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State v. Pailing

Supreme Court of North Dakota

December 12, 2019

State of North Dakota, Plaintiff and Appellee
v.
Allan Pailing, Defendant and Appellant

          Appeal 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.

          Samuel A. Gereszek, Grand Forks, ND, for defendant and appellant; submitted on brief.

          OPINION

          Crothers, Justice.

         [¶1] Allan Pailing appeals from a district court order denying his motion for mistrial and dismissal of charges. We affirm.

         I

         [¶2] 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.

         [¶3] 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.

         [¶4] 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.

         II

         [¶5] 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.

         [¶6] "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.

         [¶7] 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 ...

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