State v. Argueta
469 P.3d 938
Utah
2020
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THE STATE OF UTAH, Respondent, v. CARLOS WALTER ARGUETA, Petitioner.

No. 20180814

SUPREME COURT OF THE STATE OF UTAH

Filed July 2, 2020

2020 UT 41

This opinion is subject to revision before final publication in the Pacific Reporter

2020 UT 41

IN THE

SUPREME COURT OF THE STATE OF UTAH

THE STATE OF UTAH, Respondent, v. CARLOS WALTER ARGUETA, Petitioner.

No. 20180814

Heard November 13, 2019

Filed July 2, 2020

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake

The Honorable Mark S. Kouris

No. 151906605

Attorneys:

Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Solic. Gen., Sandi Johnson, Salt Lake City, for respondent

Teresa L. Welch, Nathalie S. Skibine, Salt Lake City, for petitioner

JUSTICE HIMONAS authored the opinion of the Court, in which CHIEF JUSTICE DURRANT and JUSTICE PEARCE joined.

ASSOCIATE CHIEF JUSTICE LEE filed an opinion concurring in part and concurring in the judgement, in which JUSTICE PETERSEN joined.

JUSTICE HIMONAS, opinion of the Court:

INTRODUCTION

¶1 Carlos Walter Argueta was caught in the middle of the night in A.C.’s apartment. At the scene, she complained to a police officer that Argueta had inappropriately touched her. That night, also at the scene, and after invoking his Miranda rights, Argueta refuted the allegation and offered a short, innocent explanation of

STATE v. ARGUETA

Opinion of the Court

what had occurred. He was later charged with burglary and forcible sexual abuse. At trial, he elaborated upon his prior explanation, while A.C. and other witnesses offered testimony to the contrary. During the trial, the State introduced two prior bad acts that Argueta committed in an attempt to rebut his innocent explanation. At the end of a two-day trial, a jury convicted Argueta on both counts.

¶2 Argueta argues that the prosecutor’s comments at trial about the differences between his initial statement at the scene and his trial testimony were a violation of his constitutional right to remain silent. He also argues against the admission of the two prior acts, claiming their admission prejudiced him.

¶3 We hold that any error found or assumed in this case was not prejudicial and, as a result, not reversible. In addition, we only address the issues that are preserved for appeal, and Argueta failed to preserve his argument that A.C.’s eyewitness testimony regarding an earlier encounter between them was so unreliable as to be inadmissible. We therefore affirm the judgment of the court of appeals and the conviction underlying it.

BACKGROUND

¶4 On the night of June 6, 2015, A.C., her boyfriend (J.W.) and several of their neighbors were drinking and socializing in their next-door neighbors’ backyard.1 At some point between midnight and 2 :00 a.m., A.C. decided to go to bed. She left the backyard by herself and went into her apartment. J.W. stayed outside a while longer.

¶5 A.C. and J.W. lived in a studio apartment in a house that had been converted into four separate units. Upon returning to her apartment, A.C. closed the apartment door. Because the apartment door locked automatically, she left her key in the door’s lock, so J.W.—who did not have a key—could enter the apartment without waking her. She then undressed and got into her bed and under the covers. With the television on, she drifted into sleep. While she was “on the verge of getting to sleep,” in “that place between deep sleep and still aware,” A.C. felt someone “stroking” her vagina and

that “a figure . . . just kind of full rushing me . . . just from thin air, [came] running . . . trying to get out the door.”

¶71 Additionally, Argueta’s testimony on whether A.C. was covered or uncovered while asleep does not make sense given the other testimony. Argueta testified that when he entered the apartment he saw “a bulk” on A.C.’s bed, and it “was like the bed was covered.” This was consistent with A.C.’s testimony that she covered herself up when she went to bed. It was also consistent with J.W.’s testimony that A.C. always slept covered with at least a sheet. But when J.W. came into the apartment he immediately noticed that A.C. was not covered and “the blankets were down” and were “move[d] . . . kind of off of her.” Argueta did not address this statement. Only one person other than A.C., who was at least partially asleep, could have removed the blankets. That was Argueta.20

¶72 Even taken at face value, without considering Argueta’s initial statement at all, his trial testimony version did not hold up against the overwhelming evidence against him. In addition, the jury heard testimony about the peeping incident and could have concluded from that testimony that, because Argueta had tried to peep on A.C. before, there was a non-innocent intent for his actions on the night of the charged act.

