{ "id": 4177851, "name": "STATE OF NORTH CAROLINA v. MANUEL MENDOZA, Defendant", "name_abbreviation": "State v. Mendoza", "decision_date": "2010-08-17", "docket_number": "No. COA09-327", "first_page": "391", "last_page": "404", "citations": [ { "type": "official", "cite": "206 N.C. App. 391" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "669 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642291 ], "year": 2008, "pin_cites": [ { "page": "28", "parenthetical": "\"It is well settled that, during custodial interrogation, once a suspect invokes his right to counsel, all questioning must cease until an attorney is present or the suspect initiates further communication with the police.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/669/0025-01" ] }, { "cite": "670 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642390, 12642391 ], "weight": 2, "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/670/0566-01", "/se2d/670/0566-02" ] }, { "cite": "663 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641565 ], "weight": 9, "year": 2008, "pin_cites": [ { "page": "894" }, { "page": "894" }, { "page": "896" }, { "page": "894" }, { "page": "896" } ], "opinion_index": 0, "case_paths": [ "/se2d/663/0886-01" ] }, { "cite": "302 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "172", "parenthetical": "\"[A] defendant must be permitted to invoke this right [to council] with the assurance that he will not later suffer adverse consequences for having done so.\"" } ], "opinion_index": 0 }, { "cite": "308 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707923 ], "year": 1983, "pin_cites": [ { "page": "283-84", "parenthetical": "\"[A] defendant must be permitted to invoke this right [to council] with the assurance that he will not later suffer adverse consequences for having done so.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0272-01" ] }, { "cite": "679 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "194 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4162818 ], "year": 2008, "pin_cites": [ { "page": "155", "parenthetical": "\"It is well settled that, during custodial interrogation, once a suspect invokes his right to counsel, all questioning must cease until an attorney is present or the suspect initiates further communication with the police.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/194/0151-01" ] }, { "cite": "578 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511619, 1511459, 1511493, 1511123, 1511290 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0690-01", "/nc/356/0690-02", "/nc/356/0690-05", "/nc/356/0690-04", "/nc/356/0690-03" ] }, { "cite": "573 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "242", "parenthetical": "same" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 342", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250148 ], "year": 2002, "pin_cites": [ { "page": "351", "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0342-01" ] }, { "cite": "382 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "753-54", "parenthetical": "applying Doyle and holding State's questioning detectives and defendant about defendant's post-arrest, post-Miranda warnings silence violated right to remain silent" } ], "opinion_index": 0 }, { "cite": "325 N.C. 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491571 ], "year": 1989, "pin_cites": [ { "page": "235-37", "parenthetical": "applying Doyle and holding State's questioning detectives and defendant about defendant's post-arrest, post-Miranda warnings silence violated right to remain silent" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0232-01" ] }, { "cite": "346 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "410", "parenthetical": "noting counsel may argue facts in evidence and inferences which may be drawn from those facts, but counsel is prohibited from arguing facts not supported by evidence" } ], "opinion_index": 0 }, { "cite": "317 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4778236 ], "year": 1986, "pin_cites": [ { "page": "481", "parenthetical": "noting counsel may argue facts in evidence and inferences which may be drawn from those facts, but counsel is prohibited from arguing facts not supported by evidence" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0474-01" ] }, { "cite": "467 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "465 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "341 N.C. 653", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793121, 793060, 793106, 793175, 793112 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/341/0653-03", "/nc/341/0653-02", "/nc/341/0653-05", "/nc/341/0653-01", "/nc/341/0653-04" ] }, { "cite": "458 S.E.2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1995, "pin_cites": [ { "page": "261" }, { "page": "262" }, { "page": "261" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 256", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914498 