Opinion
No. 07-1018.
Filed April 1, 2008.
Rutherford County Nos. 06CRS003214-15.
Appeal by defendant from judgment entered 24 April 2007 by Judge Laura J. Bridges in Rutherford County Superior Court. Heard in the Court of Appeals 17 March 2008.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Heather H. Freeman, for the State. Charlotte Gail Blake for defendant-apellant.
Ricky Alan Bristol ("defendant") appeals from judgment dated 24 April 2007 and entered consistent with a jury verdict finding him guilty of common law robbery and his subsequent guilty plea to having attained the status of an habitual felon. For the reasons stated herein, we find defendant received a fair trial free from error.
On 10 July 2006, the Rutherford County Grand Jury returned indictments against defendant for common law robbery and attaining the status of an habitual felon. At trial, the State's evidence tended to show that on 6 March 2006, Levi Smith and defendant were sharing a bottle of liquor in a wooded area in the town of Forest City, North Carolina. After consuming the alcohol, both men began to leave. At that point defendant jumped on Mr. Smith, pushed him down, and demanded money. Defendant reached into Mr. Smith's pocket, removed his wallet, and took approximately fifteen dollars. After taking the money, defendant threw the empty wallet at Mr. Smith and ran away. Mr. Smith's glasses were broken and he sustained a cut on his ear.
Defendant took the stand in his own defense and testified that on 6 March 2006 he found Mr. Smith passed out in the woods. Defendant testified that as he approached the wooded area he saw people walking away from the area with their backs to him. Defendant stated he helped Mr. Smith out of the woods and to a chair in a nearby lawn, but never committed the charged robbery.
During the State's cross-examination of defendant, the following occurred:
Q. [The State] After this happened, you talked to the police and the state's attorney, at least for some period of time, right? He asked you if you wanted to talk to him, didn't he?
A. [Defendant] I was at the jail when he came to talk to me, but I got throwed out of there when he re-arrested me on this charge here.
Q. And he asked if you wanted to talk to him, right?
A. I can't recall.
Q. But you didn't tell him anything about what you just told this jury, did you? Did you?
At this point, defendant's counsel objected to the State's line of questioning. After the trial court overruled defendant's objection, the State continued its cross-examination of defendant:
Q. [The State] You never told anyone this story until you got in here and told the jury, did you?
A. [Defendant] Nobody ever asked me about it. What are you talking about? With the police officer?
Q. You say no one ever asked you?
A. Are you talking about with them officers?
Q. I'm asking you who you told, other than this jury today?
A. I'm saying, no. No, I mean, you know what I'm saying? There's different people that asked me some questions, but —
Q. You kept it a secret until today when you told the jury?
A. I told my lawyer.
Q. You told your lawyer?
A. Yeah, I told him.
Q. And then you told the jury?
A. Yeah.
Q. That's the first time you said anything about it?
A. One time I seen Mr. Turner, you know what I'm saying? He pulled up beside me when I was walking up the road. And he asked me did I want to take a polygraph test, and I told him I would.
The jury found defendant guilty of common law robbery on 24 April 2007. Defendant subsequently pled guilty to having obtained the status of a habitual felon. The trial court entered its judgment and commitment pursuant to the jury's verdict and defendant's guilty plea, sentencing defendant to 135 to 171 months' imprisonment. Defendant gave written notice of appeal on 1 May 2007.
Defendant's sole argument on appeal is that the trial court erred in allowing the State to cross-examine defendant regarding his pretrial silence that was inconsistent with his trial testimony. We disagree.
"A defendant's exercise of his right to remain silent is guaranteed by Article I, Section 23 of the North Carolina Constitution and by the Fifth and Fourteenth Amendments to the Constitution of the United States." State v. Washington, 141 N.C. App. 354, 371, 540 S.E.2d 388, 400 (2000), disc. review denied, 353 N.C. 396, 547 S.E.2d 427 (2001). Generally, "[a] criminal defendant's exercise of his right to remain silent cannot be used against him to impeach an explanation subsequently offered at trial." State v. Westbrooks, 345 N.C. 43, 63, 478 S.E.2d 483, 495 (1996) (citing Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91 (1976)). However, it is well settled that "use of a defendant's prearrest silence to impeach his credibility on cross-examination does not violate the Fifth or Fourteenth Amendment." Id. (citing Jenkins v. Anderson, 447 U.S. 231, 65 L. Ed. 2d 86 (1980)). Further, where post-arrest Miranda warnings were not given, or were waived by the defendant, cross-examination as to post-arrest silence does not violate due process when the defendant chooses to take the stand. Washington, 141 N.C. App. at 373-74, 540 S.E.2d at 401; see also Fletcher v. Weir, 455 U.S. 603, 607, 71 L. Ed. 2d 490, 494 (1982) ("[i]n 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") (emphasis added).
"When a defendant chooses to testify in his own behalf, . . . his [Fifth A]mendment right to remain silent must give way to the [S]tate's right to seek to determine, by way of impeachment, whether a defendant's prior silence is inconsistent with his trial testimony." State v. McGinnis, 70 N.C. App. 421, 424, 320 S.E.2d 297, 300 (1984). The State may cross-examine a defendant about his silence regarding a later asserted alibi, if "it would have been natural for defendant to have mentioned his alibi defense" at an earlier time. State v. Lane, 301 N.C. 382, 386, 271 S.E.2d 273, 276 (1980). However, where a defendant's testimony at trial is not inconsistent with his pretrial statements, the State may not cross-examine defendant regarding any differences between the statements. State v. Shores, 155 N.C. App. 342, 350-51, 573 S.E.2d 237, 241-42 (2002), disc. review denied, 356 N.C. 690, 578 S.E.2d 592 (2003).
In Shores, the defendant was arrested for murder and initially waived his right to remain silent, giving two statements describing the circumstances of the killing to the investigating officers. Shores, 155 N.C. App. at 351, 573 S.E.2d at 242. Defendant then invoked his right to remain silent and at trial testified to "a more detailed exculpatory account of the incident." Id. This Court held the defendant's trial testimony "was not inconsistent with the statements given to police[,]" as his later statements "merely provided more detail" concerning his original very brief statement to the police. Id. Because the statements were not inconsistent, the State's cross-examination of defendant attacking the differences between the statements was held to be an impermissible violation of defendant's rights under the state and federal Constitutions. Id.
Here, it is unclear when, if ever, defendant was given his Miranda rights and asserted his right to remain silent. Defendant has thus failed to meet his burden to show that he relied upon his right to remain silent. McGinnis, 70 N.C. App. at 423-24, 320 S.E.2d at 300. Moreover, we hold that in this case, defendant's pretrial silence is inconsistent with his testimony at trial because it would clearly have been natural for defendant to have told any investigating officers about how defendant allegedly saw two men leaving the wooded area and then found Mr. Smith passed out in the woods. The State's cross-examination of defendant regarding his silence on this issue did not violate defendant's constitutional rights. This assignment of error is overruled.
No error.
Judges McCULLOUGH and STEELMAN concur.
Report per Rule 30(e).