in the Court of Appeals 17 May 2017.
by defendant from judgment entered 20 May 2016 by Judge Jesse
B. Caldwell in Mecklenburg County Nos. 14CRS237795-796,
798-801, 803-804 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Kimberly N. Callahan, for the State.
& Petersen, P.A., by James R. Glover, for
Worth Wyrick ("Defendant") appeals alleging the
State's impeachment of Defendant with his post-Miranda
silence was a violation of his Fifth and Fourteenth Amendment
rights to be free from self-incrimination, to counsel, and to
due process. Defendant also alleges that the prosecutor
improperly cross-examined him regarding his post-arrest
silence, and this allegedly improper impeachment resulted in
prejudicial error. We disagree.
and Procedural Background
was sixteen years old in 1985, and lived with her mother in a
Charlotte apartment. On September 6, 1985, while D.K.'s
mother was out of town, D.N., who was fifteen years old at
the time, stayed in the apartment with D.K. At 4:30 a.m.,
they were awakened when the doorbell rang. They spoke with a
man named "Tony" through the door, who claimed to
be looking for the property manager's apartment. Tony
left when the girls told him he had the wrong apartment.
girls were awakened again at 7:30 a.m. to D.K.'s dog
barking and a man entering the room with a crowbar. He
removed their clothing, tied their hands, and placed
pillowcases over their heads. The man was later identified as
Defendant. Defendant fondled the girls and inserted his
fingers into their vaginas. He began having sexual
intercourse with D.K, then forced her to perform oral sex on
him, threatening to hurt D.N. if she refused. Defendant
ejaculated into D.K.'s mouth and wiped her face off with
a pillowcase. Subsequently, he had sexual intercourse with
apologized to the girls and left the room. D.K. heard
Defendant walk downstairs and exit through a sliding glass
door. After he left, D.K. managed to get her hands free, but
could not free D.N. D.K. called her brother, who came to the
apartment and used a knife to free D.N.'s hands. The
police were called at that time.
and D.N. submitted to a sexual assault examination by Dr.
Carey Ziemer at Charlotte Memorial Hospital. Dr. Ziemer
determined that the results of D.K.'s examination was
consistent with the information she had provided. For D.N.,
Dr. Ziemer observed a laceration to the base of her vulva
that was still bleeding. Dr. Ziemer believed this injury
occurred during a recent struggle. With the aid of a
pediatric speculum, Dr. Ziemer observed that D.N.'s
vagina had a whitish mucoid fluid with a reddish tinge. Dr.
Ziemer collected additional evidence from the girls and
provided the rape kits to law enforcement.
sheets, clothing, and other items were collected from the
apartment by crime scene investigators. Semen was found on
D.N.'s panties and vaginal swabs, D.K.'s shorts, and
a bed sheet. However, DNA testing was not available in 1985,
and the case went unsolved for nearly thirty years.
January 2006, the Charlotte-Mecklenburg Police Department
("CMPD") created a sexual assault cold case unit
because the department had approximately 5, 000 open rape
cases. In 2013, Detective Troy Armstrong reviewed the
evidence. He submitted the physical evidence to a crime lab
in Beaufort County, South Carolina for DNA analysis. DNA
analyst Timothy French examined physical evidence for
biological fluids and DNA. DNA from one male individual was
located on D.N.'s panties, vaginal swabs and shorts, a
pillowcase, and bedsheets. The South Carolina crime lab
established a DNA profile from the evidence collected in
1985. Defendant was developed as a suspect by the CMPD.
Detective Armstrong discovered that Defendant lived within
three and a half miles of D.K.'s apartment complex in
September 24, 2014, Defendant was arrested by CMPD. Defendant
was read his Miranda rights, and signed a waiver
before speaking with Detective Armstrong. Defendant informed
officers he did not recall the details of that night.
Detective Armstrong obtained buccal swabs from Defendant in a
search incident to his arrest and sent the samples to the
Beaufort County, South Carolina ...