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "262" }, { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0256-01" ] }, { "cite": "552 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "677" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 173", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11355280 ], "year": 2001, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0173-01" ] }, { "cite": "447 U.S. 231", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183056 ], "weight": 9, "year": 1980, "pin_cites": [ { "page": "240-41" }, { "page": "96" }, { "page": "2130", "parenthetical": "holding \"use of prearrest silence to impeach a defendant's credibility does not violate the Constitution\"" }, { "page": "238" }, { "page": "94" }, { "page": "2129", "parenthetical": "\" [I]mpeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial.\" (emphasis added)" } ], "opinion_index": 0, "case_paths": [ "/us/447/0231-01" ] }, { "cite": "679 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "363 N.C. 376", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "year": 2009, "opinion_index": 0 }, { "cite": "674 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "463" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 180", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165972 ], "year": 2009, "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0180-01" ] }, { "cite": "103 S. Ct. 381", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1982, "opinion_index": 0 }, { "cite": "74 L. Ed. 2d 513", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468801, 6468547, 6469476, 6468711, 6469608, 6469353, 6468967, 6468624, 6468240, 6468465, 6469044, 6468343, 6469144, 6469246 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1018-07", "/us/459/1018-04", "/us/459/1018-13", "/us/459/1018-06", "/us/459/1018-14", "/us/459/1018-12", "/us/459/1018-08", "/us/459/1018-05", "/us/459/1018-01", "/us/459/1018-03", "/us/459/1018-09", "/us/459/1018-02", "/us/459/1018-10", "/us/459/1018-11" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513, 103 S. Ct. 381 (1982)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513, 103 S. Ct. 381 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "362 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "year": 2008, "opinion_index": 0 }, { "cite": "191 N.C. App. 637", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159151 ], "weight": 4, "year": 2008, "pin_cites": [ { "page": "648" }, { "page": "651" }, { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0637-01" ] }, { "cite": "426 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181032 ], "weight": 12, "year": 1976, "pin_cites": [ { "page": "619" }, { "page": "98" }, { "page": "2245", "parenthetical": "holding that \"use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment\"" }, { "page": "618" }, { "page": "98" }, { "page": "2245" }, { "page": "619" }, { "page": "98" }, { "page": "2245" } ], "opinion_index": 0, "case_paths": [ "/us/426/0610-01" ] } ], "analysis": { "cardinality": 1102, "char_count": 30527, "ocr_confidence": 0.748, "pagerank": { "raw": 1.3054086574822276e-07, "percentile": 0.623112969134494 }, "sha256": "154dd5febf490d4d8ace2a0f9bd0e25315949dc3e2d9fb60d72d26013a03cfb4", "simhash": "1:d63c527f8773a44a", "word_count": 5000 }, "last_updated": "2023-07-14T18:24:03.194595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MANUEL MENDOZA, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Manuel Mendoza appeals from the judgment convicting him of trafficking in cocaine by possession and trafficking in cocaine by transportation. Defendant contends that the trial court erred, at various points throughout the trial, in permitting the State to introduce evidence about defendant\u2019s silence both before and after he was arrested. Because defendant did not object to any of this testimony at trial, the plain error doctrine applies.\nWe agree with defendant\u2019s argument that the trial court erred in allowing the State to introduce evidence during its case in chief of defendant\u2019s pre-arrest silence and his post-arrest, pre-Miranda warnings silence. The only permissible purpose for such evidence is impeachment. Since defendant had not yet testified at the time the State presented the evidence, we conclude that this testimony could not have been used for impeachment, but instead was improperly admitted as substantive evidence of defendant\u2019s guilt. Likewise, the State\u2019s use of defendant\u2019s post-arrest, post-Miranda warnings silence was flatly forbidden under Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). Based on our review of the record, however, we have concluded that the error in admitting this testimony did not rise to the level of plain error given the substantial evidence pointing to defendant\u2019s guilt.