{
  "id": 8551797,
  "name": "STATE OF NORTH CAROLINA v. DEWEY ABSHER",
  "name_abbreviation": "State v. Absher",
  "decision_date": "1975-06-18",
  "docket_number": "No. 7525SC200",
  "first_page": "309",
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  "last_updated": "2023-07-14T16:59:13.418266+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Morris and Hedrick concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. DEWEY ABSHER"
    ],
    "opinions": [
      {
        "text": "BROCK, Chief Judge.\nThis prosecution arose out of the theft of one pair of Biro-lux binoculars, valued at $30.00, from a locked automobile..belonging to one Alvin McMillian, Jr. The car was parked beside a road near Brown Mountain Gorge in Caldwell County.. The windows were rolled down slightly, and the binoculars were under the front seat. McMillian had left the car to locate an appropriate place for a picnic when the theft occurred. On his way back from Brown Mountain Gorge, McMillian saw a deputy sheriff of Caldwell County. He reported the theft and was asked to come to the sheriff\u2019s department to file a formal statement. While there, McMillian was shown a pair of binoculars that had just been retrieved from the defendant\u2019s car. McMilian identified them as the ones that had been stolen.\nThe defendant offered little evidence; he merely denied stealing the binoculars and said he had noticed the binocul\u00e1rs in his car while he was driving near Brown Mountain Gorge, but did not know how they had gotten there.\nDefendant asserts that substantial error was committed when the trial judge allowed both Charles Thompson, deputy sheriff of Caldwell County, and Mark Gentry, an employee of the sheriff\u2019s department, to testify as to accusations made by one Oscar Hunt, defendant\u2019s companion, and to defendant\u2019s failure to deny the accusations. Thompson, Gentry, and defendant were present when Hunt made his accusations of defendant. It was for that reason, and apparently because he considered defendant\u2019s lack of denial an admission, that the trial judge allowed the testimony to be admitted. Hunt did not appear as a witness at the trial, and he was not charged with any offense.\nThe evidence indicates that after the defendant and Hunt were stopped by the deputy sheriff, they were-taken to the sheriff\u2019s department. Both were given the Miranda warnings. According to Thompson, Hunt stated that the defendant and he drank a few beers and drove to the Brown Mountain Gorge area. There defendant broke into McMillian\u2019s car and returned with the binoculars. Gentry\u2019s testimony was similar; he stated that Hunt had said\n\u201che looked up and saw that he was in the car and all [of] a sudden that he was coming back to the car and he had something in his hand like a case and also a pair of binoculars and he told him to put it back so he would not get him into trouble. He said that Dewey did not put them back and got in the car and rode up the road and that they got stopped.\n\u201cQ. What did the Defendant say to that statement by .,Oscar Hunt?\n\u201cA. He had no comment.\nMr. Beck: Objection.\nCourt: Overruled.\n\u201cA. He said he did not want to get Oscar in trouble and he had nothing to say.\u201d\nThompson also testified that in response to Hunt\u2019s statement that the defendant was going to get them into trouble, the defendant \u201cdidn\u2019t want to make any comment.\u201d The trial judge instructed the jury that \u201cthe defendant was present and heard the statement of Hunt and . . . said nothing.\u201d\nThe admission of the testimony of Thompson and Gentry, as it pertained to accusations by Hunt and the defendant\u2019s response to them, was error. \u201cIt was formerly a general rule that silence might amount to an admission though the party (usually, of course, a criminal defendant) was in custody under a charge of crime, ...\u201d 2 Stansbury, N. C. Evidence \u00a7 179 (Brandis rev. 1973) ; see State v. Case, 253 N.C. 130, 116 S.E. 2d 429 (1960). However, the landmark case of Miranda v. Arizona, 384 U.S. 436 (1966), made it clear that \u201cwhenever an accused has been taken into custody and officers are present, evidence of an admission by silence is banned, at least as substantive evidence.\u201d 2 Stansbury, N. C. Evidence \u00a7 179 (Brandis rev. 1973) citing footnote 37 to the controlling opinion in Miranda v. Arizona, supra at 468.\nHere defendant had been given the Miranda warnings and had the right to remain silent. His silence was not an implied admission of guilt and could not be used against him. It made no difference that Hunt, rather than the police, made accusations against the defendant. The defendant was in custody; he had been advised of his constitutional rights; and he was under no duty to make a response in the face of the accusations. The admission of this evidence was prejudicial error.\nNew trial.\nJudges Morris and Hedrick concur.",
        "type": "majority",
        "author": "BROCK, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Noel Lee Allen, for the State.",
      "Ted S. Douglas, for the defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DEWEY ABSHER\nNo. 7525SC200\n(Filed 18 June 1975)\nConstitutional Law \u00a7 33; Criminal Law \u00a7 48 \u2014 accusations by companion \u2014 silence of defendant \u2014 evidence prejudicial\nWhere defendant was in custody and had been advised of his constitutional rights, he was under no duty to make a response in the face of accusations made by his companion, and admission of testimony by two officers concerning such accusations and defendant\u2019s silence was prejudicial error.\nOn writ of certiorari to review the order of Falls, Judge. Order entered 4 December 1973 in Superior Court, Caldwell County. Heard in the Court of Appeals 7 May 1975.\nDefendant was charged in a bill of indictment with (1) breaking and entering an automobile and (2) larceny of one pair of Birolux binoculars that were under the front seat of the automobile. He was found guilty, and a two-year sentence was imposed.\nThe issues raised by this appeal concern the admissibility of accusations made by the defendant\u2019s companion in front of the defendant and police officers, and the defendant\u2019s failure to deny those accusations.\nFacts necessary for the determination of these issues are set forth in the opinion.\nAttorney General Edmisten, by Associate Attorney Noel Lee Allen, for the State.\nTed S. Douglas, for the defendant-appellant."
  },
  "file_name": "0309-01",
  "first_page_order": 337,
  "last_page_order": 340
}
