[¶ 1] In thеse consolidated cases, Thomas Rivet appealed a criminal judgment entered after being found guilty by a jury of robbery and attempted murder and Louis Lugert appealed a criminal judgment entered after being found guilty by a jury of being an accomplice to attempted murder and an accomplice to robbery. We reverse the judgments against Rivet and Lugert and remand for a new trial.
I.
[¶ 2] Appellants were accused of assaulting William Bluedog in February 2007 and tried together by a jury in September 2007. Bluedog testified that Lugert tried to choke him and Rivet stabbed him when he tried to resist Lugert. Appellants claim Rivet stabbed Bluedog to protect Lugert from an attack initiated by Blue-dog.
II.
[¶ 3] Appellants argue the prosecutor engaged in misconduct during closing and rebuttal arguments when he vouched for the credibility of Kelly Miller, Rivet’s girlfriend and a State’s witness.
Kelly’s testifying today I would submit is truthful on direct. She got scared. Mr. Fisher got up and he questioned her. She sees her ex-fiancé starring (sic) at her, on again, off again relationship. He’s starring (sic) at her and suddenly her testimony changes. You saw how her testimony changed. She was being truthful on direct. As soon as Mr. Fisher put her under pressure, she began to lie.... Kelly’s change of heart. She came in here, folks. She told the truth on direct. When Mr. Fisher got up and cross-examined her, she in that instant had to choose between love and fear and what she was getting in exchange for the testimony. She chose love and fear. She chose hеr ex-fiancé. You saw her. She had a difficult time testifying on direct. It was hard telling you what she did with her ex-fiancé and Mr. Lugert that night. It was hard. And when she was pressed, she changed.
[¶ 4] The control of closing arguments is largely within the discretion of the trial court, though arguments by counsel must be confined to facts in evidence and the proper inferences that flow therefrom.
City of Williston v. Hegstad,
[¶ 5] A prosecutor’s closing argument may prоperly draw reasonable conclusions and argue permissible inferences from the evidence, but a prosecutor may not create evidence by argument or by incorporating personal beliefs.
State v. Clark,
[¶ 6] Because there was no objection to the prosecutor’s argument at trial, we will not reverse unless it was an obvious error affecting a defendant’s substantial rights.
Hawes v. N.D. Dept. of Transp.,
III.
[¶ 8] Appellants argue the prosecutor improperly commented on Rivet’s post-arrest and post-Miranda silеnce.
Miranda v. Arizona,
Q. You had an opportunity to clear your name, didn’t you?
A. Yes.
Q. You were picked up by police?
A. Yes.
Q. And you were given an opportunity to give a statement, weren’t you?
A. Yes.
Q. Did you clear your name at that time?
A. I was informed through many years of experience and police office (sic) movies and everything else get a lawyer first. You talk directly to a lawyer. You do not talk to anybody else. You do not talk to рress. You go directly with a lawyer. Let the lawyer clear your name.
Q. Well, Mr. Rivet, that’s not how I recall it. You recall having an interview with Mr. Nelson, don’t you?
A. And I said I went to South Fargo Wal-Mart — or, excuse me, South Fargo by McDonalds. I don’t remember anything about the north and I want a lawyer. That consisted of my statement. I want a lawyer.
Q, Perhaps, Mr. Rivet, if we play the interview for you you’ll recall what you said to Mr. Nelson.
(State’s Exhibit 30 was played for the jury-)
Q. Mr. Rivet, it didn’t sound like you took the opportunity to clear your name at that time. As a matter of fact, it sounded like you were trying to create an alibi by saying you were up north.
A. If that’s the way you want to look at it, sir.
Exhibit 30, the audio recording of the poliсe interrogation of Rivet, ended with Rivet requesting an attorney. Appellants did not object to the questions.
[¶ 9] It is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.
State v. Schneider,
[¶ 10] A prosecutor’s improper usе of a defendant’s post-arrest silence is an error for which the harmless error analysis is appropriate.