\nFacts\nOn 14 November 2007, at approximately 2:20 p.m., State Highway Patrol Trooper James F. Davis was dispatched to a one-car accident in Wayne County near the entrance of a subdivision. By the time he arrived, emergency medical technicians were already preparing to transport a passenger, Christie Dubois, from the scene. Trooper Davis did an initial visual assessment of the scene and noticed that the vehicle had some minor damage. He then spoke with defendant, who was waiting nearby and was the driver and owner of the car. Defendant explained that he had run off the road and hit a ditch. He had then pulled the car up to the entrance of the subdivision to get it out of the way. Trooper Davis issued defendant a citation for driving left of center.\nTrooper Davis called for a tow truck and began filling out an accident report while he and defendant waited for the truck to arrive. During this time frame, Trooper Davis and defendant did not discuss much aside from questions related to completing the accident report, although, at some point, defendant mentioned that he and Dubois had been \u201cmoving some personal belongings\u201d when the accident occurred.\nWhen the tow truck arrived and Trooper Davis told defendant that his vehicle would be towed, defendant \u201cseemed to get a little nervous, . . . kind of fidgety\u201d and said that he \u201cwanted to get some items out of it.\u201d Defendant went to the driver\u2019s side of the car and removed a plastic grocery bag. Trooper Davis noticed that defendant was trying to conceal the bag from him, putting it behind his back. Concerned for his safety, Trooper Davis approached and took the bag from defendant. Aside from some of defendant\u2019s clothes, the bag contained what Trooper Davis estimated to be at least a couple thousand dollars, all in bills. The actual amount was later determined to be $2,950.00: $600.00 in 100 dollar bills, $1,760.00 in 20 dollar bills, $490.00 in 10 dollar bills, and $100.00 in five dollar bills.\nImmediately after Trooper Davis took the bag of clothes and money, he saw what he believed to be cocaine in two clear plastic bags \u201clying on the seat\u201d in the back of the car. Trooper Davis informed defendant that he was under arrest for possession of drugs, handcuffed him, and sat him down beside the car. Trooper Davis then began to do a \u201cgeneral search of what [he] could see right at that point.\u201d On the floorboard behind the driver\u2019s seat, he found a blue cooler with more cocaine inside. After that, Trooper Davis called for more troopers to assist him.\nTrooper Jock Smith and Trooper Williams arrived at approximately 3:00 p.m. The three troopers conducted a search of defenant\u2019s vehicle and found a total of 11 bags of cocaine, two digital scales, two crack pipes, and a box of .380 ammunition in the back seat of the vehicle.\nTrooper Davis turned defendant over to Trooper Smith for processing. Trooper Smith advised defendant of his Miranda rights, searched him for weapons, and sat him in his patrol car. When Trooper Smith asked defendant where he got the cocaine, defendant replied that \u201che was in big trouble and he needed a lawyer before any questioning.\u201d Trooper Smith did not ask defendant any further questions.\nTrooper Smith transported defendant to the Highway Patrol Station where he completed the chain of custody form and logged in the evidence, which included the money, cocaine, cooler, scales, pipes, and ammunition. Defendant was then taken to the Wayne County Detention Center. The money was eventually seized by the United States Marshals. The cocaine taken from defendant\u2019s vehicle was tested at the SBI crime lab and confirmed to be 339.3 grams of powder cocaine.\nOn 2 June 2008, defendant was indicted on one count of trafficking in cocaine by possession and one count of trafficking in cocaine by transportation. At trial, he testified on his own behalf. He explained that at the time of the accident, he was self-employed, doing sheet rock work and building garages and sheds. He was generally paid in cash for his jobs, and he also usually paid cash to the people who worked for him. Defendant said he informed Trooper Davis that the money in the grocery bag was \u201cfrom working.\u201d\nDefendant also explained that at the time of the accident, he was giving Dubois a ride because she had recently broken up with her boyfriend and had been evicted from the trailer where she lived. Defendant and Dubois had loaded some of her belongings into his vehicle and were on their way to pick up her daughter from school. According to defendant, when Dubois saw Trooper Davis arrive at the scene, she told defendant to run. He denied that the cocaine or cooler belonged to him. When asked if the cocaine belonged to Dubois, defendant claimed he had never seen it and did not know whose it was. He also said he had never seen the cooler before that day, but he believed Dubois put it in the car. He denied knowing that the scales were in the car.