¶73 In sum, there was overwhelming evidence of Argueta’s guilt given the other trial testimony. Therefore, even if we assume that the prosecutor’s comments violated ,21 that violation was harmless beyond a reasonable doubt.22

CONCLUSION

¶74 Argueta failed to preserve his challenge to the admissibility of the peeping incident. Additionally, all alleged errors in his trial, even assuming they all occurred, were not prejudicial to him under our relevant standards. Therefore, we affirm the court of appeals judgment and Argueta’s convictions.

ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring in the judgment:

¶75 I concur in the judgment of the court and in most of the majority opinion. I applaud the court’s refinement and clarification of the doctrine of chances. And I agree with its conclusion that no prejudice resulted from either of the errors alleged by Argueta—(a) the prosecutor’s questions and comments about differences between Argueta’s statements at the scene of the crime and his testimony at trial (allegedly in violation of Argueta’s Fifth Amendment rights), and (b) the admission of Argueta’s prior trespassing conviction (purportedly in contravention of our rules of evidence under the doctrine of chances).

¶76 Normally I would agree that the lack of prejudice is a sufficient basis for disposition of this case. But the fact-intensive prejudice inquiry is not the reason we granted certiorari. We granted certiorari to consider whether the court of appeals erred in concluding that Argueta’s Fifth Amendment rights were not violated when the prosecutor sought to impeach his credibility by highlighting “exculpatory details” that Argueta mentioned at trial but omitted in earlier statements to police. This is an important question. And we should address it because it has a straightforward answer in controlling precedent of the United States Supreme Court and in a governing decision of this court.23

¶77 The court of appeals based its conclusion on the United States Supreme Court’s decision in , which endorsed cross-examination that highlights inconsistencies between a defendant’s trial testimony and prior voluntary statements to police. That case held that in such circumstances, there is no Fifth Amendment violation under because the prosecution is not commenting on a defendant’s silence (his failure to speak to police) but rather his statements to police. .

¶78 Argueta has challenged that determination on certiorari. He claims that his Fifth Amendment rights were infringed under because the prosecutor’s cross-examination drew “negative inferences” from his “silence,” not his “inconsistent statements.”

Argueta thus views as governing only the limited circumstance in which the defendant is cross-examined about statements that are irreconcilable. In Argueta’s view, “ is inapplicable to this case because Argueta’s [trial] testimony provided only additional details, not inconsistent statements, when comparing Argueta’s trial testimony to his post-arrest statements to police.”

¶79 The State disagrees. It asserts that details given at trial but omitted in earlier statements to police are a kind of “inconsistency,” and that any cross-examination focusing on such statements is fair game under . It also contends that we already resolved this question in , where we explained that has “no application to a case in which the defendant did not exercise his right to remain silent,” and emphasized that there is no Fifth Amendment bar on “cross-examination that merely inquires into [voluntary] prior inconsistent statements.” 675 P.2d at 1196 (citations omitted). The State contends that this is precisely the situation here since Argueta did not exercise his right to remain silent but instead spoke freely and voluntarily to the police. Because the prosecutor did not use Argueta’s “silence . . . to impeach an explanation subsequently offered at trial,” (emphasis added), but rather highlighted differences between his prior voluntary statements and trial testimony (embellishments added at trial), the State asks us to affirm the court of appeals under the standards set forth in , , and .

¶80 I agree with the State’s reading of these cases. In the paragraphs below, I show that these decisions hold that there is no constitutional bar on a prosecutor’s comments highlighting inconsistencies between a story told voluntarily in a pretrial investigation and a story told voluntarily at trial. I then establish that there is no constitutional or logically tenable distinction between the inconsistency of (a) telling one story to police and a directly contradictory one at trial and (b) telling a limited story to police and embellishing it at trial. In neither circumstance has the defendant exercised his “right to remain silent.” He has voluntarily spoken at two different stages of the process—in a police investigation and at trial. And in so doing he has voluntarily subjected himself to cross-examination, without any infringement of any right guaranteed by the Fifth Amendment or United States Supreme Court precedent. The circumstance at issue here (embellishment) is precisely the circumstance at issue in —the defendant’s two voluntary stories were not directly

contradictory, but inconsistent only in the sense that one added detail not previously provided. See infra ¶¶ 111, 111 n.26. In that situation, the court held that an “inconsistency” in a defendant’s stories “is a legitimate basis for a prosecutor’s testing the credibility of a witness by way of impeachment.” 675 P.2d at 1195. And it affirmed a conviction against a constitutional claim that such a move ran afoul of the defendant’s “right to remain silent.” Id. (citation omitted).

