice. See Ind. Evidence Rule 402 ("Evidence which is not relevant is not admissible"); Ind. Evidence Rule 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice."). Although the State argues that the thoroughness of the investigation was at issue and the testimony was necessary for "rounding out the course of the investigation," Detective McKinney's thoroughness consists of what he actions he took, not what actions Owens did not take. Appellee's Br. at 10. Thus, it is questionable whether Owens's failure to contact Detective McKinney is necessary to assess Detective McKinney's diligence. In any event, our point here is that basic evidentiary rules of admissibility should not be overlooked.

II. Prosecutor's Reference to Owens's Decision Not to Testify

During rebuttal closing argument, the prosecutor made the following comment:

[T]he uncorroborated testimony of a child victim is sufficient to support [a] conviction of child molesting. Ultimately, you can rely solely on [C.R.'s] testimony. And in all honesty, in large part, if not exclusively, that's what you have to rely on. Because the reality is, other than Mr. Owens, she is the only one who knows what happened to her that night. She is the only one who knows what happened to her that night.

Tr. at 286. Owens did not contemporaneously object to this statement. After the State concluded its rebuttal and outside the presence of the jury, Owens objected that the State had improperly commented on his failure to testify and moved for mistrial. The trial court found that the prosecutor's statement was not a comment on Owens's decision not to testify but rather referred to the fact that the only testimony presented was from the victim, and it denied the motion for mistrial. Id. at 293.

Owens contends that the prosecutor improperly referred to his failure to testify in closing argument. This contention is a claim of prosecutorial misconduct. When a claim of prosecutorial misconduct is properly preserved, we "`determine (1) whether the prosecutor engaged in misconduct, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected.'" Booker v. State, 773 N.E.2d 814, 817 (Ind. 2002) (quoting Coleman v. State, 750 N.E.2d 370, 374 (Ind. 2001)).

"The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury's decision rather than the degree of impropriety of the conduct." Booher, 773 N.E.2d at 817.

Here, Owens did not immediately object to the prosecutor's comment but waited until the State's closing argument was concluded. In addition, although Owens moved for a mistrial, he did not request an admonishment. "To preserve an issue regarding the propriety of a closing argument for appeal, a defendant must do more than simply make a prompt objection to the argument. Defendant must also request an admonishment, and if further relief is desired, defendant must move for a mistrial." Wright v. State, 690 N.E.2d 1098, 1111 (Ind. 1997). "Failure to request an admonishment or move for a mistrial results in waiver of the issue." Etienne v. State, 716 N.E.2d 457, 461 (Ind. 1999). Because Owens did not make a contemporaneous objection and did not request an admonishment, his claim of prosecutorial misconduct is procedurally foreclosed and reversal on appeal requires a showing of fundamental error. For prosecutorial misconduct to constitute fundamental error, it must "make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process and present an undeniable and substantial potential for harm." Booher, 773 N.E.2d at 817 (citation, quotation marks, and brackets omitted); see also Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006) ("Where a claim of prosecutorial misconduct has not been properly preserved, our standard for review is different from that of a properly preserved claim.").

The State contends that the trial court properly found that the State did not comment on Owens's failure to testify. We disagree. The Fifth Amendment prohibits the prosecutor from commenting at trial on the defendant's decision not to testify. Ziebell v. State, 788 N.E.2d 902, 913 (Ind.Ct.App. 2003). "Such a comment violates a defendant's privilege against compulsory self-incrimination if the statement `is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant's silence.'" Id. (quoting Boatright v. State, 759 N.E.2d 1038, 1043 (Ind. 2001)). However, our supreme court has explained that if the prosecutor's comment in its totality is addressed to other evidence rather than the defendant's failure to testify, it is not grounds for reversal. Boatright, 759 N.E.2d at 1043; see also Hopkins v. State, 582 N.E.2d 345, 348 (Ind. 1991). The prosecutor may in fact comment on the uncontradicted nature of the State's evidence without running afoul of the Fifth Amendment. Martinez v. State, 549 N.E.2d 1026, 1028 (Ind. 1990). The defendant bears the burden of showing that a comment improperly penalized the exercise of the right to remain silent. Moore v. State, 669 N.E.2d 733, 739 (Ind. 1996).