\nThe jury returned guilty verdicts on both charges on 10 September 2008. The trial court sentenced defendant to a term of 70 to 84 months imprisonment. Defendant timely appealed to this Court.\nDiscussion\nDefendant argues on appeal that the trial court erred when it permitted the State to question certain witnesses about defendant\u2019s failure, prior to trial, to offer any explanation for the money and cocaine found in his car. Defendant contends that the admission of this testimony violated his rights under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, \u00a7\u00a7 19 and 23 of the North Carolina Constitution. The challenged testimony includes evi-, dence of defendant\u2019s pre-arrest silence presented during the State\u2019s case in chief; evidence of his post-arrest, pre-Miranda warnings silence presented during the State\u2019s case in chief; evidence of his prearrest silence presented during the State\u2019s rebuttal case; and evidence of his post-arrest, post -Miranda warnings silence presented during both the State\u2019s case in chief and cross-examination of defendant.\n\u201cWhether the State may use a defendant\u2019s silence at trial depends on the circumstances of the defendant\u2019s silence and the purpose for which the State intends to use such silence.\u201d State v. Boston, 191 N.C. App. 637, 648, 663 S.E.2d 886, 894, appeal dismissed and disc. review denied, 362 N.C. 683, 670 S.E.2d 566 (2008). In Boston, this Court explained that a defendant\u2019s pre-arrest silence and post-arrest, pre-Miranda warnings silence may not be used as substantive evidence of guilt, but may be used by the State to impeach the defendant by suggesting that the defendant\u2019s prior silence is inconsistent with his present statements at trial. Id. at 649 n.2, 663 S.E.2d at 894 n.2. A defendant\u2019s post-arrest, post-Miranda warnings silence, however, may not be used for any purpose. Id. at 648-49, 663 S.E.2d at 894. See also Doyle, 426 U.S. at 619, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245 (holding that \u201cuse for impeachment purposes of petitioners\u2019 silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment\u201d). Because different law applies to the different circumstances surrounding the testimony challenged by defendant, we analyze each circumstance separately.\nDefendant did not, however, object to the admission of any of this testimony at trial, and we, therefore, review the admission of the testimony only for plain error. The plain error rule applies\n\u201conly in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d\nState v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513, 103 S. Ct. 381 (1982)). In addition, \u201cthe plain error rule may not be applied on a cumulative basis, but rather a defendant must show that each individual error rises to the level of plain error.\u201d State v. Dean, 196 N.C. App. 180, 194, 674 S.E.2d 453, 463, appeal dismissed and disc. review denied, 363 N.C. 376, 679 S.E.2d 139 (2009).\nTestimony about Defendant\u2019s Pre-Arrest Silence Elicited During State\u2019s Case in Chief\nDefendant challenges several portions of the State\u2019s direct examination of Trooper Davis presented during its case in chief that related to defendant\u2019s pre-arrest silence. Defendant points to testimony by Trooper Davis regarding defendant\u2019s employment:\nQ. For the information regarding the \u2014 during the wreck report, did you have to get any information from Mr. Mendoza about what type of work he did or anything along those lines?\nA. No. There was nothing on the accident report that requires that. I didn\u2019t \u2014 I didn\u2019t question him about his employment or anything.\nThis testimony conveyed information about the accident report form and Trooper Davis\u2019 obligations with respect to completing the form. The testimony comments only on Trooper Davis\u2019 lack of questioning and not on defendant\u2019s pre-arrest silence and, therefore, was not erroneously admitted.\nDefendant also points to the following testimony of Trooper Davis about defendant\u2019s silence:\nQ. When you found the cocaine, the first amount of cocaine, on the back seat, and you told Mr. Mendoza that he was being placed under arrest for the possession of drugs, did he act surprised?\nA. He didn\u2019t say anything, as I recall.\nQ. Did Mr. Mendoza ever \u2014 when you first seized the money from Mr. Mendoza, did he ever have an explanation for you as to why he was in possession of that large amount of money?\nA. No, ma\u2019am.\nThis commentary on defendant\u2019s pre-arrest silence falls squarely under Boston and Jenkins v. Anderson, 447 U.S. 231, 65 L. Ed. 2d 86, 100 S. Ct. 2124 (1980).