{ "id": 8571731, "name": "STATE OF NORTH CAROLINA v. ANNIE RAY ODOM", "name_abbreviation": "State v. Odom", "decision_date": "1981-05-05", "docket_number": "No. 4", "first_page": "163", "last_page": "168", "citations": [ { "type": "official", "cite": "303 N.C. 163" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "271 S.E. 2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": -1 }, { "cite": "49 N.C. App. 278", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520829 ], "year": 1980, "opinion_index": -1, "case_paths": [ "/nc-app/49/0278-01" ] }, { "cite": "189 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "483" } ], "opinion_index": 0 }, { "cite": "281 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575699 ], "year": 1972, "pin_cites": [ { "page": "597" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0592-01" ] }, { "cite": "401 U.S. 222", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11712077 ], "weight": 3, "year": 1971, "pin_cites": [ { "parenthetical": "use of prior inconsistent statement made prior to giving of Miranda warnings to impeach defendant's credibility is constitutionally' permissible" }, { "parenthetical": "use of prior inconsistent statement made prior to giving of Miranda warnings to impeach defendant's credibility is constitutionally' permissible" }, { "parenthetical": "use of prior inconsistent statement made prior to giving of Miranda warnings to impeach defendant's credibility is constitutionally' permissible" } ], "opinion_index": 0, "case_paths": [ "/us/401/0222-01" ] }, { "cite": "447 U.S. 231", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183056 ], "weight": 9, "pin_cites": [ { "page": "240" }, { "page": "2130" }, { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/us/447/0231-01" ] }, { "cite": "384 U.S. 757", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12047531 ], "weight": 3, "year": 1966, "pin_cites": [ { "parenthetical": "sixth amendment right to counsel does not attach to giving of blood test" }, { "parenthetical": "sixth amendment right to counsel does not attach to giving of blood test" }, { "parenthetical": "sixth amendment right to counsel does not attach to giving of blood test" } ], "opinion_index": 0, "case_paths": [ "/us/384/0757-01" ] }, { "cite": "388 U.S. 263", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168184 ], "weight": 3, "year": 1967, "pin_cites": [ { "parenthetical": "taking of handwriting samples not a critical stage of the proceedings" }, { "parenthetical": "taking of handwriting samples not a critical stage of the proceedings" }, { "parenthetical": "taking of handwriting samples not a critical stage of the proceedings" } ], "opinion_index": 0, "case_paths": [ "/us/388/0263-01" ] }, { "cite": "388 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168076 ], "weight": 9, "year": 1967, "pin_cites": [ { "page": "227" }, { "page": "1932" }, { "page": "1157" }, { "page": "227" }, { "page": "1932-33" }, { "page": "1158" } ], "opinion_index": 0, "case_paths": [ "/us/388/0218-01" ] }, { "cite": "372 U.S 335", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765333 ], "weight": 3, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/372/0335-01" ] }, { "cite": "271 S.E. 2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566430 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "385-86" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0382-01" ] }, { "cite": "265 S.E. 2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 501", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551596 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0501-01" ] }, { "cite": "426 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181032 ], "weight": 9, "year": 1976, "pin_cites": [ { "page": "619" }, { "page": "2245" }, { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/us/426/0610-01" ] }, { "cite": "49 N.C. App. 278", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520829 ], "year": 1980, "pin_cites": [ { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0278-01" ] } ], "analysis": { "cardinality": 633, "char_count": 13385, "ocr_confidence": 0.761, "pagerank": { "raw": 8.872971313701463e-08, "percentile": 0.49914917819533106 }, "sha256": "ead08f45c79ab59e67bc1d887f4d70ee606e6d33a4dc059588f9e2ad47021bef", "simhash": "1:4d98502b230b584d", "word_count": 2235 }, "last_updated": "2023-07-14T15:28:49.209015+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ANNIE RAY ODOM" ], "opinions": [ { "text": "CARLTON, Justice.\nI.