              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                No. COA13-1289-2

                              Filed: 20 February 2018

Wilkes County, Nos. 09 CRS 54801, 10 CRS 405

STATE OF NORTH CAROLINA

             v.

JAMES DOUGLAS TRIPLETT


      Appeal by Defendant from judgment entered 18 February 2013 by Judge Edgar

B. Gregory in Superior Court, Wilkes County. Originally heard in the Court of

Appeals 9 April 2014, and opinion filed 2 September 2014. The Supreme Court of

North Carolina reversed and remanded to this Court for consideration of the

remaining issue on appeal and for additional proceedings, if necessary.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General John H.
      Watters, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender David W.
      Andrews, for Defendant.


      McGEE, Chief Judge.


      James Douglas Triplett (“Defendant”) appealed from a judgment entered after

a jury found him guilty of robbery with a dangerous weapon, second-degree burglary,

and first-degree felony murder. The trial court arrested judgment on Defendant’s

convictions for robbery with a dangerous weapon and second-degree burglary, and

entered a judgment on the first-degree murder conviction. Defendant originally
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                                  Opinion of the Court



argued that the trial court erred by: (1) preventing Defendant from cross-examining

his sister with a recording of a voicemail message in order to attack her credibility,

and (2) allowing the State to use Defendant’s silence against him. Defendant’s first

argument was addressed by this Court in a 2 September 2014 opinion that held

Defendant was entitled to a new trial based on Defendant’s first argument and, thus,

it was not necessary to decide on Defendant’s second argument. State v. Triplett, 236

N.C. App. 192, 762 S.E.2d 632 (2014). On discretionary review, our Supreme Court

reversed the decision of this Court and remanded the case to this Court for

consideration of Defendant’s second argument. State v. Triplett, 368 N.C. 172, 775

S.E.2d 805 (2015).

      Defendant now argues the trial court erred in allowing “the State to use

[Defendant’s] post-arrest exercise of his right to [remain silent] against him.” We

disagree.

      Under both the Fifth Amendment to the United States Constitution,

incorporated through the Fourteenth Amendment, and Article I, Section 23 of the

North Carolina Constitution, any criminal defendant has the right to remain silent.

Miranda v. Arizona, 384 U.S. 436, 444 (1966); State v. Lane, 301 N.C. 382, 384, 271

S.E.2d 273, 275 (1980).    Miranda requires that before any person in custody is

subjected to interrogation, that person must be informed in clear and unequivocal

terms that they have the right to remain silent. Miranda, 384 U.S. at 467-68. Once



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a defendant receives Miranda warnings and chooses to exercise the right to remain

silent, the defendant’s subsequent silence “cannot be used against him to impeach an

explanation subsequently offered at trial.” State v. Westbrooks, 345 N.C. 43, 63, 478

S.E.2d 483, 495 (1996) (citing Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91 (1976)).

This protection arises because of an implicit assurance in Miranda that a defendant

will not be penalized for exercising his constitutional right to remain silent. Doyle,

426 U.S. at 617-18, 49 L. Ed. 2d at 91.

      However, in order for a defendant to enjoy the protections of the Fifth

Amendment, or Article I, Section 23 of the North Carolina Constitution, he must

actually invoke this right, either expressly or by implication. A defendant expressly

invokes his right to silence by stating that choice. A defendant invokes his right by

implication when he has been advised of his rights pursuant to Miranda and chooses

through his silence to claim his constitutional protections against self-incrimination:

             Thus, although the State does not suggest petitioners’
             silence could be used as evidence of guilt, it contends that
             the need to present to the jury all information relevant to
             the truth of petitioners’ exculpatory story fully justifies the
             cross-examination that is at issue.

             Despite the importance of cross-examination, we have
             concluded that the Miranda decision compels rejection of
             the State’s position. The warnings mandated by that case,
             as a prophylactic means of safeguarding Fifth Amendment
             rights, require that a person taken into custody be advised
             immediately that he has the right to remain silent, that
             anything he says may be used against him, and that he has
             a right to retained or appointed counsel before submitting


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               to interrogation. Silence in the wake of these warnings
               may be nothing more than the arrestee’s exercise of these
               Miranda rights.       Thus, every post-arrest silence is
               insolubly ambiguous because of what the State is required
               to advise the person arrested. Moreover, while it is true
               that the Miranda warnings contain no express assurance
               that silence will carry no penalty, such assurance is
               implicit to any person who receives the warnings. In such
               circumstances, it would be fundamentally unfair and a
               deprivation of due process to allow the arrested person’s
               silence to be used to impeach an explanation subsequently
               offered at trial.

Doyle v. Ohio, 426 U.S. 610, 617–18, 49 L. Ed. 2d 91 (1976) (citations and footnotes

omitted).1

       In the present case, this Court does not have to consider whether the State

violated the Fifth Amendment by its questions and remarks at trial. Defendant’s

argument in the present case fails for the same reason as did the defendant’s

argument in State v. Alkano, 119 N.C. App. 256, 458 S.E.2d 258 (1995):

               [D]efendant contends that the in-court testimony of the
               officers concerning defendant’s pre-Miranda, post-arrest
               lack of explanation or statement violated his constitutional
               right to remain silent. The problem with defendant’s
               argument, here, is that defendant did not choose to remain
               silent.

Id. at 260, 458 S.E.2d at 261. The record evidence before us in the present case also

indicates that Defendant did not choose to remain silent.                   The uncontradicted




       1  The question of what constitutes “immediately” in order to satisfy Miranda and Doyle is not
raised in this case, and we do not address it.

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evidence presented by the State indicates that Defendant voluntarily talked with

officers after his arrest.

