State v. Moore, 366 N.C. 100 (Jun. 14, 2012)

Affirming an unpublished court of appeals’ decision, the court held that no plain error occurred when a State’s witness testified that the defendant exercised his right to remain silent. On direct examination an officer testified that after he read the defendant his Miranda rights, the defendant “refused to talk about the case.” Because this testimony referred to the defendant’s exercise of his right to silence, its admission was error. The court rejected the State’s argument that no error occurred because the comments were neither made by the prosecutor nor the result of a question by the prosecutor designed to elicit a comment on the defendant’s exercise of his right to silence. It stated: “An improper adverse inference of guilt from a defendant’s exercise of his right to remain silent cannot be made, regardless of who comments on it.” The court went on to conclude that the error did not rise to the level of plain error. Finally, the court rejected the defendant’s argument that other testimony by the officer referred to the defendant’s pre-arrest silence.