by Alex Kornfeld

UncategorizedAugust 15, 20180 comments 0 Likes

Gwen Stefani says, “Don’t Speak.” SC Court of Appeals Says State Can Argue “What You’re Thinking”

South Carolina Court of Appeals Holds Your Silence CAN Be Used Against You

We’ve all heard it in TV shows and movies, “You have the right to remain silent.  Anything you say, can, and will be used against you …” If it’s Chris Rock in Lethal Weapon 4 you’ll also hear, “You have the right to an attorney. If you can’t afford an attorney, we’ll provide you with the dumbest f***ing lawyer on earth. If you get Johnny Cochrane, I’ll kill ya!” Well, as far as the first part goes, the SC Court of Appeals has ruled that anything you don’t say may ALSO be used against you.

Specifically, the SCCOA held, “In the absence of the sort of affirmative assurances embodied in the Miranda warnings, the state does not violate a defendant’s due process rights by permitting cross-examination of his post-arrest silence when a defendant takes the stand.”

“Due process is not violated because such silence is probative and does not rest on any implied assurance by law enforcement authorities that it will carry no penalty.”

To make matters worse, the CoA has adopted the state of Georgia’s ruling that it is the Defendant’s burden to show whether the defendant has been administered his Miranda rights—to put it in legalese is to say the Defendant has the burden to show whether a Doyle violation has occurred. What’s a “Doyle Violation?” I’m glad you asked.

On May 25, 2017, Mr. Tappia Dangelo Green was convicted of Armed Robbery, Kidnapping, and Possession of a Weapon During a Violent Crime. Green appealed his conviction arguing the Trial Court should not have (1) allowed a detective’s irrelevant testimony concerning the victim’s fear, (2) allowed evidence of Green’s post-arrest silence in violation of Doyle v. Ohio, and (3) granted a mistrial when a juror was unable to participate in deliberation.

At trial, the State stated Green and two others held a victim under gunpoint and took a small amount of cash and jewelry and then drove him to his employment to collect his paycheck and then drove him to ACE Cash Express in North Charleston. Green and his comrades released him after taking his money. Green’s defense was that the victim owed him money for drugs and that the victim voluntarily rode with the men to cash his check and turn over the money. Green’s defense was that the victim falsely alleged this was a crime to avoid the wrath of his girlfriend.

• ALLOWED A DETECTIVE’S IRRELEVANT TESTIMONY CONCERNING THE VICTIM’S FEAR

The COA found that Detective Butler’s testimony that the victim appeared creditable because he was more fearful than the average victim was NOT preserved for review because Green only objected on the grounds of relevance. Had Green objected on grounds of irrelevant bolstering it appears the COA would have found the objection should have at least been sustained. However, the CoA opined that whether the victim’s story was believable was relevant because the defense argued the victim was not telling the truth because he was afraid his girlfriend would find out about his drug debts.

• ALLOWED EVIDENCE OF GREEN’S POST-ARREST SILENCE IN VIOLATION OF DOYLE V. OHIO

Next, and the most interesting holding is this case, was whether the state violated the Defendant’s due process rights by permitting cross-examination of his post-arrest silence when a defendant took the stand. The CoA held, In the absence of the sort of affirmative assurances embodied in the Miranda warnings, “the state does not violate a defendant’s due process rights by permitting cross-examination of his post-arrest silence when a defendant takes the stand.” In laymen terms that means your silence CAN be held against you IF you are not Mirandized and you take the stand.

To make matters worse, there was a disagreement as to whether the Defendant was Mirandized. The Defendant stated he was and, “That’s why they do police body cameras. All that should be on record.”  The officer who testified denied giving the Defendant Miranda warnings.  Defendant’s lawyer moved for a mistrial noting the police incident report noted the entire incident was captured with body cameras.  Defense counsel properly asserted it was the State’s burden to prove the matter beyond a reasonable doubt.  The trial court disagreed opining that it was merely a question of whether a Doyle violation occurred- meaning whether Defendant was Mirandized and therefore his silence couldn’t be used against him should he testify.

• NOT GRANTING A MISTRIAL WHEN A JUROR WAS UNABLE TO PARTICIPATE IN DELIBERATION.

During the trial, Juror #280 was unable to participate in deliberations due to a menstrual problem.  The trial court judge said, “I’m going to miss try [sic] the case” noting that Juror #280 wasn’t participating and therefore, was not an effective juror. However, the jury returned a verdict before the Judge could declare a mistrial. The Defendant did not object or move for a mistrial until AFTER the jury found him guilty.  You can’t get the verdict and then decide to appeal on grounds that the juror was ineffective just because you don’t like the verdict.

In closing, it’s important to emphatically (and at the top of your lungs) DEMAND a lawyer.

Comedian Tom Segura said it best during his ‘First 48’ bit in his 2014 Netflix Stand-Up Comedy Special, Completely Normal, “Lawyer up. [Don’t be like,] ‘I’m gonna talk to the cops and straighten this whole thing out.’ You’re gonna do 25-Life; have fun with that man.”

Say, “I want a lawyer.”

Say, “I’d love to tell you everything, but my lawyer requires that he be present.”

Sadly, it appears that not only the things you say can be used against you but even when you …DON’T SPEAK… the State can try and use that against you as well.

LINKS

State v. Green

Doyle v. Ohio

https://abcnews4.com/news/crime-news/man-charged-in-robbery-of-good-samaritan-sentenced-to-15-years 

Chris Rock in Lethal Weapon 4