                 Filed 12/12/19 by Clerk of Supreme Court

                     IN THE SUPREME COURT
                      STATE OF N OR TH DAK OT A


                                2019 ND 283


State of North Dakota,                                  Plaintiff and Appellee

      v.

Allan Pailing,                                       Defendant and Appellant




                                No. 20190086


Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Douglas L. Mattson, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

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.
                              State v. Pailing
                               No. 20190086

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




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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:




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      “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 the evidence, or
      any fair and reasonable argument based upon any theory of the
      case that has support in the evidence.’”

Myers, 724 N.W.2d at ¶ 8 (citing State v. Schmidkunz, 2006 ND 192, ¶ 7,
721 N.W.2d 387 (citations omitted)). Counsel’s argument must be limited to
the facts in evidence and the inferences that flow from those facts. Id. (citing
Ebach, 589 N.W.2d at ¶ 10; City of Williston v. Hegstad, 1997 ND 56, ¶ 8,
562 N.W.2d 91). Further, because Pailing’s objection was addressed in briefs
submitted after the jury found him guilty, we also will consider the denied
motion for mistrial.

      “A district court has broad discretion in ruling on a motion for
      a mistrial and will not be reversed on appeal unless the court
      clearly abused its discretion or a manifest injustice would occur.
      State v. Rende, 2018 ND 33, ¶ 5, 905 N.W.2d 909. An abuse of
      discretion may occur when the district court misinterprets or
      misapplies the law, or when the district court acts in an
      arbitrary, unreasonable, or capricious manner. Id. A mistrial is
      an extreme remedy which should be granted only when there is
      a fundamental defect or occurrence in the proceedings that
      makes it clear that further proceedings would be productive of
      manifest injustice. Id.”

State v. Tyler, 2019 ND 246, ¶ 5, 933, N.W.2d 918.




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                                      III

[¶8] Here, in his opening statement the prosecutor told a story about his
grandfather, stating:

      “MR. NELSON: About 20 years ago now when I was in college
      my grandpa came for a visit. He saw that I had been losing
      weight, so he asked me about it. And I told him the truth. And
      I said that with the rent, textbooks, and all that, that there were
      times that I [had] to skip meals. He just kind of said okay. And
      that was the end of that conversation.
             “Well the next morning when I got ready to have my
      breakfast and pour out a bowl of cereal and went to the fridge
      and next to the carton of milk was a $100 bill. Now the only
      person that was in that apartment besides me was my grandpa.
      The only person that could have possibly put that $100 bill
      there, my grandpa. To his dying day he denied that he ever put
      that in there. But he is the only one that could have done it.”


[¶9] The prosecutor referenced the story in his closing argument. He
stated, “[n]ow my grandpa said he never put that $100 bill in there, but I
knew he was lying.”

[¶10] Pailing requested a sidebar where an off the record conference was
held at the bench. The district court later went on the record after the jury
entered deliberations and noted an objection had been made to the State’s
argument during closing. Pailing’s objection was that the prosecutor made
an implied comment on his failure to testify. The district court did not rule
on the objection at trial. However, the district court eventually overruled
Pailing’s objection and denied the motion for mistrial that was submitted
by brief.




                                      4
[¶11] Pailing argues the portion of the story where the prosecutor stated,
“but I knew he was lying,” was a reference that Pailing was lying and an
inference that he did not testify.

[¶12] In City of Williston v. Hegstad a prosecutor’s use of a defendant’s post-
arrest silence after receiving Miranda warnings to impeach the defendant’s
exculpatory story at trial violated the defendant’s right to due process. 1997
ND 56, ¶¶ 10, 14, 562 N.W.2d 91. During closing arguments the prosecutor
stated, “He didn’t tell anybody—not the hospital person, not the other police
officer, nobody—until today.” We concluded the trial court abused its
discretion in overruling Hegstad’s objections.

[¶13] In State v. Myers we stated Myers’s reliance on Hegstad was
misplaced because Myers took the prosecutor’s statement out of context.
2006 ND 242, ¶ 13, 724 N.W.2d 168. In Myers, during closing arguments
the prosecutor stated, “Do we have any statements at this point where Mr.
Myers said oh no, I have nothing to do with this room, I’m only a mere
visitor? No.” Id. at ¶ 9. Myers objected, and argued the prosecutor’s
statement was reversible error because it was made after he elected not to
testify and implied criticism because he did not testify. Id. at ¶ 11. The State
argued the statement was not a reference to Myers not testifying, but that
he did not give that information to the officers when he was questioned
before being given Miranda warnings. Id. at ¶¶ 10, 13. We held the
“prosecutor’s statement was a comment about evidence and was not an
improper reference to Myers’s silence.” Therefore, it did not violate Myers’s
constitutional rights. Id. at ¶ 14.




                                       5
[¶14] Here, the prosecutor did not use Pailing’s silence against him, nor
attack Pailing’s credibility or suggest that the defendant must provide an
alternative version to prove he is not a liar. Unlike Hegstad, the prosecutor’s
anecdote was not a comment about Pailing’s silence. The anecdote was an
example of circumstantial evidence, and not an improper reference to the
defendant’s failure to testify. The comment reinforced the argument that
Pailing was the only one who could have placed the methamphetamine in
the patrol vehicle and not that Pailing was a liar because he did not refute
the statement. In the anecdote, the refusal did not matter. The “evidence”
showed the grandfather placed the $100 bill in the refrigerator. Similarly,
the evidence showed Pailing put the methamphetamine in the patrol
vehicle. The anecdote reinforced the circumstantial evidence, which showed
the patrol car was inspected twice that day and no drugs were found. After
Pailing left the vehicle, drugs were found in plain view, thus suggesting
Pailing left the drugs in the vehicle.

[¶15] Further, Pailing is like Myers where the defendant took the statement
out of context. As discussed above, rather than commenting on Pailing’s
failure to testify at trial or exercising his right to remain silent, the
prosecutor’s anecdote was a comment about what the evidence showed and
was an example of circumstantial evidence.

[¶16] In this case, the prosecutor’s anecdote was a comment about
circumstantial evidence and was not an improper reference to Pailing’s
silence. Therefore, the prosecutor’s anecdote was not misconduct that
violated Pailing’s constitutional rights. Moreover, the district court did not
abuse its discretion in overruling Pailing’s objection and denying the motion
for mistrial.

                                         6
                                     IV

[¶17] We conclude the correct standard of review whether Pailing’s due
process rights were violated is de novo and that the prosecutor’s anecdotal
story did not violate Pailing’s constitutional rights. We further conclude the
court did not abuse its discretion in overruling Pailing’s objection and
denying the motion for mistrial. We affirm the district court’s order.

[¶18] Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Jon J. Jensen
      Gerald W. VandeWalle, C.J.




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