1. Constitutional Law--right to remain silent-_refusal to talk to police--evidence of
sanity
The trial court erred in a first-degree murder case by allowing the State to argue that the
jury could use defendant's silence while in custody as evidence of his sanity, and defendant is
entitled to a new trial, because: (1) the prosecutor's statements referred repeatedly to defendant's
silence, not merely his behavior, and urged the jury to infer that defendant was sane enough to
know that remaining silent was in his best interest; and (2) the error was not harmless beyond a
reasonable doubt when the only real issue at trial was whether defendant was legally insane at the
time of the murder since defendant admitted firing the shots that killed the victim.
2. Evidence--testimony--pretrial sanity hearing--impeachment--blanket prohibition
The trial court erred in a first-degree murder case by allowing the State to cross-examine
experts using testimony from defendant's pretrial sanity hearing even though the State asserts
that N.C.G.S. § 15A-959 does not bar the use of pretrial testimony for the purpose of impeaching
the experts with prior inconsistent statements, because: (1) the statutory language does not limit
the bar on using testimony or evidence to substantive evidence, but instead states a blanket
prohibition; and (2) it cannot be said that the improper admission of an expert's statements from
the pretrial hearing was harmless when the only issue at trial was defendant's sanity at the time of
the murder, and substantial evidence including the testimony of all three expert witnesses showed
that defendant was insane.
3. Evidence--exclusion of testimony--sanity
The trial court did not abuse its discretion in a first-degree murder case by excluding
evidence allegedly supporting the expert testimony that defendant was insane at the time of the
crime, because: (1) although the trial court refused to allow an expert to testify that in ten prior
cases she had never found a defendant insane at the time of the crime, it cannot be said that the
court's determination was manifestly unsupported by reason; and (2) although the trial court
excluded testimony from defendant's brother about the brother's own mental illness which was
similar to defendant's, two experts had previously testified that mental illnesses tended to run in
families and one expert specifically testified that mental illness ran in defendant's family.
Attorney General Roy Cooper, by Special Deputy Attorney
General A. Danielle Marquis, for the State.
Glover & Peterson, P.A., by Ann B. Peterson, for defendant-
appellant.
HUDSON, Judge.
On 3 September 2002, the grand jury indicted defendant Joel
Mark Durham the first-degree murder of Ralph Gaiser. After
defendant gave notice of his intent to rely on an insanity defense,
the court held a pretrial hearing. Following the hearing, Judge
Melzer A. Morgan denied defendant's motion to have the charge of
first-degree murder dismissed pretrial on the basis of a defense of
insanity. The case came on for trial at the 8 March 2004 criminal
session. On 16 March 2004, the jury found defendant guilty of
first-degree murder. The court sentenced defendant to life in
prison and defendant appeals. As described below, we conclude that
defendant is entitled to a new trial.
Defendant admitted that he shot his friend Ralph Daniel Gaiser
to death on Gaiser's birthday, 3 July 2002. Defendant had known
Gaiser for twenty-five years, though their relationship had
deteriorated in recent years. As Gaiser and his friend Don
Whitaker sat in Gaiser's living room, defendant entered the house
and spoke with them briefly. Defendant then stated that he had
left his car lights on and left. He returned a few minutes later
and shot Gaiser four times in the head and chest with a rifle.
Whitaker asked defendant not to shoot him and said he wanted to
leave. Defendant responded, “This doesn't concern you. It is a
CIA hit.” Defendant then left the house.
The evidence tended to show that defendant believed that the
CIA had removed his eyes and replaced them with cameras. He alsobelieved that the CIA was controlling him and was behind a variety
of plots, including the 11 September 2001 attacks. Concerned about
defendant's behavior and thoughts, his family took him to the
Guilford County Mental Health Center in January 2000, where he was
diagnosed as psychotic with paranoid delusional disorder.
Defendant began taking anti-psychotic medication which improved his
symptoms. After his arrest, three mental health experts, including
Dr. Karla de Beck, who had been retained by the State, examined
defendant and found that he was legally insane at the time of the
crime. The State offered several lay witnesses who testified that
they believed defendant was sane at the time of the crime. The
jury convicted defendant of first-degree murder.
[1] Defendant first argues that the court erred in allowing
the State to argue that the jury could use his silence while in
custody as evidence of defendant's sanity, in violation of his
constitutional rights. We agree.