Davis v. State presents an instructive comparison to the prosecutor's comment in this case. 685 N.E.2d 1095 (Ind.Ct.App. 1997). Davis fled the scene after he crashed a car into a tree. When the police officer caught him and asked him why he fled, Davis replied, "I took it." Id. at 1097. At trial, the police officer testified as to what Davis said, and Davis did not testify. During closing argument, the prosecutor commented that "Davis said he took the car. There is nothing to controvert that. There is no evidence saying that isn't so. There's not even an argument that he didn't say that." Id. at 1089 (brackets omitted). The Davis court concluded:

By calling attention to the defendant's alleged admission and pointing out that there was no claim to the contrary, the prosecutor indirectly brings to the jury's attention the fact that Davis did not deny this allegation. Davis was the only one who could have denied that this statement was made since only he and Officer Kaszas were present at the time. Thus, a reasonable jury could have taken that comment as an invitation to consider Davis' failure to testify as an inference of guilt. We conclude that the prosecutor's comments were improper.

Id. at 1098.

In the case at bar, the prosecutor's comment was less indirect than that in Davis. Here, the prosecutor stated, "Ultimately, you can rely on [C.R.'s] testimony. And in all honesty, in large part, if not exclusively, that's what you have to rely on. Because the reality is, other than Mr. Owens, she is the only one who knows what happened to her that night." Tr. at 286. The prosecutor highlighted the fact that C.R.'s testimony was the only evidence before the jury and then explicitly referred to Owens by name and directly compared his knowledge to C.R.'s. We conclude that the jury reasonably could have interpreted the prosecutor's comment as an invitation to draw an adverse inference from Owens's failure to testify. Cf. Hopkins, 582 N.E.2d at 347-48 (prosecutor's statement that "it is certainly worthy of comment that you never heard any testimony during this trial that the defendant was anywhere else" was a comment on evidence from five different witnesses to whom defendant made admissions concerning the crime and not on the absence of testimony from the defendant); Channell v. State, 658 N.E.2d 925, 931-32 (Ind.Ct.App. 1995) (prosecutor did not impermissibly refer to defendant's failure to testify where prosecutor stated, "What testimony did you hear from that witness stand that this Defendant consumed any alcohol or had any drug on that day? Absolutely none. There's no testimony he had any alcohol or any drug or was talking under the influence of alcohol or drugs.") (brackets omitted), trans. denied.

Although we have determined that the prosecutor's comment was improper, we must consider whether it made a fair trial impossible or constituted a blatant violation of basic and elementary principles of due process or created an undeniable and substantial potential for harm. See Booher, 773 N.E.2d at 817. Our supreme court has emphasized the narrow applicability of the fundamental error doctrine. Taylor v. State, 717 N.E.2d 90, 93-94 (Ind. 1999). Here, the prosecutor's comment was an isolated statement. As to the evidence of Owens's guilt, the victim testified and was vigorously cross-examined and recross-examined. Tr. at 124-88. The victim's mother and Detective McKinney also testified and were cross-examined. Accordingly, we conclude that the prosecutor's improper comment did not rise to the level of fundamental error.

