State v. Hunt

• Decision Date: 28 December 1984
• Docket Number: No. 8316SC1210,8316SC1210
• Parties: STATE of North Carolina v. L.J. HUNT.
• Court: North Carolina Court of Appeals

Page 490

323 S.E.2d 490

72 N.C.App. 59

STATE of North Carolina v. L.J. HUNT.

No. 8316SC1210.

Court of Appeals of North Carolina.

Dec. 28, 1984.

Atty. Gen. Rufus L. Edmisten by T. Byron Smith, Associate Atty. Gen., Goldsboro, for the State.

James R. Glover, Appellate Defender Clinic, Chapel Hill, University of North Carolina School of Law, for defendant-appellant.

VAUGHN, Chief Judge.

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. Ohio, 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, fails 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, 455 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, 70 N.C.App. 421, 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, 2129, 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, 102 S.Ct. at 1311.

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 postarrest 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 postarrest silence may be deemed to impeach a criminal defendant's own testimony.

Id. at 607, 102 S.Ct. at 1312.

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:...