State v. Jando,
[¶ 11] The State arguеs its comments were permissible impeachment. A party can attack a witness’s credibility by impeachment. N.D.R.Ev. 607. However, a prosecutor’s use of a defendant’s post-arrest silence after receiving Miranda warnings to impeach a defendant’s exculpatory story, told for the first time at trial, violates the defendant’s right to due process. Hegstad, at ¶ 9. After a person has been arrested and given the Miranda warnings, “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. (citations omitted). However, if a defendant testifies to an exculpatory version of events he claims to have told the police upon arrest, the prosecution may use post-arrest silence to contradict the defendant’s version. Id.
[¶ 12] Where a defendant did not remain silent after his arrest, the prosecutor’s questions are a valid means of impeaching his testimony.
State v. Burke,
[¶ 13] The initial comment by the prosecutor on Rivet’s pre-arrest failure to clear his name may be a permissible comment, given Rivet’s prior inconsistent statements regarding his desire to clear his name. Further, the comment focused on Rivet’s opportunity to clear his name prior to being arrested, on the night of the stabbing.
[¶ 14] Although the State аrgues the evidence shows Rivet gave statements to Nelson before invoking his right to an attorney and the cross-examination focused on Rivet’s prior statements as “trying to create an alibi by saying you were up north,” the line of questioning, quoted at length above, followed directly after the recording of the police interview was played before the jury. That recording ended with Rivet’s request for an attorney. Immediately after that followed the comment that Rivet did not take the opportunity to clear his name at that time. The quoted line of questioning focused on the opportunity Rivet had to clear his name once he was arrested, the day after the stabbing. The State draws too fine a line to say the comment applies only to the statements made to the police before Rivet
[¶ 15] Because the State is the beneficiary of the constitutional error, it has the heavy burden of proving beyond a reasonable doubt the comments on Rivet’s post-arrest silence did not contribute to the verdict obtained. Allowing the jury to hear Rivet’s request for an attorney, coupled with the immediate comment by the prosecutor that Rivet failed to use an opportunity to clear his name, likely damaged his credibility in the eyes of the jury. We are not convinced beyond a reasonable doubt the comments on Rivet’s post-arrest silеnce did not contribute to the guilty verdict. We therefore reverse the judgment against Rivet and remand for a new trial.
[¶ 16] While it is clear we must reverse Rivet’s judgment due to the prosecutor’s comments, Lugert argues his judgment should be reversed as well. He asserts the credibility of himself and Rivet was extremely important to his сase and the improper damage to Rivet’s credibility by the prosecutor’s comments on Rivet’s right to remain silent also damaged Lu-gert’s case and his own credibility. The issue of how an improper comment on a defendant’s right to remain silent at trial will affect a co-defendant’s conviction is a сase of first impression in North Dakota. The limited case law in other jurisdictions is divided on whether reversal of a defendant’s conviction necessarily entails reversal of a co-defendant’s conviction in these situations.
[¶ 17] In
Harper v. State
,
[¶ 18] No comment was made on either Lugert’s or Rivet’s failure to testify at trial as in
Harper,
and in
Travieso
the court held the comment had no affect on Travie-so’s co-defendant and his right to remain silent. Here, both Rivet and Lugert gave the same explanation for what occurred in Bluedog’s apartment on the night in question. Their credibility was crucial in convincing the jury to believe their version of the facts. Lugert, as a co-defendant with an identical version of what occurred that night, was relying on Rivet’s credibility. Once Rivet’s credibility was improperly damaged by the prosecutor’s comments, the credibility of Lugert’s version of the story was likewise adversely impacted. Separate informations were issued for each Appellant. However, the trial court
IV.
[¶ 19] Appellants argue the evidence was insufficient to support their convictions. Because we reverse the judgments against Appellants due to the prosecutor’s comments on Rivet’s right to remain silent, we do not need to address this issue.
V.
[¶ 20] We reverse the judgments against Rivet and Lugert and remand for a new trial.