State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0833

State of Minnesota,
Respondent,

vs.

Michael Allen Haukoos,
Appellant.

Filed April 23, 2018
Affirmed
Reilly, Judge

Freeborn County District Court
File No. A17-0833

Lori Swanson, Attorney General, St. Paul, Minnesota; and

David J. Walker, Freeborn County Attorney, Albert Lea, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Rochelle R. Winn, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Reilly, Pres iding Judge; Halbrooks, Judge; and
Connolly, Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Michael Allen Haukoos ap peals his conviction and sentence for
possession of burglary tools. Haukoos argues that we should reverse his conviction and
remand his case for a new trial because th e prosecutor committed prejudicial misconduct

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by eliciting evidence of his post-arrest, post- Miranda silence during the state’s case-in-
chief, cross-examination of Haukoos, and clos ing argument. Although the state’s use of
Haukoos’s post-arrest, post-Miranda silence during its cross-examination of Haukoos and
closing argument violated the rule enunciated in Doyle v. Ohio, 426 U.S. 610, 619, 96 S.
Ct. 2240, 2245 (1976), we conc lude under the plain-error standard that the error did not
affect Haukoos’s substantial rights, we affirm.
FACTS
On January 8, 2016, Haukoos was charged with one count of possession of burglary
tools in violation of Minn. Stat. § 609.59 (2014), for an incident occurring the night before
in the Indian Hills neighborhood outside of Albert Lee when law enforcement discovered
him under a deck near a residence with a bag of tools. Haukoos pleaded not guilty, and he
took his case to a jury trial.
At trial, the defense’s theme presented to the jury was that law enforcement jumped
to conclusions about Haukoos’s intent and that they failed to consider alternative
explanations to his behavior, mainly that Haukoos was looking for his dog.
The state’s case-in-chief contained the following testimony. On the evening of
January 7, 2016, at around 9: 00 p.m., R.H., a resident of th e Indian Hills neighborhood,
noticed an unfamiliar vehicle driving slowly by his house four times every 10 to 15
minutes. R.H. then saw an unfamiliar man walking alone past his home while it was
snowing. The man did not have a dog. R.H. called police about what he observed.
Deputies Joshua Partlow and Christina Bo ardman and Officer Deming responded.
On arrival, Partlow noticed footprints in the freshly fallen snow. He followed the footprints

3
to a vacant Indian Hills reside nce and then up the unplowed dr iveway of that property.
Before Partlow and Boar dman followed the tracks behind the residence, a vehicle pulled
up to them.
The woman in the vehicle, later iden tified as Brianna Jergens, asked law
enforcement what was going on. She told them that she wa s looking for a friend’s house
in the area but did not know th e address. Law enforcement no ticed tools in the back of
Jergens’s vehicle, and a walkie-talkie. Af ter law enforcement asked why there were two
wet spots on the passenger-side floor and two drinks in th e cup holder, Jergens denied
having a recent passenger. Jergens was detained while law enforcement investigated.
Law enforcement then followed the footprints, which showed no tread marks in the
snow, up to a residence’s patio door, back door, and garage door. They followed the
footprints to a small shed on a hill that was up on stilts with a deck around it. The footprints
tracked up onto the deck and then off the edge of the de ck. Law enforcement did not
observe animal prints in the area or anything related to a dog.
Law enforcement then found Haukoos under the deck in a fetal position, wearing
shoes with duct tape around the soles. Ha ukoos had a bag with a crowbar, pry bar,
screwdriver, and pliers. After he was arrested, Haukoos told law enforcement that he was
looking for his dog. Partlow found two pocketknives, a flas hlight, a black ski mask, and
some spare batteries on Haukoos after he was searched.
Deputy Partlow testified at trial. On cross-examination de fense counsel asked
Partlow, “Did you ask Mr. Ha ukoos what the duct tape was about?” Partlow stated, “I
don’t believe so.” On cross-examination Partlo w agreed that he did not follow other sets

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of footprints that did not lead to residences. Deputy Boardman also testified at trial. On
cross-examination, defense counsel asked Boardman: “Did you ask Mr. Haukoos, after the
arrest, what kind of dog it was?” Boardman re plied, “I did not.” Boardman agreed on
cross-examination that he was not able to follow every set of footprints and he was focused
on the footprints around the residence.
On the state’s redirect of Boardman, the following exchange occurred:
PROSECUTOR: The defense attorney asked you whether or
not you asked defendant some questions. Did you ask the
defendant to speak with you?
BOARDMAN: I did, in the jail.
PROSECUTOR: And did he agree to speak with you?
BOARDMAN: No. After I read Miranda, he refused—
PROSECUTOR: He did not agree to speak with you, then?
BOARDMAN: No.

