THE STATE OF SOUTH CAROLINA 

In The Supreme Court 

The State, Respondent, 

v. 

Tappia Deangelo Green, Petitioner. 

Appellate Case No. 2021-000313 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS 

Appeal from Charleston County 

Roger L. Couch, Circuit Court Judge 

Opinion No. 28165 

Heard October 25, 2022 – Filed June 28, 2023 

AFFIRMED AS MODIFIED AND VACATED IN 

PART 

Appellate Defender Joanna Katherine Delany, of 

Columbia, for Petitioner. 

Attorney General Alan McCrory Wilson and Senior 

Assistant Attorney General Mark Reynolds Farthing, 

both of Columbia, and Solicitor Scarlett Anne Wilson, of 

Charleston, all for Respondent. 
JUSTICE KITTREDGE: We granted a writ of certiorari to the court of appeals' 

decision in State v. Green, 432 S.C. 572, 854 S.E.2d 626 (Ct. App. 2021). The court 

of appeals affirmed Petitioner Tappia Green's convictions for kidnapping, armed 

robbery, and possession of a weapon during the commission of a violent crime. We 

affirm as modified. 

At trial, Green testified on his own behalf and offered an exculpatory story that he 

had not previously told to the police or the solicitor. During cross-examination, the 

State questioned Green as to why he failed to tell law enforcement his side of the 

story at the time of his arrest, implying his exculpatory story was a recent fabrication. 

Counsel for Green objected to the State questioning Green about his post-arrest 

silence. The trial court sustained the objection. 

Subsequently, Green moved for a mistrial, arguing the State improperly commented 

on his post-arrest silence in violation of Doyle v. Ohio, 426 U.S. 610, 611 (1976) 

(holding the Due Process Clause of the Fourteenth Amendment to the United States 

Constitution forbids the government from impeaching a defendant with his postarrest silence if the defendant was given his Miranda1 warnings). In evaluating the 

mistrial motion, the trial court revisited its evidentiary ruling in favor of Green, as 

the focus became whether Green was given his Miranda warnings. 

During an in camera hearing, the parties offered competing evidence as to whether 

Green was given his Miranda warnings, with law enforcement officers claiming they 

did not Mirandize Green at the time of his arrest and Green asserting they did. The 

trial court found the State's evidence more credible, determining Green was not 

Mirandized and, therefore, a Doyle violation did not occur. As a result, the trial 

court denied Green's motion for a mistrial. Nevertheless, the State did not further 

pursue Green's post-arrest silence. The court of appeals affirmed, focusing on the 

novel question of whether the State or the defendant has the burden of proof in a 

Doyle hearing and, ultimately, concluding the defendant has the burden to prove 

Miranda warnings were given and a Doyle violation occurred. 

Because there is evidence to support the trial court's finding that Green did not 

receive Miranda warnings, we affirm the trial court's denial of Green's motion for a 

mistrial based on the standard of review. We take the opportunity, however, to 

clarify the proper procedure when a potential Doyle violation arises and vacate the 

1 See Miranda v. Arizona, 384 U.S. 436 (1966). 
portion of the court of appeals' opinion dealing with this issue. We affirm the court 

of appeals as modified. 

I. 

Green was tried for his role in the alleged kidnapping and armed robbery of the 

victim, Keith Lee. According to the State's presentation of evidence at trial, Green 

and two other individuals kidnapped Lee by forcing him into the backseat of a car at 

gunpoint, drove Lee to his place of employment to collect his paycheck, and then 

stole Lee's wages before releasing him from the car. 

The defense presented a vastly different account of the incident. Green testified and, 

for the first time, offered an exculpatory story. According to Green, Lee owed the 

men money for drugs he had purchased and, therefore, voluntarily accompanied 

them to cash his check and repay the money. Green suggested Lee fabricated the 

criminal accusations so Lee could avoid telling his girlfriend that he spent his entire 

paycheck on drugs. 

On cross-examination, the solicitor challenged Green's version of events, asking 

Green why he failed to offer this exculpatory story during the almost two-year period 

between his arrest and trial. Defense counsel objected and argued the State 

improperly commented on Green's exercise of his Fifth Amendment right to remain 

silent. The trial court sustained the objection, and the State moved on to a new line 

of questioning. During a recess, the trial court expressed its concern that the State's 

line of questioning violated Doyle. The trial court noted it discussed the matter in 

chambers with trial counsel, during which the solicitor advised there was no record 

of Green receiving Miranda warnings at the time of his arrest. Defense counsel 

protested, insisting Green was prepared to testify that he was Mirandized and 

requesting to proffer the testimony. 