\nIn Boston, this Court determined, in a case of first impression, that \u201ca defendant\u2019s Fifth Amendment right against self-incrimination, unlike a defendant\u2019s Fifth Amendment right to counsel, does not attach solely upon custodial interrogation\u201d and held, therefore, that \u201ca proper invocation of the privilege against self-incrimination is protected from prosecutorial comment or substantive use, no matter whether such invocation occurs before or after a defendant\u2019s arrest.\u201d 191 N.C. App. at 651, 663 S.E.2d at 896. Although the Court concluded that a defendant\u2019s pre-arrest silence may not be used for substantive purposes, the Court noted that it remains \u201cclear that the State may use a defendant\u2019s pre-arrest silence for impeachment purposes if the defendant chooses to testify at trial.\u201d Id. at 651 n.4, 663 S.E.2d at 896 n.4. Accord Jenkins, 447 U.S. at 240-41, 65 L. Ed. 2d at 96, 100 S. Ct. at 2130 (holding \u201cuse of prearrest silence to impeach a defendant\u2019s credibility does not violate the Constitution\u201d).\nThe State essentially argues that because defendant ultimately testified, Boston and Jenkins do not apply. The State, however, cites no authority for the proposition that the State may present impeachment evidence in advance of a defendant\u2019s actually testifying. As this Court has previously recognized, the \u201cmain purpose of impeachment is to discount the credibility of a witness for the purpose of inducing the jury to give less weight to his testimony.\u201d Sterling v. Gil Soucy Trucking, Ltd., 146 N.C. App. 173, 178, 552 S.E.2d 674, 677 (2001). The State has failed to explain how Trooper Davis\u2019 testimony could have achieved the purpose of impeaching defendant\u2019s statements at trial without defendant\u2019s already having testified. See also Jenkins, 447 U.S. at 238, 65 L. Ed. 2d at 94, 100 S. Ct. at 2129 (\u201c [I]mpeachment follows the defendant\u2019s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial.\u201d (emphasis added)); Boston, 191 N.C. App. at 649 n.3, 663 S.E.2d at 894 n.3 (noting State\u2019s purpose in eliciting testimony about defendant\u2019s prearrest silence \u201cwas clearly not to impeach\u201d defendant\u2019s credibility or alibi where defendant did not testify at trial and presented no other evidence on her own behalf).\nAlternatively, the State argues that, under State v. Alkano, 119 N.C. App. 256, 458 S.E.2d 258, appeal dismissed, 341 N.C. 653, 465 S.E.2d 533, 467 S.E.2d 898 (1995), the State\u2019s questions were permissible \u201cto show the extent of [defendant\u2019s] unsolicited, spontaneous utterances.\u201d In Alkano, as this Court pointed out, the defendant \u201cdid not choose to remain silent. Without any interrogation whatever by the officers, defendant spontaneously made several inculpatory statements after being arrested.\u201d Id. at 260, 458 S.E.2d at 261. The Court held that the State was entitled to ask questions not only about what the defendant did say, but also about what he did not say during his spontaneous statements:\nThe questions and the officers\u2019 responses concerning defendant\u2019s lack of explanation immediately followed their testimony concerning the unsolicited statements defendant did make during the fifteen minutes that it took to arrest- defendant and transport him to the station. This line of questioning in-court by the prosecutor served only to show the extent of defendant\u2019s spontaneous utterances. We do not see how in-court questioning of the officers on the extent of defendant\u2019s statements violated either his federal or state constitutional right against compelled self-incrimination.\nId.\nHere, defendant made a single post-arrest, post-Miranda warnings statement about being \u201cin big trouble\u201d and invoking his right to remain silent and his right to counsel in response to Trooper Smith\u2019s interrogation. The statements testified to by Trooper Davis occurred prior to the single utterance about being \u201cin big trouble\u201d and shed no light on the extent of that single utterance \u2014 stating the obvious\u2014 made a significant time later and in response to questioning by Trooper Smith. Instead, the State was simply doing what Boston forbids: pointing out to the jury that defendant chose to remain silent when in Trooper Davis\u2019 presence rather than provide the explanation proffered at trial. Consequently, Alkano is not applicable here.\nIn sum, Trooper Davis\u2019 testimony regarding defendant\u2019s silence was admitted as substantive evidence during the State\u2019s case in chief and not for the purpose of impeachment. Further, the testimony was not admitted to show the extent of any spontaneous statements. Therefore, under Boston and Jenkins, the admission of this testimony was error.