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    "judges": [
      "Judges Martin (Robert M.) and Becton concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JAMES RUFUS HAMILTON aka ELIJAH COOLEY"
    ],
    "opinions": [
      {
        "text": "MARTIN (Harry C.), Judge.\nDefendant assigns as error the trial court\u2019s denial of his motions for mistrial. Giving rise to the motions was the introduction of allegedly inadmissible and prejudicial testimony on two separate occasions during trial.\nDefendant first takes exception to the following statement made by the witness, Detective Stankiewicz. The question and his answer were in response to the witness\u2019s assertion that it was necessary for the booking officer to change defendant\u2019s name on the warrant from Elijah Cooley (an alias) to James Rufus Hamilton.\nQ. Now, when did you learn of the name change Rufus Hamilton, sir, in the course of the investigation?\nA. After bringing \u2014 on the mosning of the 5th, after bringing him down from the jail, we read off the warrant to him and we advised him of his rights. He didn\u2019t want to talk to us so we were taking him back to the booking room. [Emphasis ours.]\nDefendant relies on the Supreme Court decisions in Doyle v. Ohio, 426 U.S. 610, 49 L.Ed. 2d 91 (1976), and Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694 (1966), to support the contention that a violation of his constitutionally guaranteed right to remain silent warrants a new trial. We find the decision in Doyle distinguishable on its facts. In the present case there was no attempt to impeach the defendant concerning his post-arrest silence. State v. Holsclaw, 42 N.C. App. 696, 257 S.E. 2d 650 (1979). The holding in Doyle is significant, however, in that it affords force of law to dictum in Miranda:\nIn accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.\n384 U.S. at 468 n.37. See State v. McCall, 286 N.C. 472, 212 S.E. 2d 132 (1975).\nIn order to determine the appropriateness of the trial court\u2019s denial of defendant\u2019s motion for mistrial based on Detective Stankiewicz\u2019s statement, two questions must be answered. (1) Did the statement constitute an improper comment on the defendant\u2019s post-Miranda right to remain silent? (2) In so allowing the statement to be made in the presence of the jury, was there error of such prejudicial magnitude that defendant\u2019s right to a fair trial has been violated?\nWe have reviewed the North Carolina cases dealing with whether a statement made at trial constitutes an improper comment on the exercise of a defendant\u2019s right to remain silent. In so doing we have noted the absence of any definitive test which might provide guidance. In State v. Taylor, 289 N.C. 223, 228, 221 S.E. 2d 359, 363 (1976), the Court held a comment not improper, relying on the fact that the remarks made did not \u201cspecifically point to\u201d a defendant\u2019s failure to testify and that \u201can average juror would not so interpret them.\u201d In State v. Peplinski, 290 N.C. 236, 251, 225 S.E. 2d 568, 576 (1976), the Court found no improper comment \u201cso long as no direct reference is made to the right of the defendant to testify and his failure to do so.\u201d See also State v. Smith, 290 N.C. 148, 226 S.E. 2d 10 (1976).\nWe find the language in these cases consistent with the test set out in Knowles v. United States, 224 F. 2d 168, 170 (10th Cir. 1955), a case which also concerned a comment on the failure of an accused to testify. However, we believe the test is equally applicable to the question presented in this case. In applying the Knowles test, we must consider whether \u201cthe language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment\u201d on a defendant\u2019s exercise of his post -Miranda right to remain silent. Implicit in the test is an examination of both the prosecutor\u2019s intentions and the natural meaning of the statement as perceived by the jury. Taken in context, we cannot find that Detective Stankiewicz manifestly intended his statement to be a comment on defendant\u2019s exercise of his right to remain silent. The statement was not obviously motivated by a desire to punish the exercise of defendant\u2019s constitutional right to remain silent when arguably there existed a rational non-vindictive purpose \u2014the witness was attempting to describe the circumstances under which he discovered the defendant\u2019s true name. Moreover, again viewing Detective Stankiewicz\u2019s statement in the context of his other testimony, we cannot conclude that the jury would have naturally and necessarily viewed the statement as a comment on defendant\u2019s exercise of his right to remain silent. Unaware that the statement was made in technical violation of defendant\u2019s motion in limine, and presumably unaware of the legal implications of the statement, a jury would likely treat it as nothing more than an insignificant offhand remark of little consequence.