State v. Hunt

VAUGHN, Chief Judge. pre-trial is whether the appeal initial issue raised on

[1] silence of defendant in-court was used properly COURT OF APPEALS testimony. Defendant argues that himself allowing to be cross ex- amined violates defendant’s due process rights under the 14th Amendment to the United States Constitution as well as his to remain silent under the 5th Amendment and under art. 23§ of the North Carolina Constitution. State v. 301 N.C. 271 S.E. 2d 273 We hold that defendant has failed to show a violation under either provision.

In order to establish a violation of due process under the silence, 14th Amendment an attack on his pre-trial defendant must at least show that he warnings and was thereby implicitly assured that the exercise of his to remain Ohio, carry silent would no penalty. Doyle v. 426 U.S. (1976) (three L.Ed. 2d justices would have al lowed the questioning even though Miranda warnings had been record, however, given). The fails to show and defendant does not argue that he was given Miranda warnings or prior to arrest or during the extended period which he remained silent and not, therefore, failed to offer explanation. It was improper under the 14th Amendment due process clause to cross examine regarding pre-trial silence when he chose to take Weir, the stand. Fletcher v. 455 U.S. 102 S.Ct. 71 L.Ed. (1982) 2d 490 (rejecting the Sixth Circuit’s decision which held that arrest alone was governmental action which in implicitly — silent); McGinnis, duces a defendant to remain —, (1984); Burnett, App. S.E. 2d 297 State v. N.C. denied, 251 S.E. 2d cert. 254 S.E. N.C. 2d 924 The Fletcher quoted court with renewed approval from Anderson, Jenkins v. 447 U.S. L.Ed. (1980), a case dealing with pre-arrest silence: law Common has allowed witnesses to be im traditionally by

peaсhed previous their failure to state a fact in circum stances naturally that fact would have been (Chad asserted. 3A Wigmore, J. Evidence p § 1970). rev, bourn Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so incon present sistent with statements impeachment by reference to such silence is probative.

Fletcher, 455 U.S. COURT OF

The Fletcher court further held: em- affirmative assurances

In the absence of the sort of not it Miranda we do believe warnings, bodied cross- permit due of law for a State process violates when a defendant examination as to silence postarrest entitled, in such situa- chooses to take the stand. A State is tions, its own rules of jury to leave to the and under judge postarrest evidence the resolution of the extent to which may a criminal defendant’s impeach be deemed testimony. own

Id. at 607. is, course, by both the right protected to remain silent

5th Amendment to the United States and article Constitution Here, however, section 23 of the of North Constitution Carolina. right we are concerned with the and fundamental long-standing tes- the State to a defendant who waives not to impeach tify with declarations or conduct is inconsistent his sworn at trial. If the statement or conduct pre-trial inconsistent, may is inconsistent, defendant. If it is not impeach used to We are

it does not not be used. any not aware of of North Supreme decision of the Carolina that would more or heavier burdens on the State’s place by cross examine a than those testifying imposed defendant of the Supreme Court United States. 2d 273 defend-

ant was As the indictments were with the sale of heroin. charged read, that he had once sold being he volunteered the named in the indict- person heroin but had not sold his boss testified that defend- ments. At trial both defendant and time the sale was ant was in South at the Darlington, Carolina noted made in Point. The court first alleged High to have been volunteered, that since the statement made process and thus the due warnings applicable were arise. The issue Doyle single discussed in did not question court, was “whether defendant’s presented, stated . . . amounts to an inconsistent failure to disclose alibi defense testimony relative to an alibi.” in of his in-court light Lane, that 271 S.E. 275. The court held 301 N.C. at 2d at case, opinion this it is our circumstances of particular “[u]ndеr his alibi defense at that the failure of defendant to state the time being the indictment was read to him or at time to trial prior 386-87, amount to a inconsistent statement.” Id. at prior did not 271 S.E. 2d at

The court reasoned: crux of this case whether it would have been natural for defendant to have mentioned his alibi defense at voluntarily time he stated that he “did sell heroin to We answer person question this in the [Lee Walker].” In our the alibi defense was not negative. opinion, inconsist- he ent defendant’s statement did not sell heroin to Officer Lee Walker. At the time the indictment was being read to defendant on 25 he was April under arrest and custody was in in the Winston-Salem Police At Department. with or without the Miranda point, warnings, his con- rights ‍​​‌​​‌​​‌​‌‌‌‌​​‌​​​​‌‌​‌​​‌‌​​​​‌​‌​‌​​‌​​‌​​​‌‍guaranteed stitutional the fifth were amendment viable. charged April The indictment that on some twenty-one days prior to the date of the reading the indict- ment, police defendant sold heroin to officer Walker. It was natural for defendant know whether he had sold drugs to deny named person spontaneously having done so. In opinion our it would not be natural for a person, particularly case, present under the circumstances this to know where twenty-one days he was on date some prior thereto. It is a cannot, knowledge matter of common the average person instanti,