During his closing statement to the jury, the prosecutor
argued the following, quoting Dr. de Beck:
Okay he's been arrested now. The burden has
been lifted. He's no longer uncertain, if you
believe him, what's going to happen.
“Detective Spagnola presented him with a
waiver of rights and explained his rights to
him. Mr. Durham had no questions and would
not look up. He would not speak.”
Over defendant's objection, the court allowed the State to
continue this argument, again quoting Dr. de Beck:
He said he attempted to talk to him for thirty
minutes without any murmur from [defendant].
It was noted that the only personal
acknowledgement of my presence I received fromMr. Durham from our interview was in showing
him a picture of Danny Gaiser, the victim. He
briefly looked up at the photograph, nodded
his head, said “yes,” and looked back at his
shoes, where his eyes continued to stare for
the rest of the interview.
If the burden has been lifted and he's
relieved, why does he not tell the police what
happened? Why does he wait until he talks to
his experts when he knows they're interviewing
him to determine whether he's insane or not?
Why didn't he tell the police then, if we are
going to talk about the truth? I guess the
same reason why we don't know where the gun
was on the day of the murder.
The fact is the defendant knew the difference
between right and wrong.
Defendant contends that this argument from the State implies
that defendant must have been sane and known right from wrong based
on his refusal to talk to the police once he was in custody.
In our legal system, it is axiomatic that a
criminal defendant is entitled under the Fifth
Amendment to the United States Constitution,
as incorporated by the Fourteenth Amendment,
to remain silent and to refuse to testify.
Griffin v. California, 380 U.S. 609, 14 L. Ed.
2d 106 (1965). This right is also guaranteed
under Article I, Section 23 of the North
Carolina Constitution. State v. Reid, 334
N.C. 551, 554, 434 S.E.2d 193, 196 (1993). It
is equally well settled that when a defendant
exercises his right to silence, it 'shall not
create any presumption against him,' N.C.G.S.
§ 8-54 (1999), and any comment by counsel on a
defendant's failure to testify is improper and
is violative of his Fifth Amendment right,
[State v.] Mitchell, 353 N.C. [309,] 326, 543
S.E.2d [830,] 840 [2001].
State v. Ward, 354 N.C. 231, 250-51, 555 S.E.2d 251, 264 (2001),
cert. denied, 359 N.C. 197, 605 S.E.2d 472 (2004). The State
contends that the prosecutor's remarks were merely a permissible
comment on defendant's behavior and demeanor during the interview. We find this argument unpersuasive. The prosecutor's statements
referred repeatedly to defendant's silence, not merely to his
behavior, and clearly urged the jury to infer that defendant was
sane enough to know that remaining silent was in his best interest.
As the Supreme Court made clear in Ward, this the State may not do.
Every comment “implicating a defendant's right to remain
silent, although erroneous, is not invariably prejudicial.” Id. at
251, 555 S.E.2d at 265; see also State v. Shores, 155 N.C. App.
342, 351, 573 S.E.2d 237, 242 (2002), disc. review denied, 356 N.C.
690, 578 S.E.2d 592 (2003). “Indeed, such error will not earn the
defendant a new trial if, after examining the entire record, this
Court determines that the error was harmless beyond a reasonable
doubt.” Ward, at 251, 555 S.E.2d at 265
In Ward, a capital murder case, the challenged argument came
at the close of the sentencing phase, when the prosecutor argued
the following:
[Defendant] started out that he was with his
wife and child or wife and children or
something that morning. We know he could
talk, but he decided just to sit quietly. He
didn't want to say anything that would
'incriminate himself.' So he appreciated the
criminality of his conduct all right.
He was mighty careful with who [sic] he would
discuss that criminality, wasn't he? He
wouldn't discuss it with the people at
[Dorothea] Dix [Hospital].