\nSince defendant did not object to the erroneous admission of this testimony, plain error applies. Our review of the record indicates that abundant evidence pointed to defendant\u2019s guilt. A total of 339.3 grams of cocaine was found in defendant\u2019s car, which he was driving. This amount of cocaine was the most that Trooper Smith had seen in his 30 years with the Highway Patrol. The cocaine was in two plastic bags lying on the back seat, as well as in several plastic bags inside a cooler on the floorboard behind the driver\u2019s seat. Since Trooper Davis was able to easily spot the two bags lying on the back seat, a jury would likely conclude that defendant must have known the bags were there.\nAlong with the cocaine, the troopers discovered two crack pipes, two digital scales, and a box of .380 automatic ammunition. Trooper Davis explained to the jury that weighing drugs is the only reason people use the type of scales found in the car and that weighing the drugs matters because \u201c[t]hat\u2019s how they get paid.\u201d Defendant was also in possession of $2,950.00 at the time of his arrest, approximately $800.00 of which was in his wallet and the remainder of which was in a plastic grocery bag that also contained some of defendant\u2019s clothing. Defendant tried to conceal the bag and money from Trooper Davis. Moreover, after learning that his car would be towed, defendant became \u201cnervous\u201d and \u201cfidgety\u201d and asked Trooper Davis if he could remove some items from the car.\nDefendant had little explanation for the presence of the cocaine and drug paraphernalia in his car. Although defendant testified that he knew that clothing, blankets, a basket, and a television found in the car belonged to Dubois, he claimed that he did not know that the cocaine or scales were in the car, that he did not know who the cocaine belonged to, and that he \u201ccouldn\u2019t say\u201d the cocaine belonged to Dubois. He did not provide any explanation for the crack pipes or the ammunition. Moreover, although defendant claimed that the money was related to his construction work \u2014 he was paid in cash and paid his workers in cash \u2014 defendant relied solely on his own-testimony and did not present evidence from any customer or employee to corroborate his assertion.\nIn addition, once defendant chose to testify, in order to present his defense, he opened the door for the State to use his pre-arrest silence to impeach him. Therefore, the following cross-examination of defendant was properly permitted to impeach defendant\u2019s testimony:\nQ. And . . . you told \u2014 you didn\u2019t tell Trooper Davis that you got it from building garages and doing work for people, did you?\nA. He didn\u2019t ask.\nQ. But you did realize that he was seizing your money; is that correct?\nA. No.\nQ. He took it from you, didn\u2019t he?\nA. But I didn\u2019t know I wasn\u2019t going to get it back.\nIn light of defendant\u2019s cross-examination testimony about his prearrest silence, defendant cannot show that the admission of Trooper Davis\u2019 testimony about defendant\u2019s pre-arrest silence tilted the scales against him.\nDefendant argues, however, that the admission of Trooper Davis\u2019 testimony about defendant\u2019s pre-arrest silence forced defendant to later take the stand in his own defense. We disagree. In order to present his theory of the case \u2014 that the cocaine actually belonged to someone else \u2014 defendant had to take the stand. None of the State\u2019s witnesses presented any evidence that the cocaine belonged to Dubois or even that defendant was helping her move her belongings. Trooper Davis merely testified that he was aware that defendant and Dubois were \u201cmoving some stuff from one place to another.\u201d\nDefendant was the only person who suggested to the jury that the cocaine belonged to someone else, such as Dubois. Without defendant\u2019s testimony, his counsel would have been unable to argue such a theory in closing argument. See State v. Williams, 317 N.C. 474, 481, 346 S.E.2d 405, 410 (1986) (noting counsel may argue facts in evidence and inferences which may be drawn from those facts, but counsel is prohibited from arguing facts not supported by evidence). Accordingly, absent defendant\u2019s testimony, no alternate explanation for the cocaine\u2019s being in his car could have been offered. See also Alkano, 119 N.C. App. at 262, 458 S.E.2d at 262 (\u201cWe cannot see how the officers\u2019 testimony about defendant\u2019s failure to give further explanatory statements made it any more necessary for him to testify than was already necessary to refute the officers\u2019 testimony on his inculpatory statements.\u201d).\nConsidering the sum of the evidence pointing to defendant\u2019s guilt and his own cross-examination, we believe that there is no reasonable probability that the jury would have returned a different verdict if Trooper Davis\u2019 testimony about defendant\u2019s failure to provide an explanation for the cocaine or money had not been admitted. Therefore, there was no plain error.