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State v. Wilder

Supreme Court of North Dakota

April 10, 2018

State of North Dakota, Plaintiff and Appellee
v.
Richie E. Wilder, Jr., Defendant and Appellant

          Appeal 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.

          Kelly A. Dillon (argued), Assistant State's Attorney, and Marie A. Miller (on brief), Assistant State's Attorney, Minot, ND, for plaintiff and appellee.

          Raissa R. Carpenter (argued), Minot, ND, and Benjamin C. Pulkrabek (on brief), Mandan, ND, for defendant and appellant.

          OPINION

          McEvers, Justice.

         [¶ 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.

         I

         [¶ 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 Angila Wilder.

         [¶ 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 rights.

         II

         [¶ 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 remain silent.

         [¶ 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 496.

         [¶ 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 418.

         [¶ 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 ...

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