State v. Golphin8/25/2000
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On appeal, Kevin argues his rights were violated because questioning resumed after he had invoked his right to silence regarding the Jeep incident. Kevin did not object to Agent Tilley's testimony on the basis of waiver or on the basis of resumption of questioning. As we stated previously, a motion in limine is not sufficient to preserve for appeal the question of admissibility of evidence if the defendant does not object to that evidence at the time it is offered at trial. See Hayes, 350 N.C. at 80, 511 S.E.2d at 303. Therefore, Kevin has not properly preserved this issue for appellate review. See N.C. R. App. P. 10(b)(1).
Nonetheless, as Kevin argues the trial court committed plain error with regard to this assignment of error, he is entitled to relief if he can demonstrate plain error. See N.C. R. App. P. 10(c)(4). "`Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.'" State v. Roseboro, 351 N.C. 536, 553, 528 S.E.2d 1, 12 (2000) (quoting State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993)).
The United States Supreme Court, in Miranda, 384 U.S. 436, 16 L. Ed. 2d 694, held "a suspect must be informed of his rights upon being arrested: that is, to remain silent, to an attorney and that any statement made may be used as evidence against him." State v. Miller, 344 N.C. 658, 666, 477 S.E.2d 915, 920 (1996). Additionally, juveniles have the right to have a parent, guardian, or custodian present during questioning. See N.C.G.S. § 7B-2101(a)(3) (1999); Miller, 344 N.C. at 666, 477 S.E.2d at 920. Pursuant to Miranda, 384 U.S. 436, 16 L. Ed. 2d 694, and Edwards, 451 U.S. 477, 68 L. Ed. 2d 378, the Fifth and Fourteenth Amendments to the United States Constitution "require that during custodial interrogation, if the individual `indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.'" Fletcher, 348 N.C. at 305-06, 500 S.E.2d at 676 (quoting Miranda, 384 U.S. at 473-74, 16 L. Ed. 2d at 723); see also Edwards, 451 U.S. at 482, 68 L. Ed. 2d at 384.
Recently, however, based on the United States Supreme Court's case involving ambiguous invocations of a suspect's right to a lawyer, Davis v. United States, 512 U.S. 452, 129 L. Ed. 2d 362 (1994), the Fourth Circuit Court of Appeals addressed the issue of ambiguous invocations of a defendant's right to remain silent in Burket v. Angelone, 208 F.3d 172 (4th Cir.), cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___, 2000 WL 798536 (June 29, 2000) (No. 99-9917). In Burket, the Fourth Circuit held it was not clear the defendant wished to remain silent and, considering the circumstances as a whole, the investigator had every reason to believe the defendant wished to talk and, thus, concluded that the police did not violate Miranda because the defendant never invoked his right to remain silent. Id. at 200. The Fourth Circuit stated:
The Supreme Court's most recent exposition on ambiguous invocations was in the context of whether a suspect invoked his Sixth Amendment right to counsel. In Davis, the Court held that the determination of whether a suspect invoked his right to counsel is an objective one. The question is whether the suspect "articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." [Davis, 512 U.S. at 459, 129 L. Ed. 2d at 371.] Other circuits have held that this "objective inquiry" into ambiguity is applicable to invocations of the right to remain silent. Burket, 208 F.3d at 200.
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