¶81 I find this holding controlling for reasons explained in greater detail below. The majority disagrees, asserting that does not “‘clear[ly]’ answer[] the question presented here.” Supra ¶ 51. Yet it does so in an opinion that offers no salient basis for rejecting my reading of or for effectively distinguishing it—and that simultaneously purports to be avoiding the constitutional question altogether. See supra ¶ 49 (stating that the court is “declin[ing]” to decide the constitutional question); supra ¶¶ 55, 55 n.14 (asserting that a decision on “the constitutional question would go against our approach to judging” under the doctrine of “constitutional avoidance”).

¶82 The most the majority can say about is that it involved an “inconsistency” in which the defendant gave one version of his story prior to trial and a “different[]” version at trial. See supra ¶¶ 51–52. But that just underscores the parallelism between this case and . As in this case, the defendant’s stories did not directly contradict each other—they were “inconsistent” only in the sense that the defendant embellished his story at trial. See infra ¶¶ 111, 111 n.26. It was in that context that the opinion held that “in order to assert the [] privilege[,] there must be an initial and sustained silence after the Miranda warning is given.” 675 P.2d at 1196 (emphasis added). That holding should control our decision here. We should not be waving it off on the ground that the opinion is somehow “unremarkable” and has been cited only once in our case law. See supra ¶ 54. That is not a basis for overriding a square holding of this court under our doctrine of stare decisis. And even if the facts of were “[un]ascertainable” because the opinion is less than two pages long, see supra ¶ 53, (they aren’t, see infra ¶¶ 111, 111 n.26), this clear holding about the actions a defendant must take before invoking would still control. The court is thus in no position to claim that its decision to dismiss is an act of constitutional avoidance. See supra ¶ 55.

¶83 Constitutional avoidance makes sense when we are resolving a case on a statutory or other alternate ground while

declining to break new constitutional ground. If that’s what the majority were doing, I could understand it as an act of judicial restraint. But that’s not what’s afoot. We have already broken the constitutional ground at issue—in our decision in . And the majority is openly casting shade on that decision. It is doing so, moreover, without identifying any persuasive ground for questioning the scope of this important decision.

¶84 This is not an act of restraint or judicial “humility.” See supra ¶ 55 n.14 (quoting (Himonas, J., concurring)). It is an open challenge to the settled state of our case law and our doctrine of stare decisis. In questioning —and the reading of that clear decision outlined further below—the court is not declining to decide an unresolved issue. It is reopening a heretofore resolved question, introducing doubt and ambiguity on a point that until today was clearly established. Unless and until the court explains (1) how the “inconsistency” in is any more contradictory than the “inconsistency” in this case and (2) how Argueta can invoke after “br[eaking] the silence guaranteed constitutionally,” , it is in no position to claim to be engaged in an act of restraint or humility.

¶85 There is no Fifth Amendment right to tell one story to the police and a different one at trial—at least, not one that allows you to insulate yourself from cross-examination. There is only a right not to be compelled to be a witness against yourself. And that right is in no way implicated in a case like this one where the defendant spoke voluntarily to police and again at trial.

¶86 These conclusions follow clearly from three sets of controlling authorities: (1) longstanding United States Supreme Court precedent limiting the right against self-incrimination by allowing defendants to be cross-examined regarding voluntary statements made during direct examination, see , or police interrogation, see ; (2) the Supreme Court’s decisions in and , which establish that there is no Fifth Amendment bar on “cross-examination that merely inquires into prior inconsistent statements” made voluntarily during a police investigation, ; and (3) our opinion in , which holds that extends to the kinds of inconsistencies at issue here—details provided at trial but not given during the initial police investigation, see 675 P.2d at 1195–96. I set forth the specific grounds for these conclusions in the three sections that follow.