Because the giving of Miranda warnings is a prerequisite of a Doyle violation, the 

trial court allowed the parties to proffer testimony on the matter. Green testified he 

was apprehended after a high-speed chase and that a male law enforcement officer 

handcuffed him and advised him of numerous pending warrants. Green claimed the 

same officer advised him of the Miranda warnings before putting him in a police car 

for transport to the county jail. Green did not know the name of the officer that 

Mirandized him but described the officer as an approximately thirty-year-old, white 

male dressed in green with a bald head and stocky build. 

The State thereafter proffered the testimony of two law enforcement officers 

involved in Green's arrest: Officer Danielle Smoak and Officer Brandon VanAusdal. 
Officer Smoak testified that on the date of the arrest, she took Green into custody, 

put him in handcuffs, and placed him in the back of her patrol car to wait for the 

transport unit to arrive. Officer Smoak denied reading Green his Miranda rights and 

stated no one in her presence Mirandized Green or attempted to interrogate him. 

According to Officer Smoak, the only other officers that had any contact with Green 

were the K-9 officer and the transport officer, the latter of whom would not have 

given Miranda warnings based on protocol. When asked if any person present at 

the scene fit the description of a bald, stocky man clad in all green, Officer Smoak 

testified that K-9 Officer Brandon VanAusdal was the only individual who matched 

the description. Officer VanAusdal confirmed he was present when Officer Smoak 

took Green into custody and specifically denied giving Miranda warnings to Green. 

Officer VanAusdal also testified he did not hear anyone else read Green his Miranda 

rights. 

Following the proffer, defense counsel moved for a mistrial, arguing the State failed 

to prove that Green was not given Miranda warnings. Defense counsel also noted 

the incident report from the night of Green's arrest indicated the event was recorded 

on body cameras. The trial court stated it would watch the body camera footage if 

the footage was immediately available, but it was not, as neither party produced the 

footage for review. The hearing was concluded, and the trial court found Green was 

not Mirandized at the time of his arrest. 

In support of its ruling, the trial court noted Officers Smoak and VanAusdal were 

present at the time Green claimed to have been advised of his Miranda rights, and 

both officers testified they did not administer the rights. The trial court further noted 

the incident report completed at the time of Green's arrest contained a box to be 

checked if Miranda rights were given and required the "advisement of rights form" 

be attached to the report, but the box was not checked and no form was attached. In 

light of the evidence and testimony before it, the trial court found the solicitor's 

questioning did not violate Doyle and denied Green's motion for a mistrial.

2 

Ultimately, the jury found Green guilty as charged, and the trial court sentenced him 

to concurrent prison terms of fifteen years each for armed robbery and kidnapping, 

2 Despite the trial court's ruling that the State's questioning was allowed, the State 

did not elicit further testimony concerning Green's post-arrest silence, and the last 

the jury heard on the matter was the trial court sustaining Green's objection to the 

line of questioning. 
as well as five years concurrent time for possession of a weapon during the 

commission of a violent crime. 

The court of appeals affirmed Green's convictions. In upholding the trial court's 

determination that Green did not receive Miranda warnings, the court of appeals 

considered sua sponte whether the burden was on the defendant to show a Doyle 

violation occurred—the defendant was Mirandized—or whether the burden was on 

the State to prove Doyle was inapplicable—the defendant was not Mirandized. The 

court of appeals concluded the burden was upon the defendant to show he received 

Miranda warnings and thus prove a Doyle violation occurred. We granted Green's 

petition for a writ of certiorari to review the court of appeals' decision. 

II. 

In criminal cases, this Court sits to review errors of law only and is "bound by the 

trial court's factual findings unless they are clearly erroneous." State v. Wilson, 345 

S.C. 1, 5–6, 545 S.E.2d 827, 829 (2001). A trial court's ruling on a motion for a 

mistrial lies within its sound discretion. State v. Harris, 340 S.C. 59, 63, 530 S.E.2d 

626, 627–28 (2000). Likewise, the proper scope of cross-examination is left to the 

sound discretion of the trial court. State v. Mitchell, 330 S.C. 189, 196, 498 S.E.2d 

642, 645 (1998). A trial court's ruling on such matters will not be disturbed on appeal 

unless the trial court has not acted within its discretion, meaning the conclusions of 

the trail court either lack evidentiary support or are controlled by an error of law. 

See State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006). 

III. 

In Doyle, the United States Supreme Court held "the use for impeachment purposes 

of [a defendant's] silence, at the time of arrest and after receiving Miranda warnings, 

violated the Due Process Clause of the Fourteenth Amendment." 426 U.S. at 619. 

