The defendant was charged with felony trafficking in methamphetamine and misdemeanor simple possession of marijuana. Prior to trial, the defendant filed a notice of her intent to rely upon the affirmative defense of duress. At trial, the detective who was present at the scene testified for the State during its case-in-chief. Over defense counsel’s objection, the State asked the detective if the defendant made “any statements” about another person when she handed over the substances in her possession, to which the detective responded in the negative.

The defense counsel asked for the court to excuse the jury and moved for a mistrial arguing that the State’s questions had “solicited an answer highlighting [the defendant’s] silence at the scene.” Slip op. at ¶ 6. After conducting a voir dire to determine the admissibility of the detective’s testimony, the trial court ultimately allowed the State to ask the question again when the jury returned. After the State’s case-in chief, the defendant took the witness stand to testify in her own defense. At the close of all the evidence, the trial court instructed the jury on the defense of duress, and the jury ultimately found the defendant guilty of both charges. 

On appeal, the Court of Appeals unanimously found no error in the jury’s verdicts or in the judgment, concluding that because defendant gave notice of her intent to assert the affirmative defense of duress before she testified, the trial court did not err in admitting the detective’s testimony of the defendant’s silence during the State’s case-in-chief.

The Supreme Court granted review to determine whether the Court of Appeals erred by holding that a defendant who exercises their Fifth Amendment right to silence forfeits that right if they give notice of intent to offer an affirmative defense. The Court held that when the defendant gave pre-trial notice of her intent to invoke an affirmative defense under statute, she did not give up her Fifth Amendment right to remain silent or her Fifth Amendment right to not testify, and the State was not permitted to offer evidence to impeach her credibility when she had not testified. Here, at the time the State elicited the impeachment testimony from the detective, the defendant had not testified and retained her Fifth Amendment right not to do so. Thus, the Court held it was error to admit the detective’s testimony into evidence.

Reversing the Court of Appeals, the court held that the trial court did not violate the defendant’s Fifth Amendment rights in connection with a civil domestic violence protective order hearing. During the defendant’s case-in-chief, but before the defendant took the stand, the trial court asked defense counsel whether the defendant intended to invoke the Fifth Amendment, to which counsel twice responded in the negative. While the defendant was on the stand, the trial court posed questions to her. The court noted that at no point during direct examination or the trial court’s questioning did the defendant, a voluntary witness, give any indication that answering any question posed to her would tend to incriminate her. “Put simply,” the court held, the “defendant never attempted to invoke the privilege against self-incrimination.” The court continued: “We are not aware of, and the parties do not cite to, any case holding that a trial court infringes upon a witness’s Fifth Amendment rights when the witness does not invoke the privilege.” The court further noted that in questioning the defendant, the trial court inquired into matters within the scope of issues that were put into dispute on direct examination by the defendant. Therefore, even if the defendant had attempted to invoke the Fifth Amendment, the privilege was not available during the trial court’s inquiry.

In this Wilson County case, the defendant was convicted after a jury trial of first-degree murder related to a dispute arising out of a card game. Though the defendant told the victim he was going to kill him, and though multiple witnesses saw the defendant shoot the victim, the defendant claimed for the first time at trial that another man, William Saxton, actually shot the victim. During the trial, a witness testified over the defendant’s objection that the defendant had driven to Mr. Saxton’s house after the card game because he knew Mr. Saxton had guns. Another witness testified over the defendant’s objection that he thought the defendant had tried to have him killed. (1) The defendant argued on appeal that both witnesses gave impermissible lay-witness opinions and that the trial court erred by admitting them. The Court of Appeals agreed. A lay witness may not speculate about another person’s intentions on a particular occasion, and each of the witnesses here did (that the defendant drove to Mr. Sexton’s house to get a gun, and that the defendant had set up another witness to be killed, respectively). In both instances, the court concluded, the witness was in no better position than the jurors to deduce the defendant’s intentions based on the evidence. Nevertheless, the court concluded that neither witness’s testimony prejudiced the defendant in light of the ample evidence against him.

(2) The defendant also argued on appeal that his right to not incriminate himself was violated when the trial court allowed the State to elicit testimony from a detective that the defendant did not give the same explanation of events at trial (that another man shot the victim) at any time before trial. The defendant argued that asking the officer why the defendant did not mention the other man earlier impermissibly referenced his post-arrest silence. The Court of Appeals disagreed, noting that the right to remain silent did not apply when the defendant did not actually remain silent; instead, he spoke to the detective, claimed that he did not kill the victim, and that he did not know who did. The State’s questioning focused on the differences between the defendant’s statement during the investigation (that he did not know who killed the victim) and his explanation at trial (that Mr. Saxton killed the victim) and was therefore permissible.

(1) The trial court did not err by allowing the prosecutor to cross-examine defendant Perry regarding his post-arrest, pre-Miranda silence. Defendants Perry and Powell appealed from judgments entered upon jury verdicts finding them guilty of offenses in connection with a shooting. The defendants were tried together. At trial Perry testified regarding his alibi defense. On appeal the defendants argued that the trial court committed reversible error by allowing the prosecutor to cross-examine Perry regarding his silence to the police after his arrest regarding his alibi. Although a defendant’s post-arrest, post-Miranda warning silence may not be used by the State for any purpose, a defendant’s post-arrest, pre-Miranda silence may be used by the State to impeach a defendant by suggesting that the defendant’s prior silence is inconsistent with his present statements at trial. Our Supreme Court has instructed that a defendant’s silence about an alibi at the time of arrest can constitute an inconsistent statement, and that this silence can be used to impeach a defendant’s alibi offered at trial if it would have been natural for a defendant to mention the alibi at the time of his encounter with the police. Applying these rules to the case at hand, the court concluded:

[T]here was evidence which showed as follows: The offenses were perpetrated no more than 72 hours before Defendant Perry was arrested and informed of the charges against him. Defendant Perry knew the victims named in the warrant: he knew one of the victims because she was his ex-girlfriend, and he knew the other victim from hanging out in the same neighborhood. Despite Defendant Perry’s familiarity with these two victims and the location where the shooting occurred, he made no statements that he had an alibi to account for his whereabouts during the commission of the crime. When the officer charged Defendant Perry with three counts of attempted murder and three counts of injury to real or personal property, Defendant Perry failed to mention his alibi when it would have been natural to deny that he would not have attempted to kill his ex-girlfriend, her current partner, and his ex-girlfriend’s son.

