During the State’s case-in-chief, Detective McKinney testified about his investigation. He testified that he tried to call Owens more than once but failed to reach him. Id. at 202. He also testified that he went to Owens’s home and left his business card asking Owens to call him. The prosecutor asked, “[D]id you receive any contact from Mr. Owens?” Id. Detective McKinney replied, “I did not.” Id. He then testified that he went to Owens’s home a second time, and left his card again with the message “Please call me” on the back of the card. Id. at 203. Again, the prosecutor asked Detective McKinney whether he had any response from Owens, and the detective replied that he had not. Id. Owens raised no objection to Detective McKinney’s testimony regarding Owens’s failure to contact him. During Detective McKinney’s cross-examination, Owens questioned him about his failure to speak with the Elwood police and school officials who initially interviewed C.R. or anyone from the Madison County DCS. During closing argument, the prosecutor did not comment on Detective McKinney’s attempts to contact Owens and Owens’s lack of response.
. . . .
Nevertheless, even under the cases holding that a defendant’s pre-arrest, pre-Miranda silence is protected by the Fifth Amendment, Owens’s lack of response to Detective McKinney is outside the ambit of the Fifth Amendment. Recall that in the majority of those cases, the court specifically considered whether the defendant invoked the right to remain silent and concluded that the defendant’s statement or action was an invocation of the right. See Combs, 205 F.3d at 286; Burson, 952 F.2d at 1200; Coppola, 878 F.2d at 1567; see also Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010) (holding that during police interrogation right to remain silent must be invoked unambiguously). Based on these cases and the particular circumstances present here, Owens’s mere lack of response does not support a finding that he invoked the right to remain silent. Perhaps Owens did not respond because the wind blew Detective McKinney’s cards away, or perhaps Owens was very ill or too busy, or perhaps he just did not like the police. Also, since Detective McKinney never told Owens why he wanted to talk to him, there is no basis to conclude that Owens even would have known that he was the subject of an investigation. Based on the foregoing, we conclude that the State did not infringe upon Owens’s Fifth Amendment privilege against self-incrimination by introducing evidence that Detective McKinney did not hear from Owens. It follows that no error, let alone fundamental error, occurred in the admission of the testimony.
We emphasize that we do not today determine that all pre-arrest, pre-Miranda silences are unprotected by the Fifth Amendment and that our holding is strictly limited to the particular facts currently before us. On another note, we observe that in situations such as this one, the Rules of Evidence may be applied without unnecessarily invoking the Constitution. Detective McKinney’s testimony regarding Owens’s lack of response, given that he was under no compulsion to respond and may not even have been aware of the reason for Detective McKinney’s communication, may well have been inadmissible based upon relevancy or unfair prejudice. See Ind. Evidence Rule 402 (“Evidence which is not relevant is not admissible”); Ind. Evidence Rule 403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.”). Although the State argues that the thoroughness of the investigation was at issue and the testimony was necessary for “rounding out the course of the investigation,” Detective McKinney’s thoroughness consists of what he actions he took, not what actions Owens did not take. . . . Thus, it is questionable whether Owens’s failure to contact Detective McKinney is necessary to assess Detective McKinney’s diligence. In any event, our point here is that basic evidentiary rules of admissibility should not be overlooked.
FRIEDLANDER, J., and BARNES, J., concur.