Vega testified at his trial on drug delivery charges and denied he had sold drugs to the informant and that the informant was not telling the truth. (¶12). On cross examination, the prosecutor, over defense counsel’s objections, asked Vega why he failed to give police his exculpatory version of events when he was arrested. (¶¶13-15). These questions violated Vega’s due process rights under State v. Brecht, 143 Wis. 2d 297, 421 N.W.2d 96 (19880, and Doyle v. Ohio, 426 U.S. 610 (1976), and the trial court’s error in allowing the questions was not harmless.
¶23 The facts of this case are very similar to the facts presented in Doyle. There, Doyle was arrested for selling marijuana to an informant during a controlled purchase and was read the Miranda warnings at the time of his arrest. Doyle, 426 U.S. at 611-12. At trial, Doyle testified that he had been framed by the informant. Id. at 612-13. On cross-examination, the prosecutor asked Doyle why he had remained silent after his arrest and had not informed the officers that he was allegedly framed by the informant. Id. at 614 n.5. His counsel’s objections were overruled, and Doyle was convicted. Id. at 614. On appeal, the Supreme Court held that the prosecutor’s use of Doyle’s silence to impeach his exculpatory account violated the Due Process Clause of the Fourteenth Amendment. Id. at 619. The Court provided further reasoning and stated:
[W]hile it is true that the Miranda warnings contain no express assurance that the silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In 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….
… “[I]t does not comport with due process to permit the prosecution during the trial to call attention to [the defendant’s] silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony.”
Doyle, 426 U.S. at 618-19 (citations and footnote omitted).
¶24 The circuit court erred in allowing the prosecutor’s questioning of Vega regarding his exercise of his right to remain silent after his arrest and receipt of Miranda warnings because the questions violated his due process rights under the Fourteenth Amendment. To repeat, Vega was arrested, read the Miranda warnings, and charged with selling heroin to an informant. Like the prosecutor in Doyle, the prosecutor here asked Vega during cross-examination why he made no effort to inform the officers of his version of events. The State attempted to use Vega’s exercise of his right to remain silent to draw an unfavorable inference as to the truth of Vega’s trial testimony giving an exculpatory version of events, even though Vega had been “impliedly assured, by Miranda warnings, that silence will carry no penalty.” See Brecht, 143 Wis. 2d at 316 (citing Doyle, 426 U.S. at 617- 18). We follow the Supreme Court’s reasoning in Doyle, and our supreme court’s reasoning in Brecht, and conclude that the prosecutor’s questioning and the circuit court’s ruling constituted error that violated Vega’s due process rights under the Fourteenth Amendment….
The state doesn’t argue that the prosecutor’s questions were proper, but claims any error was harmless. (¶24 n.6). Whether error was harmless is assessed by looking at several non-exhaustive factors, including the frequency of the error, the importance of the erroneously admitted evidence, the nature of the defense, and the overall strength of the state’s case. (¶28). The court does a full canvass of the state’s arguments (¶¶29-45) and holds it fails to prove the error here was harmless:
¶46 …. The error was at least slightly in the “frequent” category because the prosecutor asked six questions in a concentrated line of questioning that violated Vega’s constitutional right to due process.
¶47 Further, the erroneously admitted questions were highly relevant to the nature of Vega’s defense that he had never sold heroin to [the informant]. Vega wanted the jury to find him credible and believe his version of events over the State’s version of events. However, the prosecutor’s questions regarding his exercise of his right to remain silent after arrest undermined in the jury’s eyes the truthfulness of Vega’s version of events by suggesting that Vega was not a credible source of information. Thus, the jury’s decision regarding Vega’s defense was affected by the prosecutor’s questions.
¶48 Similarly, the constitutionally prohibited questions were relevant and important to the nature of the State’s case. It was important for the State to discredit Vega’s theory of defense in order to prove its case beyond a reasonable doubt. If the jury had found that Vega was a credible source of information, then the jury could have reasonably believed his exculpatory version of events and found that the State had not proved its case beyond a reasonable doubt. As a result, the prosecutor’s questions helped sway the jury in favor of the State’s version of events.