State v. Mitchell

• Decision Date: 12 August 1986
• Docket Number: No. 592A85,592A85
• Citation: 317 N.C. 661,346 S.E.2d 458
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Steve Albert MITCHELL.

Page 458

346 S.E.2d 458

317 N.C. 661

STATE of North Carolina v. Steve Albert MITCHELL.

No. 592A85.

Supreme Court of North Carolina.

Aug. 12, 1986.

Lacy H. Thornburg, Atty. Gen., by Steven F. Bryant, Asst. Atty. Gen., Raleigh, for the State.

Malcolm R. Hunter, Jr., Appellate Defender, by David W. Dorey, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MITCHELL, Justice.

The defendant brings forward assignments of error in which he contends that: (1) during cross-examination of the defendant, the prosecutor improperly impeached him with evidence of his exercise of his right to remain silent after he had been arrested and given the Miranda warnings; (2) the trial court erred in allowing the prosecutor to improperly communicate to the jury his personal belief that the defendant was lying; (3) the trial court erred in failing to submit the offense of common law robbery to the jury; and (4) his conviction and sentencing for both first degree rape and first degree kidnapping violated double jeopardy principles. We find no prejudicial error.

The State presented evidence which tended to show that on 17 April 1984, the victim took her two children to Joy Sain's house where they normally caught the bus for school. When she pulled into the driveway, the victim observed Sain and the defendant standing on the house steps. The defendant walked over to the car and asked the victim for a ride. The victim refused stating that she had to go home and dress for work. The victim testified that she knew the defendant, having seen him at Joy and David Sain's house on several occasions. The defendant was related to David Sain by marriage and lived in the Sain home.

After returning to her home and talking by telephone to a friend about the defendant, the victim dressed for work then returned to the Sain house and gave the defendant a ride. After she drove her car out of the Sain's driveway, the defendant pointed a gun at her. When she asked him what he was doing with the gun, he told her not to ask questions. He said that she would not be hurt if she followed his instructions. As he pointed the gun at her head, the defendant told her that he would kill her if she did not do exactly what he said.

The victim complied with the defendant's instructions to return to her house. During the entire trip to the house, the defendant pointed the gun at her head. Upon arrival at the victim's house, the defendant, with the gun still in his hand, demanded three hundred dollars. After being told that the victim had no money, the defendant dumped the contents of her pocketbook on a table. The victim testified that she later discovered that twenty dollars was missing from her pocketbook.

The defendant pulled the victim by the arm to the bedroom. He tied her hands behind her back with ripped pieces of towel, a string and a belt. He placed her on the bed and tied her feet together with pieces of towel and a coat hanger. During this entire period, the defendant had the gun nearby.

The defendant then sat on the victim's stomach. He pulled up her shirt and brassiere and put his mouth on her breasts. The defendant then unzipped her pants. When he realized he could not penetrate the victim with her legs tied, he untied them. After untying her legs, the defendant had sexual intercourse with the victim against her will. Throughout this period of time, the gun was laying on a dresser at the foot of the bed. The defendant thereafter tied a scarf around the victim's mouth and left the scene in her car. After he left, the victim worked her legs free and ran to the house of a neighbor for help.

Officer Robert Chapman, the investigating officer, testified that he escorted the defendant back to Lincoln County from Tennessee in February 1985. Before beginning the trip, Officer Chapman advised the defendant of his Miranda rights. Chapman testified that the defendant later initiated a conversation and "stated that he stopped at a truck stop near Atlanta and went in and left the car in the parking lot and when he came back, it had been stolen from him." While investigating at the victim's house, Chapman found pieces of towel, leather strips, and a piece of wire.

Dr. Ari, a physician, testified that he examined the victim in a hospital emergency room on the morning of 17 April 1984. He was unable to examine her initially because she was "crying, upset, and jittery." After sedating the victim, Dr. Ari examined her and found red spots on both of her breasts. Dr. Ari observed red marks around both wrists and ankles. The victim's vaginal region appeared red.

The defendant testified that the victim offered to pay him five hundred dollars to burn her car so that she could collect insurance proceeds. The defendant told her that he would do so for six or seven hundred dollars. The defendant testified that they then agreed that he would destroy the car for five hundred dollars and sexual favors from the victim. He said that he later received one hundred dollars from her and that they engaged in consensual sexual intercourse.