\nAssuming, arguendo, that there is a basis for finding Detective Stankiewicz\u2019s statement to be an improper comment on defendant\u2019s post -Miranda right to remain silent, we now consider whether allowing the statement constituted error harmless beyond a reasonable doubt. As a reviewing court we first consider whether such comment is extensive and whether an inference of guilt from silence is stressed to the jury as a basis for conviction. Anderson v. Nelson, 390 U.S. 523, 20 L.Ed. 2d 81 (1968) (per curiam). At the outset it should be noted that the defendant in this case offered no testimony on his own behalf. As pointed out in Lakeside v. Oregon, 435 U.S. 333, 55 L.Ed. 2d 319 (1978), inference of guilt from silence whether there is comment or not may be inevitable. Thus, defendant\u2019s failure to testify at trial could very well have been more damaging to his case than any silence, commented on or not, which he constitutionally exercised before trial. State v. Peplinski, supra.\nWe find that the witness\u2019s comment was not extensive. No inference of guilt from silence was stressed to the jury. The defendant was not penalized for exercising his fifth amendment privilege while under police custodial interrogation.\nOur second consideration is whether the admission of the statement contributed to defendant\u2019s conviction. Harrington v. California, 395 U.S. 250, 23 L.Ed. 2d 284 (1969); Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705 (1967). In determining whether violation of a defendant\u2019s constitutional right to post-arrest silence met the test of harmless beyond a reasonable doubt, the Court in State v. Castor, 285 N.C. 286, 292, 204 S.E. 2d 848, 853 (1974), wrote:\nThe fact that, exclusive of the erroneously admitted evidence, there was plenary evidence to support the verdict is not determinative. The test is whether, in the setting of this case, we can declare a belief that the erroneously admitted evidence was harmless beyond a reasonable doubt, that is, that there is no reasonable possibility the admission thereof might have contributed to the conviction.\nViewing the record in its entirety and considering the nature and extent of Detective Stankiewicz\u2019s statement, we find there is no reasonable possibility that its admission contributed to the conviction.\nIt should also be noted that if an improper comment is made during trial, the error may be cured \u201cby a withdrawal of the remark or by a statement of the court that it was improper, followed by an instruction to the jury to disregard it.\u201d State v. Peplinski, supra, at 252, 225 S.E. 2d at 577. See also State v. McCall, supra; State v. Taylor, supra.\nDefendant next excepts to the introduction of testimony relating to the discovery of a weapon purportedly used in the commission of the robbery and assault. No weapon was discovered during the initial investigation of the crime. On 26 August, nearly four months later, police returned to the area and within minutes found a dirty white sock containing two pieces of concrete. The state offered no explanation of how they were able to locate the \u201cweapon\u201d or what relevance this discovery had to the robbery and assault they had investigated on 1 May. Based on these omissions the trial court granted defendant\u2019s motion to strike the testimony, denied defendant\u2019s motion for mistrial, and instructed the jury in firm and unequivocal terms to disregard all evidence relating to a sock containing two pieces of concrete. At this point the state took dismissals on the original charges of armed robbery and assault with a deadly weapon inflicting serious injuries and proceeded as to the lesser included offenses. Thus, the existence of a \u201cweapon\u201d was no longer a necessary element of the offenses. In light of the evidence taken as a whole, we cannot agree that defendant has met his burden in showing any prejudicial effect of this testimony. State v. Sledge, 297 N.C. 227, 254 S.E. 2d 579 (1979); State v. Williams, 275 N.C. 77, 165 S.E. 2d 481 (1969).\nNo error.\nJudges Martin (Robert M.) and Becton concur.",
        "type": "majority",
        "author": "MARTIN (Harry C.), Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Steven F. Bryant, for the State.",