I. Fitzpatrick and Miranda

¶87 The Fifth Amendment establishes a right against compulsory self-incrimination. It says that “[n]o person shall be . . . compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. Defendants are thus protected against compelled testimony. And that leaves them open to cross-examination about voluntary statements given at trial on direct examination, or earlier in the course of pretrial police investigation.

¶88 The first application of this principle is deeply embedded in controlling case law, going back at least as far as . In , the Court held that an accused who “waives his constitutional privilege of silence” by “tak[ing] the stand in his own behalf” is subject to cross-examination. Id. at 315. So “[w]hile no inference of guilt can be drawn from [the defendant’s] refusal to avail himself of the privilege of testifying,” the defendant “has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.” Id. Statements made on direct examination are made voluntarily. And they are thus fair game on cross-examination. In other words, a defendant is treated “with the same latitude as would be exercised in the case of an ordinary witness.” Id.

¶89 The same goes for statements made voluntarily to police during an investigation. This is a core premise of . That case established a warning that informs suspects of their right “to remain silent.” Id. at 444 (emphasis added). But that warning also includes the famous “explanation” that “anything” they say “can and will be used against [them] in court.” Id. at 469 (emphases added).

¶90 These premises follow naturally from the core guarantee of the Fifth Amendment. The protected right is a right against compelled self-incrimination.24 That right is always subject to

waiver, as when the defendant decides to speak voluntarily about his involvement in a crime. See (“Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.”). And once a suspect does that, he is in no position to complain about cross-examination highlighting differences between voluntary statements made at two different stages of interaction with the government.

¶91 Argueta cannot and does not assert that his statements to the police were in any way compelled or involuntary. He gave them voluntarily after he received his Miranda warnings—warnings that included the caution that anything he said could and would be used against him in court. And the State made good on that promise. That is all that happened here. Argueta was cross-examined about voluntary statements he made to the police during his voluntary testimony at trial. And he is thus in no position to argue that this cross-examination infringed his Fifth Amendment rights.

II. Doyle and Charles

¶92 and provide the context for and explain the Supreme Court’s subsequent decisions in , and . Contrary to Argueta’s assertions, these decisions did not establish a right to give two different voluntary statements about a crime and then avoid cross-examination about the differences so long as the statements do not flatly contradict one another. They establish only a narrow limitation on the scope of permissible cross-examination. And they do so in a manner that confirms the propriety of the cross-examination challenged in this case.

¶93 prohibits the prosecution from seeking to impeach a defendant by commenting on his “silence” during a police investigation. 426 U.S. at 617–19. But that holding is tethered to and based on the Miranda warning—and the notion that it is fundamentally unfair for the state to advise a suspect that he has the “right to remain silent” only to later highlight his silence as a basis for an inference of guilt at trial. Id. And offers an important clarification of the principle by holding that there is no infringement of the Fifth Amendment where the cross-examination does not comment on “silence” but instead “inquires into prior inconsistent statements” made voluntarily to the police. 447 U.S. at 408.

¶94 Taken together, and sustain the decision of the court of appeals. They clarify that the prosecution is prohibited from commenting on a suspect’s invocation of and reliance on the Miranda right to remain silent as a basis for an inference of guilt. But they reserve the prosecution’s right to pursue cross-examination when the defendant has not exercised the right to remain silent but instead has spoken voluntarily to police and offered an explanation for his involvement in a crime.

A. Doyle

¶95 The defendant in was arrested and convicted on charges of drug trafficking. 426 U.S. 610, 611 (1976). At the time of his arrest, he was advised of his Miranda right to remain silent. Id. at 612. And he exercised that right—he did not speak to the police. Afterward, the defendant took the witness stand and sought to undermine the government’s portrayal of a drug deal in which the defendant had stood next to “a well-known ‘street person’ with a long criminal record,” id. at 611, who held “a package under his arm, presumably after the transaction” had taken place, id. at 612. The defendant testified that in reality the “street person” had “framed” him—that the “street person” was the dealer, and that he (the defendant) had been seeking only to purchase drugs. Id. at 613.

¶96 The prosecution sought to undermine the defendant’s “framing” defense by questioning the defendant about his silence at the time of the initial police investigation. Id. at 613–14. It was in this context that the Court held that “impeachment use of a defendant’s post-arrest silence,” id. at 616, is an infringement of the defendant’s constitutional rights—a “fundamentally unfair” move that amounts to “a deprivation of due process,” id. at 618. Importantly, the Court did not root its decision in some freestanding notion of “fairness” or “due process.” It specifically

based its “fairness” inquiry on the content of the required Miranda warning. See id. at 617.

