State v. Collins ( 1975 )

PARKER, Judge;

. From the testimony of Franklin County Sheriff Dement, which is contained in the record, it appears that the State’s witness, William Craig Leonard, was first arrested in connection with the offense for which defendant was tried and convicted. While in jail, Leonard gave the Sheriff two statements. In his first statement, Leonard admitted that he alone assaulted Jack Collins and took the money. In this statement Leonard said that on the next morning after committing the offenses, he told defendant what he had done and gave defendant $100.00 not to tell. Based on this first statement by Leonard, the Sheriff arrested defendant and charged him with being an accessory. A few days later while Leonard and defendant were both in jail, Leonard changed his story and gave a second statement to the Sheriff. In this second statement, which was made in defendant’s presence, Leonard accused defendant of actively participating in the offenses.

At defendant’s trial, the District Attorney during direct examination of Leonard questioned Leonard concerning the statement which Leonard had given the Sheriff in defendant’s presence. After Leonard testified in substance to what his statement contained, the record shows the following colloquy occurred:

“Q. Was Greg Collins, the defendant, present when you told Sheriff Dement this?

A. Yes.

Q. How close was he to you?

A. Close as I am to you.

Q. Did he ever deny it?

Objection.

Court: Overruled.

Exception No. 6

A. No sir.

Q. Never denied it?

A. No sir.

Exception No. 7”

The obvious purpose of the District Attorney’s question to which objection was taken was to raise an implication that defendant, by failing to deny the accusation made against him, was admitting its truth. By remaining silent under the circumstances disclosed in this record defendant was exercising' his constitutional right. Our Supreme Court in State v. Castor, 285 N.C. 286, 204 S.E. 2d 848 (1974) held the admission of similar evidence to be reversible error entitling the defendant in that case to a new trial. On the record before us we cannot say that the erroneously admitted evidence was harmless beyond a reasonable doubt in the present case. Defendant is awarded a

New trial.

Judges Britt and Vaughn concur.