Therefore, the trial court properly concluded that"[i]f 15A-271 does apply to this type [sic] evidence, it is not the exclusive means by which this type of evidence may be collected by law enforcement officers." In State v. Odom, 303 N.C. 163, 277 S.E.2d 352 (1981), our Supreme Court indicated that a gunshot residue test is a nontestimonial identification procedure governed by section 15A-271 et. seq. "[D]efendant did have a statutory right to have counsel present during the [gunshot residue test] by virtue of G.S. 15A-279(d) (1978)." Id. at 168, 277 S.E.2d at 356, n. 3. While the above determination was not central to the holding in Odom, we agree that a gunshot residue test falls within the purview of section 15A-271 based on our analysis of the statutory language.
This arises when defendant's silence amounts to a contradiction of his testimony at trial and occurs only when, at the time of defendant's silence, it would have been natural for him to speak and give the substance of his trial testimony. State v. Odom, 303 N.C. 163, 165-166 n. 2, 277 S.E.2d 352, 354-354 n. 2, cert. denied, 454 U.S. 1052, 102 S.Ct. 596, 70 L.Ed.2d 587 (1981), rehearing denied, 454 U.S. 1165, 102 S.Ct. 1041, 71 L.Ed.2d 322 (1982) (footnote included) (citing 3A Wigmore, Evidence 1042 (Chadbourn rev. 1970) (when silence amounts to an inconsistent statement)) [emphasis added]. In Burnett, 39 N.C. App. 605, 608, 251 S.E.2d 717, 719, the prosecutor questioned defendant about his pre-trial silence as follows:
See Jones v. State , 213 Md.App. 483, 495, 74 A.3d 802, 809 (2013) ("Moreover, appellant does not contend, and the record does not indicate that the GSR test was conducted in conjunction with any interrogation by the police. Therefore, his rights under the protections afforded by the Fifth Amendment or Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), are likewise inapplicable."); State v. Odom , 303 N.C. 163, 167, 277 S.E.2d 352, 355 (1981) ("We are unable to perceive any difference in the giving of a gunshot residue test that would require the presence of counsel to protect defendant's rights at trial. Thus, we hold that the administration of a gunshot residue test is not a critical stage of the criminal proceedings to which the constitutional right to counsel attaches and that defendant's right to counsel was not violated by the admission of the challenged testimony.").
See Jones v. State , 213 Md.App. 483, 495, 74 A.3d 802, 809 (2013) ("Moreover, appellant does not contend, and the record does not indicate that the GSR test was conducted in conjunction with any interrogation by the police. Therefore, his rights under the protections afforded by the Fifth Amendment or Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), are likewise inapplicable."); State v. Odom , 303 N.C. 163, 167, 277 S.E.2d 352, 355 (1981) ("We are unable to perceive any difference in the giving of a gunshot residue test that would require the presence of counsel to protect defendant's rights at trial. Thus, we hold that the administration of a gunshot residue test is not a critical stage of the criminal proceedings to which the constitutional right to counsel attaches and that defendant's right to counsel was not violated by the admission of the challenged testimony.").
But see Wilson v. State, 596 So.2d 775, 777-78 (Fla. Ct. App. 1992) (criticizing and distinguishing Herring); State v. Odom, 277 S.E.2d 352, 355 (N.C. 1981) (permitting evidence that defendant refused to submit to gunpowder residue test without attorney present). Lilly also assigns error to the admission of evidence that dried blood was found on the back of his pant leg.
While article 1, section 23 contains a guarantee of right to counsel, that right does not attach to all events leading to trial, but rather only to "critical stages" of the proceedings. State v. Odom, 303 N.C. 163, 277 S.E.2d 352, cert. denied, 454 U.S. 1052, 70 L.Ed.2d 587 (1981), reh'g denied, 454 U.S. 1165, 71 L.Ed.2d 322 (1982). See also State v. Hall, 39 N.C. App. 728, 252 S.E.2d 100 (1979).
Other courts addressing this issue have come to similar conclusions. See, e.g., State v. Odom, 303 N.C. 163, 277 S.E.2d 352, 355 (1981) (concluding that arrestee was not entitled to counsel during GSR test, relying on Supreme Court cases indicating that the collection of physical evidence, such as fingerprints, blood, clothing, and hair, does not constitute a critical stage of trial); United States v. Love, 482 F.2d 213, 217 (5th Cir.1973) (holding that collection of physical evidence was not a critical stage during which arrestee was entitled to counsel because such tests “involve[ ] none of the probing into an individuals' private life and thoughts that marks an interrogation or search.”). For the foregoing reasons, even had appellant properly preserved his constitutional arguments, we would find that his rights were not violated by the circuit court's admission of the GSR test results.
Defendant also argues that any consent he gave was not knowingly or voluntarily made because he did not have counsel present. In Coplen, this Court restated our Supreme Court's holding in State v. Odom, 303 N.C. 163, 167, 277 S.E.2d 352, 355, cert. denied, 454 U.S. 1052, 70 L. Ed. 2d 587 (1981), that there is "no right to have counsel present during a gunshot residue test." 138 N.C. App. at 57, 530 S.E.2d at 320.
Nevertheless, we note that evidence of a defendant's refusal to submit to a lawful testing or identification procedure has been held admissible when offered as circumstantial evidence of guilt. See, e.g., United States v. Parhms, 424 F.2d 152, 154-55 (9th Cir. 1970) (refusal to participate in line-up); United States v. Nix, 465 F.2d 90, 92-94, cert. denied, 409 U.S. 1013, 34 L.Ed.2d 307 (5th Cir. 1972) (refusal to produce handwriting sample); State v. Odom, 303 N.C. 163, 277 S.E.2d 352, cert. denied, 454 U.S. 1052, 70 L.Ed.2d 587 (1981) (refusal to submit to gunshot residue test). We find no error in the trial court's admission of evidence that defendant refused to submit to the gunshot residue test.