The Court reasoned that because Miranda warnings convey an implicit assurance 

that silence will carry no penalty, "it would be fundamentally unfair and a 

deprivation of due process to allow the arrested person's silence to be used to 

impeach an explanation subsequently offered at trial." Id. at 618. 

Subsequently, in Fletcher v. Weir, the Supreme Court considered whether Doyle 

should be extended to a situation where the defendant was arrested but did not 

receive any Miranda warnings. 455 U.S. 603, 605–06 (1982) (per curiam). There, 

the Court declined to broaden Doyle and held, "In the absence of the sort of 

affirmative assurances embodied in the Miranda warnings, we do not believe that it 

violates due process of law for a State to permit cross-examination as to post[-]arrest 
silence when a defendant chooses to take the stand." Id. at 607. The Court made 

clear that "[a] State is entitled, in such situations, to leave to the judge and jury under 

its own rules of evidence the resolution of the extent to which post[-]arrest silence 

may be deemed to impeach a criminal defendant's own testimony." Id. 

Later, in Brecht v. Abrahamson, the Supreme Court further explained, "The 'implicit 

assurance' upon which we have relied in our Doyle line of cases is the right-toremain-silent component of Miranda." 507 U.S. 619, 628 (1993). Therefore, "the 

Constitution does not prohibit the use for impeachment purposes of a defendant's 

silence prior to arrest or after arrest if no Miranda warnings are given." Id. (first 

citing Jenkins v. Anderson, 447 U.S. 231, 239 (1980); and then citing Fletcher, 455 

U.S. at 606–07)). "Such silence is probative and does not rest on any implied 

assurance by law enforcement authorities that it will carry no penalty." Id. 

South Carolina courts have consistently applied Doyle to hold that "the Due Process 

Clause prohibits the government from commenting on an accused's post-Miranda 

silence." State v. Simmons, 360 S.C. 33, 39, 599 S.E.2d 448, 450 (2004); accord, 

e.g., State v. McIntosh, 358 S.C. 432, 442–43, 595 S.E.2d 484, 489–90 (2004); 

Edmond v. State, 341 S.C. 340, 345, 534 S.E.2d 682, 685 (2000); State v. Smith, 290 

S.C. 393, 394–95, 350 S.E.2d 923, 924 (1986). This Court analyzed the Doyle line 

of cases and further clarified: "The State may point out a defendant's silence prior to 

arrest, or his silence after arrest but prior to the giving of the Miranda warnings, in 

order to impeach the defendant's testimony at trial." McIntosh, 358 S.C. at 443, 595 

S.E.2d at 490. Thus, in the post-arrest context, the giving of Miranda warnings is a 

prerequisite of a Doyle violation. See Greer v. Miller, 483 U.S. 756, 763 (1987) 

(stating where there is no question the defendant received Miranda warnings, "this 

prerequisite of a Doyle violation was met"); see also Rhode Island v. Innis, 446 U.S. 

291, 300 (1980) (explaining that Miranda warnings "are required not where a 

suspect is simply taken into custody, but rather where a suspect in custody is 

subjected to interrogation"). 

IV. 

Green argues the court of appeals erred in affirming the denial of his mistrial motion 

by improperly holding that the accused has the burden of proving he received 

Miranda warnings to establish a Doyle violation. According to Green, the State— 

as the proponent of the impeachment evidence—should have the burden of showing 

Green did not receive Miranda warnings. Conversely, the State posits that Green— 

as the movant seeking a mistrial—should bear the burden of establishing a Doyle 

violation occurred before he could be entitled to the requested relief. Based on our 

state's rules of evidence, we agree with Green that the court of appeals erred in 
placing the burden on the defendant, and we thus vacate that portion of the court of 

appeals' opinion. 

Nonetheless, even when the burden is placed on the State, there is sufficient evidence 

to support the trial court's finding that Green was not read his Miranda rights, and 

we therefore affirm the denial of Green's motion for a mistrial. 

A. 

In impeaching an accused with his post-arrest silence, the State seeks to discredit a 

defendant's trial testimony as a fabrication. See Doyle, 426 U.S. at 616. In such a 

case, the prosecution essentially seeks to use the defendant's silence as a prior 

inconsistent statement. See id. at 622 (Stevens, J. dissenting) ("[T]heir silence is 

tantamount to a prior inconsistent statement."); cf. Brecht, 507 U.S. at 628 (finding 

it proper and probative in a murder trial for the State to impeach the defendant's 

testimony by pointing out that his silence after the shooting was inconsistent with 

his claim at trial that the shooting was an accident). 