Based on this evidence, we conclude that Defendant Perry’s silence is inconsistent with his later alibi testimony presented for the first time during trial. Therefore, the trial court did not err when it allowed the State to impeach Defendant Perry on cross-examination about his failure to say anything about his alibi when the warrants were read to him and before he had received Miranda warnings.

(2) Although it was error to admit evidence of Perry’s post-Miranda warnings silence about an alibi, the error did not constitute plain error for either defendant. Because the defendant failed to object to the testimony at trial, the plain error standard applied. Here no plain error occurred because there was ample evidence establishing the defendants’ guilt.

In this sexual assault case, the court rejected the defendant’s argument that the State’s impeachment of the defendant with his post-Miranda silence violated the defendant’s constitutional rights. After the defendant was arrested and read his Miranda rights, he signed a waiver of his rights and gave a statement indicating that he did not recall the details of the night in question. He was later connected to the crimes and brought to trial. At trial the defendant testified to specific details of the incident. He recounted driving an unknown man home from a nightclub to an apartment complex, meeting two young women in the complex’s parking lot, and having a consensual sexual encounter with the women. The defendant testified that the women offered him “white liquor,” marijuana, and invited him to their apartment. However, the defendant had failed to mention these details when questioned by law enforcement after his arrest, stating instead that he did not remember the details of the night. On cross-examination, the prosecutor asked the defendant why he had not disclosed this detailed account to law enforcement during that interview. The defendant stated that he was unable to recall the account because he was medicated due to a recent series of operations, and that the medication affected his memory during the interview. The court determined that the prosecutor’s cross-examination “was directly related to the subject matter and details raised in Defendant’s own direct testimony, including the nature of the sexual encounter itself, the police interrogation, and his prior convictions.” “Further,” the court explained, “the inquiry by the prosecutor was not in an effort to proffer substantive evidence to the jury, but rather to impeach Defendant with his inconsistent statements.” It concluded:

Defendant failed to mention his story of a consensual sexual encounter to the detective which he later recalled with a high level of particularity during direct examination. Such a “memorable” encounter would have been natural for Defendant to recall at the time [the officer] was conducting his investigation; thus, his prior statement was an “indirect inconsistency.” Further, the prosecutor did not exploit Defendant’s right to remain silent, but instead merely inquired as to why he did not remain consistent between testifying on direct examination and in his interview with the detective two years prior.

In this larceny and obtaining property by false pretenses case, the court held: “[t]estimony that the investigating detective was unable to reach defendant to question him during her investigation was admissible to describe the course of her investigation, and was not improper testimony of defendant’s pre-arrest silence.” The testimony at issue involved the State’s questioning of the detective about her repeated unsuccessful efforts to contact the defendant and his lack of participation in the investigation. Noting that pre-arrest silence may not be used as substantive evidence of guilt, the court noted that none of the relevant cases involve a situation where “there has been no direct contact between the defendant and a law enforcement officer.” It continued: “Pre-arrest silence has no significance if there is no indication that a defendant was questioned by a law enforcement officer and refused to answer.” Here, the detective never made contact with the defendant, never confronted him in person, and never requested that he submit to questioning. Additionally, the court noted there was no indication that the defendant knew the detective was trying to talk to him and that he refused to speak to her. Thus, the court concluded “it cannot be inferred that defendant’s lack of response to indirect attempts to speak to him about an ongoing investigation was evidence of pre-arrest silence.”

By commenting in closing statements that the defendant failed to produce witnesses or evidence to contradict the State’s evidence, the prosecutor did not impermissibly comment on the defendant’s right to remain silent.

The trial court committed plain error by allowing the State to cross-examine the defendant about his failure to make a post-arrest statement to officers and to comment in closing argument on the defendant’s decision to refrain from giving such a statement. The following factors, none of which is determinative, must be considered in ascertaining whether a prosecutorial comment concerning a defendant’s post-arrest silence constitutes plain error: whether the prosecutor directly elicited the improper testimony or explicitly made an improper comment; whether there was substantial evidence of the defendant’s guilt; whether the defendant’s credibility was successfully attacked in other ways; and the extent to which the prosecutor emphasized or capitalized on the improper testimony. After concluding that the State improperly cross-examined the defendant about his post-arrest silence and commented on that silence in closing argument, the court applied the factors noted above and concluded that the trial court’s failure to preclude these comments constituted plain error.

The trial court erred by allowing the State to introduce evidence, during its case in chief, of the defendant's pre-arrest and post-arrest, pre-Miranda warnings silence. The only permissible purpose for such evidence is impeachment; since the defendant had not yet testified when the State presented the evidence, the testimony could not have been used for that purpose. Also, the State’s use of the defendant's post-arrest, post-Miranda warnings silence was forbidden for any purpose. However, the court concluded that there was no plain error given the substantial evidence pointing to guilt.