\nTestimony about Defendant\u2019s Post-Arrest. Pre-Miranda Warnings Silence Elicited During State\u2019s Case in Chief\nDefendant also contends that the trial court erred in allowing the State to question Trooper Davis and Trooper Smith about defendant\u2019s silence after Trooper Davis arrested defendant but before Trooper Smith read him his Miranda rights:\nQ. Anyway, after Trooper Smith and Trooper Williams get there, while you\u2019re waiting on them, did Mr. Mendoza say anything to you or make any statements to you?\n[Trooper Davis]. (Negative indication.)\nQ. While you and Trooper Smith and Trooper Williams were searching Mr. Mendoza\u2019s vehicle, did he make any comments to you?\n[Trooper Davis]. No, ma\u2019am, after \u2014 after I placed him under arrest I don\u2019t remember having any conversation with him.\nQ. When you first got there and he was there out on the scene and you all were searching and you were taking custody of the cocaine, did he ever make any statements about: That\u2019s not mine; I don\u2019t know how that got there?\n[Trooper Smith]. No, ma\u2019am.\nLike defendant\u2019s pre-arrest silence, defendant\u2019s post-arrest, preMiranda warnings silence could only be used for the purpose of impeachment and not, as occurred here, in the State\u2019s case in chief. Boston, 191 N.C. App. at 648, 663 S.E.2d at 894. Further, we cannot see how this silence \u2014 coming well before any spontaneous utterance by defendant \u2014 falls within the scope of Alkano. We, therefore, hold that this admission was error. For the same reasons set forth above, however, admission of the testimony did not rise to the level of plain error.\nTestimony about Defendant\u2019s Pre-Arrest Silence Elicited During State\u2019s Rebuttal\nDefendant next challenges testimony elicited from Trooper Davis by the State during its rebuttal case:\nQ. .. . When you took the bag, the plastic bag that had the money in it from the Defendant, I believe you testified that you did not know what was in the bag initially, as he was trying to conceal it from you. Did he say anything to you about what was in the bag as you took it and you began to open up the bag\u2014\nA. No, ma\u2019am.\nQ. \u2014to see what was inside?\nA. He didn\u2019t make any comment to me about it.\nQ. After you saw that it was a large amount of money, did Mr. Mendoza ever make any comments to you?\nA. No, he didn\u2019t.\nQ. Did he make any comments about where the money had come from?\nA. No, ma\u2019am.\nIt is unclear whether this testimony would be permitted by Boston and Jenkins. The State does not cite any authority that suggests referring to a defendant\u2019s silence in rebuttal necessarily constitutes using it for impeachment rather than as substantive evidence in the absence of a limiting instruction. Nor does defendant cite any authority for his contention that admission of such testimony does not constitute proper impeachment.\nWe need not, however, resolve that issue given the evidence described above and defendant\u2019s cross-examination. We hold that even if the admission of this testimony did not amount to impeachment, any prejudice did not rise to the level of plain error.\nTestimony about Defendant\u2019s Post-Arrest. Post-Miranda Warnings Silence Elicited During State\u2019s Case in Chief and State\u2019s Cross-Examination of Defendant\nFinally, defendant argues that the trial court erred in permitting the State to question Trooper Smith and defendant about defendant\u2019s post-arrest, post-Miranda warnings silence. Specifically, defendant challenges the following exchange that occurred during the State\u2019s direct examination of Trooper Smith:\nQ. When you had Mr. Mendoza in your vehicle, either after you had read him his rights or as you brought him down to the detention center for processing, did he ever make any voluntary statements to you?\nA. No, ma\u2019am, just that he \u2014 he was in big trouble and that he needed a lawyer before any questioning.\nQ. I\u2019m sorry, so you said that he was in big trouble? Did you say that to him or did he say that to you?\nA. He said that himself. Mr. Mendoza said that he was in big trouble and that he needed a lawyer before questioning.\nDefendant also challenges the State\u2019s extensive questioning of defendant during cross-examination about (1) his failure to attempt to get his money back by contacting the DEA, explaining that he earned the money legitimately, and offering a list of names of people for whom he had worked; (2) his failure to tell the troopers about the source of the money; and (3) his failure to tell anyone, before trial, Christie Dubois\u2019 name or the name of her boyfriend.