State v. Moore

• Decision Date: 14 June 2012
• Docket Number: No. 524PA11.,524PA11.
• Citation: 726 S.E.2d 168
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Rodney Lee MOORE.

726 S.E.2d 168

STATE of North Carolina

v.Rodney Lee MOORE.

No. 524PA11.

Supreme Court of North Carolina.

June 14, 2012.

On discretionary review pursuant to N.C.G.S. § 7A–31 of a unanimous, unpublisheddecision of the Court of Appeals, ––– N.C.App. ––––, 718 S.E.2d 423 (2011), finding no error in defendant's trial that resulted in a judgment entered on 23 September 2009 by Judge J.B. Allen, Jr. in Superior Court, Alamance County, but vacating the trial court's order requiring that defendant register as a sex offender and remanding the case for a new sentencing hearing. Heard in the Supreme Court on 8 May 2012.

Roy Cooper, Attorney General, by Caroline Farmer, Deputy Director, N.C. Department of Justice, for the State.

Staples S. Hughes, Appellate Defender, by Daniel R. Pollitt, Assistant Appellate Defender, for defendant-appellant.

PARKER, Chief Justice.

The issue in this case is whether the Court of Appeals erred by holding no plain error when a State's witness testified that defendant exercised his right to remain silent. For the reasons stated herein, we affirm the decision of the Court of Appeals.

Defendant, then forty-two years old, was charged in an arrest warrant on 2 February 2009 with committing a misdemeanor sexual battery under N.C.G.S. § 14–27.5A(a). T.B., the victim, was sixteen years old at the time.¹ Defendant was tried and found guilty in district court and appealed to superior court, where a jury found him guilty. Defendant was sentenced to one hundred fifty days' imprisonment and ordered to register as a sex offender for thirty years after his release from prison.

The evidence at trial tended to show the following. In 2009, defendant frequently visited his sister, Tanya Farrish, at her house in Burlington. Tanya had a teenage son named Terrance and was related through marriage to T.B.'s mother, Teia. T.B. and Terrance were cousins, good friends, and the same age, went to the same high school, and regularly spent time at each other's houses.

After school on 2 February 2009, T.B. went to the Farrish house with Terrance and began watching television in Terrance's bedroom. Terrance's bedroom was located directly across a narrow hallway from the living room and had a door that would not fully close or lock. No one else was at home. Sometime later that afternoon, Tanya Farrish, defendant, and three other adults came to the Farrish house and started watching television in the living room.

T.B. continued to watch television alone in Terrance's bedroom while Terrance performed chores in the kitchen. T.B. testified that defendant entered Terrance's bedroom, said “I heard that you wanted me,” pushed her down on the bed, and got on top of her in a straddling position. According to T.B., defendant used one hand to hold T.B.'s hands behind her head, used his other hand to feel up and down her clothed body, including her breasts and “private area,” and pressed his pelvis up against T.B.'s so that she could feel his penis through his jeans. T.B. struggled and pleaded with him to get off her. Defendant left T.B. alone upon hearing someone at the front door. She testified that the attack lasted approximately two to three minutes, but could have been shorter, and that defendant left the Farrish house immediately. T.B. smelled a strong odor of alcohol on defendant's breath.

T.B. testified that after defendant left, she got off the bed, went outside, and telephoned a friend for a ride home. T.B. told Terrance what had happened; Terrance texted T.B.'s mother about the incident. T.B. discussed the assault with her mother later that evening. When T.B.'s mother attempted to speak with defendant on the telephone, he hung up on her. Terrance and his mother, who also learned of the incident from T.B. and her mother, called defendant on the telephone and asked him why he assaulted T.B. Defendant denied the allegations. T.B. and her mother then went to the Burlington police station and spoke with Officer Doug Murphy.

The State called Officer Murphy to testify at trial as part of the State's case-in-chief. He testified that T.B. told him that defendant had thrown her down on the bed and “rubbed” her clothed body earlier that evening. Later, at about 8:45 p.m., defendant voluntarily came to the police station at another officer's request. Defendant was told that he was not under arrest and that he could leave at any time. Defendant denied assaulting T.B. and said that he went into Terrance's bedroom because Terrance had told him T.B. wanted marijuana from defendant. The prosecutor asked Officer Murphy if defendant told him “anything else about [defendant's] allegations that [T.B.] had asked for marijuana at the time, anymore, did [defendant] elaborate anymore on that?” Officer Murphy answered, “[N]o.” Officer Murphy testified that he smelled alcohol on defendant's breath. After approximately twenty minutes, Officer Murphy released defendant.

