Summary
concluding prejudicial error for the State to cross-examine defendant on his silence to police after his arrest
Summary of this case from State v. ArroyoOpinion
No. 432A88
Filed 6 September 1989
1. Constitutional Law 76; Criminal Law 48.1 — comment on defendant's silence — closing argument on defendant's silence — prejudicial error The trial court erred in a prosecution for first degree murder by allowing the prosecutor to ask certain questions regarding defendant's post-arrest silence and to refer to defendant's silence in his closing argument before the jury. The State did not demonstrate beyond a reasonable doubt that it was harmless to attack the credibility of defendant by improper evidence which was reinforced by the jury argument.
Am Jur 2d, Trial 254.
2. Criminal Law 75.7 — statement prior to Miranda warnings — inadmissible The trial court erred in a first degree murder prosecution by admitting into evidence a statement by defendant where officers went to defendant's home; defendant agreed to go to police headquarters; defendant started towards his closet to get his coat; an officer stopped him and got his coat for him; one of the officers took into his possession a pistol that was on a nearby shelf; defendant asked the officers if they had a warrant and was informed that they did not; one of the officers then told defendant that he would obtain a warrant and leave an officer at the defendant's home until a warrant could be procured; defendant then went with the officers; and, as they were leaving defendant's home, one of the officers asked defendant how long he had been at home, to which the defendant replied, "all night." Defendant was deprived of his freedom in a significant way when an officer told him that he would get a warrant for him and would leave an officer at defendant's home until a warrant could be procured and it was necessary to advise him of his rights for his answer to be introduced into evidence.
Am Jur 2d, Evidence 614.
3. Homicide 21.5 — first degree murder — evidence sufficient The evidence was sufficient for the jury to find beyond a reasonable doubt all the elements of first degree murder in a prosecution in which a new trial was awarded on other grounds where the State's evidence showed that defendant and the victim were in a restaurant in Asheville with two other persons; the two other persons left the restaurant and shortly thereafter the defendant and the victim left; defendant entered his truck in the restaurant parking lot, leaving the victim standing on the passenger side of the truck; the defendant was seen pointing a gun at the victim, who walked around the front of the truck and leaned against the window on the driver's side; defendant left the parking lot in his truck a few minutes later; the victim was found lying in the parking lot with a bullet wound in his head; officers went to defendant's residence and carried him to police headquarters, where defendant answered some questions but replied when asked what happened when the victim followed him to the truck that he would rather not say without talking to his lawyer; defendant testified that he had argued with the victim and told the victim he would not give him a ride to his home; the victim entered on the passenger side when defendant entered the truck on the driver's side and struck defendant in the face with a glass; defendant then left the truck and the victim followed, kicking defendant in the back and head; defendant returned to his truck and retrieved his pistol from the floor of the truck; the victim leaned through the open window and grabbed defendant around the neck while defendant was searching for the keys to the truck; and the gun went off while the two struggled for the gun.
Am Jur 2d, Homicide 45 et seq.
APPEAL as of right by the defendant pursuant to N.C.G.S. 7A-27 (a) from a judgment imposing a life sentence entered by Hyatt, J., at the 18 April 1988 Criminal Session of Superior Court, BUNCOMBE County. Heard in the Supreme Court 10 April 1989.
Lacy H. Thornburg, Attorney General, by David F. Hoke, Associate Attorney General, for the State.
Elmore Powell, P.A., by Bruce A. Elmore, Sr. and Shirley H. Brown, for defendant appellant.
Justice MEYER dissenting.
The defendant was tried for first degree murder. The State's evidence showed that the defendant and Terry Kicinski were in T. K. Tripps, a restaurant in Asheville, with two other persons on the evening of Friday, 20 November 1987. The other two persons left the restaurant and shortly thereafter the defendant, followed by Terry Kicinski, left. The defendant entered his truck in the restaurant parking lot, leaving Mr. Kicinski standing on the passenger side of the truck. The defendant was seen pointing a gun at Mr. Kicinski who walked around the front of the truck and leaned against the window on the driver's side. The State's evidence showed that the defendant left the parking lot in his truck a few minutes later. A short time later Terry Kicinski was found lying in the parking lot with a bullet wound in his head. He died approximately twelve hours later.
Officers of the City of Asheville Police Department went to the defendant's residence that night and carried him to police headquarters. The evidence showed that at the police headquarters the officers advised the defendant of his constitutional right to remain silent and to have an attorney. The defendant told the officers he would not sign a waiver of his rights without a lawyer being present but that he would answer questions. The defendant answered some of the questions of the officers but when they asked him "what happened when the male followed him to his truck?" he replied he would "rather not say without having talked with his lawyer." The officers did not question him further about this.
The defendant testified at the trial that he had argued with Mr. Kicinski and had told Mr. Kicinski he would not give him a ride to his home. When the defendant entered the truck on the driver's side, Terry Kicinski entered on the passenger side and struck the defendant in the face with a glass. Next, according to the defendant, he left the truck and Mr. Kicinski followed, kicking the defendant in the back and head. The defendant returned to his truck and retrieved his pistol from the floor of the truck. While the defendant was searching for the keys to the truck, Mr. Kicinski leaned through the open window and grabbed the defendant around the neck. The two men struggled for the gun and it discharged, hitting Mr. Kicinski.
The defendant was convicted of first degree murder. The State offered no evidence in aggravation of the crime and the defendant was sentenced to life in prison. He appealed.
We address first the defendant's assignment of error as to whether the court erred in allowing the prosecutor to ask certain questions regarding defendant's post-arrest silence.