eo remember where he was on a given date one, two weeks in the without past or three some investiga- from sources ability tion and substantiation other than his instant recall. 276 [emphasis 2d at added]. Lane, therefore, only whether question it would explained natural for defendant to have

have been alibi trial. The court concluded that it would not have been natural and therefore his silence on the alibi defense was not inconsistent was, result, with his at trial. That silence as a constitu- Lane, therefore, tionally Under the test of protected. question whether, before us is when defendant saw that his wife had been son, shot her own it would have been natural him to have away said so instead of led being jail on the accusations of the APPEALS COURT OF v. Hunt who, silence, real murderer because of defendant’s was left to go Indeed, easy. free. To us the is is question it inconceivable that he would not have volunteered the information. We hold that his which, true, any silence about if rational person would have spoken whеre, testimony was used to his properly impeach at trial

for the first after his time wife was murdered in his presence, he named her son the murderer. His own brother Yet, testified as witness according him. to defendant’s testimony as set out in this he opinion, had not even told his brother his version of how his wife was murdered. There is silence, nothing ambiguous about defendant’s and we find to be it testimony considerable value in his probative impeaching at trial.

The patent incredibility of defendant’s silence here is even McGinnis, stronger than it was in State v. 70 N.C. case, S.E. In that defendant convicted of deadly assault weapon. The State’s evidence revealed that lot, defendant encountered his victim a parking exchanged words and shot him. Defendant was shortly arrested thereafter but, case, as in present made no statement to the until police trial, at which time defendant testified that his weapon was fired accidentally. The Court noted clearly would have been natural for defendant to have told the arresting officer that accidental, shooting was if truly believed such to be the result, case. As a the State use post-arrest could defendant’s silence in an attempt impeach his at trial. The court stated, think, whether, correctly we test under the “[t]he arrest, circumstances time of the it would have been natural for defendant have asserted the same defense asserted —, at trial.” Id. at 320 S.E. 2d 300 [emphasis added].

It does not make difference whether defendant remains statement, totally silent or makes some as in that does not testimony. impeaсh trial question whether he remains silent about matters that it would be natural for him If to relate. does, he his failure to speak out when it would have been natural for him do so can be used him without encroaching on right. constitutional

In a later case our Supreme opportunity took the further explain ruling its in Lane: by a that comment prose- for the proposition

Lane stands silence, attorney upon post-arrest at trial defendant’s cuting rule, Lane constitutionally impermissible. is general as a however, does, an to this rule: the recognize exception prior when silence This arises defendant’s statement. inconsistent oc- his at trial and of amounts to contradiction silence, when, it would only at the time curs defendant’s of the substance of give natural for him to sрeak have been testimony. his trial 352, Odom, n2, 277 2d 354-354 165-166 S.E. v. N.C.

State denied, n2, 70 L.Ed. 454 U.S. 2d cert. denied, 102 S.Ct. 71 L.Ed. 454 U.S. rehearing (footnote included) (1982) (citing Wigmore, 3A Evidence 1970) (when (Chadbourn an silence amounts to incon rev. § sistent statement)) [emphasis added]. Burnett, defendant about questioned pre-trial prosecutor follows: Q. you day, on witness sitting Have ever before this man,

stand, any law enforcement wom- anything ever said whatever, an, Ike? or about this person

A. No. Q. you ever said to the District Attor- anything Have here, today on this ney’s sitting Office witness stand Ike? all about this man anything said Objection. MR. HOWARD: Overruled.

COURT:

A. No. (now Mitchell, through then Judge Supreme The court stated Justice): in us in appeal the record on before these cases

Nothing either of the defendants were advised of their indicates that As there no evidence that thesе defend- rights. rights, ants ever of their Miranda advice as were advised not have assured them that their rights ‍​​‌​​‌​​‌​‌‌‌‌​​‌​​​​‌‌​‌​​‌‌​​​​‌​‌​‌​​‌​​‌​​​‌‍implicitly those could Therefore, holding silence would not used. Court’s COURT OF APPEALS Doyle did not the use of prohibit the defendants’ silence the State in the context of the of particular facts these cases.

aWhen defendant receives no assurance whatsoever him, that his silence will not be we do not used believe it would be unreasonable or unfair to the ac- expect identity cused to tell the authorities of the of perpetrator the crime with which the if the defend- charged, has ant reason to believe that is someone perpetrator other than If himself. the defendant has not been advised of to remain silent until and waits he takes the witness identity stand his defensе to reveal of alleged- first ly true perpetrator, reveal prosecutor tardiness such statement as tends upon to reflect the credibili- ty the statement. 609,