      "Assistant Public Defender, Twelfth Judicial District, Gregory A. Weeks for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JAMES RUFUS HAMILTON aka ELIJAH COOLEY\nNo. 8112SC228\n(Filed 15 September 1981)\n1. Constitutional Law \u00a7 74; Criminal Law \u00a7 48\u2014 no comment on defendant\u2019s exercise of right to remain silent\nIn describing the circumstances under which an officer discovered the true name of the defendant, who had given officers an alias when arrested, the officer\u2019s testimony, \u201cHe didn\u2019t want to talk to us so we were taking him back to the booking room,\u201d did not constitute an improper comment on defendant\u2019s exercise of his post-Miranda right to remain silent, since the statement was not manifestly intended and was not of such character that the jury would naturally and necessarily take it to be a comment on defendant\u2019s exercise of his right to remain silent. Furthermore, even if the statement constituted an improper comment on defendant\u2019s exercise of his post-Miranda right to remain silent, the admission of the statement constituted harmless error beyond a reasonable doubt since the witness\u2019s comment was not extensive, no inference of guilt from silence was stressed to the jury, and the admission of the statement could not have contributed to defendant\u2019s conviction.\n2. Assault and Battery \u00a7 13; Robbery \u00a7 3.2\u2014 weapon found at crime scene four months later \u2014 introduction as harmless error\nIn a prosecution upon indictments charging armed robbery and assault with a deadly weapon inflicting serious injuries, defendant was not prejudiced by the introduction of testimony concerning the discovery of a sock containing two pieces of concrete at the crime scene some four months after the crimes occurred where the trial court granted defendant\u2019s motion to strike the testimony and instructed the jury to disregard it because the State failed to connect such \u201cweapon\u201d with the crimes charged, and where the State thereafter took dismissals on the original charges and proceeded on lesser charges of common law robbery and assault inflicting serious injuries for which the existence of a \u201cweapon\u201d was not a necessary element.\nAPPEAL by defendant from Herring, Judge. Judgment entered 17 October 1980 in Superior Court, CUMBERLAND County. Heard in the Court of Appeals 4 September 1981.\nDefendant was indicted upon the charges of armed robbery and assault with a deadly weapon inflicting serious injuries. The trial court granted motions for dismissal on both offenses and the case proceeded as to the lesser included offenses of common law robbery and assault inflicting serious injury. Prior to trial defendant moved to exclude from the jury any reference to the defendant\u2019s exercising his right to remain silent or to his refusal to make a written statement. This motion was granted. From a verdict of guilty on both counts, the defendant appeals.\nThe record discloses the following facts:\nShortly after 3 o\u2019clock on the morning of 1 May 1980, a police officer apprehended two black males approximately two and one-half blocks from the Sheraton Motor Inn in downtown Fayette-ville. Both males were wearing dark baseball-type caps; one had braided hair. They appeared to have blood on their clothing. While being frisked by a second officer who had arrived on the scene, one male subject was observed tossing an object under the police vehicle. The object was a gold Quartz Timex watch. Also found on one of the subjects was $68 in cash, $48 of which was concealed in a sock. One of the subjects identified himself as Elijah Cooley, the defendant.\nAt trial William Simmons testified that he had been the victim of a robbery and assault shortly after 2 o\u2019clock on the morning of 1 May 1980. The incident occurred as Mr. Simmons was returning to his room at the Sheraton Motor Inn in downtown Fayetteville. Shortly before he was struck from behind with what felt like a blunt instrument, Mr. Simmons had seen two black males approaching in his direction. One of the men was wearing a baseball-type cap and had braided hair. A gold Quartz Timex watch and five twenty-dollar bills were taken from the victim. An analysis of blood samples obtained from the victim and from clothing worn by the two male suspects gave rise to the conclusion that the blood types matched.\nDefendant offered no evidence on his own behalf.\nAttorney General Edmisten, by Associate Attorney Steven F. Bryant, for the State.\nAssistant Public Defender, Twelfth Judicial District, Gregory A. Weeks for defendant appellant."
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