Justices: No error in admitted post-arrest, pre-Miranda silence

Indiana Supreme Court justices have affirmed a trial court’s admission of a man’s post-arrest silence before he was read his Miranda rights, finding he opened the door of evidence and that no fundamental error existed.

After a five-mile chase ensued following an attempted drug purchase from Delmar Kelly, officers removed Kelly and two other men from the vehicle at gunpoint. The men had thrown drugs and scales out of the car windows during the pursuit.

A jury later found Kelly guilty of dealing in a narcotic drug and resisting law enforcement. When Kelly appealed his narcotics conviction, he argued the Hendricks Superior Court committed fundamental error by allowing the state to present evidence of his post-arrest, pre-Miranda silence during trial.

The Indiana Court of Appeals affirmed the dealing conviction, relying on Myers v. State, 27 N.E.3d 1069, 1080 (Ind. 2015), to determine there was no error in using Kelly’s silence as substantive evidence against him. It also held that even if there was an error, it wasn’t fundamental error because the references to Kelly’s silence were used to rebut his defense that he was oblivious to a drug transaction taking place and that there was substantial evidence that Kelly knew about the drugs in the car.

The Supreme Court also affirmed in Delmar Kelly v. State of Indiana, 18S-CR-585, though it concluded Myers did not apply to the case at hand.

Instead, Justice Steven David wrote for the unanimous court that Kelly opened the door to the prosecutor’s comments regarding his silence. Additionally, because the mentions of his silence were minimal and ample evidence existed to prove his guilt, no fundamental error was committed.

“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,” David wrote “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,” David continued. “Further, in footnote 3 of our Myers opinion, we state that our constitutional analysis is case-specific.”

Justices instead found Cameron v. State, 22 N.E.3d 588 (Ind. Ct. App. 2014), to be more factually analogous.

“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,” David wrote. 

The court further concluded that even if the trial court had erred in admitting the evidence, it was not a fundamental error pursuant to Owens v. State, 937 N.E.2d 880, 894 (Ind. Ct. App. 2010). The officer’s testimony in reference to Kelly’s silence was minimal in the context of the entire trial, it noted, and while the statements made by the prosecution in closing did reference Kelly’s silence, they steered toward his unsurprised demeanor and behavior, rather than his silence.

Thus, the admission of the debated evidence did not make Kelly’s trial fundamentally unfair in light of the other substantial evidence in the case, the panel concluded.

All justices concurred in affirming the trial court’s decision.

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