Haukoos and his fiancée, Brianna Jergens, testified at trial. Haukoos stated that on
January 7, 2016, he was cleaning up rabbit wa ste in his rabbit hutch and that he had duct
tape around his shoes to make it easier to cl ean rabbit waste off the bottom of his shoes.
He stated that there was some tension and fighting between him and Jergens that day so
the two decided to get out of the house and visit Haukoos’s father around 8:30 or 9:00 p.m.
Haukoos said that he brought his dog Rosi e on the trip because she has “abandonment
issues” and cannot stay in the house alone. While in the car, Haukoos and Jergens
continued arguing. The argument got heated, and Jergens wanted to return home. She
stopped the car near the Indian Hills neighborhood and told Haukoos she was going to sit
in the back seat. Wh en Jergens opened up the back car door, Rosie darted out and ran
away.

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Jergens testified that at this point she drove the car around the Indian Hills area three
times to find the dog. She said Haukoos exited the vehi cle and the two argued about
whether to pursue the dog on foot. Haukoos asked Jergens, “What if the dog gets trapped
. . . entangled or something?” In response, Jergens threw tools out of the car window at
Haukoos. Jergens said that as she was driving away Haukoos yelled “How [am I] supposed
to carry the tools?”, and then she threw a recyclable grocery bag out the window and drove
away. Twenty to thirty minutes later Jergens changed her mind about leaving and returned
to the area to look for Haukoos. She then encountered law enforcement.
Haukoos testified that he walked around for two hours looking for his dog and that
he knocked on one residence’s door but no one answered. He said he ended up in a wooded
area near a lake. Because he wa s cold and tired, he sought sh elter. Haukoos said that he
went under the deck and fell asleep, and he was woken up by law enforcement.
During the state’s cross-examination of Haukoos the following exchange occurred:
PROSECUTOR: Clearly, in your line of work, and with the
education you have, and the experiences you had, you
developed some communication skills; right?
HAUKOOS: Yes.
PROSECUTOR: Do you know how to talk to law enforcement
officers?
HAUKOOS: Definitely.
PROSECUTOR: Not afraid of la w enforcement officers, are
you?
HAUKOOS: Not whatsoever.

During his closing argument the prosecut or argued that Haukoos’s behavior was
inconsistent with someone looking for their dog:
You know, [Haukoos] could – he could, theoretically, I guess,
go to a house and ask for help by knocking on a door. And

6
then when the officers approached him, as well, he didn’t ask
for help. He made one comment that he was looking for his
dog, and that’s all he said. And when Deputy Boardman went
further to ask him questions, he did not answer her questions.
This was not a person who wa s looking for a dog. Because
when you think of it, if you ar e looking for a dog, what is the
first thing you do when you have contact with somebody else?
. . . ‘Have you seen my dog?’ That’s what you would do if you
saw another person.

(Emphasis added.)
The jury found Haukoos guilty. The district court sentenced Haukoos to 12 months
and one day in prison, but stayed the sentence for three years.
Haukoos now appeals.
D E C I S I O N
Haukoos argues that his Fifth Amendment ri ght to remain silent was violated, and
that reversible plain-error occurred, when the prosecutor: (1) asked Deputy Boardman
questions on redirect that elicited an swers about Haukoos’s post-arrest, post- Miranda
silence; (2) implicitly refere nced Haukoos’s silence when he asked Haukoos on cross-
examination whether he knew how to talk to law enforcement; and (3) argued in his closing
argument that Haukoos would not answer Boardman’s questions.
Appellate courts review a lleged prosecutorial misconduct under a modified plain-
error standard when a defendant fails to object at trial. State v. Ramey, 721 N.W.2d 294,
302 (Minn. 2006). Haukoos did not object at trial and his claim involves prosecutorial
misconduct, so we apply the modified plain-error standard. Under this test, Haukoos has
the burden to show that the pr osecutor’s actions constituted (1) error (2) that is plain. Id.
An error is “plain” if it is “clear or obvious.” State v. Jones, 753 N.W.2d 677, 686 (Minn.

