Murder Self-defense Evidence Silence of defendant

Jan 15, 2020

Criminal law, Murder, Self-defense, Evidence, Silence of defendant, Pre-Miranda. Ineffective assistance of counsel — Prosecutor’s statements about defendant’s pre-arrest, pre-Miranda silence in opening and closing arguments and state’s presentation of testimony about that silence during its case-in-chief were improper comments on defendant’s right to remain silent where silence was offered as substantive evidence of guilt, not impeachment purposes. Discussion of admissibility of both pre- and post-arrest, pre-Miranda silence. Even if there was argument that state had been trying to impeach defendant, impeachment was improper because defendant’s silence was ambiguous and therefore not inconsistent with defendant’s trial testimony that he shot victims while defending himself. Although issue was not preserved for appellate review, defendant is entitled to relief because defense counsel’s failure to respond to trial court’s request for authority regarding admissibility of the evidence or to further object to such evidence and argument constituted ineffective assistance of counsel on the face of the record.

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