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Pre-Miranda Silence

State v. Frank Plum, 2011AP956-CR, District 3, 11/1/11

court of appeals decision (1-judge, not for publication); for Plum: Martha K. Askins, SPD, Madison Appellate; case activity

The officer who stopped Plum for suspected drunk driving testified that Plum refused to answer questions about the type or amount of medication he had consumed: this amounted to an impermissible comment on Plum’s right to silence, notwithstanding that questioning occurred before custodial interrogation (thus, before Miranda rights were given) and that Plum had answered earlier questions, ¶¶15-17, citing State v. Fencl, 109 Wis. 2d 224, 236-38, 325 N.W.2d 703 (1982).

The error, however, was harmless; the reference occurred but once and evidence of guilt was overwhelming, ¶21. The court rejects a separate challenge to the State’s closing argument, which reminded jurors that they hadn’t heard any evidence that drugs found in Plum’s system had been prescribed for him: these comments didn’t refer to Plum’s refusal to answer questions, hence weren’t comments on silence, ¶20.

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