from the District Court of Ward County, North Central
Judicial District, the Honorable Douglas L. Mattson, Judge.
Christopher W. Nelson, Assistant State's Attorney, Minot,
ND, for plaintiff and appellee; submitted on brief.
A. Gereszek, Grand Forks, ND, for defendant and appellant;
submitted on brief.
Allan Pailing appeals from a district court order denying his
motion for mistrial and dismissal of charges. We affirm.
Pailing was charged with unlawful possession of a controlled
substance. During closing arguments he objected to an
anecdotal story the State used, and argued the State
impliedly commented on Pailing's failure to testify. The
district court did not immediately rule on the objection and
directed the parties to finish closing arguments. Pailing
briefed the objection, which the district court ultimately
overruled and denied Pailing's motion for mistrial and
dismissal of charges.
Pailing argues the State's explanation of
"circumstantial evidence" through a personal
narrative indirectly and improperly commented on his silence
and violated his due process rights. He alternatively argues
the district court abused its discretion by permitting the
State to address Pailing's credibility, absent his
testimony, which prejudiced Pailing. Pailing argues the
judgment should be vacated and remanded with instructions to
dismiss the charges with prejudice.
The State argues Pailing waived his objection by not
requesting a curative jury instruction, he did not argue
obvious error, he was not prejudiced by the anecdote, and the
anecdote did not affect the outcome of trial.
The parties disagree on the standard of review. Pailing
argues the correct standard of review is abuse of discretion.
The State argues we should use the obvious error standard
because Pailing failed to request a curative instruction. We
conclude the correct standard of review to determine whether
the facts rise to a level of a constitutional violation is de
novo, and the proper standard of review for Pailing's
alternative argument is abuse of discretion.
"It is a fundamental principle of constitutional law
that a prosecutor may not comment on a defendant's
failure to testify in a criminal case." State v.
Myers, 2006 ND 242, ¶ 7, 724 N.W.2d 168 (citing
State v. His Chase, 531 N.W.2d 271, 273 (N.D.
1995)). "A comment on the silence of a defendant is an
improper comment on the right to remain silent in violation
of the Fifth and Fourteenth Amendments of the [United States]
Constitution." Id. (citing State v.
Ebach, 1999 ND 5, ¶ 15, 589 N.W.2d 566). We review
de novo the claim that the facts shown in the record
constitute a violation of Pailing's constitutional right
to remain silent. Id. (citing State v.
Keyes, 2000 ND 83, ¶ 9, 609 N.W.2d 428); State
v. Jasmann, 2015 ND 101, ¶ 5, 862 N.W.2d 809.
We have explained a district court's discretion in
controlling closing arguments:
"In controlling the scope of closing argument, the
district court is vested with discretion, and absent a clear
showing of an abuse of discretion, we will not reverse on
grounds the prosecutor exceeded the scope of permissible
closing argument. Unless the error is fundamental, a
defendant must demonstrate a prosecutor's comments during
closing argument were improper and prejudicial. In order to
be prejudicial, the improper closing argument must have
'stepped beyond the bounds of any fair and reasonable
criticism of ...