7
2008). A clear or obvious prosecutorial e rror occurs when the prosecutor’s conduct
“contravenes case law, a rule, or a standard of conduct.” Id. If plain error is established,
the burden then shifts to the state to demonstrate that the error did not affect the defendant’s
substantial rights. Id. If the defendant demonstrates plain error and the state fails to carry
its burden on the substantial-rights prong, then appellate courts will assess whether reversal
is required to ensure “the fairness, integrity, or public reputation of judicial proceedings.”
State v. Peltier, 874 N.W.2d 792, 799 (Minn. 2016) (quotation omitted).
A. Plain Error
The Fifth Amendment to th e United States Constitution prohibits the government
from compelling defendants in any criminal case to be a witness against themselves. U.S.
Const. amend. V; accord Minn. Const. art. I, sec. 7. The United States and the Minnesota
Supreme Courts, and this court, have analyzed the multitude of ways a defendant’s silence
may or may not be used by the state. For example, the state’s use of a defendant’s pre-
arrest silence for impeachment of that defendant’s credibility is permissible under the Fifth
Amendment. Jenkins v. Anderson, 447 U.S. 231, 2 38-39, 100 S. Ct. 2124, 2129 (1980).
The state may also use a de fendant’s pre-arrest silence in its case-in-chief. State v. Borg,
806 N.W.2d 535, 543 (Minn. 2011). The state’s use of a defendant’s post-arrest, but pre-
Miranda, silence in its case-in-chief is perm issible when the defendant was under no
government-imposed compulsion to speak. State v. Johnson, 811 N.W.2d 136, 148 (Minn.
App. 2012), review denied (Minn. Mar. 28, 2012). The us e of a defendant’s post-arrest,
pre-Miranda silence is not a due-process violatio n if used as impeachment to cross-
examine a defendant. Fletcher v. Weir, 455 U.S. 603, 607, 102 S. Ct. 1309, 1312 (1982).

8
Generally, the state’s use of a defendant’s post-arrest, post- Miranda silence for
impeachment of a defendant’s ex culpatory version of events told at trial violates due
process. Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 22 40, 2245 (1976). The state also
may not use a defendant’s post-arrest, post-Miranda silence as substantive evidence in its
case-in-chief. Wainwright v. Greenfield, 474 U.S. 284, 293, 106 S. Ct. 634, 639 (1986).
Because Haukoos challenges three separate instances of the stat e’s use of his silence, we
examine each in turn.
i. Redirect of Boardman – “Did he agree to speak with you?”
The first use of Haukoos’s silence came during the state’s case-in-chief after the
defense asked Boardman on cross-examination whether she had asked Haukoos what kind
of dog he owned, and she replied she had not. On redirect, the prosecutor elicited testimony
from Boardman that she asked to speak with Haukoos in jail, but that Haukoos refused to
speak with her after he was informed of his rights under Miranda. Therefore, the state
elicited evidence of Haukoos’s post-arrest, post-Miranda silence during its case-in-chief.
The general rule from Doyle is that a prosecutor’s use of a defendant’s post-arrest,
post-Miranda silence in order to impeach his or he r exculpatory story told at trial is
impermissible. 426 U.S. at 619, 96 S. Ct. at 2245; accord State v. Billups , 264 N.W.2d
137, 139 (Minn. 1978) (holding that it was error to permit the state to impeach a defendant
by cross-examination on his failure to offer alibi evidence at any tim e prior to the trial).
This is true as well for substantive ev idence during the state’s case-in-chief. Greenfield,
474 U.S. at 293, 106 S. Ct. at 639. The theory behind Doyle is that a “Miranda warning is
a governmental inducement which often causes defendants to exercise their right to silence

9
and that it would be improper and unfair to then turn around and allow the government to
use the resulting silence as a weapon against the defendant at trial.” State v. Goar , 295
N.W.2d 633, 634 (Minn. 1980).
The Doyle rule, though, is not ironclad, an d the Supreme Court noted that post-
arrest, post-Miranda silence could be used to impeach a defendant who testified at trial as
to an exculpatory version of events, if the defendant falsely claimed they told police the
same version on arrest. 426 U.S. at 619 n.11, 96 S. Ct. at 2245 n.11.
Additionally, the Minnesota Supreme C ourt examined the exception to the Doyle
rule in State v. McCullum, 289 N.W.2d 89, 93 (Minn. 1979), and State v. Hjerstrom, 287
N.W.2d 625, 628 (Minn. 1979). See also Goar, 295 N.W.2d at 634 (concluding state’s use
of defendant’s post- Miranda refusal to give a written st atement was permissible after
defense attorney cross-examined officer about whether that defendant had denied his guilt
and had been fully cooperative). In McCullum, during the state’s case-in-chief, defense
counsel elicited from police offi cers on cross-examination that the defendant had been
courteous and cooperative. 289 N.W.2d at 93. Relying on the exception in Doyle, the
supreme court ruled that it was not error for the state to elicit testimony from another officer
that the defendant refused to give a written statement post- Miranda and asked to speak
with an attorney beca use the information was used to re but the defense’s theory that the
defendant had cooperated with police. Id. at 92-93.
In Hjerstrom, during the state’s case-in-chief, defense counsel cross-examined an
officer who arrested the defendant close to the scene of a burglary. 287 N.W.2d at 626-27.
Defense counsel asked a “series of questions for the purpose of showing that the arresting