¶97 The Court acknowledged that cross-examination regarding a defendant’s voluntary “post-arrest statements” is entirely appropriate Id. (emphasis added). But it viewed commentary on a defendant’s post-arrest silence as a different matter. The Court noted that Miranda “require[s] that a person taken into custody be advised immediately that he has the right to remain silent.” Id. And it noted that a suspect’s “[s]ilence in the wake of these warnings may be nothing more than the arrestee’s exercise” of the Miranda right.25 Id. Although “the Miranda warnings contain no express assurance that silence will carry no penalty,” the Court concluded that “such assurance is implicit to any person who receives the warnings.” Id. at 618. And “[i]n such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” Id. (footnote omitted).

¶98 This clear holding of has no purchase in a case like this one. Here, there was no commentary on a defendant’s invocation of silence, but only commentary about his voluntary statements. That is fair game under .

¶99 is based on fundamental fairness concerns rooted in a defendant’s reliance on the implied promises of the Miranda warnings. There are no such concerns in a case like this one. Argueta was given no “implicit” assurance that his voluntary statements to police would not be used against him. He was told the exact opposite. See . So he was in no position to cry foul when his voluntary, post-Miranda statements were used for impeachment at trial.

B. Charles

¶100 This reading of is confirmed by the Court’s per curiam opinion in . reinforced the distinction between an impermissible inference from silence (in contravention of the Miranda warning) and permissible cross-examination and commentary on voluntary statements made to police. See id. at 408–409. And it openly rejected a “formalistic” understanding of “silence” that would blur the distinction between the two. Id. at 409.

¶101 The defendant in was arrested while driving a stolen car—a car that belonged to a man “who had been strangled to death in his Ann Arbor home less than a week earlier.” Id. at 404. The defendant, found with personal property belonging to the deceased man, was given his Miranda warnings and asked about the stolen car. Id. at 404–05. He then voluntarily told the investigating officer “that he [had] stole[n] the car in Ann Arbor from the vicinity of Washtenaw and Hill Streets, about two miles from the local bus station.” Id. at 405. But at trial, the defendant testified that he had taken the “unattended” car in question “from the parking lot of Kelly’s Tire Co. in Ann Arbor.” Id. On cross-examination, the prosecution challenged the trial testimony as a “recent fabrication” and asked the defendant why he hadn’t told “anybody at the time [he was] arrested, where [he] got that car.” Id. at 406. The prosecution also emphasized that the defendant had previously told an investigating police officer that he had stolen the car from “Washtenaw and Hill Street.” Id.

¶102 The defendant subsequently filed a federal habeas petition. Id. The Sixth Circuit held that “the prosecutor’s questions about [the defendant’s] post-arrest failure to tell officers the same story he told the jury violated due process under the rule of .” Id. at 407 (citation and internal quotation marks omitted). But the Supreme Court reversed, emphasizing many of the points that I have highlighted above.

¶103 First, the Court highlighted the limited nature of the holding. “ bars the use against a criminal defendant of silence maintained after receipt of governmental assurances.” Id. at 408 (emphasis added). It “does not apply to cross-examination that merely inquires into prior inconsistent statements.” Id. “Such questioning makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent.” Id. “As to the subject matter of his statements, the defendant has not remained silent at all.” Id.

¶104 Second, the Court acknowledged that the line between silence and prior statements could be considered fuzzy. It noted that the Sixth Circuit had adopted a reading of that would bar questions that concerned a defendant’s “failure to tell arresting officers the same story he told the jury.” Id. (emphasis added) (citation omitted). And it conceded that there is a sense in which the failure to tell the same story told on a previous occasion “may be said to involve ‘silence’ insofar as it omits facts included in the other version.” Id. at 409. But the Court expressly repudiated this “formalistic understanding of ‘silence.’” Id. In place of that view, the Court reinforced the Fifth Amendment principles at the heart of and , holding that is implicated only when the prosecution makes reference to a defendant’s “exercise of his right to remain silent.” Id. at 408 (citation omitted); see also id. at 409 (noting that a question that seeks only “to elicit an explanation for a prior inconsistent statement” is not a question that seeks to “draw meaning from silence,” and is thus constitutional under ).