Id. at 266, 555 S.E.2d at 273. Defendant Ward did not object. The
Supreme Court held that the argument invited such a clear violation
of defendant's right to silence that it required the trial court to
intervene ex mero motu. Id. Since the trial court had not doneso, the Supreme Court ordered a new sentencing hearing, noting that
it “cannot conclude that this omission had no impact on the jury's
sentencing recommendation.” Id. Here, the defendant admitted
firing the shots that killed Gaiser, so the only real issue at
trial was whether defendant was legally insane at the time of the
murder. Three mental health experts testified that they believed
defendant was legally insane. Lay witnesses and circumstances
presented the only evidence of defendant's sanity. We are unable
to distinguish Ward in a meaningful way. Given this evidence, we
are unable to say that this error was harmless beyond a reasonable
doubt. Defendant is entitled to a new trial.
Although we award defendant a new trial on the grounds above,
we address his remaining arguments as they could arise in a new
trial.
[2] Defendant argues that the court erred in allowing the
State to cross-examine experts using testimony from his pretrial
sanity hearing. We agree.
N.C. Gen. Stat. § 15A-959 provides for pretrial sanity
hearings and states that:
(c) Upon motion of the defendant and with the
consent of the State the court may conduct a
hearing prior to the trial with regard to the
defense of insanity at the time of the
offense. If the court determines that the
defendant has a valid defense of insanity with
regard to any criminal charge, it may dismiss
that charge, with prejudice, upon making a
finding to that effect. The court's denial of
relief under this subsection is without
prejudice to the defendant's right to rely on
the defense at trial. If the motion is
denied, no reference to the hearing may be
made at the trial, and recorded testimony orevidence taken at the hearing is not
admissible as evidence at the trial.
N.C. Gen. Stat. § 15A-959(c) (2003) (emphasis supplied). The State
asserts that the statute does not bar the use of pretrial testimony
for the purpose of impeaching the experts with prior inconsistent
statements. Prior inconsistent statements are not admissible as
substantive evidence, but may be used for impeachment purposes.
State v. Hunt, 324 N.C. 343, 348, 378 S.E.2d 754, 757 (1989).
However, the statutory language quoted above does not limit the bar
on using hearing testimony or evidence to “substantive evidence,”
but rather states a blanket prohibition. Cf. State v. Atkins, 349
N.C. 62, 505 S.E.2d 97 (1998) (where the Court found no error in
allowing the prosecutor to cross-examine defendant's expert using
testimony from prior competency hearing (as opposed to an insanity
hearing)). The court erred in allowing evidence taken at the
pretrial insanity hearing to be admitted as impeachment evidence at
defendant's trial. “The admission of technically incompetent
evidence is harmless unless it is made to appear that defendants
were prejudiced thereby and that a different result likely would
have ensued had the evidence been excluded.” State v. Logner, 297
N.C. 539, 549, 256 S.E.2d 166, 172 (1979). Because the only issue
at trial was defendant's sanity at the time of the murder, and
because substantial evidence including the testimony of all three
expert witnesses tended to show that defendant was insane, we
cannot say that the improper admission of Dr. de Beck's statements
from the pretrial hearing was harmless. [3] Defendant also argues that the court erred in excluding
evidence supporting the expert testimony that defendant was insane
at the time of the crime. We do not agree.
“[A] trial court's decision to admit evidence under Rule 403
will not be grounds for relief on appeal unless it is 'manifestly
unsupported by reason or is so arbitrary it could not have been the
result of a reasoned decision.'” State v. Love, 152, N.C. App.
608, 614-15, 568 S.E.2d 320, 325 (2002), disc. review denied, 357
N.C. 168, 581 S.E.2d 66 (2003), (quoting State v. Syriani, 333 N.C.
350, 379, 428 S.E.2d 118, 133, cert. denied, 510 U.S. 948, 126 L.
Ed. 2d 341 (1993)). Here, the court refused to allow Dr. de Beck
to testify that in ten prior cases she had never found a defendant
insane at the time of his crime. Although the court might properly
have admitted such evidence, we cannot say that the court's
determination to exclude such testimony was manifestly unsupported
by reason.
The court also excluded testimony from defendant's brother
about the brother's own mental illness, which was similar to
defendant's. Two experts had previously testified that mental
illnesses tended to run in families and Dr. de Beck specifically
testified that mental illness ran in defendant's family. Defendant
maintained that the brother's testimony was more compelling
evidence that this type of mental illness in fact ran in
defendant's family, and bolstered defendant's claim of insanity.
We see no abuse of discretion and thus we overrule this assignment
of error. New trial.
Judges BRYANT and CALABRIA concur.
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