At about 11:00 p.m. that same evening, Officer Murphy went to defendant's house, arrested him, and then read him his Miranda rights. Defendant exercised his constitutional right to silence by refusing to speak to Officer Murphy.

At trial, during the State's direct examination, Officer Murphy testified about defendant's arrest as follows:

Q. And did you arrest [defendant] thereafter?

A. Yes. I went to [defendant's] residence ... and I took him into custody. Once he was in custody, I read him his Miranda Rights, but he refused to talk about the case at that time.

Q. Have you ever spoken to the defendant or any of the other parties in this case since that time?

A. No, I have not.

Defendant's evidence tended to show the following. Terrance Farrish testified that on the date in question, T.B. told him “to tell [defendant] to come” into the bedroom to see her. Terrance then relayed the message to defendant. When defendant walked into the bedroom to see what T.B. wanted, Terrance sat down in a chair in the living room near the door to his bedroom. Terrance testified that defendant was in the bedroom for “six seconds, at the most,” and then came out of the bedroom, went into the living room, said, “I ain't buying that girl no blunt,” and sat down.

Tanya Farrish testified that defendant went into Terrance's bedroom after being asked to do so. Tanya was sitting in the living room and could see the back of defendant's pants leg through the crack in the door while he was in the bedroom. Tanya never saw defendant get far from the doorway, but she did not watch him the entire time he was in the bedroom. Tanya testified that defendant was in the bedroom “less than a minute” and upon emerging from the bedroom said that T.B. “wanted for him to buy her a blunt.”

Defendant testified on his own behalf. He acknowledged that he was at the Farrish house on 2 February and testified that Terrance told him that T.B. wanted to see him in the bedroom. Defendant testified that he entered the bedroom, stood at the doorway, and asked T.B., “[W]hat did she want?” Defendant declared that T.B. asked for money to buy a blunt, but he refused, left the room, and told the adults in the living room, “I'm not going to buy her a blunt.” Defendant testified that the entire encounter lasted ten seconds at the most.

After his conviction defendant gave timely notice of appeal to the Court of Appeals. On appeal, defendant argued several issues, including that the trial court committed plain error by admitting Officer Murphy's testimony referring to defendant's exercise of his right to remain silent and that the trial court erroneously ordered thirty years of sex offender registration upon defendant's release from imprisonment.

The Court of Appeals found either no error or no reversible error on all issues relevant to the determination of guilt, but it vacated the trial court's order requiring defendant to register as a sex offender and remanded for a new sentencing hearing. State v. Moore, ––– N.C.App. ––––, 718 S.E.2d 423, 2011 WL 5148671, at *4, *6, *8–9, *11 (2011). The court below recognized that the right to remain silent is protected by the Fifth Amendment and is incorporated by the Fourteenth Amendment. Moore, 2011 WL 5148671, at *7 (citing State v. Ward, 354 N.C. 231, 250, 555 S.E.2d 251, 264 (2001)). The Court of Appeals also recognized that “[a] defendant's post-arrest, post- Miranda warningssilence may not be used for any purpose.” Id. (citing, inter alia, Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91, 98 (1976)). The court then analogized to State v. Mendoza, 206 N.C.App. 391, 698 S.E.2d 170 (2010) (concluding that the State's questioning about the defendant's silence did not rise to the level of plain error) in determining that admission of Officer Murphy's statements was not plain error. 2011 WL 5148671, at *7–8. The Court of Appeals reasoned that since the error in the instant case was less prejudicial than the error in Mendoza, the error here also did not amount to plain error. Id. The Court of Appeals noted distinguishing factors rendering the inappropriately admitted evidence in this case less susceptible to a finding of plain error than the error committed in Mendoza.Id.

Before this Court defendant argues that the admission as substantive evidence of Officer Murphy's testimony referring to defendant's post- Miranda exercise of his constitutional right to remain silent was plain error entitling defendant to a new trial. We agree that admission of the post- Miranda testimony was error, but we disagree that this error amounted to plain error.

A criminal defendant's right to remain silent is guaranteed under the Fifth Amendment to the United States Constitution and is made applicable to the states by the Fourteenth Amendment. Ward, 354 N.C. at 250, 555 S.E.2d at 264 (citing Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)). “We have consistently held that the State may not introduce evidence that a defendant exercised his [F]ifth [A]mendment right...