Summary
In State v. Hunt, 72 N.C. App. 59, 323 S.E.2d 490 (1984) (appeal by defendant pursuant to G.S. 7A-30(2) pending), the defendant made no statement before or after his arrest, and the record did not disclose whether he was given his Miranda rights.
Summary of this case from State v. AbbittOpinion
No. 8316SC1210
Filed 28 December 1984
1. Constitutional Law 76; Criminal Law 48 — pretrial silence — Miranda warning — admissible Where defendant was not given Miranda warnings and did not make a statement prior to trial, his silence about that which, if true, any rational person would have spoken was properly used to impeach his testimony at trial.
2. Criminal Law 86.4 — second degree murder — prior assault warrant — admissible In a prosecution for second degree murder where defendant husband had testified that his relationship with his wife we entirely harmonious and he therefore had no motive to kill her, a prior assault warrant sworn out by the wife was competent and admissible, not for the purpose of proving the substantive facts asserted therein, but all an indication of the true relationship between defendant and his wife. An instruction limiting the evidence to impeachment was not required because defendant did not request such an instruction.
APPEAL by defendant from Clark (Giles R.), Judge. Judgment entered 29 July 1983 in Superior Court, ROBESON County. Heard in the Court of Appeals 17 September 1984.
Attorney General Edmisten, by T. Byron Smith, Associate Attorney General, for the State.
James R. Glover, Appellate Defender Clinic, University of North Carolina School of Law, for defendant appellant.
Judge WHICHARD dissenting.
Defendant was found guilty of second degree murder in the shooting death of his wife and sentenced to imprisonment for a term of 15 years.
The evidence presented reveals that defendant's wife, Emma Hunt (Mrs. Hunt) was killed on 26 February 1983 in the bedroom of her home by a single shotgun blast to the head. That evening, the home was occupied only by Mrs. Hunt, defendant, and Curly Jacobs, Jr. (Jacobs). Jacobs, the victim's natural child and stepson to defendant, served as the State's principal witness at trial. He testified that his mother and defendant had been drinking and watching television that evening. Defendant threw a drink to the floor and Mrs. Hunt motioned for her son to go to the rear of the trailer. In leaving, he saw his mother go towards the front door. Still within earshot, Jacobs heard the door close, his mother declare "L.J." and then a shot. As he returned to the living area of the trailer, defendant emotionally confessed that he had just killed his wife. Jacobs testified that he then attempted to reach the police but was physically prevented from doing so by defendant. After a brief struggle, Jacobs forced defendant out the front door and proceeded to speak with the authorities.
As the police arrived at the scene, they saw defendant, barefooted, "dart" from behind the trailer and attempt to hide by "squat[ting]" behind a nearby vehicle. An officer pulled her weapon and ordered defendant to halt and place his hands on top of his head. Upon being identified as L. J. Hunt, defendant was placed under arrest and made no statement before or after his arrest. There is no suggestion in the record or by defendant that he was ever given Miranda warnings.
Other evidence tends to show that the murder weapon belonged to defendant, that defendant and his wife had marital problems, that defendant had a serious drinking problem, was often abusive when he drank, and that he had struck his wife and threatened to kill both her and her children on prior occasions.
Defendant testified that it was Jacobs who had quarreled with Mrs. Hunt that evening and that he, defendant, was outside the trailer when the shot was fired. Defendant stated that he did not immediately enter the trailer because he did not recognize the noise as gunfire. Once having entered the trailer, however, defendant saw that Mrs. Hunt had been shot and immediately exited to "get the car" and "take her to the hospital." He claimed to have enjoyed a good relationship with his wife and denied that he was ever abusive towards her.
Jacobs' testimony at trial corresponded with what he told authorities at the scene on 26 February. Defendant, however, made no accusations against Jacobs that night and failed to make any explanation to the police or prosecution officials as to how his wife had been killed until he testified in his own defense some five months later. On cross examination the following took place:
Q. You didn't tell the police officers any of this that you are telling the jury, here, on the night?
Mr. Bullard: Object.
Q. (By Mr. Townsend:) Did you?
The Court: Sustained as to the form of it.
Q. What did you tell the police officers on the night?
A. I didn't tell them anything.
Q. Okay. Fact is, you've not told anyone —
Mr. Bullard: Well, object to that.
The Court: Overruled.
