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State v. Golphin8/25/2000
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The Fourth Circuit then noted that the Second, Fifth, Seventh, Eighth, and Eleventh Circuit Courts of Appeal have relied on the Supreme Court's analysis in Davis to determine whether a suspect's invocation of the right to remain silent was ambiguous. Id. The Fourth Circuit then noted that it had not yet decided whether Davis applied to invocations of the right to remain silent, but held that it was not necessary to do so in Burket because that case specifically focused on federal law. Id. However, the Fourth Circuit then held, " n light of the language and logic of the Supreme Court's decision in Davis," the Virginia Supreme Court's decision to admit the defendant's statement was not "contrary . . . to clearly established federal law as determined by the Supreme Court." Id. In so holding, the Fourth Circuit stated:
Davis held that when faced with an ambiguous invocation of a right, an interrogator was not required to ask clarifying questions. In this case, however, [the defendant] said to the officers "I just don't think that I should say anything" and "I need somebody that I can talk to." These statements do not constitute an unequivocal request to remain silent. In fact, [the defendant's] statements are quite similar to the defendant's statement in Davis ("Maybe I should talk to a lawyer"), which the Supreme Court found ambiguous. Id. (citation omitted).
Similarly, in the instant case, Kevin's statement did not constitute an unequivocal request to remain silent. When Agent Tilley asked Kevin about an incident involving a Jeep, which Kevin had not mentioned previously during his statement, Agent Tilley stated that Kevin said "he didn't want to say anything about the jeep. He did not know who it was or he would have told us." This statement is not an unambiguous invocation of Kevin's right to silence, as he indicated that had he known who the incident involved, he would have made a statement concerning that incident. See id. Under the circumstances, it was not unreasonable for Agent Tilley to believe Kevin wanted to talk and to then inquire as to what happened involving the Jeep. Kevin's rights were not violated, as the police did not act contrary to clearly established federal law.
Because Kevin did not unambiguously invoke his right to remain silent, the trial court did not err in admitting the portion of his statement concerning the Jeep. Thus, Kevin has failed to satisfy the first part of plain error review, that there be error. See Roseboro, 351 N.C. at 553, 528 S.E.2d at 12. Therefore, this assignment of error is overruled.
By assignments of error, both Kevin and Tilmon argue the State's improper closing argument violated their state and federal constitutional rights. Specifically, they argue the State's closing argument was so grossly improper that the trial court should have intervened ex mero motu. In addition, Tilmon argues the State further violated his rights by categorizing the portions of his statement, which the State had introduced into evidence, as lies. We disagree.
We first address Kevin's and Tilmon's argument that the trial court should have intervened ex mero motu. During the State's closing argument, the prosecutor was recounting the testimony of the various witnesses to the crimes. One witness observed Tilmon resisting Deputy Hathcock and trying to get back toward the stolen vehicle. In explaining why Tilmon might want to get back to the vehicle, the prosecutor held up the SKS rifle Tilmon allegedly used in the killings. Then, in explaining what one might do with a rifle, the prosecutor displayed the rifle in the direction of one of the district attorneys and then in the direction of a juror, and then put the rifle down. L
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