At trial, the prosecutor repeatedly questioned Detectives Jenkins and Dayton and the defendant about whether the defendant had ever informed anyone that Terry Kicinski had attacked him on the night of the incident. The following are excerpted portions of the interchange that took place between the prosecutor and Detective Jenkins.
Q: Did he mention anything about any attack by anyone whatsoever at all?
A: No.
MRS. BROWN: Objection.
COURT: Overruled.
Q: Did he ever tell you on that occasion or the next day that Terry Kicinski had done anything at all to him?
MRS. BROWN: Objection.
COURT: Sustained.
Q: Did he tell you that Terry Kicinski attacked him?
MRS. BROWN: Objection.
COURT: Sustained.
Similar questions were asked of the defendant:
Q: Mr. Hoyle, you never recontacted the police officers and gave them this story that you have just given these jurors here today have you?
A: I beg your pardon?
Q: You never got back in touch with any of these police officers and told them what you have told these jurors today about what Terry Kicinski did?
MR. ELMORE: Objection.
COURT: Objection sustained.
Q: You never mentioned the night or early morning hours of the 21st when you agreed to answer questions that you had been attacked in any way, did you?
MR. ELMORE: Objection.
COURT: Overruled.
A: No, I did not.
Q: And you complained of no injuries?
A: No, I did not.
Finally, the prosecutor made reference to defendant's silence when he made his closing argument before the jury:
Who said anything, until yesterday, about Terry Kicinski having grabbed his gun? Who? When was there an opportunity to say that? For months and that night. You think what you would do. If somebody had severely beaten you, if somebody had caused you to think that you had to defend yourself, if somebody had struggled with you over a gun and had accidently shot themselves, don't you think, when the police were there and polite and nice and trying to get to the truth. . . don't you think you would tell him then?
The United States Supreme Court held in Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91 (1976), that when a person under arrest has been advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694 (1966), which includes the right to remain silent, there is an implicit promise that the silence will not be used against that person. The Court in Doyle held it is a violation of a defendant's rights under the Fourteenth Amendment to the Constitution of the United States to then impeach the defendant on cross-examination by questioning him about the silence.
We hold that the rule of Doyle was violated in this case. The defendant told the officers he would not answer questions as to what happened when Terry Kicinski followed him to the truck. He had a constitutional right not to answer such questions and Doyle holds it was a violation of this right for his silence to be used against him. The questions of the district attorney and the argument to the jury as to the defendant's failure to tell the police of his defense were in violation of Doyle.
In State v. Lane, 301 N.C. 382, 271 S.E.2d 273 (1980) this Court held it was prejudicial error to allow a defendant to be cross-examined as to why he did not tell the officers of the alibi he used at trial. We said that the defendant had the right under article I, section 23 of the Constitution of North Carolina as well as the Fifth Amendment to the Constitution of the United States made applicable to the states by the Fourteenth Amendment to remain silent and "any comment upon the exercise of this right, nothing else appearing, was impermissible." Under Lane it was error to comment on the defendant's silence in this case. See also State v. Freeland, 316 N.C. 13, 340 S.E.2d 35 (1986); State v. Williams, 288 N.C. 680, 220 S.E.2d 558 (1975); State v. Castor, 285 N.C. 286, 204 S.E.2d 848 (1974).
The State contends that if it was error to allow the questions and the jury argument it was not prejudicial. N.C.G.S. 15A-1443 (b) provides:
A violation of the defendant's rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.
In this case there was not an eyewitness to the shooting other than the defendant. His defense depended on the jury's acceptance of his version of the event. The State has not demonstrated beyond a reasonable doubt that it was harmless to attack the credibility of this version by improper evidence, which improper evidence was reinforced by jury argument. We hold this was prejudicial error requiring a new trial. See State v. Silva, 304 N.C. 122, 282 S.E.2d 449 (1981).
In another assignment of error the defendant contends it was error to admit into evidence a statement he made at his home shortly before he was taken to police headquarters. When the officers were at the home of the defendant he agreed with them to go to police headquarters. At that time the defendant started towards his closet to get his coat. The officers stopped him and got his coat for him. One of the officers took into his possession a pistol that was on a nearby shelf. The defendant asked the officers if they had a warrant and was informed that they did not. One of the officers then told the defendant he would obtain a warrant and would leave an officer at the defendant's home until a warrant could be procured. The defendant then went with the officers. As they were leaving the defendant's home one of the officers asked the defendant how long he had been at home to which the defendant replied, "all night." It is to the admission of this statement that the defendant assigns error.
When a person is taken into custody or otherwise deprived of his freedom by the authorities in any significant way he must be advised of his rights to remain silent and to have counsel before any responses he may make to interrogation may be introduced in evidence. Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694; State v. Biggs, 292 N.C. 328, 233 S.E.2d 512 (1977); State v. McLean, 294 N.C. 623, 242 S.E.2d 814 (1978). We hold that when an officer told the defendant that he would get a warrant for him and would leave an officer at the defendant's home until the warrant could be procured, the defendant was deprived of his freedom in a significant way. It was necessary to advise him of his rights before his answer to the question as to how long he had been at his home could be introduced into evidence. In light of our holding that the defendant must have a new trial on other grounds, we need not determine whether this error was so prejudicial as to require a new trial.
The defendant has also assigned error to the denial of his motion to dismiss at the close of all the evidence. We hold that the evidence as recited in this opinion was sufficient for a jury to find beyond a reasonable doubt all the elements of first degree murder. State v. Robbins, 275 N.C. 537, 169 S.E.2d 858 (1969).
The defendant has made numerous other assignments of error. We have examined them and they are either without merit or the questions they raise may not recur at a new trial.
New trial.