State v. Moore, 366 N.C. 100

Defendant Moore, 42, charged by arrest warrant (Feb. 2, 2009) with misdemeanor sexual battery involving a 16-year-old victim (T.B.).
Trial evidence showed T.B. and Terrance Farrish as cousins; incident occurred at Farrish’s Burlington home with others present earlier/later.
Officer Murphy testified that T.B. described the assault; defendant voluntarily came to the police station, denied the assault, and later was arrested and read Miranda rights.
Defendant exercised his right to silence post-Miranda; Murphy later testified that defendant refused to speak after rights were read and that no further talk occurred.
Court of Appeals found no plain error in admitting the post-Miranda silence testimony and vacated the sex-offender registration order; court affirmed the trial, and remanded for new sentencing hearing on that issue.
This Court affirmed the Court of Appeals, holding admission of post-Miranda silence was error but not plain error; addressed related pre-arrest silence testimony and overall sufficiency of trial evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether post-Miranda silence testimony was plain error	Moore argues admission was plain error	Moore contends error affected trial fairness	Not plain error
Whether the post-Miranda silence evidence entitles Moore to a new trial	Admission affected guilt determination	No fundamental error given record	No new trial warranted
Whether pre-arrest silence testimony by Murphy was error			Not error on proper scope

State v. Ladd, 308 N.C. 272 (1983) (Fifth Amendment silence may not be used against a defendant)
State v. McCall, 286 N.C. 472 (1975) (Trial court erred admitting officer's testimony about defendant's silence)
State v. Castor, 285 N.C. 286 (1974) (Commentary on Fifth Amendment rights generally impermissible)
State v. Fuller, 270 N.C. 710 (1967) (Silence protections apply after Miranda warnings)
State v. Moore, 262 N.C. 431 (1964) (Silence after arrest may not be used against defendant)
State v. Mendoza, 206 N.C.App. 391 (2010) (Questioning about silence did not rise to plain error (appellate opinion))
State v. Freeland, 316 N.C. 13 (1986) (Prosecutor not eliciting or emphasizing silence weighs against plain error)
State v. Elmore, 337 N.C. 789 (1994) (Harmless error where officer’s testimony about silence de minimis)
State v. Alexander, 337 N.C. 182 (1994) (Prosecutor’s relatively benign questions about defendant speaking were not plain error)
Odom v. State, 307 N.C. 655 (1983) (Plain error review is cautious; burden to show probable impact on guilt)
Ward v. State, 354 N.C. 231 (2001) (Fifth Amendment rights incorporated; silence not to be commented on)