Odell v. State

(On motion for reconsideration.) Plaintiff in error (hereinafter defendant) has moved for reconsideration of the opinion previously filed in this case, arguing (1) that the opinion incorrectly characterizes the admission of testimony in the State's case in chief regarding the defendant's refusal to answer a question during custodial interrogation as non-constitutional error and (2) that the opinion misstates the law regarding the permissible use of a defendant's silence during custodial interrogation to impeach the defendant during cross-examination. The State agrees with the defendant's contentions but continues to assert that the errors of the trial court were not prejudicial. Upon review of the record and the cases cited in the memorandum submitted in support of the motion for reconsideration, we conclude that the opinion previously filed may confuse and mislead as to the permissible evidentiary use of a defendant's silence during custodial interrogation. Accordingly we withdraw the language of the opinion discussing the admission of the testimony of the detective and the cross-examination of the defendant as to the defendant's silence during custodial interrogation and substitute the following language: