David, J.
After a jury found defendant guilty of dealing in a narcotic drug and resisting law enforcement, he appealed his conviction, arguing that the trial court committed fundamental error by allowing the State to present evidence of his post-arrest, pre-Miranda silence during trial. …
Detective Maples of the Hendricks County Drug Taskforce recovered a cell phone from a suspected drug dealer. He then used the phone to pose as a drug dealer himself and set up a meeting with Defendant, Delmar Kelly, to purchase drugs. When Kelly arrived at the agreed upon location, officers attempted to block his vehicle and make an arrest, but Kelly maneuvered around them and led police on an almost five-mile chase before stopping in a residential neighborhood. … When the officers finally forced Kelly to a stop, three men were removed from the car at gunpoint, handcuffed, and separated. The two other men besides Kelly were Roosevelt Garrett and Cameron Johnson. There is no evidence regarding when any of the three men received Miranda warnings.
During Kelly’s jury trial, defense counsel began her opening statement by playing a jail call wherein Kelly stated that he was driving to make some money and “got caught up in” a “narcotics bust” but that he “ain’t had nothing on [him].” Defense counsel then went on to ask the jury to decide whether Kelly was part of the whole drug deal or just got caught up in the bust. She suggested he was an “unknowing means to an end” for his co-defendants.
For its part, the State elicited testimony from two officers about Kelly’s actions following his arrest:
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State: Did . . . Mr. Kelly appear to be befuddled or confused about why he was being stopped?
Detective Petree: No, sir.
State: Did he say anything to you?
Detective Petree: Uh, none of the three really wanted to talk to us.
The prosecutor then argued in closing, in relevant part:
[Kelly’s] guilty mind is also proven by things he didn’t say. After the pursuit when he was given a chance to talk, to say what happened, to say, I don’t know, [Roosevelt] just asked me to drive him to see a friend for money, we didn’t hear that. He didn’t say that. He didn’t say I was just driving out here to meet a friend. I’ve [g]ot no idea why you’re-why you’re stopping me. He wasn’t surprised at all he was being stopped because he knew exactly what was happening. You heard from the jail call-ca-phone call, he [was] caught up in a narcotics bust. He didn’t know police would be waiting for him when he arrived at that [drug dealer’s] address.
… His affirmative conduct proves his intent to deal that day. The things he didn’t say, no expression of confusion to prove his intent that day.
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The jury found Kelly guilty of dealing in a narcotic drug and resisting law enforcement. Kelly appealed, only challenging the dealing in narcotics conviction, and argued that the trial court committed fundamental error by allowing the State to present evidence of his post-arrest, pre-Miranda silence during trial.
In a 3-0 memorandum decision, the Court of Appeals affirmed. Kelly v. State, 2018 WL 4558306 (Ind. Ct. App. Sept. 24, 2018). Relying on this Court’s decision in Myers v. State, 27 N.E.3d 1069, 1080 (Ind. 2015), the court held that there was no error in using Kelly’s post-arrest, pre-Miranda silence as substantive evidence against him during trial. …
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Kelly argues that the trial court committed fundamental error by allowing the State to comment on his silence after arrest but prior to the issuance of Miranda warnings. Our Court of Appeals applied Myers v. State, 27 N.E.3d 1069, 1080 (Ind. 2015), to find that because there is nothing in the record to suggest that Kelly had been advised of his Miranda rights, the State’s use of Kelly’s silence did not violate his constitutional rights. However, we find that Myers does not apply here. Applying other more analogous cases, we find that: 1) Kelly opened the door to the prosecutor’s comments regarding his silence; and 2) because the mentions of his silence were minimal and there is ample evidence of his guilt, there is no fundamental error here.
The Fifth Amendment to the U.S. Constitution, made applicable to the states through the Fourteenth Amendment, provides that no person shall be compelled in any criminal case to be a witness against himself. … Further, the U.S. Supreme Court has held that the government cannot use post-arrest, post-Miranda silence against a defendant for either impeachment purposes or substantively in the prosecution’s case-in-chief. Doyle v. Ohio, 426 U.S. 610, 618 (1976); Wainwright v. Greenfield, 474 U.S. 284, 295 (1986).
However, whether a defendant’s post-arrest, pre-Miranda silence may be used substantively as evidence against a defendant has yet to be addressed by the United States Supreme Court. Also, the federal circuits are split on this issue. … Indiana courts have held that post-arrest, pre-Miranda silence cannot be used as substantive evidence in the State’s case-in-chief. …
In Bieghler v. State, 481 N.E.2d 78, 92 (Ind. 1985), this Court set forth a five-part test to determine if the use of defendant’s post-arrest, post-Miranda silence was harmless. In Rowe, our Court of Appeals adopted this test for cases in which the State referred to defendant’s pre-Miranda silence in its case-in-chief. 717 N.E.2d at 1267.
With regard to whether defendant’s post-arrest, pre-Miranda silence can be used for impeachment purposes, the U.S. Supreme Court has held that it can be used. Fletcher v. Weir, 455 U.S. 603, 607 (1982). Further, our courts have found that where a defendant opens the door, a prosecutor may comment on a defendant’s post-arrest, pre-Miranda silence. …
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As noted above, our Court of Appeals applied this Court’s opinion in Myers, 27 N.E.3d at 1080, to find that because there is nothing in the record to suggest that Kelly had been advised of his Miranda rights, the State’s use of Kelly’s silence did not violate his constitutional rights. … However, Myers does not go so far as to state that any post-arrest, pre-Miranda statements may be used against a defendant. Instead, Myers notes that even if Myers was provided with Miranda warnings, under the facts and circumstances of that case, a constitutional violation did not occur because the testimony at issue in that case was from Myers’s mother, who commented that he did not want to speak to police and that he wanted an attorney. Further, in footnote 3 of our Myers opinion, we state that our constitutional analysis is case-specific. Therefore, Myers does not apply to the situation before us.
Instead, we find Cameron v. State, 22 N.E.3d 588 (Ind. Ct. App. 2014), to be more factually analogous to the present case. There our Court of Appeals declined to decide whether defendant’s post-arrest, pre-Miranda silence is protected because it found that even if the prosecutor’s questions and comments were a violation, Cameron opened the door to them. Id. at 592-93. … Similarly, in this case, Kelly offered his defense theory that he was unaware of the drug deal but rather was an unwitting participant, and in response, the State offered testimony and argument that he was aware of the drug deal, both because he did not say anything indicating that he was unaware of why the police were arresting him and because of his demeanor and behavior. Accordingly, we find that Kelly opened the door to the State’s response that included comments about his silence.
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We hold that Kelly opened the door to the State’s presentation of evidence and argument related to his post-arrest, pre-Miranda silence and that the trial court did not commit fundamental error in admitting this evidence. We affirm the trial court.
Chief Justice Rush and Justices Massa, Slaughter, and Goff concur.