Id. S.E. 251 2d at 720. facts, to Defendant’s failure assert these when it would have so, been natural him do in for to “amounts effect to an assertion of the nonexistence of the an fact” and thus constitutes incon- sistency the jury considered as evi- properly impeaching (Chadbourn 1970). Evidence, 3A dence. 1042 rev. Wigmore, § ^[2] Defendant’s second argument describes as error the trial court’s refusal to prior charges exclude evidence of assault in by against stituted Mrs. Hunt We disagree. defendant. in own In so

Defendant testified behalf. he sur- doing, rendered his self-incrimination and privilege properly subjected by to impeachment specific acts of questions relating 259, Foster, criminal and 284 degrading conduct. State v. 200 N.C. (1973); 386, S.E. 782 v. Ashley, 2d State 54 N.C. S.E. 2d App. 283 (1981), denied, 153, (1982), 805 disc. rev. 289 305 N.C. S.E. 2d 381 McGaha, 699, rev’d on other grounds, State v. 306 N.C. 295 S.E. (1982). 2d 449 impeachment “Cross-examination for of purposes convictions, . not. . to questions limited but also concerning extends questions relating specific acts of criminal and degrading conduct for which there has been no conviction.” State (1978). Ross, 490-91, 488, 780, v. 295 246 S.E. 783 The prop- N.C. only by er of cross scope such examination is limited the exercise discretion, faith, Purcell, good the trial State judge. v. 728, see, (1979); Wise, 296 S.E. N.C. 2d 772 State v. 27 e.g., Hunt State v. denied, rev. S.E. disc. App. N.C. 289 (1976) preclude unfair” to (“grossly 222 S.E. 2d 702 N.C. with police “deal” officer cross examination of defendant’s charge). another regarding case, relationship testified that

In the present had entirely and that he therefore his wife was harmonious result, was compe- charge no kill her. As assault motive to admissible, sub- proving for not the purpose tent therein, of the true but as indicative stantive facts asserted Hunt. and Mrs. However relationship ground- between defendant less, charges criminal Mrs. evidence of the institution of charges couple. marital tensions between reveals serious case and were within present not unrelated are therefore Purcell, v. We State supra. of the defendant. See knowledge in admitting his discretion trial did not abuse judge hold that the objections. over defendant’s evidence purpose, for one competent We that when evidence note another, entitled, request, to have upon for a defendant is but nоt only purposes for those jury instructed to consider Ray, it is State v. N.C. competent. which (1938); Foster, 306 S.E. 2d App. N.C. show, however, any spe- that defendant made record does only for impeach- consider the evidence jury cial request time to limit and restrict request “Absent purposes. apt ment re- judge the trial is not impeachment evidence to purposes, such instructions,” Austin, such quired give (1969) Goodson, 481, 482, 273 11 State v. (citing 167 S.E. 2d 658, Elkerson, (1968)); 128, 2d 304 159 S.E. 310 N.C. N.C. (1982), a is to objection 2d 784 insufficient general See, e.g. under these circumstances. special request constitute (“I 482, Austin, in- 11 request special at S.E. at N.C. any jury they how are to consider supposed struction to the The trial adequately specific). . . .” held to be evidence [sic] not improper. court’s failure to instruct therefore No error. concurs.

Judge JOHNSON WHICHARD dissents.

Judge COURT OF APPEALS

Judge WHICHARD dissenting. The majority opinion the phrases question the before court “whether, as when defendant saw his wife by had been shot son, own her it have been would natural for him have to said so. . .” . The majority phrases question they so the because read Lane,” only in question 301 N.C. S.E. 2d “[t]he be “whether would to have been natural for defendant to have explained his alibi to trial.” Having so question, framed the which, true, majority is able to hold that “silence about if any rational person would have spoken” be used to impeach a defendant’s The majority at trial. determines that, Lane court to have concluded absent Miranda warnings, silence that “natural” constitutionally not is not protected. my view North Supreme Carolina has not passed upon whether evidence of pretrial is admissible to impeach a criminal defendant who testifies at trial.1 In Lane the “Hell, voluntary held court that defendant’s statement to police— before, I sold I heroin but heroin didn’t sell to person” —did not amount a prior to statement inconsistent alibi de- Lane, at fense trial that could be used impeachment purposes, 386-87, 301 N.C. at 271 S.E. 2d at 276. question in Lane was not whether it would have been natural for defendant Rather, stated, explained have his alibi prior to trial. the court by

