Delmar Kelly v. State of Indiana, 122 N.E.3d 803

Police used a recovered cell phone to arrange a drug buy; Kelly drove to the location and fled when officers tried to arrest him.
During a ~5-mile chase, occupants of Kelly’s car threw out heroin, cocaine, and a digital scale; Kelly stopped only in a residential neighborhood and was arrested.
At trial Kelly’s counsel played a jail phone call in opening suggesting Kelly was an unwitting participant who “got caught up in” a narcotics bust and asked the jury to acquit on that theory.
The State elicited officer testimony that Kelly and the other occupants did not speak after arrest (post-arrest, pre-Miranda warnings) and argued in closing that Kelly’s silence and demeanor rebutted his defense.
Kelly was convicted of dealing in a narcotic and resisting law enforcement; he appealed, arguing fundamental error from the State’s use of his post-arrest, pre-Miranda silence.
The Indiana Supreme Court granted transfer, held Kelly had opened the door to comment on his silence, and found no fundamental error given minimal references and strong evidence of guilt.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State’s use of Kelly’s post-arrest, pre-Miranda silence violated his rights and amounted to fundamental error	State: No violation because record contains no indication Miranda warnings had been given; comments rebut defendant’s theory	Kelly: Using his post-arrest, pre-Miranda silence as substantive evidence violated his constitutional rights and deprived him of a fair trial	Court: Kelly opened the door by asserting an unwitting-bystander defense; comments were limited and, given overwhelming evidence, any error was not fundamental

Myers v. State, 27 N.E.3d 1069 (Ind. 2015) (case-specific treatment of post-arrest silence and Miranda analysis)
Doyle v. Ohio, 426 U.S. 610 (1976) (post-Miranda silence cannot be used against a defendant)
Miranda v. Arizona, 384 U.S. 436 (1966) (custodial interrogation requires warnings protecting Fifth Amendment right)
Fletcher v. Weir, 455 U.S. 603 (1982) (post-arrest, pre-Miranda silence may be used for impeachment)
Cameron v. State, 22 N.E.3d 588 (Ind. Ct. App. 2014) (defendant who opens the door can permit comment on post-arrest, pre-Miranda silence)
Bieghler v. State, 481 N.E.2d 78 (Ind. 1985) (harmless-error factors for improper use of post-arrest silence)
Rowe v. State, 717 N.E.2d 1262 (Ind. Ct. App. 1999) (pre-Miranda silence use addressed; adopted Bieghler approach)
Owens v. State, 937 N.E.2d 880 (Ind. Ct. App. 2010) (isolated improper comments about silence may be harmless when guilt is otherwise overwhelming)