Q. — about what you've told the jury, here, today; is that right?
A. No, I haven't.
The State was also permitted to introduce evidence that Mrs. Hunt had once sworn out an assault warrant against defendant. In response to her actions, defendant fled to Alabama for a period of time but was never convicted or arrested under the warrant. The defense unsuccessfully objected to the evidence but neglected to request that a special instruction be given to the jury as to how such evidence should be weighed. Defendant claims that the trial court committed prejudicial error and appeals.
The initial issue raised on appeal is whether the pre-trial silence of defendant was properly used to impeach his in-court testimony. Defendant argues that allowing himself to be cross examined violates defendant's due process rights under the 14th Amendment to the United States Constitution as well as his right to remain silent under the 5th Amendment and under art. 1, 23 of the North Carolina Constitution. State v. Lane, 301 N.C. 382, 271 S.E.2d 273 (1980). We hold that defendant has failed to show a violation under either provision.
In order to establish a violation of due process under the 14th Amendment by an attack on his pre-trial silence, defendant must at least show that he was given Miranda warnings and was thereby implicitly assured that the exercise of his right to remain silent would carry no penalty. Doyle v. Oh o, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (three justices would have allowed the questioning even though Miranda warnings had been given. The record, however, fail to show and defendant does not argue that he was given Miranda warnings at or prior to arrest or during the extended period in which he remained silent and failed to offer any explanation. It was not, therefore, improper under the 14th Amendment due process clause to cross examine defendant regarding his pre-trial silence when he chose to take the stand. Fletcher v. Weir, 4B5 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (rejecting the Sixth Circuit's decision which held that arrest alone was governmental action which implicitly induces a defendant to remain silent); State v. McGinnis, ___ N.C. App. ___, 320 S.E.2d 297 (1984); State v. Burnett, 39 N.C. App. 605, 251 S.E.2d 717, cert. denied, 297 N.C. 302, 254 S.E.2d 924 (1979).
The Fletcher court quoted with renewed approval from Jenkins v. Anderson, 447 U.S. 231, 239, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), a case dealing with pre-arrest silence:
Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence 1042, p 1056 (Chadbourn rev, 1970). Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative.
Fletcher, 455 U.S. at 606.
The Fletcher court further held:
In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to post-arrest silence when a defendant chooses to take the stand. A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which post-arrest silence may be deemed to impeach a criminal defendant's own testimony.
Id. at 607.
The right to remain silent is, of course, protected by both the 5th Amendment to the United States Constitution and article 1, section 23 of the Constitution of North Carolina. Here, however, we are concerned with the long-standing and fundamental right of the State to impeach a defendant who waives his right not to testify with prior declarations or conduct that is inconsistent with his sworn testimony at trial. If the pre-trial statement or conduct is inconsistent, it may be used to impeach defendant. If it is not inconsistent, it does not impeach and may not be used. We are not aware of any decision of the Supreme Court of North Carolina that would place more or heavier burdens on the State's right to cross examine a testifying defendant than those imposed by the Supreme Court of the United States.
In State v. Lane, 301 N.C. 382, 271 S.E.2d 273 (1980), defendant was charged with the sale of heroin. As the indictments were being read, he volunteered the statement that he had once sold heroin but had not sold any to the person named in the indictments. At trial both defendant and his boss testified that defendant was in Darlington, South Carolina at the time the sale was alleged to have been made in High Point. The court first noted that since the statement made by defendant was volunteered, the Miranda warnings were not applicable and thus the due process question discussed in Doyle did not arise. The single issue presented, as stated by the court, was "whether defendant's failure to disclose his alibi defense . . . amounts to an inconsistent statement in light of his in-court testimony relative to an alibi." Lane, 301 N.C. at 385, 271 S.E.2d at 275. The court held that "[u]nder the particular circumstances of this case, it is our opinion that the failure of defendant to state his alibi defense at the time the indictment was being read to him or at any time prior to trial did not amount to a prior inconsistent statement." Id. at 386-87, 271 S.E.2d at 276.