The single question presented this is whether appeal prejudicially deprived defendant was of his constitutional rights when court permitted attorney district him cross-examine his failure concerning to disclose alibi at the time made a he statement or police at officers trial. time before 271 S.E. 2d Id. Odom, regard I1. S.E. the footnote (1981), quoted majority opinion, incomplete an regarding in the statement Lane, statement, In the

Lane. factual context the reference to silence within Odom, directly pass upon to absolute silence as here. like does not here, viz, question presented impeachment by impeach- opposed total silence as partial presented pages that omits later ment matter at trial. place impeachment Lane cited in the in Odom refer footnote at no total Further, York, cites Harris v. New 401 U.S. silence. footnote statement, prior prior 28 L.Ed. 2d 1 also dealt a inconsistent not silence. COURT OF a it as whether Thus Lane framed the issue before court his failure to disclose concerning be impeached defendant could officers. Id. at police at made a statement to his alibi the time he concluded, 385, 271 S.E. at 275. The court of defendant’s con- Here it clear that there was a violation attacked defendant’s The cross-examination rights. stitutional in such man- his a exercise of self-incrimination jury with the that defend- strong ner as leave a inference to The an creation. ant’s of alibi was after-the-fact defense case, alibi crucial defendant’s and it seems defense of was to his failure to concerning cross-examination probable that substantially trial con- his defense of alibi to prior relate his to conviction. tributed

Id. S.E. at 277. The court held that the evidence at sufficiently to warrant a new trial. prejudicial was speaks incredibility”

The of the defend- majority “patent еight- his alibi until a trial that occurred some ant’s silence about Lane such een months after arrest. The court found no incredibility. day trial that on the At defendant there testified he had his an au- alleged accompanied employer heroin sale Lane, 301 271 S.E. 2d at tomobile auction. N.C. at know he a emphasized person court that a not where was on date, instanti. Id. at 271 S.E. 2d 276. The court eo had to recall fur- suggest obligation did not defendant or this between the instant of arrest and trial. Under the nish alibi analysis of a has no length bearing Lane defendant’s silence or constitutionally sufficiently on whether ‍​​‌​​‌​​‌​‌‌‌‌​​‌​​​​‌‌​‌​​‌‌​​​​‌​‌​‌​​‌​​‌​​​‌‍protected pro- under law. bative to be admissible state evidence Moreover, factually distinguishable. this case and Lane are here, failed to disclose alibi аt the unlike defendant time Thus, Lane he involved a police. made statement here, however, made no statement defendant. defendant Rather, his arrest. police following to the Defendant and his wife series of events: following testified motel, spend night go were to movie planning Jacobs, occasionally Defendant’s wife asked they did alone. son, which was three weeks overdue. her about rent grown rent worried about and defendant’s Jacobs said he they slap had bills to threatened to pay. wife stated that Jacobs APPEALS COURT OF (Jacobs mother, who told then Jacobs to pack get out. ad- mitted on cross-examination that he had had conversations with out.) his mother about moving Defendant then left the trailer to tend his hunting dog and was outside when the shot was fired. He was outside as well when the police arrived.

According testimony, to police upon seeing police immediately pulled their and told him halt. weapons De- fendant raised his hands. The officers handcuffed him and him put in a squad car. The record shows custody that defendant remained in from trial; day of his arrest through on he was sentencing

credit days for 153 in confinement. The record is silent as to Miranda warnings.

This case thus involves postarrest silence absent Miranda warnings, Lane while a involved statement. court postarrest in Lane recognized a single to the constitutional exception to silence: impeachment by a prior inconsistent statement. Silence a plays in this part exception only insofar as a inconsistent may statement be silent as to “a matеrial circumstance presently to, testified which it would have been natural mention Lane, prior statement.”2 301 N.C. at 271 S.E. 2d at Mack, quoting State v.

The court in Lane explained position by its noting two situa- tions in which a material omission a prior converts statement into a prior inconsistent statement. In the first situation a written (a letter) whole, taken say as a neglects what it says, well as what “affords some fact presumption was different from testimony.” Foster v. Worthing, [the witness’] 146 Mass. 16 N.E. 572 cited in 301 N.C. at Thus, 271 S.E. 2d at 275-76. to illustrate the exception the con- silence, stitutional the Lane court chose a situation in trial, defendant, which a witness in a civil not a criminal impeached by letter which he has omitted a material fact. In distinguished 2. This is to be discrediting from —in to a witness contrast defendant, criminal testimony, issue conduct inconsistent with trial here — Brandis, North Carolina Evidence prohibition. carries no constitutional See Sec. at 174-75 n. 64. 65. 66. (not defendant), who criminal a witness second situation defendant, threaten the deceased she had heard testified that police she had told a by her failure to state was impeached deceased. threaten the heard defendant she had also officer that 385, Lane, 71, 334, Mack, 301 at 193 S.E. 2d cited 282 N.C. a ma- which omitted to police at 276. The statement 271 S.E. 2d inconsistent as a prior at trial was admitted testified to terial fact statement. therefore, court, silence se per suggest did not

