State v. Fisher

233 S.E.2d 634 (1977)

32 N.C. App. 722

STATE of North Carolina v. John Thomas FISHER, Jr.

No. 763SC798.

Court of Appeals of North Carolina.

April 6, 1977.

*635 Atty. Gen. Rufus L. Edmisten by Associate Atty. Jo Anne Sanford Routh, Raleigh, for the State.

Beaman, Kellum, Mills & Kafer, P.A. by James C. Mills, New Bern, for defendant.

MARTIN, Judge.

The defendant first contends that the trial court erred in instructing the jury to consider defendant's testimony in light of his interest in the outcome. He argues that such an instruction constitutes an expression of opinion as to defendant's creditability in violation of G.S. 1-180. The challenged portion of the charge is as follows:

"Now, ladies and gentlemen of the jury, the Court instructs you that when a defendant in a criminal action takes the witness stand as a witness in his own behalf that you, the jury, should scrutinize, that is you should look over carefully his testimony in the light of his interest in the outcome of this case here. Now, the Court further instructs you, ladies and gentlemen of the jury, that if after scrutiny of his evidence you believe the witness, then you give his testimony the same weight as that of any other disinterested witness in the trial of this case."

It is well settled that an instruction to scrutinize a defendant's testimony, with further instructions that if the jury should believe him worthy of belief it should give his testimony as full credit as that of any other witness, is without prejudicial error. State v. Gaines, 283 N.C. 33, 194 S.E.2d 839 (1973); State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970). The court's instructions were a correct statement of the law and it was proper to give such instructions in a criminal case. This assignment of error is overruled.

Finally, the defendant contends the court violated his Fifth Amendment right to remain silent by impressing the jury with that part of the State's evidence which revealed that the defendant failed to mention the alleged affair with the prosecuting witness at the time he was arrested by the police. In summarizing the rebuttal evidence, the judge instructed the jury that Officer Rodgers had been recalled by the State and that he had "said that the defendant did not mention any affair." We note that defendant not only failed to make any objection to this recapitulation of the evidence but he also failed to object to the original admission of this evidence at trial.

The defendant cites the case of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). In that case, the petitioners were given warnings in line with Miranda v. Arizona after their arrest, but remained silent. During the course of their separate trials each gave an exculpatory story that had not been previously told to the police or to the prosecutor. Over their counsel's objection, they were each cross-examined about their failure to tell the exculpatory story at the time of their arrest. The Supreme Court *636 held that a prosecutor's impeachment of a defendant's exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest violated the Due Process Clause of the Fourteenth Amendment. The Court reasoned that post-arrest silence following such warnings is insolubly ambiguous and that it would be fundamentally unfair to allow an arrestee's silence to be used to impeach an explanation subsequently given at trial after he had been impliedly assured, by the Miranda warning, that silence would carry no penalty.

We find the case at bar distinguishable from Doyle v. Ohio, supra. This case does not present a situation in which a defendant's exercise of his right to remain silent is used against him. Here, the defendant testified that he and the prosecuting witness had been having an affair. In rebuttal, without objection by defendant, Officer Rodgers was permitted to testify that during his investigation he had talked with the defendant on two occasions; that the defendant did not tell him that he was having an affair with the prosecuting witness; and that he did not mention that he had had sexual relations with her. The defendant's statement to Officer Windham, in contrast thereto, was to the effect that the prosecuting witness came up the steps of his apartment; that she looked as though she had been injured; that she said she had had a fight with two tenants; and that she asked him to take her to the hospital. There is no evidence that defendant mentioned an affair to Officer Windham.

Our Supreme Court has followed other jurisdictions in holding that:

"`. . . [I]f [a] former statement fails to mention a material circumstance presently testified to, which it would have been natural to mention in the prior statement, the prior statement is sufficiently inconsistent,' [citation omitted], and is termed an indirect inconsistency." (Citations omitted.) State v. Mack, 282 N.C. 334, 340, 193 S.E.2d 71, 75 (1972).

Moreover, our courts have also made it clear that prior inconsistent statements are admissible for the purpose of impeachment. State v. Mack, supra; State v. Chance, 279 N.C. 643, 185 S.E.2d 227 (1971). Accordingly, if the defendant in this case had a prior conversation with Officer Rodgers and, at that time, failed to mention a material circumstance later testified to at trial, then the prior statement was properly admitted for impeachment purposes.

Applying the foregoing principles, we conclude that the defendant's in-court testimony that he had had an affair with the prosecuting witness was inconsistent with his earlier failure to so state at the time he talked with Officer Rodgers. Therefore, his failure to tell the officer of the affair when it was natural to do so was indirectly inconsistent with his in-court testimony concerning such a relationship. Hence, evidence of such failure was admissible to impeach his in-court testimony and the trial court did not err in recounting it.

The defendant received a fair trial free of prejudicial error.

MORRIS and VAUGHN, JJ., concur.