Opinion
No. 205, 1998.
January 29, 1999.
Court Below: Superior Court of the State of Delaware in and for New Castle County, Cr.A. Nos. IN96-05-0828, 0829 0831 and IN96-06-1695.
AFFIRMED.
Unpublished Opinion is below.
VICTOR TALMO, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 205, 1998. In the Supreme Court of the State of Delaware. Submitted: January 26, 1999. Decided: January 29, 1999.
Court Below: Superior Court of the State of Delaware in and for New Castle County, Cr.A. Nos. IN96-05-0828, 0829 0831 and IN96-06-1695.
Before VEASEY, Chief Justice, WALSH, and HOLLAND, Justices.
ORDER
This 29th day of January 1999, upon consideration of the briefs of the parties it appears to the Court as follows:
(1) The appellant, Victor Talmo ("Talmo"), appeals from his conviction in the Superior Court of two charges of Theft, and one charge each of Burglary Second Degree and Forgery Second Degree. In this appeal he alleges a single claim of error: that the State infringed upon his right against self-incrimination by cross-examining him concerning omissions in a statement given by Talmo to police after his arrest. When this issue was raised at trial the court denied a mistrial but gave a curative instruction.
(2) Talmo gave a statement to a police detective after his arrest in which he declined to reveal the identity of a person who allegedly committed the burglaries charged against Talmo. During his testimony at trial, however, Talmo identified the perpetrator as "Bill Echols." In cross-examination, Talmo was asked why he had not disclosed the identity of "Bill Echols" to the police in his pretrial statement.
(3) Although there was no contemporaneous defense objection to the cross-examination, Talmo moved for a mistrial following his testimony on the ground that the cross-examination infringed upon his right "to remain silent." The trial judge denied the motion for mistrial but gave the jury a curative instruction which included the following language:
The decision by the defendant to not make any additional comments between the date of the interview with the detective that you just heard about, and his decision to testify today should not to used by you as evidence of the defendant's guilt.
We note that Talmo's counsel indicated that such language was acceptable.
(4) Talmo's failure to make a contemporaneous objection to the cross-examination precludes determination of this issue for appeal. Saunders v. State, Del. Supr., 602 A.2d 623, 625 (1984). Even if the motion for mistrial has been properly preserved as an error, however, we think it equally without merit. A defendant's right to silence does not extend to cross-examination concerning prior inconsistent statements where those statements are otherwise admissible. Anderson v. Charles, 447 U.S. 404, 408 (1980). In any event, the curative instruction given by the trial court eliminated any prejudice to the defendant by reason of his tardy objection. See Zimmerman v. State, Del. Supr., 628 A.2d 62, 66 (1993). We find no merit to the claim of error and affirm the judgment of conviction.
NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.
BY THE COURT:
/s/ Joseph T. Walsh, Justice