¶105 These principles again reinforce the court of appeals’ analysis in this case. There may be a metaphysical sense in which questions about perceived differences between Argueta’s voluntary statements on the night of his arrest and his trial testimony comment on “silence”—one story “omits facts included in the other version.” Id. at 409. But this does not offend the Fifth Amendment under . The “formalistic” sense in which the prosecution’s cross-examination amounts to commentary on Argueta’s “silence” is beside the point—the key question is whether the prosecution has asked the jury to infer guilt from a defendant’s invocation of the right to remain silent set forth in the Miranda warning. Where (as here) that is not the case, there is no violation. There is only a fair commentary on differences between two voluntary stories told by the defendant. And this kind of commentary is the core of cross-examination and in no way violates the Fifth Amendment.

III. Velarde

¶106 The above establishes the propriety of the prosecution’s cross-examination and closing argument in this case under controlling precedent of the United States Supreme Court. But any arguable doubt on the matter is resolved by our decision in . is directly on point and directly controlling as a matter of stare decisis. The majority unsettles our law by suggesting otherwise.

¶107 accepts the above understanding of the opinion. It also goes further, resolving any remaining doubts of relevance to this case. holds that may be invoked only after “an initial and sustained silence” once Miranda warnings are given. Id. at 1196 (emphasis added). And it expressly holds that permits cross-examination aimed at highlighting inconsistencies between two voluntary statements by the defendant—whether the inconsistencies are mere differences or outright contradictions.

¶108 The police confronted the defendant in after pursuing a tip and finding him asleep in a truck in front of a Morgan, Utah café at 2:00 a.m. Id. at 1195. After the police officer confirmed that the truck was stolen, he arrested and gave him his Miranda warnings. Id. In response to the officer’s questions, volunteered that he did not own the truck, that he had arrived at the café in the truck, and that he did not know he was in Morgan. Id. But he gave no other details. “At no time did defendant assert any right to remain silent.” Id.

¶109 later testified at trial. There, he gave additional details that he had not provided at the time of his arrest. He stated that another man had “picked him up [in the truck] in Salt Lake City,” “driven past” the defendant’s home, and “stayed on the freeway all the way to Morgan,” where the other man lived. Id. The prosecution then sought to impeach the defendant on the basis of the differences between the story he told at trial and the voluntary statements he had made to the police officer. Id.

¶110 On appeal, the defendant asserted that this cross-examination constituted commentary on his “silence” and therefore infringed his Fifth Amendment rights under . Id. We rejected that argument. We held that the “inconsistency of [the defendant’s trial] testimony with what defendant had told the officer” was a “legitimate basis for a prosecutor’s testing the credibility of a witness by way of impeachment.” Id. And we emphasized that the defendant had “waived” his “Fifth Amendment guarantee to remain silent” by “talking freely with the officer” about the crime after receiving his Miranda warnings, and had done so again when he “took the witness stand.” Id.

¶111 That analysis is directly controlling here. makes clear that there is no Fifth Amendment bar on cross-examination or commentary that is aimed at highlighting differences between two stories told voluntarily by a defendant. And it emphasizes that the differences explored need not be limited to outright contradictions.

speaks of “inconsistency.” Id. But the inconsistency at issue there, as here, involved mere differences—additional details recounted at trial that were not given to police. In , after all, it was entirely possible for the defendant to have both (a) not owned the truck, arrived in Morgan in the truck, and not known he was in Morgan at the time of his arrest (as he told the police), and (b) been picked up in Salt Lake and driven to Morgan in the truck by another person (as he testified at trial).26 Yet we spoke of these differences as inconsistencies that opened the door to cross-examination. Id. And we emphasized that the defendant had

