from the District Court of Ward County, North Central
Judicial District, the Honorable Gary H. Lee, Judge. AFFIRMED
IN PART, REVERSED IN PART, AND REMANDED.
A. Dillon (argued), Assistant State's Attorney, and Marie
A. Miller (on brief), Assistant State's Attorney, Minot,
ND, for plaintiff and appellee.
R. Carpenter (argued), Minot, ND, and Benjamin C. Pulkrabek
(on brief), Mandan, ND, for defendant and appellant.
1] Richie Wilder appeals from a criminal judgment entered
after a jury found him guilty of murder and from an order
partially granting his motion to correct an illegal sentence.
Wilder argues his conviction should be reversed and he is
entitled to a new trial because his constitutional right to
remain silent was violated by the State's improper
comments during closing argument. He alternatively argues his
sentence is illegal and should be amended because the
district court erred by ordering him to have no contact with
his children until they turn 18 years old. We affirm the
judgment as to Wilder's conviction, reverse the judgment
as to his sentence, and remand with directions that the
district court enter judgment consistent with this opinion.
2] On November 13, 2015, Wilder's ex-wife, Angila Wilder,
was stabbed to death in her bedroom. In December 2015, Wilder
was charged with murder. A jury found Wilder guilty, and the
district court sentenced him to life in prison without the
possibility of parole. The court also ordered Wilder have no
contact for the rest of his life with his two children with
3] Wilder moved to correct the sentence, arguing it was an
illegal sentence because it prohibited him from having
contact with his children, violated his due process rights,
and was not authorized by a sentencing statute. The district
court partially granted Wilder's motion and amended the
sentence to prohibit Wilder from having any contact with the
children until they turn 18 years old. The court concluded it
had both statutory and inherent authority to issue a no
contact order to protect crime victims, and concluded the no
contact order did not violate Wilder's due process
4] Wilder argues his conviction should be reversed and he is
entitled to a new trial because the State's comments
during closing argument violated his constitutional right to
5] A comment on the defendant's post-arrest silence is an
improper comment on the right to remain silent in violation
of the Fifth and Fourteenth Amendments of the United States
Constitution. State v. Ebach, 1999 ND 5, ¶ 15,
589 N.W.2d 566. The prosecution may not impeach a defendant
with his post-arrest silence if he was advised of his rights
as required under Miranda v. Arizona, 384 U.S. 436
(1966), because the Miranda warning carries an
implicit "assurance that silence will carry no
penalty" and it is "fundamentally unfair" to
use post-warning silence. Doyle v. Ohio, 426 U.S.
610, 617-19 (1976). "When a defendant invokes his Fifth
Amendment right against self-incrimination by choosing to
remain silent, it is a violation of the defendant's due
process rights to use his silence for impeachment."
State v. Anderson, 2016 ND 28, ¶ 12, 875 N.W.2d
6] Wilder did not object to the State's comments or
otherwise raise this issue before the district court.
"Improper comment about a defendant's invocation of
the right to remain silent is a constitutional error that may
be reviewed on appeal even though not raised at trial."
State v. Gaede, 2007 ND 125, ¶ 18, 736 N.W.2d
7] During closing arguments, the State summarized evidence
about different stories Wilder told about what happened the
night Angila Wilder was killed. The State explained Wilder
changed his story multiple times, including telling his jail
cell mate, Paul Madriles, he was "100% sure" a
"husky Native American" brought into the jail was
the person who killed Angila Wilder. The State said:
So information keeps trickling in, and [police] follow up on
it. None of it causes them to steer this investigation in a
different direction. There was no hit man, there was no black
guy with a gun. There is a husky Native American, but Richie
Wilder never reported that to law enforcement. And then a
year later ...