The relevance of a defendant's post-arrest silence in the absence of Miranda 

warnings "is a question of state evidentiary law." Jenkins, 447 U.S. at 239 n.5. 

Under the South Carolina Rules of Evidence, evidence is relevant if it has "any 

tendency to make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it would be without 

the evidence." Rule 401, SCRE. However, "[w]hen the relevancy of evidence 

depends upon the fulfillment of a condition of fact, the court shall admit it upon, or 

subject to, the introduction of evidence sufficient to support a finding of the 

fulfillment of the condition." Rule 104(b), SCRE. Implicit in Rule 104(b) is an 

understanding that the proponent of the evidence has the burden of proving the 

existence of such a preliminary fact. 

The relevancy of a defendant's post-arrest silence is conditioned upon whether the 

defendant was advised of his Miranda rights. Not only does the use of a defendant's 

post-Miranda silence for impeachment purposes run afoul of due process, but 

evidence of a defendant's silence in such situations is also "likely to be ambiguous 

and thus of dubious probative value." Doyle, 426 U.S. at 617 n.8 (discussing United 

States v. Hale, 422 U.S. 171 (1975)). After all, "[s]ilence in the wake of these 

warnings may be nothing more than the arrestee's exercise of these Miranda rights." 

Id. at 617. 
Conversely, a defendant's silence prior to the giving of Miranda warnings "is 

probative and does not rest on any implied assurance by law enforcement authorities 

that it will carry no penalty." McIntosh, 358 S.C. at 443, 595 S.E.2d at 490 (quoting 

Brecht, 507 U.S. at 628). Thus, the absence of Miranda warnings is a condition of 

fact upon which the relevancy of a defendant's post-arrest silence depends. See Rule 

104(b), SCRE. In order for the State to use a defendant's silence for impeachment 

purposes, it must introduce evidence sufficient to support a finding of the existence 

of the preliminary fact upon which the relevancy of the silence depends—that 

preliminary fact being the absence of Miranda warnings. 

The United States Court of Appeals for the Third Circuit has adopted the same 

approach under the Federal Rules of Evidence: 

The relevance of post-arrest silence depends entirely upon its 

impeaching character as an arguably prior inconsistent assertion by the 

action of remaining silent. Doyle v. Ohio holds that when the action of 

remaining silent occurs after the witness has received Miranda 

warnings, that action is not relevant as a prior inconsistent assertion. 

Thus, the absence of Miranda warnings is a typical instance of a 

condition of fact on the fulfillment of which relevancy of other 

evidence, in this case post-arrest silence, depends. [Fed. R. Evid.] 

104(b). Because it is the prosecutor who is attempting to establish the 

relevancy, for impeachment or any other purpose, of post-arrest silence, 

the government bears the burden of introducing evidence sufficient to 

support a finding of the fulfillment of the condition. Rule 104(b) 

provides that when the relevancy of evidence depends upon the 

fulfillment of such a condition of fact, "the court shall admit it upon, or 

subject to, the introduction of evidence sufficient to support a finding 

of the fulfillment of the condition." [Id.] The Rule plainly 

contemplates that the moving party bears the burden of introducing 

such supporting evidence. 

United States v. Cummiskey, 728 F.2d 200, 205–06 (3rd Cir. 1984); see also United 

States v. Foster, 995 F.2d 882, 883 (9th Cir. 1993) (agreeing with the Third Circuit's 

reasoning and holding the government has the burden of demonstrating that Miranda 

warnings were not given). 

We find the reasoning in Cummiskey persuasive and fully consistent with Rule 

104(b) of the South Carolina Rules of Evidence. We therefore hold that when a 

defendant objects to the State's use of post-arrest silence for impeachment purposes 

and asserts that Miranda warnings were given, the burden is on the State to prove 
by a preponderance of the evidence that the defendant did not receive Miranda 

warnings prior to his silence. 

B. 

In this case, the trial court conducted a lengthy in camera hearing on the issue of 

Green's Miranda warnings. After considering the proffered testimony, the trial court 

issued its ruling, cited evidence to support the ruling—namely, the incident report 

and various law enforcement officers' testimony—and ultimately made a factual 

finding. See Mitchell, 330 S.C. at 196, 498 S.E.2d at 645; Harris, 340 S.C. at 63, 

530 S.E.2d at 627. The record is replete with evidence to support the trial court's 

finding that Green did not receive Miranda warnings at the time of his arrest.3 

We therefore affirm the court of appeals' holding that the trial court correctly found 

the State's questioning did not violate Doyle. Necessarily then, we affirm the trial 

court's decision to deny Green's motion for a mistrial. 

V. 