Notes

1
“When reviewing a jury verdict, we examine the evidence and all reasonable inferences in a light most favorable to the verdict, reciting the facts accordingly. We present conflicting evidence only when necessary to understand issues raised on appeal.” (citation omitted) (internal quotation marks omitted).
20
Argueta’s testimony at trial had additional discrepancies. He was shifting about what he was doing the night of the charged act in general. On cross-examination, he testified that he had worked for “the garbage collecting company in Orem” at that time. But then he said that he had been a “mechanic… [a]nywhere” and would find himself in the area because he was “running some other errands.” But when the prosecutor asked him what errands he had been running on the night of the charged act, he answered “[t]hat’s not what [he] was doing exactly that day.” See also (internal quotation marks omitted). Argueta was also inconsistent in his explanation of why he chose to enter the apartment that night and not on other occasions. He testified that had he attempted to collect the alleged debt from A.C. and J.H. unsuccessfully “five or six” times but never “attempted to enter the home” because they were not among the people out front. On the night of the charged act, he had finally decided to go into the house to collect his debt. However, from his description, this night was not any different from other nights he had tried to collect the debt. He did not see A.C. or J.H. in front of the house but he saw “some people . . . in the back of the house,” and thought, “maybe they are in now.”
21
The parties dispute whether the comments were a meaningful part of the cross-examination and the closing arguments. Each party refers to the extent of the comments compared to the length of the cross-examination and closing arguments. They do so because stated that whether “the reference was isolated” is a relevant factor in the analysis of harmlessness beyond a reasonable doubt. 937 P.2d at 535. That factor originated in our opinion, which said that whether “the comments were isolated as opposed to extensive” mattered for the analysis. 750 P.2d at 555. This is a good example as to why the “Byrd factors” do not serve their purpose. An arithmetic calculation of words and lines alone gives us no dispositive finding on the effect that the prosecutor’s words had on the jury. At times, even one word can echo with a listener. Our main inquiry is the strength of the case against the defendant. And here, the extent of the comments is irrelevant given the overwhelming evidence of Argueta’s guilt and his unbelievable version of events.
22
In section I.B. we explain that because the State has shown harmlessness beyond a reasonable doubt regarding the alleged violation, we hold that Argueta could not show that the admission of the trespassing evidence was harmful. The overwhelming evidence against Argueta leaves no room to assume that the trespassing incident was probative in the jury determination.
23
I am not suggesting that we must address any issue on which we grant certiorari. I am asserting that the question we agreed to hear is important to resolve—because it finds a clear answer in controlling precedent and declining to answer it will unsettle our law unnecessarily. See infra ¶¶ 80–82, 84, 106.
24
Miranda protects suspects from coercive interrogations, not inadvisable voluntary statements. See, e.g., (“If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” (emphases added) (footnote omitted)); id. at 474 (“Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to (continued . . .)
25
Because a defendant’s invocation of his right to remain silent must be “unambiguous,” a defendant cannot “invoke” his right to remain silent—and thereby put an end to questioning and suppress any subsequent statements he makes—by simply remaining silent for some extended period of time. . Any statements made after a valid Miranda warning are thus fair game in the absence of a clear statement of a desire to remain silent. See id. But of course a defendant may always exercise his right to remain silent by making no reply at all.
26
In resisting this straightforward conclusion, the majority notes that (a) “told the officer that arrested him that he did not own the truck and that he had no idea he was in Morgan,” and (b) testified at trial “that someone with a truck picked him up and they drove together to Morgan, where that person lived.” Supra ¶ 51. That is correct. But it does not distinguish from this case—it highlights the parallelism between the two cases.

The two stories told by were not directly contradictory. By the time of trial, had of course discovered where he had been on the night in question—he was on trial for a charge on which he was arrested in Morgan. So in explaining that it was another man who had driven him to Morgan, wasn’t suddenly claiming that he had known he was in Morgan the night he was arrested. To the extent there was any inconsistency, it was in the embellishments and details relayed at trial (and not recounted during the pretrial investigation).

That is exactly the situation here. Argueta, like , “freely told the officer that arrested him,” supra ¶ 51, that he had met the victim at a bar, come to her apartment, noticed the keys in the door, and entered to place the keys on the dresser. “Then, at trial, he testified altogether differently . . . .” Supra ¶ 51. He not only provided elaborate details about meeting both the victim and her ex-boyfriend at a bar—driving home together, sharing a beer, and lending twenty dollars to the victim’s ex-boyfriend—he claimed that he had tried to collect the debt some five or six times before, and that recovering that eighteen-month-old debt had been the reason for his presence at the apartment. Like ’s additional details, Argueta’s embellishments were surprising and arguably suspicious, but ultimately reconcilable. It was perfectly possible for every statement to be true. And if involved an “inconsistency” on which it was fair game for the prosecutor to comment, then the same holds true here.

waived his right to remain silent by speaking “freely with the officer.”27 Id.

