State v. Pailing, 936 N.W.2d 78

Allan Pailing was charged with unlawful possession of a controlled substance after methamphetamine was found in a patrol vehicle he had used.
During trial the prosecutor used an anecdote (about his grandfather and a $100 bill) in opening and referenced it in closing to illustrate circumstantial evidence and credibility.
Pailing objected at sidebar during closing, arguing the anecdote implicitly commented on his failure to testify; the court did not rule immediately and the jury convicted.
After trial the district court overruled the objection and denied Pailing’s motion for mistrial and dismissal; Pailing appealed.
The North Dakota Supreme Court held the anecdote illustrated circumstantial evidence and did not improperly comment on Pailing’s silence, and found no abuse of discretion in denying a mistrial.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Pailing)	Held
Whether the prosecutor’s anecdote violated the defendant’s Fifth Amendment right by commenting on his failure to testify	Anecdote illustrated how circumstantial evidence can show who placed the item; not a comment on silence and not prejudicial	Anecdote implied Pailing was lying and that he failed to rebut the prosecutor’s story by not testifying, violating his right to remain silent	Court held anecdote was permissible illustration of circumstantial evidence, not an improper comment on silence; no constitutional violation
Whether the district court abused its discretion in denying a mistrial and dismissal of charges	No abuse; Pailing waived curative-instruction argument and was not prejudiced	District court abused discretion; misconduct prejudiced defendant and dismissal with prejudice is required	Court applied de novo review for the constitutional claim and abuse-of-discretion review for the mistrial; found no abuse and affirmed

State v. Myers, 724 N.W.2d 168 (N.D. 2006) (prosecutor may not comment on defendant’s failure to testify; context can determine whether remark is improper; review de novo)
City of Williston v. Hegstad, 562 N.W.2d 91 (N.D. 1997) (prosecutor’s reference to post-arrest silence after Miranda warnings violated due process)
State v. Ebach, 589 N.W.2d 566 (N.D. 1999) (comment on defendant’s silence is improper under Fifth and Fourteenth Amendments)
State v. Schmidkunz, 721 N.W.2d 387 (N.D. 2006) (scope of closing argument limited to evidence and reasonable inferences; appellate review for abuse of discretion)
State v. Keyes, 609 N.W.2d 428 (N.D. 2000) (de novo review applies to constitutional claims about prosecutor comments)
State v. Tyler, 933 N.W.2d 918 (N.D. 2019) (mistrial is extreme remedy; district court’s denial reviewed for abuse of discretion)