\nDefendant does not specifically challenge the reference to his statement that he was \u201cin big trouble,\u201d but we agree that the admission of the other challenged testimony concerning defendant\u2019s post-arrest, post-Miranda warnings silence, including defendant\u2019s invoking his right to refuse to answer questions until he had a lawyer, violated Doyle. The United States Supreme Court held in Doyle, 426 U.S. at 618, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245, that when a person under arrest has been advised of his Miranda rights, which include the right to remain silent, there is an implicit promise that the silence will not be used against that person. It is, therefore, a violation of a defendant\u2019s rights under the Fourteenth Amendment to the United States Constitution to subsequently impeach the defendant on cross-examination by questioning him about the silence. Id. at 619, 49 L. Ed. 2d at 98, 96 S. Ct. at 2245. See also State v. Hoyle, 325 N.C. 232, 235-37, 382 S.E.2d 752, 753-54 (1989) (applying Doyle and holding State\u2019s questioning detectives and defendant about defendant\u2019s post-arrest, post-Miranda warnings silence violated right to remain silent); State v. Shores, 155 N.C. App. 342, 351, 573 S.E.2d 237, 242 (2002) (same), disc. review denied, 356 N.C. 690, 578 S.E.2d 592 (2003). Thus, pursuant to Doyle, we hold that the State\u2019s questioning of Trooper Smith and defendant about defendant\u2019s post-arrest, post-Miranda warnings silence was error.\nAlkano does not hold otherwise. Even though Alkano addressed post-arrest silence, the silence used in that case was pre-Miranda warnings silence and not, as is the case here, post-Miranda warnings silence. Alkano, therefore, does not apply. Moreover, here, the evidence shows that defendant made only one comment after his arrest about being in trouble and needing a lawyer. In Alkano, the defendant \u201cspoke freely while in custody,\u201d 119 N.C. App. at 260, 458 S.E.2d at 261, making various inculpatory statements, but then at trial sought to provide a differing explanation for the events. Defendant\u2019s single comment that he was \u201cin big trouble\u201d at the same time he invoked his constitutional right to counsel and to remain silent did not open the door to the State\u2019s suggesting that, despite having invoked his right to remain silent, defendant should have spoken further regarding the explanations he provided at trial. Nonetheless, even though the admission of the post-arrest, post-Miranda warnings silence was error, for the reasons already given, we do not believe that this error amounted to plain error.\nNo error.\nChief Judge MARTIN and Judge ELMORE concur.\n. Defendant, when describing factors that this Court should consider in determining whether any error in this case is prejudicial, cites to Boston. In Boston, however, the issue had been preserved for appeal, and this Court was required to determine whether the alleged error was harmless beyond a reasonable doubt. Id. at 652, 663 S.E.2d at 896. Boston did not address plain error.\n. See State v. Dix, 194 N.C. App. 151, 155, 669 S.E.2d 25, 28 (2008) (\u201cIt is well settled that, during custodial interrogation, once a suspect invokes his right to counsel, all questioning must cease until an attorney is present or the suspect initiates further communication with the police.\u201d), appeal dismissed and disc. review denied, 363 N.C. 376, 679 S.E.2d 140 (2009). Defendant does not separately argue that the trial court erred in allowing testimony that he invoked his right to counsel. See State v. Ladd, 308 N.C. 272, 283-84, 302 S.E.2d 164, 172 (1983) (\u201c[A] defendant must be permitted to invoke this right [to council] with the assurance that he will not later suffer adverse consequences for having done so.\u201d).", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Angel E. Gray, for the State.", "Leslie C. Rawls for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MANUEL MENDOZA, Defendant\nNo. COA09-327\n(Filed 17 August 2010)\nConstitutional Law\u2014 Fifth Amendment \u2014 defendant\u2019s silence \u2014improperly admitted \u2014 no plain error\nThe trial court erred in allowing the State to introduce evidence during its case in chief of defendant\u2019s pre-arrest silence and his post-arrest, pre-Miranda silence. As the only permissible purpose for such evidence was impeachment and defendant had not yet testified, the testimony was improperly admitted as substantive evidence of defendant\u2019s guilt. Moreover, the State\u2019s use of defendant\u2019s post-arrest, post-Miranda warnings silence was flatly forbidden. However, the error in admitting this testimony did not rise to the level of plain error given the substantial evidence pointing to defendant\u2019s guilt.\nAppeal by defendant from judgment entered 10 September 2008 by Judge James Floyd Ammons, Jr. in Wayne County Superior Court. Heard in the Court of Appeals 16 November 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Angel E. Gray, for the State.\nLeslie C. Rawls for defendant-appellant." }, "file_name": "0391-01", "first_page_order": 415, "last_page_order": 428 }