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State v. Gaines4/11/1997
e. State v. Collins, 335 N.C. 729, 735, 440 S.E.2d 559, 562 (1994). The victim's statements at issue were admitted within the context of the testimony of responding officers and paramedics. Each of the statements served to describe the circumstances and events surrounding and immediately following the shooting. Further, the statements are not so inflammatory as to be unfairly prejudicial pursuant to N.C.G.S. § 8C-1, Rule 403. This assignment of error is overruled.
ISSUES RAISED BY DEFENDANT GAINES
Defendant Gaines contends that his rights were violated by the use of his prearrest silence for impeachment purposes. On direct examination at trial, Gaines testified that he did not mean to shoot the victim; that he was trying to get away after he stepped in front of the lobby door and saw the victim drawing his gun; that he fell, tripped, or stumbled at about the same time the gun went off; and that the shooting was an accident. In Gaines' pretrial statement to Boothe, he told Boothe that as he went into the motel lobby, he stumbled, and the gun went off one time. On cross-examination the prosecutor asked Gaines a series of questions as to why Gaines did not tell various officers other than Boothe on 22 November 1991 that the shooting was an accident. Gaines contends that his rights were violated by the use of his prearrest silence for impeachment purposes during this cross-examination.
A criminal defendant's exercise of his right to remain silent cannot be used against him to impeach an explanation subsequently offered at trial. Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). However, the rule prohibiting the cross-examination of a defendant about the exercise of his right to remain silent does not apply to prearrest silence. Jenkins v. Anderson, 447 U.S. 231, 65 L. Ed. 2d 86, 100 S. Ct. 2124 (1980). In the instant case the use of defendant's prearrest silence does not violate his Fifth Amendment rights. The record reveals that defendant never invoked or relied upon his right to remain silent.
The fact that the Fifth Amendment is not violated by the use of prearrest silence to impeach a defendant's credibility, however, does not mean that admission of this testimony was proper under our common law rules. In Jenkins the Court noted that
common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative.
Id. at 239, 65 L. Ed. 2d at 95 (citation omitted).
Defendant Gaines did not object to this examination at trial; therefore, our review is limited to plain error. N.C. R. App. P. 10(c)(4). Assuming arguendo that the allowance of this cross-examination was error, defendant has not shown that the error in admitting the evidence was so fundamental as to constitute a miscarriage of Justice or that the error was one which probably resulted in the jury reaching a verdict different from what it otherwise would have reached. Collins, 334 N.C. at 62, 431 S.E.2d at 193.
Defendant Gaines also contends that the prosecutor's closing argument was improper in that the prosecutor used defendant's silence on 22 November to argue that defendant's accident defense at trial was an "after-the-fact fabrication." First, we note that defendant did not object to this portion of the closing argument. Where there is no objection, "the standard of review to determine whether the trial court should have intervened ex mero motu is w
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