The court reasoned:
The crux of this case is whether it would have been natural for defendant to have mentioned his alibi defense at the time he voluntarily stated that he "did not sell heroin to this person [Lee Walker]." We answer the question in the negative. In our opinion, the alibi defense was not inconsistent with defendant's statement that he did not sell heroin to Officer Lee Walker. At the time the indictment was being read to defendant on 25 April 1979, he was under arrest and was in custody in the Winston-Salem Police Department. At that point, with or without the Miranda warnings, his constitutional rights guaranteed by the fifth amendment were viable. The indictment charged that on 4 April 1979, some twenty-one days prior to the date of the reading of the indictment, defendant sold heroin to police officer Walker. It was natural for defendant to know whether he had sold drugs to a named person and spontaneously to deny having done so. In our opinion it would not be natural for a person, particularly under the circumstances present in this case, to know where he was on a given date some twenty-one days prior thereto. It is a matter of common knowledge that the average person cannot, eo instanti, remember where he was on a given date one, two or three weeks in the past without some investigation and substantiation from sources other than his ability of instant recall.
Lane, 301 N.C. at 386, 271 S.E.2d at 276 [emphasis added].
The only question in Lane, therefore, was whether it would have been natural for defendant to have explained his alibi prior to trial. The court concluded that it would not have been natural and therefore his silence on the alibi defense was not inconsistent with his testimony at trial. That silence was, as a result, constitutionally protected. Under the test of Lane, therefore, the question before us is whether, when defendant saw that his wife had been shot by her own son, it would have been natural for him to have said so instead of being led away to jail on the accusations of the real murderer who, because of defendant's silence, was left to go free. To us the question is easy. Indeed, it is inconceivable that he would not have volunteered the information. We hold that his silence about that which, if true, any rational person would have spoken was properly used to impeach his testimony at trial where, for the first time after his wife was murdered in his presence, he named her son as the murderer. His own brother testified as a witness for him. Yet, according to defendant's testimony as set out in this opinion, he had not even told his brother his version of how his wife was murdered. There is nothing ambiguous about defendant's silence, and we find it to be of considerable probative value in impeaching his testimony at trial.
The patent incredibility of defendant's silence here is even stronger than it was in State v. McGinnis, 70 N.C. App. 421, 320 S.E.2d 297 (1984). In that case, the defendant was convicted of assault with a deadly weapon. The State's evidence revealed that defendant encountered his victim in a parking lot, exchanged words and shot him. Defendant was arrested shortly thereafter but, as in the present case, made no statement to the police until trial, at which time defendant testified that his weapon was fired accidentally. The Court noted that it would clearly have been natural for defendant to have told the arresting officer that the shooting was accidental, if defendant truly believed such to be the case. As a result, the State could use defendant's post-arrest silence in an attempt to impeach his testimony at trial. The court stated, correctly we think, that "[t]he test is whether, under the circumstances at the time of the arrest, it would have been natural for defendant to have asserted the same defense asserted at trial." Id. at ___, 320 S.E.2d at 300 [emphasis added].
It does not make any difference whether defendant remains totally silent or makes some statement, as in Lane, that does not impeach his trial testimony. The question is whether he remains silent about matters that it would be natural for him to relate. If he does, his failure to speak out when it would have been natural for him to do so can be used to impeach him without encroaching on his constitutional right.
In a later case our Supreme Court took the opportunity to further explain its ruling in Lane:
Lane stands for the proposition that comment by a prosecuting attorney at trial upon defendant's post-arrest silence, as a general rule, is constitutionally impermissible. Lane does, however, recognize an exception to this rule: the prior inconsistent statement. This arises when defendant's silence amounts to a contradiction of his testimony at trial and occurs only when, at the time of defendant's silence, it would have been natural for him to speak and give the substance of his trial testimony.
State v. Odom, 303 N.C. 163, 165-166 n. 2, 277 S.E.2d 352, 354-354 n. 2, cert. denied, 454 U.S. 1052, 102 S.Ct. 596, 70 L.Ed.2d 587 (1981), rehearing denied, 454 U.S. 1165, 102 S.Ct. 1041, 71 L.Ed.2d 322 (1982) (footnote included) (citing 3A Wigmore, Evidence 1042 (Chadbourn rev. 1970) (when silence amounts to an inconsistent statement)) [emphasis added].
In Burnett, 39 N.C. App. 605, 608, 251 S.E.2d 717, 719, the prosecutor questioned defendant about his pre-trial silence as follows:
Q. Have you ever before this day, sitting on that witness stand, ever said anything to any law enforcement man, woman, or whatever, about this person Ike?
A. No.
Q. Have you ever said anything to the District Attorney's Office prior to today sitting on this witness stand here, said anything at all about this man Ike?
MR. HOWARD: Objection.
COURT: Overruled.