The Lane im- be used to with a later alibi defense is inconsistent Further, contrary to the a result Lane appears support peach. majority’s holding in Lane states: here. The court Miranda warn- fact that little to the significance attach [W]e ings defend- warnings without such With or given. were not by guaranteed silent right of his to remain ant’s exercise [is] 1, 23, and North Carolina Constitution Article Section amendment to the by the fourteenth incorporated the fifth as States Constitution. United 384,

Lane, 275. The court made this at 271 S.E. 2d at 301 N.C. 231, Anderson, 447 U.S. 65 fully of Jenkins v. cognizant Ohio, 426 U.S. Doyle and L.Ed. 2d S.Ct. distinguished It fact 96 S.Ct. 49 L.Ed. 2d was not under arrest and in which defendant Jenkins as a case Lane, protection. fifth amendment the ambit of not within thus In Jenkins the United States S.E. 2d at 275. 301 at impeach silence to prearrest that the use of held Court Supreme a defendant’s credibility the United States Con- does not violate 94-95, Jenkins, L.Ed. 2d at 100 S.Ct. 447 U.S. at stitution. fundamentally unfair held that it Doyle, the court 2129. In at they after had been defendants postarrest to use that their silence would warnings via assured impliedly L.Ed. 2d at Doylе, 426 U.S. carry penalty. no from Lane tends to indicate above quotation 2241. The Doyle limit to its facts. The would not Court Supreme our suggest therein language Lane and the pertinent reasoning by silence before our prior of impeachment were the issue Court, court would hold that not in as it was Supreme by the North silent is Carolina guaranteed to remain right COURT OF Constitution, exercise, warn- and that its with or without Miranda be a basis for ings, subsequent impeachment.3 cannot majority while the to silence is pro- states that tected the Fifth Amendment to the United States Constitution I, Carolina, we Art. Sec. of the Constitution of North right, are concerned here not with that fundamental but with the of the state to a defendant who testifies with declarations or conduct that is inconsistent with his or her testi- mony majority they сlassify at trial. The do not state whether “declaration,” not, defendant’s silence as a which it or con- They merely not make difference duct. state that does “[i]t totally remains silent or makes some state- whether defendant I . ...” believe it makes a considerable difference and that ment rela- in Lane was aware of both the difference and its the court evidence law. to state tionship Jenkins, explicitly the United States noted Supreme impeachment “not force state court to allow it did 239, 477 65 silence.” U.S. at L.Ed. 2d prearrest the use of through 96, 2130. jurisdiction 100 at “Each remains free to for- S.Ct. evidentiary rules the situations in which silence defining

mulate Id. In v. prejudicial.” as more than Fletcher probative is viewed 490, 494, 1309, Weir, 1312 71 2d 102 455 U.S. L.Ed. S.Ct. (1982), a “is ... further noted that state entitled the Court . . . jury and under its own rules of evidence judge leave to the may be deemed postarrest the extent testimony.” own a criminal defendant’s

Thus, distinguished has between Virginia Supreme to a incon- opposed a defendant’s silence impeachment Commonwealth, 633, 283 222 Va. Squire v. statement. See sistent law a court Under state constitutional Florida S.E. 2d 201 a defendant’s postarrest to comment on impermissible has held it given. Miranda are court warnings or not silence whether said, on the greater is free to restrictions place state court “[A] impeachable Additionally, absent if holds that silence is even the court 3. Weir, 603, 490, v. 2d 1309 Fletcher warnings, 455 U.S. L.Ed. S.Ct. Miranda that no Miranda warnings were prosecution’s burden to establish it is the presume in Fletcher did not case within Fletcher. The court bring 200, Cummiskey, v. F. See United States given. 2d warnings were 1984). (3rd prosecution carried this burden Here there is no evidence Cir. proof. of COURT OF use post-arrest Doyle-Jenkins-Fletcher of silence than the trilogy with, requires, merely since to do so expands, but is consistent State, minimal due these cases process announce.” Lee v. (Fla. 1982). 928, 930 So. 2d A App. judge Florida has also noted credibility that: “The of testimony, like that of [a defendant’s] witnesses, other subject A proper attack. . . . showing of [is] However, prior silence would not be a proper attack. showing State, a prior inconsistent statement is proper.” Crosby v. 353 So. (Fla. 1977). 2d An App. Alaska court has held that under Alaska law prosecutorial comment on defendant’s postarrest si- State, (Alaska lence is prohibited. Bloomstrand v. 656 P. 2d 584 1982). The Supreme Court of has Colorado held inadmissible a defendant’s failure to make a statement to the arresting officer many because of “the possible explanations for . . . post-arrest (Colo. Quintana, 1983). 605, silence.” 665 P. People 2d It noted, “An arrestee is under no obligation to speak police.” to the stated, Id. The Supreme Court of Jersey New has “[A]s matter of state law the use of a defendant’s silence is ir- improper respective of . . . warnings .” State v. 375 A. Lyle, [Miranda] (N.J. 1977). 629, 632