       Further, Defendant acknowledges both that the record does not indicate when

or how Defendant received Miranda warnings, nor does the record indicate that

Defendant ever invoked his right to remain silent, either pre- or post-Miranda

warnings.2 In Defendant’s reply brief he, for the first time, argues that this Court

should presume that Defendant received Miranda warnings concurrent with his

arrest, and that the allegedly improper statements concerning Defendant’s “silence”

referred to Defendant’s “silence” after he had received Miranda warnings. First,

Defendant may not use his reply brief to make new arguments on appeal. “[A] reply

brief is not an avenue to correct the deficiencies contained in the original brief. See

N.C. R. App. P. 28(b)(6)[.]” State v. Dinan, 233 N.C. App. 694, 698–99, 757 S.E.2d

481, 485 (2014) (citation omitted). Second, Defendant does not include citation to any

authority that stands for this principle, and we have found none. Third, it is the duty

of Defendant, as the appellant, to insure the record is complete and to include all

evidence necessary for this Court to conduct appellate review. “‘This Court . . . is

bound by the record as certified and can judicially know only what appears of record.’

‘It is the appellant’s duty and responsibility to see that the record is in proper form


       2  In fact, Defendant does not direct us to any record evidence that Defendant ever received
Miranda warnings, and we have found none. Though it is likely that Defendant was explained his
Miranda rights at some point in time, hopefully concurrent with his arrest, we may not presume facts
not in the record on appeal. State v. Brown, 142 N.C. App. 491, 492–93, 543 S.E.2d 192, 193 (2001).

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and complete.’” State v. Brown, 142 N.C. App. 491, 492–93, 543 S.E.2d 192, 193

(2001) (citations omitted). Finally,

                Defendant’s [constitutional] argument . . . rests upon proof
                that police gave him the Miranda warnings at the time of
                arrest, thereby assuring him that his silence would not be
                used against him. The burden of demonstrating error rests
                upon the appealing party. In the case before us, defendant
                has failed to show that he was given Miranda warnings
                and therefore he has not met his burden of proving a denial
                of [his constitutional rights].

State v. McGinnis, 70 N.C. App. 421, 423–24, 320 S.E.2d 297, 300 (1984); see also

Fletcher v. Weir, 455 U.S. 603, 605–06, 71 L. Ed. 2d 490 (1982) (citation omitted) (“The

significant difference between [Fletcher v. Weir] and Doyle is that the record does not

indicate that respondent Weir received any Miranda warnings during the period in

which he remained silent immediately after his arrest. The majority of the Court of

Appeals recognized the difference, but sought to extend Doyle to cover Weir’s

situation by stating that ‘[w]e think an arrest, by itself, is governmental action which

implicitly induces a defendant to remain silent.’ We think that this broadening of

Doyle is unsupported by the reasoning of that case and contrary to our post-Doyle

decisions.”).

       As there is no record evidence that Defendant was given Miranda warnings,

or that he at any time specifically invoked his Fifth Amendment right to remain

silent, Defendant cannot demonstrate that his Fifth Amendment right to remain




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silent was improperly used against him at trial. This Court in Alkano cited with

approval the following reasoning from United States v. Agee, 597 F.2d 350 (3rd Cir.):

             “Silence” at the time of arrest is the critical element of the
             Fifth Amendment right on which Agee relies. . . . The
             Supreme Court has described that right as “the right ‘to
             remain silent unless he chooses to speak in the unfettered
             exercise of his own will.’” The rationale which the Supreme
             Court adopted for its decision in Doyle was that it is
             fundamentally unfair for the prosecution to impose a
             penalty at trial on a defendant who has exercised that right
             by choosing to remain silent. . . . Doyle can have no
             application to a case in which the defendant did not
             exercise his right to remain silent. . . . Agee did not exercise
             his right to remain silent regarding the facts of the incident.

Alkano, 119 N.C. App. at 261, 458 S.E.2d at 262 (quoting Agee, 597 F.2d at 354–56)

(emphasis added in Alkano). This Court then concluded:

             The fact remains that defendant did not remain silent.
             Rather, he made several inculpatory statements which he
             then chose to explain by testifying at trial.

             The prosecutor’s questions to the officers concerning
             defendant’s lack of explanation did not violate defendant’s
             rights against self-incrimination under either the United
             States or North Carolina Constitutions.

Alkano, 119 N.C. App. at 262, 458 S.E.2d at 262.

      We likewise hold that, because there is no record evidence that Defendant

invoked his right to remain silent, and indeed, Defendant chose not to remain silent

by talking to officers following his arrest, “[t]he prosecutor’s questions to the officers

concerning defendant’s lack of explanation did not violate defendant’s rights against



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self-incrimination under either the United States or North Carolina Constitutions.”

Id.

       We note that we would reach the same outcome even assuming arguendo we

had evidence that Defendant received Miranda warnings prior to speaking with the

officers in this case:

              When the defendant chooses to speak voluntarily after
              receiving Miranda warnings . . . the rule in Doyle is not
              triggered. “Such questioning makes no unfair use of
              silence, because a defendant who voluntarily speaks after
              receiving Miranda warnings has not been induced to
              remain silent.” Once the defendant speaks voluntarily,
              cross-examination on those statements is permissible if it
              “merely inquires into prior inconsistent statements.”
              Cross-examination can properly be made into why, if the
              defendant's trial testimony regarding his alibi is true, he
              did not include in his earlier statement the relevant
              information disclosed at trial.

State v. Fair, 354 N.C. 131, 156, 557 S.E.2d 500, 518–19 (2001) (citations omitted).

       NO ERROR.

       Judges ELMORE and DAVIS concur.




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