State v. Taylor, 244 N.C. App. 293 (Dec. 1, 2015)

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.”