State v. Taylor , 244 N.C. App. 293 ( 2015 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-490-2
Filed: 1 December 2015
New Hanover County, Nos. 10 CRS 61706, 62183
STATE OF NORTH CAROLINA
v.
BO ANDERSON TAYLOR, Defendant.
Appeal by defendant from judgments entered 16 September 2011 by Judge
Charles H. Henry in New Hanover County Superior Court. Originally heard in the
Court of Appeals 8 October 2014, with opinion filed 16 December 2014. An opinion
reversing the decision of the Court of Appeals for reasons stated in the dissenting
opinion and remanding for consideration of defendant’s remaining issue on appeal
was filed by the Supreme Court of North Carolina on 25 September 2015.
Attorney General Roy Cooper, by Associate Attorney General Melody Hairston,
for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Nicholas
C. Woomer-Deters, for defendant.
BRYANT, Judge.
Testimony that the investigating detective was unable to reach defendant to
question him during her investigation was admissible to describe the course of her
investigation, and was not improper testimony of defendant’s pre-arrest silence.
STATE V. TAYLOR
Opinion of the Court
A fuller factual background can be found in State v. Taylor, ___ N.C. App. ___,
767 S.E.2d 585 (2015), rev’d, ___ N.C. ___, 776 S.E.2d 680 (2015). On remand from
the Supreme Court to address an issue raised by defendant but not previously
addressed by this Court regarding defendant’s pre-arrest silence, we include only
those facts necessary to a resolution of that issue.
In October 2010, Bo Anderson Taylor (“defendant”) and his girlfriend Gail
Lacroix moved in with defendant’s sister Crystal Medina (“Medina”). Medina said
defendant could stay in the shop in her backyard. Medina’s backyard had locked
green and white trailers which contained lasers, generators, and other tools.
In November 2010, Medina found a pawn ticket in her truck which indicated
that defendant had pawned one of her lasers. Medina confronted defendant, showed
him the pawn ticket, and asked if defendant had taken anything else from her.
Defendant denied knowledge of the ticket and refused to respond to her questions.
Following this confrontation, Medina left her home to take her daughter to a
doctor’s appointment. Upon her return, she found that defendant and Lacroix had
moved out. Medina entered the building where defendant and Lacroix had been
staying and discovered another pawn ticket.
Medina contacted the New Hanover County Sheriff’s Office and reported that
defendant had stolen several items from the trailers in her backyard. The case was
assigned to Detective Angie Tindall, who conducted an investigation and confirmed
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STATE V. TAYLOR
Opinion of the Court
that the items had been pawned by defendant. The pawn tickets and video from the
pawn shops confirmed that defendant had pawned a Bosch drill, a portable air
compressor, two generators, and two lasers, in exchange for a total amount of $585.00
in loans from various pawn shops. Defendant had signed the pawn tickets associated
with each of the items indicating that he was the owner of the items. Detective
Tindall attempted several times to contact defendant, but was unsuccessful in doing
so.
Defendant was arrested, tried, and convicted by a jury of misdemeanor larceny,
breaking and entering, and five counts of obtaining property by false pretenses. The
court consolidated the offenses into three judgments, imposing consecutive active
terms of 8 to 10 months, 11 to 14 months, and 11 to 14 months.
___________________________________________________
On remand, we address defendant’s argument that the trial court allowed the
State to introduce extensive and repetitive testimony in its case-in-chief that
defendant exercised his pre-arrest right to silence, and that because such testimony
was not for the purpose of impeachment, the trial court committed plain error. We
disagree.
Specifically, defendant asserts that when the trial court allowed testimony
from Detective Tindall related to defendant’s silence in the face of her investigative
inquiries, he was deprived of any benefit of his right to silence. Defendant did not
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STATE V. TAYLOR
Opinion of the Court
object to Detective Tindall’s testimony at trial; therefore, the appropriate standard of
review is plain error. State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993).
“Whether the State may use a defendant’s silence at trial depends on the
circumstances of the defendant’s silence and the purpose for which the State intends
to use such silence.” State v. Mendoza, 206 N.C. App. 391, 395, 698 S.E.2d 170, 173
(2010) (quoting State v. Boston, 191 N.C. App. 637, 648, 663 S.E.2d 886, 894 (2008)).
“[A] defendant’s 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’s prior silence is inconsistent
with his present statements at trial.” Id. at 395, 698 S.E.2d at 174 (citing Boston,
191 N.C. App. at 649 n.2, 663 S.E.2d at 894 n.2).
Here, during her testimony on direct examination by the State, Detective
Tindall discussed her lack of questioning or inability to question defendant during
the course of her investigation:
THE STATE: And did you try to get in touch with the
defendant?