While the procedure employed by the trial court in this case was thoughtful and 

appropriate, we provide additional guidance for the Bench and Bar in hopes of 

ensuring any future Doyle challenge is as well-handled as it was here. 

We begin by recognizing the fluid and unpredictable nature of trials, especially 

noting the procedurally unique manner in which a Doyle violation arises. Unlike 

most constitutional issues which can be handled pretrial (e.g., Neil v. Biggers, 

4 

Jackson v. Denno, 

5 and Fourth Amendment suppression motions), a Doyle issue may 

arise without warning during trial. After all, it is not until the defendant takes the 

stand and gives testimony warranting impeachment by post-arrest silence that a 

potential Doyle issue arises. Such an issue generally cannot be handled pretrial, as 

the defendant retains the right to elect whether to testify until the defense rests its 

3 Notably, the trial court implicitly placed the burden on the State, finding the State 

proved beyond a reasonable doubt that Green was not Mirandized—a far higher 

burden than the preponderance standard adopted today. Moreover, even though the 

court of appeals placed the burden on the wrong party, its analysis in effect cited all 

of the evidence in support of the trial court's ruling. 

4 409 U.S. 188 (1972). 

5 378 U.S. 368 (1964). 
presentation of evidence. 

However, because such evidence has a significant potential for prejudice, the subject 

of commenting on a defendant's post-arrest silence is fraught with peril. See 

Edmond, 341 S.C. at 347 n.3, 534 S.E.2d at 686 n.3 ("[T]he proper practice in a 

typical case . . . is for the prosecutor to avoid any mention of the defendant's exercise 

of constitutional rights."); State v. Holiday, 333 S.C. 332, 340, 509 S.E.2d 280, 284 

(Ct. App. 1998) (noting that our appellate courts have repeatedly warned solicitors 

against Doyle violations and collecting cases to that effect). Here, the State at oral 

argument, to its credit, recognized the significant risk for prejudice and 

acknowledged the better practice is to have a hearing outside of the jury's presence 

before attempting to impeach the defendant with this type of evidence. 

Accordingly, when a defendant's testimony is such that the solicitor wishes to 

impeach the defendant using his post-arrest silence, great care and caution must be 

undertaken. The preferred course of action is for the State to alert the trial court 

when the issue arises and, outside the presence of the jury, inform the court of its 

intent to impeach the defendant with his post-arrest silence. At that point, the 

defendant may either (1) concede Miranda warnings were not given, and the State 

can proceed to cross-examine the defendant without violating Doyle; or (2) object 

and invoke the Doyle doctrine. 

If the defendant objects, the defendant, through counsel or individually, must 

affirmatively represent to the court that Miranda warnings were given. Formal 

testimony is not necessary to satisfy this burden of production. Once the defendant 

has made this representation, the trial court should conduct a brief hearing outside 

of the jury's presence during which the State has the burden of proving by a 

preponderance of the evidence that Miranda warnings were not given. While the 

burden of proof remains on the State,6 the defendant shall be entitled to present 

evidence.

7 

6 It is incumbent on the State and the defendant to act in good faith. A representation 

by the defendant or his counsel must be made in a reasonable, good faith belief that 

Miranda warnings were given. Conversely, the solicitor must have a reasonable, 

good faith belief that Miranda warnings were not given. 

7 We see the close of the State's case-in-chief as an opportunity to address the Doyle 

issue. Trial judges typically advise a defendant of his right to testify or not to testify 

after the State has concluded its case-in-chief. At this juncture, judges also often 

provide an in limine ruling of whether any prior convictions of the accused will be 
VI. 

Care must be taken when the State seeks to impeach a defendant with his post-arrest 

silence. As the proponent of such impeachment evidence, the State bears the burden 

of proving the evidence is admissible and will not violate the defendant's right to due 

process as articulated in Doyle and its progeny. See also Rule 104(b), SCRE. In its 

role as the gatekeeper of admissibility, the trial court must evaluate the evidence and 

determine whether the State has shown by a preponderance of the evidence that the 

defendant was not given his Miranda warnings. Here, the trial court properly 

fulfilled its role and issued a detailed ruling supported by a number of facts in 

evidence. We therefore hold the trial court did not commit error in denying Green's 

motion for a mistrial. The decision of the court of appeals is 

AFFIRMED AS MODIFIED AND VACATED IN PART. 

BEATTY, C.J., FEW, JAMES, JJ., and Acting Justice Kaye G. Hearn, concur. 

admissible pursuant to Rule 609, SCRE. This may be an appropriate time for the 

parties to alert the trial court of a possible Doyle issue, thereby allowing an 

opportunity to vet and resolve a potential Doyle issue.