Wickham v. State, 974 N.W.2d 646

Corey Wickham was convicted of two counts of gross sexual imposition; this Court affirmed his convictions on direct appeal in State v. Wickham.
On postconviction review he argued trial counsel was ineffective for failing to object when Detective Lahr testified that Wickham asked for a lawyer after being placed under arrest (a post‑Miranda invocation).
At trial the jury heard that comment twice: during direct testimony and later when Detective Lahr’s testimony was read back during deliberations. Trial counsel made no objection or request for curative instruction or mistrial.
The district court (a different judge than at trial) held an evidentiary hearing, found Strickland prejudice, and granted a new trial.
The State appealed, arguing the district court misapplied Strickland by using a subjective standard and failing to consider the established harmless‑error/Strickland factors; the Court reversed the postconviction grant.
The Supreme Court emphasized the comment was isolated, not elicited or emphasized by the prosecutor, and that the record contained substantial other evidence (victim testimony, medical examiner, DNA/Y‑chromosome evidence).

Issue	Wickham's Argument	State's Argument	Held
Whether trial counsel's failure to object to a witness's comment that Wickham asked for a lawyer (post‑Miranda invocation) constituted ineffective assistance under Strickland (prejudice prong)	Failure to object permitted an improper Doyle/Wainwright comment that likely affected the jury; reasonable probability of different outcome	The remark was brief, made in passing by the witness (not elicited by prosecutor), not referenced in closing, and outweighed by strong evidence of guilt; no reasonable probability of a different result	Reversed. The district court erred in applying Strickland (used subjective standard and failed to analyze established harmless‑error/Strickland factors). The comment was isolated and, given the strong evidence, did not establish the required prejudice.

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (established two‑prong test for ineffective assistance of counsel)
Doyle v. Ohio, 426 U.S. 610 (U.S. 1976) (post‑Miranda silence cannot be used against a defendant)
Wainwright v. Greenfield, 474 U.S. 284 (U.S. 1986) (post‑Miranda invocation of counsel also protected from adverse comment)
State v. Wilder, 2018 ND 93, 909 N.W.2d 684 (N.D. 2018) (sets harmless‑error factors for improper comments on post‑arrest silence)
State v. Anderson, 2016 ND 28, 875 N.W.2d 496 (N.D. 2016) (brief/isolated Doyle comments can be harmless)
State v. Wickham, 2020 ND 25, 938 N.W.2d 141 (N.D. 2020) (prior direct‑appeal decision affirming Wickham's convictions)