State v. Odom , 49 N.C. App. 278 ( 1980 )

HILL, Judge.

Defendant first argues that it was a violation of her Fifth and Fourteenth Amendment rights to allow the State to question her and one other witness concerning her refusal to submit to the paraffin test. Defendant further argues that the trial court erred when it permitted the State to cross-examine her about a fight she had with State’s witness Nancy Ezell the day prior to Robert Moore’s shooting. After due consideration, we find both arguments to be without merit.

Although defendant has not raised the issue, we do find, however, that the State’s solicitation at trial of evidence concerning defendant’s refusal to submit to the paraffin test before consulting with her attorney violated her rights under the Fourteenth Amendment to the United States Constitution and under Article I, Section 19 of the North Carolina Constitution.

In the case sub judice, the State neither compelled defendant to submit to a non-testimonial identification proceeding nor introduced physical evidence of defendant’s guilt. Rather, the State introduced evidence from which the jury could reasonably infer that defendant’s refusal to submit to a paraffin test until she had consulted with her attorney constituted a “statement” by defendant, inconsistent with her plea of not guilty.

Defendant’s refusal to submit to the test until she could speak with her attorney came only after the arresting officers told her that she had a right to consult an attorney. It would appear, therefore, that the defendant relied on the statements of the officers when she requested the opportunity to consult with retained counsel prior to submitting to the test. We find that it would be fundamentally unfair and a violation of defendant’s federal and state constitutional rights to allow the State to use her request to consult with an attorney, made in reliance on the State’s declaration of her right, as an implication of defendant’s guilt.

We are persuaded, in reaching our decision, by the reasoning in Doyle v. Ohio, 426 U.S. 610, 49 L.Ed. 2d 91, 96 S.Ct. 2240 (1976), and in State v. Lane, 46 N.C. App. 501, 265 S.E. 2d 493 (1980). In each of those cases, defendant exercised his right to remain silent during custodial interrogation and did not give his explanation of exculpatory circumstances until his trial. The prosecution in each case argued that if defendant were not guilty he would have asserted his alibi defense prior to trial. The courts granted the defendants new trials and found that it would be “fundamentally unfair and a deprivation of due process” to allow the prosecution to use defendant’s reliance on his right to remain silent to impeach defendant’s assertion of innocence. Doyle, 426 U.S. at 618, 49 L.Ed. 2d at 98.

Ms. Odom, like the defendants in Doyle and Lane, merely exercised what she had been told, and believed to be, her right to consult with an attorney when she refused to submit to the paraffin test. We are concerned by such a situation where the State tells the defendant upon arrest that she has a right to see her lawyer, the defendant justifiably relies on that assertion, and the State then uses defendant’s reliance on her perceived right as an affirmative inference of guilt. We find that such practice violates defendant’s due process rights under the United States and North Carolina Constitutions.

We further find the State’s violation of defendant’s due process rights to have been prejudicial.

A violation of the defendant’s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.

G.S. 15A-1443(b). Also see Chapman v. California, 386 U.S. 18, 24, 17 L.Ed. 2d 705, 710-11, 87 S.Ct. 824; reh. denied 386 U.S. 987 (1967).

The State’s evidence tends to show that defendant shot Robert Moore. The defendant took the stand and denied her guilt, but the credibility of the denial was lessened when the State pointed out that defendant refused to take a test that could have conclusively proven her innocence. This Court cannot find that the State has demonstrated beyond a reasonable doubt that the improper impeachment of defendant’s denial was not prejudicial.

The case must be remanded for a new trial.

New Trial.

Judge Whichakd concurs. Judge Hedkick dissents.