State v. Wilder

909 N.W.2d 684

STATE of North Dakota, Plaintiff and Appellee

v.Richie E. WILDER, Jr., Defendant and Appellant

No. 20170187

Supreme Court of North Dakota.

Filed April 10, 2018

Rehearing Denied May 8, 2018

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.

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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (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, 96 S.Ct. 2240, 49 L.Ed.2d 91 (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 Jeremiah Tallman comes forward. Richie Wilder had confessed his involvement.

During rebuttal, the State further argued:

[Wilder’s attorney] says he didn’t know who this person was, the stranger in Angila’s bedroom that killed her. Took him out of the house at knife point. He told Paul Madriles who it was, he was 100% sure it was that husky Native American that was brought into the jail in February. Why didn’t he report that to law enforcement? What didn’t he report to law enforcement that somebody else was there? He tells the Chris Jackson story, they prove him wrong on that. Why didn’t he tell law enforcement about the guy coming out of the closet with a knife? Because it didn’t happen. There was no guy with a knife. The only guy with a knife was Richie Wilder.

[¶ 8] Wilder spoke to police at least twice after Angila Wilder was murdered. The first time was the day of the murder and officers advised Wilder of his Miranda rights before they spoke to him. The second occurred after Wilder had been arrested and charged with murder, and the officers again advised Wilder of his Miranda rights before speaking with him. During closing argument, the State questioned why Wilder did not tell police about the information he told his jail cell mate. The State then speculated that Wilder did not tell police because he committed the act himself. The State’s argument can be construed as a comment on Wilder’s post- Miranda , post-arrest silence. The State asked the jury to infer that Wilder did not tell police about the "guy with a knife" because Wilder was guilty and he would have told police if he had been innocent. The State improperly commented on Wilder’s post-arrest silence. See City of Williston v. Hegstad , 1997 ND 56, ¶ 10, 562 N.W.2d 91 (holding State’s reference to defendant’s failure to come forward with his version of events at any time before the trial was improper); see also Hassine v. Zimmerman , 160 F.3d 941, 948 (3d Cir. 1998) (holding prosecutor’s questions about defendant sitting in prison for seven months remaining silent about the crime was improper); United States v. Boyd , 620 F.2d 129, 131 (6th Cir. 1980) (holding prosecutor’s comment questioning why defendant did not tell police they had the wrong person was improper).

[¶ 9] Because the State’s comments were improper, harmless error analysis is appropriate and the State must prove beyond a reasonable doubt that the comments did not contribute to the verdict. See Anderson , 2016 ND 28, ¶ 14, 875 N.W.2d 496. This Court has said the following non-exclusive list of factors should be considered in deciding whether an improper comment was harmless error:

1. The use to which the prosecution puts the post arrest silence.

2. Who elected to pursue the line of questioning.

3. The quantum of other evidence indicative of guilt.

4. The intensity and frequency of the reference.

5. The availability to the trial judge of an opportunity to grant a motion for mistrial or to give curative instructions.

Id.

[¶ 10] Wilder argued the State made the two improper comments during its closing and rebuttal arguments. Although he alleged during oral argument that there were other improper comments at other times during the trial, we generally do not consider arguments raised for the first time at oral argument on appeal. See Rath v. Rath , 2017 ND 138, ¶ 16, 895 N.W.2d 315. Therefore, our analysis is limited to the improper comments made during the State’s closing arguments.

[¶ 11] Wilder did not object to the State’s argument or raise this issue with the district court during the trial when the court could have given the jury a curative instruction. Generally, a jury is presumed to follow curative instructions. State v. Gibbs , 2009 ND 44, ¶ 21, 763 N.W.2d 430. This Court has held prejudice from the State’s argument can be minimized by giving a curative jury instruction. State v. Chacano , 2013 ND 8, ¶ 25, 826 N.W.2d 294 ; but see Anderson , 2016 ND 28, ¶ 15, 875 N.W.2d 496 (questioning whether a curative instruction is helpful in these cases). Wilder also did not move for a mistrial. The court did not have an opportunity to give a curative instruction or grant a motion for a mistrial because this issue was raised for the first time on appeal.

[¶ 12] Moreover, there was considerable evidence of Wilder’s guilt and he does not challenge the sufficiency of the evidence against him on appeal. Wilder had a scratch on his face when he spoke with police on the day of the murder, DNA evidence under Angila Wilder’s fingernails was collected and tested, Y-chromosomal DNA analysis was conducted on the fingernail evidence, the Y-chromosome profile from the fingernail evidence matched Wilder’s Y-chromosome profile, and Wilder and his paternally related male relatives could not be excluded as contributors. Evidence established DNA from blood found in Wilder’s wife’s vehicle matched Angila Wilder’s DNA. Wilder’s recorded interviews with police were admitted into evidence and played for the jury. During the interviews, Wilder told police his relationship with Angila Wilder was contentious, she often called social services and reported him, and they only communicated by email. Wilder initially told police he did not know anything about the murder but later told them he was at Angila Wilder’s house when she was killed. Wilder told police Chris Jackson, Angila Wilder’s boyfriend, approached him about a plan that would allow each of them to get custody of their children from Angila Wilder. Wilder claimed he went to Angila Wilder’s home with Jackson to catch her cheating on Jackson, but when they arrived...