53 N.C. App. 740 | N.C. Ct. App. | 1981
Defendant assigns as error the trial court’s denial of his motions for mistrial. Giving rise to the motions was the introduction of allegedly inadmissible and prejudicial testimony on two separate occasions during trial.
Defendant first takes exception to the following statement made by the witness, Detective Stankiewicz. The question and his answer were in response to the witness’s assertion that it was necessary for the booking officer to change defendant’s name on the warrant from Elijah Cooley (an alias) to James Rufus Hamilton.
Q. Now, when did you learn of the name change Rufus Hamilton, sir, in the course of the investigation?
A. After bringing — on the mosning of the 5th, after bringing him down from the jail, we read off the warrant to him and we advised him of his rights. He didn’t want to talk to us so we were taking him back to the booking room. [Emphasis ours.]
Defendant relies on the Supreme Court decisions in Doyle v. Ohio, 426 U.S. 610, 49 L.Ed. 2d 91 (1976), and Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694 (1966), to support the contention that a violation of his constitutionally guaranteed right to remain
In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.
384 U.S. at 468 n.37. See State v. McCall, 286 N.C. 472, 212 S.E. 2d 132 (1975).
In order to determine the appropriateness of the trial court’s denial of defendant’s motion for mistrial based on Detective Stankiewicz’s statement, two questions must be answered. (1) Did the statement constitute an improper comment on the defendant’s post-Miranda right to remain silent? (2) In so allowing the statement to be made in the presence of the jury, was there error of such prejudicial magnitude that defendant’s right to a fair trial has been violated?
We have reviewed the North Carolina cases dealing with whether a statement made at trial constitutes an improper comment on the exercise of a defendant’s right to remain silent. In so doing we have noted the absence of any definitive test which might provide guidance. In State v. Taylor, 289 N.C. 223, 228, 221 S.E. 2d 359, 363 (1976), the Court held a comment not improper, relying on the fact that the remarks made did not “specifically point to” a defendant’s failure to testify and that “an average juror would not so interpret them.” In State v. Peplinski, 290 N.C. 236, 251, 225 S.E. 2d 568, 576 (1976), the Court found no improper comment “so long as no direct reference is made to the right of the defendant to testify and his failure to do so.” See also State v. Smith, 290 N.C. 148, 226 S.E. 2d 10 (1976).
We find the language in these cases consistent with the test set out in Knowles v. United States, 224 F. 2d 168, 170 (10th Cir. 1955), a case which also concerned a comment on the failure of an accused to testify. However, we believe the test is equally applicable to the question presented in this case. In applying the Knowles test, we must consider whether “the language used was manifestly intended or was of such character that the jury would
Assuming, arguendo, that there is a basis for finding Detective Stankiewicz’s statement to be an improper comment on defendant’s post -Miranda right to remain silent, we now consider whether allowing the statement constituted error harmless beyond a reasonable doubt. As a reviewing court we first consider whether such comment is extensive and whether an inference of guilt from silence is stressed to the jury as a basis for conviction. Anderson v. Nelson, 390 U.S. 523, 20 L.Ed. 2d 81 (1968) (per curiam). At the outset it should be noted that the defendant in this case offered no testimony on his own behalf. As pointed out in Lakeside v. Oregon, 435 U.S. 333, 55 L.Ed. 2d 319 (1978), inference of guilt from silence whether there is comment or not may be inevitable. Thus, defendant’s failure to testify at trial could very well have been more damaging to his case than any silence, commented on or not, which he constitutionally exercised before trial. State v. Peplinski, supra.
We find that the witness’s comment was not extensive. No inference of guilt from silence was stressed to the jury. The defendant was not penalized for exercising his fifth amendment privilege while under police custodial interrogation.
The fact that, exclusive of the erroneously admitted evidence, there was plenary evidence to support the verdict is not determinative. The test is whether, in the setting of this case, we can declare a belief that the erroneously admitted evidence was harmless beyond a reasonable doubt, that is, that there is no reasonable possibility the admission thereof might have contributed to the conviction.
Viewing the record in its entirety and considering the nature and extent of Detective Stankiewicz’s statement, we find there is no reasonable possibility that its admission contributed to the conviction.
It should also be noted that if an improper comment is made during trial, the error may be cured “by a withdrawal of the remark or by a statement of the court that it was improper, followed by an instruction to the jury to disregard it.” State v. Peplinski, supra, at 252, 225 S.E. 2d at 577. See also State v. McCall, supra; State v. Taylor, supra.
Defendant next excepts to the introduction of testimony relating to the discovery of a weapon purportedly used in the commission of the robbery and assault. No weapon was discovered during the initial investigation of the crime. On 26 August, nearly four months later, police returned to the area and within minutes found a dirty white sock containing two pieces of concrete. The state offered no explanation of how they were able to locate the “weapon” or what relevance this discovery had to the robbery and assault they had investigated on 1 May. Based on these omissions the trial court granted defendant’s motion to strike the testimony, denied defendant’s motion for mistrial, and instructed the jury in firm and unequivocal terms to disregard all evidence relating to a sock containing two pieces of concrete. At this point the state took dismissals on the original charges of
No error.
