State v. Harrison, 218 N.C. App. 546 (Feb. 7, 2012)

The trial court committed error by allowing the State to use the defendant’s pre- and post-arrest silence as substantive evidence of guilt. When explaining the circumstances of the defendant’s initial interview, an officer testifying for the State stated: “He provided me – he denied any involvement, wished to give me no statement, written or verbal.” Also, when the State asked the officer whether the defendant had made any statements after arrest, the officer responded, “After he was mirandized [sic], he waived his rights and provided no further verbal or written statements.” The court noted that a defendant’s pre- arrest silence and post-arrest, pre-Miranda warnings silence may not be used as substantive evidence of guilt, but may be used to impeach the defendant by suggesting that his or her prior silence is inconsistent with present statements at trial. A defendant’s post-arrest, post-Miranda warnings silence, however, may not be used for any purpose. Here, the defendant testified after the officer, so the State could not use the officer’s statement for impeachment. Also, the officer’s testimony was admitted as substantive evidence during the State’s case in chief. However, the errors did not rise to the level of plain error. 

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