\nOn 16 March 1979 defendant was arrested for shooting Robert Lee Moore and was charged with assault with intent to kill, inflicting serious bodily injury. She was informed by the arresting officers of her Miranda rights and signed a written waiver of them. In response to the officers\u2019 questions, defendant conceded that she knew something about a fight in which she and the victim were involved earlier in the day but denied any knowledge of the shooting. At this point, she informed the officers that she wished to consult with her attorney, and the questioning was stopped.\nBefore defendant talked to her attorney, she was taken before a magistrate and was asked to take a gunshot residue test. A crime scene technician explained to defendant that the test would show whether she had recently fired a weapon. Defendant refused to take the test until she talked with her lawyer. The technician then told her that she did not have to take the test, and the test was never administered.\nAt her trial in superior court, the State presented two eyewitnesses, including the victim, who testified that defendant was the person who shot Robert Lee Moore. Defendant testified that she had seen the victim on the day in question at the scene of the shooting but that no one was shot while she was there. On cross-examination, the State asked defendant whether she had refused to take a gunshot residue test. Defendant objected, and, after a lengthy voir dire, the trial judge overruled her objection and allowed the State to elicit from defendant her refusal to take the test until she talked to her attorney. On rebuttal, Officer Brami, the crime scene technician, testified over defendant\u2019s objection that defendant refused to take the test.\nThe jury returned a guilty verdict and defendant was sentenced to five to seven years.\nOn appeal, the Court of Appeals reversed her conviction and ordered a new trial, on the basis of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed. 2d 91 (1976), and State v. Lane, 46 N.C. App. 501, 265 S.E. 2d 493, aff'd, 301 N.C. 382, 271 S.E. 2d 273 (1980), stating, \u201cWe find that it would be fundamentally unfair and a violation of defendant\u2019s federal and state constitutional rights to allow the State to use her request to consult with an attorney, made in reliance on the State\u2019s declaration of her right, as an implication of defendant\u2019s guilt.\u201d 49 N.C. App. at 280, 271 S.E. 2d at 100. Judge Hedrick dissented, claiming that the decision represented an unwarranted extension of Doyle and Lane and arguing that the error, if any, in admitting the testimony was harmless beyond a reasonable doubt.\nII.\nThe issue in this case has been presented to us as one involving defendant\u2019s constitutional right to be represented by counsel in state criminal prosecutions and her right to due process of law. Stated specifically, the issue presented by the parties is whether defendant\u2019s constitutional rights were denied when, over her objection, evidence was admitted that she had refused to submit to a gunshot residue test until she talked with her attorney. For the reasons stated below, we hold that defendant\u2019s constitutional rights were not violated by the admission of such evidence and, accordingly, we reverse the Court of Appeals.\nA.\nOur first inquiry is whether the admission of testimony concerning defendant\u2019s refusal to take the gunshot residue test violated her right to counsel, guaranteed by the sixth, by virtue of the fourteenth, amendment to the United States Constitution, Gideon v. Wainright, 372 U.S 335, 83 S.Ct. 792, 9 L.Ed. 2d 799 (1963), and by Article I, Sec. 23 of the Constitution of North Carolina. Defendant urges that her right to counsel has been violated and cites in support of her contentions our recent decision in State v. Lane, 301 N.C. 382, 271 S.E. 2d 273 (1980).\nIn Lane, the prosecutor was allowed to question defendant about his failure to inform the police, after his arrest, of his alibi defense to a charge of selling heroin to an undercover narcotics officer. We found that this questioning violated defendant\u2019s right to remain silent and reversed his conviction. Lane stands for the proposition that comment by a prosecuting attorney at trial upon defendant\u2019s post-arrest silence, as a general rule, is constitutionally impermissible.