COA determines any error by State commenting at trial on defendant asserting her right to silence was harmless.
State v. Elizabeth A. Erickson, 2025AP1150-CR, 4/22/26, District II (ineligible for publication); case activity
The COA affirmed the defendant’s conviction for disorderly conduct and the circuit court’s order denying the defendant’s motion for postconviction relief alleging her counsel was ineffective for failing to object to the State’s comments at trial that she did not tell police about a dog causing injuries to the victim. The COA did not address whether the State’s comments violated the defendant’s right against self-incrimination, but determined any error was harmless.
Police testified at trial they responded to a 911 call from “Justin” at the residence he shared with Elizabeth Erickson. Justin told the officers Erickson pushed him against a wall, scratched him with her fingernails, and hit him in the head. An officer testified that she saw scratch injuries and puncture marks on Justin. (¶¶ 2-3).
Erickson’s theory of defense was that their dog caused the injuries. One of the investigating officers testified that Erickson told him that Justin scratched himself, but she did not tell police their dog caused the injuries. The State suggested in its summation that Erickson’s defense was not credible because she did not tell police the dog caused Justin’s injuries. (¶ 3).
Erickson filed a postconviction motion alleging trial counsel was ineffective for not objecting to the State’s closing argument that she did not report to police that the dog caused the injuries, which Erickson argued was improper commentary that her asserting her right to silence was evidence of guilt. The circuit court denied the motion because Erickson did not invoke her right to silence with police. (¶ 5).
Erickson argued on appeal that the circuit court erred by denying her postconviction motion because “the State’s comments at trial on Erickson’s failure to report Justin’s injuries from their dog to responding officers constituted a violation of her right against self-incrimination.” (¶ 7).
The COA did not address whether the State’s comments were improper because it concluded any error was harmless given that the comments were “infrequent, of little import, and were duplicative of untainted evidence insofar as they functioned to impeach Erickson’s credibility.” (¶ 9). The Court noted Erickson gave inconsistent statements to police by denying a physical confrontation with Justin but later admitting she pushed him. The COA observed that the State’s argument that Erickson did not tell police the dog caused Justin’s injuries was evidence she was “changing her story once again” and her “omission thus constituted duplicative impeachment evidence.” (¶ 10).
Moreover, the COA concluded there was sufficient evidence Erickson engaged in violent and otherwise disorderly conduct, aside from the State’s arguments regarding her failure to report the dog causing the victim’s scratches, because the victim called 911, Erickson admitted she pushed Justin, and her inconsistent statements regarding whether a physical confrontation occurred undermined her credibility. (¶ 12).