While the United States Supreme Court has barred the use against a criminal defendant of silence maintained after receipt assurances, 610, governmental 91, Doyle, 426 U.S. 49 L.Ed. 2d Jenkins, both 447 U.S. 65 L.Ed. 100 S.Ct. Fletcher, 455 U.S. ‍​​‌​​‌​​‌​‌‌‌‌​​‌​​​​‌‌​‌​​‌‌​​​​‌​‌​‌​​‌​​‌​​​‌‍71 L.Ed. 2d 102 S.Ct. involve silence not induced the assurances contained in the that, Miranda warnings. These cases establish absent Miranda warnings, state determine under its own rules of evidence impeachment value of pretrial silence. It is also the province aof state to interpret its own constitu- tion; the meaning of the Constitution of North Carolina is a mat- ter of state law upon which the decision of our Supreme Court is Jarrette, 625, 655, final. State v. 284 721, N.C. 202 S.E. 2d 741 (1974). For example, a decision of the United States Supreme Court construing the due process clause of the Fourteenth constitution, Amendment to the federal though persuasive, does interpretation not control our Supreme Court’s of the “law of COURT OF APPEALS 75 v. State land” clause4 v. in the Constitution of North Carolina. Horton 885, 277 N.C. 177 S.E. 2d 889 Gulledge, note, Lane,

Our was Supreme Court thus free to as it did in 384, 275, 301 271 S.E. N.C. at 2d at or without “[w]ith [Miran- warnings defendant’s exercise of his remain right to silent da] [is] 1, 23, by guaranteed Artiсle of Section the North Carolina Con- by and as incorporated stitution the fifth amend- the fourteenth ment to the United States Constitution.” Whether the defendant received warnings has should be in immaterial this con- text; distinguishing there “no reason for between defendant who has been advised remain of silent and one who Brandis, he has 2 being knows without so advised.” 179, 21 North Carolina Evidence Sec. 53 n. 2. par. at here, I find case placing no the issue presented whether se be used per impeach criminal defendant who trial, testify in directly chooses to his own behalf at before our Pre-Lane cases Supreme Court. from this Court dealt with situa- See, actually in which made a prior tions defendants statement. (1980) (could Haith, 319, 48 v. 269 S.E. e.g., App. State N.C. 2d by impeach defendant cross-examination his failure about to tell officers, statement, making in-custody while an he was acting self-defense); N.C. S.E. 2d Pugh, App. (could (1980) showing inconsistencies be- statement); Fisher, tween trial and v. State (1977) 722, 233 S.E. 2d 634 App. (prior N.C. statement which failed mention a material circumstance later admissible testified to impeachment purposes). Burnett, majority cites opinion N.C. denied, 254 S.E. cert. N.C. prosecutor question in which the allowed to defendant con case, his failure make a cerning however, statement after arrest. properly object defendant did not to the introduction thereby any question objection. evidence in waived later 609, 251 I Id. S.E. 2d case thus do not consider that here. 271 S.E. 2d dispositive It not cited majority relies. upon taken, person imprisoned deprived ... 4. “No shall be or in manner I, life, libеrty, property, . . . law land.” Sec. or but of the Art. Const. of North Carolina. COURT OF APPEALS — McGinnis, majority opinion also cites State v. N.C. (1984). —, McGinnis, here, 320 S.E. App. 2d 297 the defend- ant “made no statements his arrest.” Id. police following —, Lane, 282, 320 S.E. 2d at 271 S.E. Relying upon N.C. 273, 2d the McGinnis court extended the Lane to fifth exception amendment for inconsistent protection statements to an ex- silence, for ception pretrial majority as does the here. I believe extension, that, Lane did require and for the reasons here, stated it should not have been made. Several months before our Supreme Court decided State v. 282, 273, 271 S.E. N.C. 2d this Court stated: We that we do emphasize not reach the determination of whether the North Carolina Constitution permit would ques- as to tioning prearrest silence the fact situation in Jenkins Anderson, 231, 86, 447 U.S. 65 L.Ed. 2d [v. McCall, 472, 482-87, (1980)].See e.g. State S.E. (1975) 132, 138-41 entitled to a new trial where [defendant . .. prosecutor directly commented on defendant’s failure to Castor, deny accusatory an statement], and State v. 285 N.C. (1974) 286, 204 S.E. 2d 848 silence in presence of [defendant’s accusations an Similarly, state’s witness not admission]. the reasons expressed the dissents of Mr. Justice Mar- Jenkins, shall Mr. Justice Brennan in ... we expressly refuse to hold that the North Carolina Constitution will per- mit, circumstances, under all criminal defendant who testifies in his may own behalf be impeached by some form of his prearrest silence. Haith, 48 N.C. 2d at 211.