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officer had not questioned the defendant in any detail about what he had been doing” when
arrested. Id. at 628. In an effort to refute the impression that the police had not shown any
real interest in hearing defendant’s explan ation of why he was near the scene of the
burglary, the prosecutor next elicited testim ony from an officer th at law enforcement
attempted to speak with the defendant, but was unsuccessful. Id. The prosecutor did not
elicit any specific testimony about the defendant having received a Miranda warning and
refusing to talk. Id. The supreme court held the state’s questioning was proper under the
Doyle exception because it was used to rebut the impression created on cross-examination
that the police were not interested in the defendant’s version of what occurred. Id.
Here, the state’s redirect of Boardman is similar to Hjerstrom and McCullum and
falls within the exception to the general rule in Doyle. Defense counsel “opened the door”
when he asked the deputies whether they que stioned Haukoos about the duct tape on his
shoes or the type of dog he owned. See State v. Guzman , 892 N.W.2d 801, 814 (Minn.
2017) (explaining that “[t]he opening-the-door doctrine is essentially one of fairness and
common sense, based on the proposition that one party should not have an unfair advantage
. . . and that the factfinder should not be presented with a misleading or distorted
representation of reality”). Defense counsel also argued in opening statements that the case
was about law enforcement “jumping to conclu sions,” and that they did not consider
alternative explanations for Haukoos’s beha vior. Defense counsel’s questions and the
answers on cross-examination implied that law enforcement did not do their due diligence
in pursuing questioning of Haukoos. While Boardman mentioned that Haukoos invoked

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silence after being read his Miranda rights, the prosecutor cut Boardman off midsentence,
asked whether Haukoos agreed to speak and then moved away from the topic.
We conclude that the prosecutor’s ques tions of Boardman on re-direct about
whether she sought out Haukoos for questioning fell within the Doyle exception because it
was used to rebut defense counsel’s implic ation that law enforcement had “jumped to
conclusions” and did not fully investigate Haukoos’s claim that he was looking for his dog.
ii. Cross-examination of Haukoos – “Do you know how to talk to law
enforcement officers?”

The prosecutor also referen ced Haukoos’s post-arrest, post- Miranda silence when
he asked Haukoos about his communication skills and whether he knew “how to speak to
law enforcement officers.” Haukoos argues this line of questioning was improper.
The state’s cross-examination of Haukoos on hi s exculpatory version of events by
referencing his post-arrest, post- Miranda silence violated the general rule in Doyle. The
question, though, is whether the Doyle exception also applies here.
The prosecutor’s questioning of Haukoos here might be considered a continuation
of the state’s rebuttal to the implication made earlier by the defense that deputies ignored
Haukoos’s explanation about his lost dog and had therefore jumped to conclusions. The
state’s line of questioning here is unlike its earlier redirect of Deputy Boardman, however,
because it did not concern law enforcement’s investigation efforts and was therefore not
used to rebut the defense’s earlier imp lication that law enforcement “jumped to
conclusions.” To rebut the defense’s theory , the prosecutor could have simply asked
Haukoos on cross-examination whether law enforcement atte mpted to speak with him,

12
without referencing his silence. Add itionally, Haukoos never claimed on direct
examination that he attempted to, but was unable to, give a statement to police. While the
prosecutor’s questions about Haukoos’s communication skills was an indirect way of
making the point that Haukoos chose not to sp eak with law enforcement, the state is not
permitted to make “insinuations and innuendos which plant in the minds of the jury a
prejudicial belief in the existence of ev idence which is otherwise inadmissible.” State v.
Currie, 267 Minn. 294, 301, 126 N.W.2d 389, 395 (1964).
In sum, the prosecutor’s cr oss-examination of Haukoos regarding his post-arrest,
post-Miranda silence to impeach his exculpatory version of events was improper under
Doyle. Because the error contravened caselaw, it was plain.
iii. Closing argument – “And when Deputy Boardman went further to ask
him questions, he did not answer her questions.”

