Emery v. State
| Docket Number: | 2002-KA-00450-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 04-01-2004 Opinion Author: Dickinson, J. Holding: Reversed and Remanded |
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| Additional Case Information: |
Topic: Burglary of dwelling house - Post-arrest silence - Cross-examination of defendant Judge(s) Concurring: Smith, C.J., Waller, P.J, Easley, Carlson and Graves, JJ. Non Participating Judge(s): Diaz, J. Concurs in Result Only: Cobb, P.J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 02-22-2002 Appealed from: Washington County Circuit Court Judge: Richard Smith Disposition: Appellant was convicted of burglary and sentenced to twenty years. District Attorney: Frank Carlton Case Number: 2001-455 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Odis Emery, Jr. |
WILLIAM R. LABARRE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE McCRORY |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Burglary of dwelling house - Post-arrest silence - Cross-examination of defendant |
| Summary of the Facts: | Odis Emery, Jr., was convicted of burglary of a dwelling house. He was sentenced to twenty years. He appeals. |
| Summary of Opinion Analysis: | Emery argues that the court erred by allowing the prosecutor to imply to the jury that Emery’s post-arrest silence was an indication that he was untruthful and, by implication, an indication that he committed the crime. If an accused under arrest was given a Miranda warning and told that he had a right to remain silent, and the accused did remain silent, the government thereafter cannot use his choice of remaining silent as a weapon during his trial testimony cross-examination to cast suspicion on his guilt or innocence. While there are circumstances under which reversal would not be required notwithstanding questions by the prosecutor as to the defendant’s post-arrest silence, none of those circumstances are present in this case. The State does not argue that the weight of the evidence of guilt is overwhelming, beyond a reasonable doubt. Therefore, the case is reversed and remanded for a new trial. |
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