\nAlthough Lane, because it concerns the right to remain silent, does not specifically apply to this case, we think it controlling by analogy. Under the authority of Lane, comment upon an accused\u2019s post-arrest exercise of his or her constitutional right to counsel is, as a general rule, impermissible. Thus, if in refusing to take the gunshot residue test defendant was relying on her constitutionally guaranteed right to counsel, the admission of testimony concerning that subject was error and her conviction must be reversed.\nAlthough a defendant is granted a general right to counsel to assist in his or her defense, that right does not attach to all events leading to trial. The right attaches only to \u201ccritical\u201d stages of the proceedings, those proceedings where the presence of counsel is necessary to assure a meaningful defense. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149 (1967). In deciding whether a particular proceeding constitutes a critical stage, courts must focus their inquiry on \u201cwhether the presence of . . . counsel is necessary to preserve the defendant\u2019s basic right to a fair trial as affected by his right meaningfully to cross examine the witnesses against him and to have effective assistance of counsel at the trial itself.\u201d Id. at 227, 87 S.Ct. at 1932, 18 L.Ed. 2d at 1157.\nAlthough the United States Supreme Court has never considered whether a gunshot residue test is a critical stage in the proceedings, it has indicated that the gathering of evidence through the use of scientific tests and analyses, such as fingerprinting, blood tests and tests performed on the clothing and hair, are not such stages. Id. at 227, 87 S.Ct. at 1932-33, 18 L.Ed. 2d at 1158; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed. 2d 1178 (1967) (taking of handwriting samples not a critical stage of the proceedings); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed. 2d 908 (1966) (sixth amendment right to counsel does not attach to giving of blood test).\nKnowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government\u2019s case at trial through the ordinary processes of cross-examination of the Government\u2019s expert witnesses and presentation of the evidence of his own experts.\n388 U.S. at 227-28, 87 S.Ct. at 1932-33, 18 L.Ed. 2d at 1158. We are unable to perceive any difference in the giving of a gunshot residue test that would require the presence of counsel to protect defendant\u2019s rights at trial. Thus, we hold that the administration of a gunshot residue test is not a critical stage of the criminal proceedings to which the constitutional right to counsel attaches and that defendant\u2019s right to counsel was not violated by the admission of the challenged testimony.\nB.\nWe now turn to a consideration of whether defendant\u2019s right to due process of law has been denied.\nIn Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed. 2d 91 (1976), the Supreme Court held that defendants\u2019 due process rights had been violated by the use, for impeachment purposes, of their silence at the time of arrest and after the Miranda warnings had been given. The rationale for this decision lay in the assurance implicit in the Miranda warnings that a defendant\u2019s exercise of his right to remain silent would not be used against him at trial. Id. at 619, 96 S.Ct. at 2245, 49 L.Ed. 2d at 98.\nThe importance of the giving of the Miranda warnings was underscored in the recent case of Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed. 2d 86. The defendant in Jenkins was cross-examined at trial about his pre-arrest silence concerning his defense of self-defense. In affirming his conviction, the Supreme Court reasoned:\n[N]o government action induced petitioner to remain silent before arrest. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings. Consequently, the fundamental unfairness present in Doyle is not present in this case. We hold that impeachment by use of prearrest silence does not violate the Fourteenth Amendment.\n447 U.S. at 240, 100 S.Ct. at 2130, 65 L.Ed. 2d at 96.\nIn this case, defendant\u2019s refusal to submit to the gunshot residue test took place after she had received, and signed a written waiver of, her Miranda rights. The giving of those rights implicitly assured her that she would not be penalized for exercising her constitutional right to counsel. Because no constitutional right to counsel is involved here and because no governmental action induced defendant to believe she had a constitutional right to have counsel present during the test, we conclude that the admission of evidence of her refusal to submit to the gunshot residue test is not fundamentally unfair and is not violative of due process.\nIII.