A. No.
The court then stated through Mitchell, Judge (now Supreme Court Justice):
Nothing in the record on appeal before us in these cases indicates that either of the defendants were advised of their Miranda rights. As there is no evidence that these defendants were ever advised of their Miranda rights, advice as to those rights could not have implicitly assured them that their silence would not be used. Therefore, the Court's holding in Doyle did not prohibit the use of the defendants' silence by the State in the context of the facts of these particular cases.
When a defendant receives no assurance whatsoever that his silence will not be used against him, we do not believe it would be unreasonable or unfair to expect the accused to tell the authorities the identity of the perpetrator of the crime with which the defendant is charged, if the defendant has reason to believe that the perpetrator is someone other than himself. If the defendant has not been advised of his right to remain silent and waits until he takes the witness stand in his defense to first reveal the identity of the allegedly true perpetrator, the prosecutor may reveal the tardiness of any such statement as it tends to reflect upon the credibility of the statement.
Id. at 609, 251 S.E.2d at 720.
Defendant's failure to assert these facts, when it would have been natural for him to do so, "amounts in effect to an assertion of the nonexistence of the fact" and thus constitutes an inconsistency which the jury properly considered as impeaching evidence. 3A Wigmore, Evidence, 1042 (Chadbourn rev. 1970).
Defendant's second argument describes as error the trial court's refusal to exclude evidence of prior assault charges instituted by Mrs. Hunt against defendant. We disagree.
Defendant testified in his own behalf. In so doing, he surrendered his privilege against self-incrimination and was properly subjected to impeachment by questions relating to specific acts of criminal and degrading conduct. State v. Foster, 284 N.C. 259, 200 S.E.2d 782 (1973); State v. Ashley, 54 N.C. App. 386, 283 S.E.2d 805 (1981), disc. rev. denied, 305 N.C. 153, 289 S.E.2d 381 (1982), rev'd on other grounds, State v. McGaha, 306 N.C. 699, 295 S.E.2d 449 (1982). "Cross-examination for purposes of impeachment is not . . . limited to questions concerning prior convictions, but also extends to questions relating to specific acts of criminal and degrading conduct for which there has been no conviction." State v. Ross, 295 N.C. 488, 490-91, 246 S.E.2d 780, 783 (1978). The proper scope of such cross examination is limited only by the exercise of discretion, in good faith, by the trial judge. State v. Purcell, 296 N.C. 728, 252 S.E.2d 772 (1979); see, e.g., State v. Wise, 27 N.C. App. 622, 626, 219 S.E.2d 820, 822 (1975), disc. rev. denied, 289 N.C. 302, 222 S.E.2d 702 (1976) ("grossly unfair" to preclude cross examination of defendant's "deal" with a police officer regarding another charge).
In the present case, defendant testified that his relationship with his wife was entirely harmonious and that he therefore had no motive to kill her. As a result, the assault charge was competent and admissible, not for the purpose of proving the substantive facts asserted therein, but as indicative of the true relationship between defendant and Mrs. Hunt. However groundless, evidence of the institution of criminal charges by Mrs. Hunt reveals serious marital tensions between the couple. The charges are therefore not unrelated to the present case and were within the knowledge of the defendant. See State v. Purcell, supra. We hold that the trial judge did not abuse his discretion in admitting the evidence over defendant's objections.
We note that when evidence is competent for one purpose, but not for another, a defendant is entitled, upon request, to have the jury instructed to consider it only for those purposes for which it is competent. State v. Ray, 212 N.C. 725, 194 S.E. 482 (1938); State v. Foster, 63 N.C. App. 531, 306 S.E.2d 126 (1983). The record does not show, however, that defendant made any special request that the jury consider the evidence only for impeachment purposes. "Absent a request in apt time to limit and restrict such evidence to impeachment purposes, the trial judge is not required to give such instructions," State v. Austin, 4 N.C. App. 481, 482, 167 S.E.2d 10, 11 (1969) (citing State v. Goodson, 273 N.C. 128, 159 S.E.2d 310 (1968)); State v. Elkerson, 304 N.C. 658, 285 S.E.2d 784 (1982), and a general objection is insufficient to constitute a special request under these circumstances. See, e.g. Austin, 4 N.C. App. at 482, 167 S.E.2d at 11 ("I request special instruction to the jury how they are supposed to consider any evidence . . ." [sic] held to be adequately specific). The trial court's failure to instruct was therefore not improper.
No error.
Judge JOHNSON concurs.
Judge WHICHARD dissents.