Haukoos next argues that the prosecutor improperly referenced Haukoos’s post-
arrest, post-Miranda silence in the state’s closing argument. We agree.
Here, the prosecutor told the jury, in an effort to disc redit Haukoos’s exculpatory
version of events told at tr ial, that when Boardman atte mpted to speak with Haukoos—
which occurred post-arrest, post- Miranda—that Haukoos refused to speak. This portion
of the state’s closing argument went beyond arguing that law enforcement was diligent and
had attempted to speak with Haukoos. Instead, the prosecutor used Haukoos’s post-arrest,
post-Miranda silence in his argument as evidence of Haukoos’s intent to use the tools to
commit burglary and to show his exculpatory version of events was not a reasonable
explanation. Doyle expressly forbids the state’s use of silence in this manner because it

13
was not used for the limited purpose of rebu tting defense counsel’s earlier assertion that
law enforcement did not fully investigate the case. The prosecutor’s error is plain because
it contravenes the rule in Doyle.
The state argues that this line of argu ment was permissible because (1) the
prosecutor did not explicitly argue that the jury should infer guilt from Haukoos’s silence,
(2) Haukoos did not remain silent at tria l, and (3) the state was rebutting Haukoos’s
“ridiculous” version of events at trial that he was looking for his dog. We disagree that the
prosecutor did not use Haukoos’s silence as evidence of guilt in his closing argument. But
even assuming all three of the st ate’s points here are true, the Doyle rule prohibited the
prosecutor from discussing Haukoos’s “failure to offer alibi evidence [to law enforcement]
at any time prior to trial,” unless such evid ence was used to rebut a false claim of
cooperativeness or that law enforcement failed to investigate. Billups, 264 N.W.2d at 139.
The prosecutor’s reference to Haukoos’s silence in this ca se was not limited to rebutting
Haukoos’s assertion that law enforcement failed to investigate his claims.
B. Substantial Rights
Having determined that plain error occurred during the state’s cross-examination of
Haukoos and in its closing argument, we ne xt examine whether the improper use of
Haukoos’s silence affected his substantial rights. A criminal defendant’s substantial rights
are affected when “there is a reasonable lik elihood that the absence of misconduct would
have had a significant effect on the jury’s verdict.” State v. Davis, 735 N.W.2d 674, 681-
82 (Minn. 2007). The state has the burden to show Haukoos’s substantial rights were not
affected. Id. at 681. Appellate court’s consider “[1] the strength of the evidence against

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the defendant, [2] the pervas iveness of the improper sugg estions, and [3] whether the
defendant had an opportunity to (or made efforts to) rebut the improper suggestions.” Id.
at 682.
We agree with the state that Haukoos’s subs tantial rights were not affected in this
case. First, the evidence against Haukoos is overwhelming. Haukoos and his fiancée were
observed casing the Indian Hills neighborhood in a vehicle. Law enforcement discovered
Haukoos under the deck with a black ski mask; a flashlight with spare batteries; and a bag
containing a crowbar, a pry bar, p liers, and a screwdriver. He had duct tape covering the
treads of his shoes. None of the state’s w itnesses observed any signs of a missing dog.
The defense’s explanation at trial as to why Haukoos ended up under the deck with a bag
of tools, a black ski mask, and with duct tape on his shoes is far-fetched and fanciful. The
first factor weighs heavily against Haukoos.
Second, on review of the entire record, the prosecutor’s improper use of Haukoos’s
silence is not pervasive. The suggestion of silence in the cross-examination of Haukoos is
limited to six lines in the trial transcript within 49 pages of cross-examination. The portion
of the state’s closing argument that led up to the mention of Haukoos’s silence is about one
half of a page in a 20-page closing argument discussing multiple topics such as (1) whether
the tools were burglary tools, (2) the defin ition of possession, (3) circumstances showing
intent, and (4) the believability and credibility of Haukoos’s testimony. The prosecutor’s
mention of Haukoos’s silence in his closing argument is one small point within a larger
argument about the many circumstances demonstr ating Haukoos’s intent to use the tools
to commit burglary. The second factor weighs in the state’s favor.

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Third, Haukoos had the oppo rtunity to object during trial and to request an
instruction that the jury disreg ard the statements, but he did no t do so. This factor also
weighs in the state’s favor.
Balancing these factors demonstrates that the state met its bur den in showing that
there is not a reasonable likelih ood that the absence of the pr osecutor’s improper use of
Haukoos’s silence would have had a significant effect on the jury’s verdict. Because the
state met its burden on the third plain-error prong, Haukoos’s substantial rights were not
affected by the plain error and so we affirm his conviction and sentence.
Affirmed.