Postarrest or pretrial silence of a criminal defendant should not be used to testimony, defendant’s in-court of- trial, fered for the first time at for the reasons: following

First, “in most circumstances silencе is so ambiguous that Hale, is of little probative force.” United States v. 422 U.S. (1975). 45 L.Ed. 2d 95 S.Ct. Supreme Our Court has that a stated “defendant’s silence as evidence of his or for guilt purpose him impeaching as a witness” is of “in- Williams, significant probative value.” State v. 288 N.C. 220 S.E. A defendant’s pretrial APPEALS 77 COURT OF an awareness that there is no obligation speak, attributable to to caution, a a belief an attempt or to natural or to to exonerate herself v. 420 N.E. People Conyers, himself or would be futile. 2d (N.Y. 1981). may A 935 defendant’s silence stem from a mis- authority, or fear of law enforcement a unreasonable in- trust not short, silence here. Id. “In . . . terpretation prior of defendant’s may variety . . . . . . silence be attributable ato of circumstances falsity completely are unrelated to the defend- truth or of [a testimony. evidence Accordingly, pretrial of defendant’s ant’s] silence minimal regarded having probative signifi- must ... correspondingly cance and low potential advancing for solely even when truth-finding process purposes offered of im- Quintana, Id. v. P. peachment.” Accord 665 2d 611 People at (evidence failure of defendant’s to make a arresting to officer held inadmissible as value); ambiguous lacking probative (Cal. Jacobs, 204 v. 2 People Rptr. Cal. Dist. (Cal. 1984); Fondron, v. People Rptr. Cal. App. Dist. 1984). a prior While has a inconsistent statement material bearing witness, credibility on the aof no such inference can be drawn solely Stansbury’s from a defendant’s silence. See North Carolina (Brandis 1973) Evidence. Revision Sec. 54 n. 96. at

Moreover, risk prejudice of is substantial when prose- attempts testimony by cution to a defendant’s his failure “Jurors, to make pretrial exculpatory are statements. who necessarily variety sensitive to the wide explana- of alternative silence, may tions for defendant’s . . . pretrial such construe silence as an . . . admission and draw an unwarranted inference 420 N.E. guilt.” Conyers, 2d Because evidence of pretrial have a disproportionate impact on the minds jurors, of the potential “the for prejudice inherent in such evidence outweighs marginal its . . .” probative worth. Id. Accord (Mass. 1982). Nickerson, v. 434 N.E. Commonwealth

Second, drawing adverse inferences from silence imper- missibly burdens the exercise of privilege against self- incrimination and the to a defense. right present See v. Griffin California, U.S. L.Ed. 1229. Sеe also (Mass. 1982) (to Nickerson, 434 N.E. Commonwealth 2d 992 per- use prearrest mit silence for impeachment purposes suggests duty defendant had a provide evidence himself and defense). testify burdens his in his own An accused has v. Hunt incriminate himself or herself not to privilege both the testify her own defense trial. Im- or and the trial silence forces the defendant pretrial a defendant peaching make guarantees fundamental and to between these two choose usually early in the without stage proceedings, choice at an as well that impeachment suggests of counsel. Such the advice testify retroactively waives all ultimately chooses to one who to silence. right