The defendant testified that on 17 April 1984, they again engaged in consensual sexual intercourse at the victim's house. The victim created a plan whereby her house would appear to be robbed. The defendant was to tie her up and take her money and her car. The defendant testified that the victim dumped the contents of her pocketbook on the kitchen table. Following the victim's directions, the defendant then tied her hands and ankles. He then took her car and eventually went to Atlanta where the car was stolen from him.

By his first assignment of error the defendant contends that the prosecutor improperly cross-examined him about his failure to inform Officer Chapman of the plan to destroy the victim's car and to defraud the insurance company. He argues that such cross-examination violated his fifth amendment right to remain silent and denied him due process in violation of the dictates of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). We do not agree.

In the present case, Officer Chapman testified on direct examination that he brought the defendant from Tennessee back to Lincoln County. Prior to the start of the long car trip, Chapman advised the defendant of his Miranda rights. During the trip, the defendant informed Chapman that the victim's car had been stolen from him when he stopped at a truck stop.

At trial, the defendant testified to the details of the plan to destroy the victim's car in order to obtain the insurance proceeds. The defendant further testified that he parked the car at a truck stop near Atlanta, and the car was stolen from him there. On cross-examination, the following transpired:

Q. Why did you tell Officer Chapman that you stole that car and it was stolen from you?

A. I told him the car was stolen from me.

Q. Why did you tell him you stole it? Why did you admit to stealing the car?

A. I told him I took the car. That was my own words.

Q. You didn't tell him any of this stuff about the elaborate conspiracy about turning it in on the insurance money, did you?

A. No, sir.

Q. You didn't tell him any of that?

A. No, he asked me if I wanted to tell him what happened and I could tell him what happened and they could help me then. And if I didn't tell him then and I talked to my lawyer, they wouldn't be able to help me out on my case, so I just didn't tell him. I told him I wanted to speak to my lawyer.

Q. Took you awhile to dream all that stuff up, too, didn't it.

MR. BLACK: OBJECTION.

THE COURT: OVERRULED.

A. I didn't dream it up.

The defendant contends that the prosecutor impermissibly used his silence after he had been arrested and given the Miranda warnings for impeachment purposes in violation of Doyle. We disagree.

In Doyle, two defendants were charged with selling marijuana to an undercover narcotics agent. At the time of arrest, the defendants were given Miranda warnings and chose to exercise the right to remain silent. At their separate trials each defendant testified that he had been "framed" by the narcotics agents. The prosecutor cross-examined each defendant about his failure to tell this to the authorities at the time of arrest.

The Supreme Court stated that the Miranda warnings contain an implicit assurance to a person who is given them that he will not be penalized for his postarrest silence. 426 U.S. at 618, 96 S.Ct. at 2245, 49 L.Ed.2d at 98. The Supreme Court also said that:

In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial.

Id.; See United States v. Hale, 422 U.S. 171, 182-83, 95 S.Ct. 2133, 2139-40, 45 L.Ed.2d 99, 108 (1975); State v. Freeland, 316 N.C. 13, 18, 340 S.E.2d 35, 38 (1986). However, the Supreme Court has expressly tailored certain boundaries to Doyle in the more recent cases of Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980) and Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) (per curiam).

In Jenkins, the Supreme Court held that Doyle was inapplicable in a case where the prosecutor referred to the defendant's prearrest silence. 447 U.S. at 240, 100 S.Ct. at 2130, 65 L.Ed.2d at 96. The Court focused on the fact that "no governmental action induced petitioner to remain silent before arrest." Id.

In Fletcher, the defendant did not receive any Miranda warnings during the postarrest period in which he remained silent. The Court declined to apply the Doyle principle "in the absence of the sort of affirmative assurances embodied in Miranda warnings ...." 455 U.S. at 607, 102 S.Ct. at 1312, 71 L.Ed.2d at 494. See State v. Burnett, 39 N.C.App. 605, 251 S.E.2d 717, review denied, 297 N.C. 302, 254 S.E.2d 924 (1979) (same).

In Anderson, the Supreme Court declined to apply Doyle to a...