TINDALL: Yes, I did.
THE STATE: How?
TINDALL: Telephone.
THE STATE: Did you call him?
TINDALL: I would call a family member and he was not
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STATE V. TAYLOR
Opinion of the Court
there, called another family member, he’s not there, and
another family member, here’s [sic] not there.
THE STATE: Did the defendant ever make contact with
you?
TINDALL: No.
THE STATE: Did the defendant ever speak to you?
TINDALL: No.
THE STATE: Did the defendant ever turn over any pawn
slips to you?
TINDALL: No.
THE STATE: Did the defendant ever assist you in locating
any of the property?
TINDALL: No.
THE STATE: In fact, how did you locate the pawn slips
[Medina] gave you?
TINDALL: The Sheriff’s Office has a system called Pawn
Watch in which we enter items into the Pawn Watch or
through PTP, which is Police to Police, we put in names or
serial numbers for a match in the system. Pawn shops are
required to report all items pawned or sold.
THE STATE: So you had to search those items out?
TINDALL: Yes.
THE STATE: And that information you have is based on
the serial numbers that [Medina] provided you?
TINDALL: Uh-huh.
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STATE V. TAYLOR
Opinion of the Court
THE STATE: At any point did you ever question this case,
this has a lot of family drama?
TINDALL: Yes.
THE STATE: What made you go forward?
TINDALL: [Medina] seemed to be telling me the truth, she
gave me all the information possible that she had and we
are required to investigate everything to the fullest.
THE STATE: In fact, did you even go investigate [Medina]?
TINDALL: Yes.
THE STATE: How did you do that and why?
TINDALL: A family member advised me that [defendant]
was asked to pawn the items for [Medina], that [Medina]
had stolen [f]ive [h]undred [d]ollars from her employer. I
investigated that and learned that there was no evidence
of this occurring, so, therefore, [Medina] was never charged
and I had no evidence.
...
THE STATE: You stated that you had tried to speak to the
defendant?
TINDALL: Yes.
THE STATE: Did you leave a number for the defendant?
TINDALL: Yes.
THE STATE: Did you leave messages for the defendant?
TINDALL: Through family members, yes.
THE STATE: And did he ever call you back?
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STATE V. TAYLOR
Opinion of the Court
TINDALL: No.
THE STATE: Has he ever given you any information?
TINDALL: No.
Defendant cites to a number of cases which we acknowledge discuss the issue
of pre-arrest silence. See State v. Moore, 366 N.C. 100, 104, 726 S.E.2d 168, 172 (2012)
(noting defendant’s right to silence would be “destroyed” if he could be penalized for
relying on it); Mendoza, 206 N.C. App. at 396–98, 698 S.E.2d at 174–76 (finding error
where a state trooper made two comments at different points in his testimony
regarding a defendant’s pre-arrest silence); Boston, 191 N.C. App. at 651, 663 S.E.2d
at 896 (holding the prosecution may not comment on a defendant’s pre-arrest silence
or use it is as substantive evidence of his guilt).
However, none of these cases recognize the principle of pre-arrest silence where
there has been no direct contact between the defendant and a law enforcement officer.
Pre-arrest silence has no significance if there is no indication that a defendant was
questioned by a law enforcement officer and refused to answer. Here, the evidence
showed this was an investigation into a family matter where at least one family
member told the investigator the sister who reported the crime against defendant
had in fact asked defendant to pawn the items the sister reported as stolen.
Throughout the investigation of this “family drama,” Detective Tindall talked with
several family members and tried a number of times to reach defendant through other
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STATE V. TAYLOR
Opinion of the Court
family members but defendant did not respond. The testimony at issue revealed that
Detective Tindall was not able to make contact with defendant at all, much less
confront him in person and request that he submit to questioning. Additionally, there
was no indication in Detective Tindall’s direct testimony that defendant knew she
was trying to talk to him and that he refused to speak to her.1 Thus, it cannot be
inferred that defendant’s lack of response to indirect attempts to speak to him about
an ongoing investigation was evidence of pre-arrest silence.
Based on the record in this case, we hold that the testimony at issue here was
admitted to show Detective Tindall’s multiple attempts to make contact with
defendant during the course of her investigation of this family dispute. Nothing in
Detective Tindall’s testimony shows pre-arrest silence by defendant in response to
police questioning. Therefore, the trial court did not err in admitting this testimony.
Accordingly, defendant’s plain error argument is overruled.
NO PLAIN ERROR.
Judges Elmore and Hunter, Jr., concur.
1 Defendant, in his testimony, said he was aware that Detective Tindall tried to speak to him,
but did not indicate at what point in time he became aware. Defendant said he came forward and
turned himself in to another detective.
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