Third, may a criminal defendant silence impeachment of burden of to the defendant. The proof shift impermissibly sufficiency a criminal trial is of the upon threshold focus of credibility witnesses. When the defendant prosecution’s of the the defendant’s credibili- takes the stand the actual focus shifts to draw no ty. attempts sig- If the defendant takes the stand but to silence, from his or her should pretrial prosecution nificance examine as to the of the significance not be to cross permitted Bobo, 390 own case in chief. See improve People silence to its (1973) (fact 355, 212 N.W. Mich. that witness did not make may only that he statement did; shown contradict statements statements). Schiller, generally are not See “nonutterances” Silence, Right On The The Amendment To Jurisprudence of Fifth L. Rev. at 200-01 especially Am. Crim. in Lane is instructive: following opinion The from this Court’s Supreme It strikes this Court that the United States may be down state court convic- Court reluctant strike tions, such as in when on cross- Doyle, impeachment examination relates defendant’s silence he before analytical receives his Miranda For warnings. purposes, easily reading warning provides of the to an arrestee an rec- is clear from that on ognizable signpost. point It that the ar- right knows he has the to remain silent. The arrestee restee be penalized exercising right. not then at trial for that course, reason for a defend- bringing Of whole out is ant’s silence on cross-examination that the silence con- “statement,” his alibi. stitutes inconsistent with The is that silence in the face of reasoning possible accusation innocence, is where prosecution particularly inconsistеnt with has an alibi which he later reveals the arrestee at trial. OF APPEALS best, inconsistency, This which is see ambiguous at Hale, 422 States v. U.S. 45 L.Ed. 2d United vanishes when a altogether defendant’s interrogation the custodial can be taken to indicate during Hale, reliance on the to remain silent. right p. to remain silent does not arise when an arrestee

right warnings. possesses his Miranda It is a which he all times under the Fifth Amendment of the United States I, Sec. 23 Constitution and under Article of the North Caro- lina has held Supreme repeatedly Constitution. Our Court “. . .a remain defendant’s constitutional silent custody while in the admission of precludes remained silent in the face of accusations of his guilt.” [Citations omitted.] summary, while United has Supreme States testifying

held use of silence to defend- pretrial Constitution, credibility ant’s does not violate the United States defining has left the formulation of their own rules states are when evidence of such silence admissible. states also constitutions; our courts thus can in- interpret free to their own grants of our which to an ac- terpret provision the Constitution criminal “not prosecution right compelled cused a [to] Const., I, evidence.” N.C. Art. Sec. self-incriminating give statement, while by a impeachment pretrial Lane dealt ‍​​‌​​‌​​‌​‌‌‌‌​​‌​​​​‌‌​‌​​‌‌​​​​‌​‌​‌​​‌​​‌​​​‌‍with The distinc- pretrial case concerns silence. impeachment this considerable, Lane is and court here thus should not find tion dispositive. is evidence of pretrial before the court whether question a criminal defendant who chooses

silence is admissible to her behalf. If is right question in his or own to take the stand asked, found easy; jurisdictions answer is not nor have other be- balancing the inevitable tension it so. The court faced society hard-earned preserving maintaining tween order I our Court precedent Supreme find no from rights. constitutional such, I I would hold that controlling. believe to be Absent “insolubly ambiguous,” silence is pretrial evidence of defendant’s Fisher, 233 S.E. 2d at and thus State under gen- impeachment purposes irrelevant and inadmissible for is highly prej- evidence law. Evidence that principles eral of state Carolinas, Management Peerless Ins. Co. Waste Inc. v. traditionally been excluded low value has probative udicial but of to distort the search potential criminal trials because of its from stated, has “When The United Supreme for truth. States upset as to the balance of advan- great the risk of confusion so States, 290 v. United U.S. goes evidence out.” tage, 96, Shepard L.Ed. inadmissible as violative of I would hold such evidence also I, by Art. Sec. provided self-incrimination privilege against of North Carolina. To hold otherwise allows of the Constitution self- privilege convert exercise of the credibility of a defend- pierces incrimination into sword that a defense at trial present exercises the ant who also testimony. self- privilege against her own through his or through a defense one’s present incrimination and the mutually exclusive in testimony were never intended to be own exercise; so, majority as the here in opinion to make them their does, on the one or the other that tends to gloss places effect it. negate dissent,

I and vote tо award new trial at thus respectfully defendant’s si- concerning pretrial evidence impeaching which the here, must, objection as be excluded. upon lence CAROLINAS, INC., TRASH REMOVAL WASTE MANAGEMENT OF t/d/b/a SERVICE, and PENN v. PEERLESS INSURANCE COMPANY INC. MUTUAL INSURANCE COMPANY SYLVANIA NATIONAL CASUALTY

No. 845SC97 1984) (Filed 28 December potential liability duty 149— to defend 1. Insurance 8 — duty company has a de- an insurance to determine whether In an action allegations against insured are broad and uncertain where the fend a claim facts, allega- a defense whenever the specific insured has a as to liability coverage, and there are no potential within the insurance show tions necessarily coverage. exclude allegations which would duty liability groundwater § contamination —insurers’ 149— Insurance interpreted —ambiguities in favor of insured defend companies obligated insurance are whether two In an action to determine arising transportation in an action service a waste collection and to defend

Case Details

Case Name: State v. Hunt

Court Name: Court of Appeals of North Carolina

Date Published: Dec 28, 1984

Citation: 323 S.E.2d 490

Docket Number: 8316SC1210

Court Abbreviation: N.C. Ct. App.