\nIn conclusion, we hold that the admission of testimony concerning defendant\u2019s refusal to submit to the gunshot residue test did not violate her constitutional right to counsel and did not deprive her of due process of law. Accordingly, the decision of the Court of Appeals is reversed, and this cause is remanded to that court with instructions to remand to the Superior Court, Cumberland County, for reinstatement of the jury verdict.\nReversed and remanded.\n. The officers did not produce a nontestimonial identification order, nor did they follow the procedures set out in Article 14, Chapter 15A of our General Statutes, G.S. \u00a7\u00a7 15A-271 to -282 (1978).\n. Lane does, however, recognize an exception to this rule: the prior inconsistent statement. This arises when defendant\u2019s silence amounts to a contradiction of his testimony at trial and occurs only when, at the time of defendant\u2019s silence, it would have been natural for him to speak and give the substance of his trial testimony. State v. Lane, 301 N.C. at 385-86, 271 S.E. 2d at 275-76; cf. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed. 2d 1 (1971) (use of prior inconsistent statement made prior to giving of Miranda warnings to impeach defendant\u2019s credibility is constitutionally' permissible); 3A. Wigmore, Evidence \u00a7 1042 (Chad-bourn rev. 1970) (when silence amounts to an inconsistent statement). Comment upon defendant\u2019s pre-arrest silence has been held to violate neither the fifth amendment right to remain silent nor the fourteenth amendment due process clause. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed. 2d 86 (1980).\n. We note that defendant did have a statutory right to have counsel present during the test by virtue of G.S. 15A-279(d) (1978). Neither party argued this point. While defendant\u2019s statutory right may have been violated in this case by the admission of the testimony, defendant has not met her burden of showing that the error was prejudicial in light of the very strong case against her, ie., that, absent the contested evidence, a different result would likely have ensued, State v. Daye, 281 N.C. 592, 597, 189 S.E. 2d 481, 483 (1972).", "type": "majority", "author": "CARLTON, Justice." } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Special Deputy Attorney General John R. B. Matthis and Assistant Attorney General Acie L. Ward, for the State.", "Seavy A. Carroll for defendant-appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANNIE RAY ODOM\nNo. 4\n(Filed 5 May 1981)\n1. Constitutional Law \u00a7 43; Criminal Law \u00a7 57\u2014 gunshot residue test \u2014 no right to counsel \u2014 evidence of refusal to take test\nThe administration of a gunshot residue test is not a critical stage of the criminal proceedings to which the constitutional right to counsel attaches, and defendant\u2019s right to counsel was not violated by the admission of evidence that she refused to submit to a gunshot residue test until she talked with her attorney. Sixth and Fourteenth Amendments to the U.S. Constitution; Article I, \u00a7 23 of the N. C. Constitution.\n2. Constitutional Law \u00a7 28; Criminal Law \u00a7 57\u2014 evidence of refusal to take gunshot residue test \u2014 no denial of due process\nThe admission of evidence that defendant, after having been given the Miranda warnings, refused to take a gunshot residue test until she talked with her attorney did not violate defendant\u2019s right to due process since no constitutional right to counsel was involved and since no governmental action induced defendant to believe she had a constitutional right to have counsel present during the test.\nON appeal as a matter of right pursuant to G.S. 7A-30(2) from the decision of the Court of Appeals, 49 N.C. App. 278, 271 S.E. 2d 98 (1980), one judge dissenting, ordering a new trial for defendant. The trial proceedings were held before Judge Preston at the 15 October 1979 Criminal Session of Superior Court, CUMBERLAND County.\nThe question presented by this appeal is whether the admission of evidence that defendant refused to submit to a gunshot residue test when she had been given the Miranda warnings and had told police officers that she would not take the test until she talked with a lawyer violated defendant\u2019s right to counsel and deprived her of due process of law.\nAttorney General Rufus L. Edmisten, by Special Deputy Attorney General John R. B. Matthis and Assistant Attorney General Acie L. Ward, for the State.\nSeavy A. Carroll for defendant-appellee." }, "file_name": "0163-01", "first_page_order": 191, "last_page_order": 196 }