¶112 The majority asserts that “tells us little to nothing about cases” where the alleged inconsistency involves details told at trial that were not relayed previously. Supra ¶ 54. But that is incorrect. This case is on all fours with . The inconsistency we encounter today is exactly the kind of inconsistency we encountered in . See supra ¶¶ 111, 111 n.26.

¶113 The majority resists this conclusion. It says that could not have addressed whether “inconsistent” statements include differences as well as outright contradictions, seesupra ¶ 53, because did not use the “key words” “‘supplemental,’ ‘different,’ or ‘reconcilable,’”28 supra ¶ 54 n.12. I don’t follow. The

doctrine of stare decisis “requires,” at a minimum, “that a decision rendered by a court in a particular factual context govern later decisions by that court arising under the same or similar facts.” . And that principle requires our application of the holding here—a decision giving “inconsistent” the content it must have had in order for the court to come to the decision it did. Both Argueta’s and ’s statements were (1) voluntary and (2) ultimately reconcilable, supra ¶¶ 111, 111 n.26—and ’s were deemed “inconsistent.” 675 P.2d at 1196 (citation omitted). That should be the end of the matter. See (“Stare decisis means that like facts will receive like treatment in a court of law.” (citation omitted)).

¶114 The majority also claims that we have not decided where embellishments like Argueta’s “‘fall’ within the spectrum between and .” See supra ¶ 49. But I’m not sure how could have been any clearer. That opinion went to great lengths to distinguish the circumstance presented in a case like this one (and and ) from the situation in . It noted that “[t]he rationale which the Supreme Court [had] adopted for its decision in ” was that it was “fundamentally unfair for the prosecution to impose a penalty at trial on a defendant who has exercised [his] right by choosing to remain silent.” (quoting ). It reasoned that “[t]he very statement of that rationale demonstrates that can have no application to a case in which the defendant did not exercise his right to remain silent.” Id. at 1196 (quoting ). And it reinforced the straightforward reading of that allows “cross-examination that merely inquires into prior inconsistent statements,” given that “a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent.” Id. (quoting ). Again, it deemed “inconsistency” to encompass not just outright contradictions but mere differences between a defendant’s two voluntary accounts. Supra ¶¶ 111, 111 n.26. In these circumstances, makes clear that the prosecutor’s inquiries “make[] no

unfair use of silence.” 675 P.2d at 1196 (quoting ).

¶115 These are precisely the circumstances of this case. And is accordingly controlling and entitled to respect as a matter of stare decisis. If the majority wishes to walk back it should do so transparently—and with something more than the truism that is less than two pages long and has been cited only once for the proposition that a defendant’s “inconsistent testimony is legitimate basis for prosecutor’s questioning his credibility.” See supra ¶¶ 53–54 (citation omitted). I don’t see how a case being short or cited only for its holding undermines its holding. If the court has doubts about , it should own that position and justify it under our doctrine of stare decisis. In the absence of such justification, is controlling.

¶116 I would so hold. And I would affirm the court of appeals’ analysis under ’s authority.

27
The majority also tries to distinguish by pointing to the fact that Argueta invoked his right to remain silent, while did not. See supra ¶ 51. But Argueta immediately waived that right by blurting out his initial, incomplete explanation from the curb—“he freely told the officer that arrested him,” supra ¶ 51, that he had met the victim at the bar and entered to place the keys on the dresser. These statements were not protected as involuntary—as evidenced by their admission into evidence at trial. See (holding that “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored’” (emphasis added)); see also (“Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.”) And tells us precisely what to do in that situation: “[I]n order to assert the [] privilege[,] there must be an initial and sustained silence after the Miranda warning is given.” 675 P.2d at 1196 (emphasis added). But Argueta, like , “broke the silence guaranteed constitutionally,” id., and is thus in no position to invoke —a point that remains unrefuted by the majority.
28
This is a strange charge coming from a majority unconcerned with the “key words” that do appear in . See supra ¶¶ 82, 107, 111 n.27 (highlighting ’s requirement that a defendant invoking must be able to show an “initial and sustained
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