Prosecutorial misconduct; Alleged Fifth Amendment violations; Commenting on prearrest & postarrest silence & demeanor during closing argument; Ineffective assistance of counsel; Failure to object to the prosecutor’s comments; Alleged Sixth Amendment violations; Right to maintain innocence; Sentencing; Scoring of OVs 6, 9, 17, & 18; Blood alcohol content (BAC)

The court concluded that the prosecutor did not comment on defendant-Keith’s silence in violation of her Fifth Amendment rights. Also, trial counsel did not provide ineffective assistance, “and Keith was not denied her right to maintain her innocence at trial.” Finally, the trial court properly scored her sentencing guidelines. Her convictions stemmed from a car accident that occurred after she ran a red light. A five-year-old passenger in her car died after he was ejected from the vehicle. A few hours after the accident her BAC was 0.332. She was convicted of involuntary manslaughter, OWLS causing death, second-degree child abuse, and OWI with an occupant less than 16 years old. She was sentenced to 8 years and 4 months to 15 years for the involuntary manslaughter and OWLS causing death convictions, 5 years and 11 months to 10 years for each second-degree child abuse conviction, and 180 to 365 days for each of the OWI convictions. Keith asserted “that the prosecutor violated her Fifth Amendment rights by discussing during closing argument Keith’s failure to provide information to the police before the police arrested her.” The record did not show that her failure to “respond to Officer [K’s] questions was attributable to her invocation of her Fifth Amendment privilege against self-incrimination.” The court found that K “was clearly ‘reacting naturally and spontaneously to the scene before him. It was a routine means of commencing an investigation and not an inquiry made pursuant to an already-launched investigation.’” The court held that because “Keith’s prearrest silence was not constitutionally protected, she has not shown that the prosecutor violated her Fifth Amendment rights.” Further, it concluded that “because no plain error occurred, defense counsel did not render ineffective assistance of counsel by failing to object to the prosecutor’s remarks.” Keith also argued “that the prosecutor violated her Fifth Amendment protections by using her postarrest, pre-Miranda silence and conduct against her. She asserts that she was undoubtedly under arrest at [the hospital] because she was handcuffed and informed numerous times that she was in custody, yet she was not Mirandized.” But the record showed “that Keith was not subjected to custodial interrogation at the hospital.” It also showed “that the prosecutor did not comment during closing argument that Keith was silent at the hospital or otherwise use her silence against her. Further, to the extent that Keith maintains that her conduct was testimonial or communicative in nature, and therefore protected under the Fifth Amendment, her argument lacks merit.” The court found that the “officers did not compel Keith’s conduct and no evidence indicates that [her] conduct was in response to statements that they made to her. Rather, the evidence showed that [she] ignored their attempts to communicate with her.” Affirmed.