III. Impermissible Evidence of Prior Uncharged Misconduct

During the State's case-in-chief, C.R. testified regarding the molestation. The prosecutor asked C.R., "Now, after — immediately after this happened, did you tell anybody about this?" Id. at 128. C.R. replied, "No. I was really afraid to. Um, Greg was — he abused us." Id. Owens objected that C.R.'s testimony was a violation of the order in limine. Outside the presence of the jury, Owens requested a mistrial. The State argued that an admonishment would cure any prejudice, as the reference was made by a young child and was a generic statement that did not refer to any specific form of abuse. The trial court found that C.R.'s statement did not rise to the level of placing Owens in a position of grave peril, as the statement was "fairly generic," and further, it was not introduced to show action in conformity with the charge but was her explanation as to why she did not immediately tell anyone about the molestation. Id. at 134-35. The trial court denied Owens's motion for mistrial, but admonished the jury as follows: "I'm going to admonish you at this point in time not to consider in any way the last statement from the witness. You shall disregard her last statement in regards to the reason why she did not tell anyone immediately after the incident." Id. at 130.

Owens asserts that the trial court erred in denying his motion for mistrial when C.R. violated the order in limine not to introduce evidence of Owens's prior acts of domestic abuse by testifying that Owens "abused us." Id. at 128. Motions in limine are useful tools to prevent the admission of evidence of prior bad acts pursuant to Indiana Rule of Evidence 404(b), which prohibits the admission of "other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith." Rule 404(b) is intended to prevent the jury from using a defendant's past propensities to determine whether he or she is guilty of the current crime, the so called "forbidden inference." Wilhelmus v. State, 824 N.E.2d 405, 414 (Ind.Ct.App. 2005) (citation and quotation marks omitted). As a general rule, `evidence of a defendant's prior criminal history is highly prejudicial and should not be admitted. Hyppolite v. State, 774 N.E.2d 584, 593 (Ind.Ct.App. 2002), trans. denied (2003). However, the "grant of a motion for mistrial is an extreme remedy that is warranted only when less severe remedies will not satisfactorily correct the error." Francis v. State, 758 N.E.2d 528, 532 (Ind. 2001). The decision to grant or deny a motion for mistrial lies within the discretion of the trial court. Id. "On appeal, the trial judge's discretion in determining whether to grant a mistrial is afforded great deference because the judge is in the best position to gauge the surrounding circumstances of an event and its impact on the jury." McManus v. State, 814 N.E.2d 253, 260 (Ind. 2004), cert. denied, 546 U.S. 831, 126 S.Ct. 53, 163 L.Ed.2d 83 (2005). "When determining whether a mistrial is warranted, we consider whether the defendant was placed in a position of grave peril to which he should not have been subjected; the gravity of the peril is determined by the probable persuasive effect on the jury's decision." James v. State, 613 N.E.2d 15, 22 (Ind. 1993). "`[R]eversible error is seldom found when the trial court has admonished the jury to disregard a statement made during the proceedings.'" Warren v. State, 757 N.E.2d 995, 999 (Ind. 2001) (quoting Bradley v. State, 649 N.E.2d 100, 108 (Ind. 1995)).

Here, C.R.'s reference was isolated, vague, brief, and was not offered to show action in conformance with the alleged offense. The reference was inadvertent, and the State made no other mention of Owens's prior domestic abuse during the trial. In addition, the trial court admonished the jury to disregard C.R.'s statement. A timely and accurate admonishment is presumed to cure any error in the admission of evidence. Lay v. State, 659 N.E.2d 1005, 1009 (Ind. 1995). Even where a witness violates an order in limine, a trial court may determine that a mistrial is not warranted and, instead, admonish the jury to disregard the improper testimony. See Alvies v. State, 795 N.E.2d 493, 507 (Ind.Ct.App. 2003) (holding that where police officer made statement in violation of ruling on motion in limine, trial court's admonishment to jury was not inadequate and therefore denial of mistrial not an abuse of discretion), trans. denied. Owens has failed to demonstrate that C.R.'s comment placed him in a position of grave peril. We conclude that the trial court did not abuse its discretion in denying Owens's motion for mistrial. See Lucio v. State, 907 N.E.2d 1008, 1011 (Ind. 2009) (holding that denial of mistrial was not abuse of discretion where statement was fleeting, inadvertent, and only a minor part of evidence against defendant and trial court admonished jury to disregard statement).

Affirmed.

FRIEDLANDER, J., and BARNES, J., concur.