¶1concurring in the result:
¶2Contrary to the majority, I believe that the prosecutor’s questions to the officers concerning defendant’s lack of explanation did violate the defendant’s rights against self-incrimination.
¶3Our Supreme Court has been unequivocal in holding that a defendant’s in-custody silence cannot be offered into evidence either for the purpose of proving his guilt or for the purpose of impeachment. State v. Castor, 285 N.C. 286, 292, 204 S.E.2d 848, 853 (1974); State v. Williams, 288 N.C. 680, 692-93, 220 S.E.2d 558, 568 (1975). The United States Supreme Court is in accord. United States v. Hale, 422 U.S. 171, 176, 45 L. Ed. 2d 99, 104-05 (1975); Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91 (1976).
¶4In this case there can be no dispute that the defendant chose to remain silent on several occasions while he was in the presence of the police officers. There can also be no dispute that when the State presented evidence that defendant never gave an explanation, never made any response and never offered to give a statement, it offered evidence on defendant’s silence. It therefore follows that the admission of this evidence was error.
¶5I disagree with the majority that the defendant lost his right to remain silent once he spoke with the officers about the incident. There is no language in any of the cases relied on by the majority, or any that I have found, suggesting that once a defendant has some communication with the police “regarding the facts of the incident” that he is no longer entitled to exercise his right to remain silent. Indeed in the context of in-custody interrogation the courts have been unambiguous in holding that a defendant has the right to “cut off questioning” and stand silent, Miranda v. Arizona, 384 U.S. 436, 474, 16 L. Ed. 2d 694, 723 (1966), and there is no reason to provide otherwise where the silence is asserted in a non-interrogation in-custody situation. Furthermore, I do not believe that United States v. Agee, 597 F.2d 350 (3d Cir. 1979), cert. denied, Agee v. United States, 422 U.S. 944, 61 L. Ed. 2d 315 (1979), relied on by the majority, suggests a different result. The AgeeCourt simply held that the holding of Doylehad not been violated because the question asked by the prosecutor “was not a reference to Agee’s purported silence.” Agee, 597 F.2d at 354. The Court did not hold that the prosecutor examined the defendant about “statements he did not make.”
¶6*266Although the evidence relating to the defendant’s silence should not have been admitted, the error does not require a new trial because the other evidence in this record demonstrates beyond a reasonable doubt that the error was harmless. N.C.G.S. § 15A-1443(b) (1988) (burden on the State where error is constitutional in nature). The prosecutrix was unequivocal in her testimony that the defendant assaulted her and the statements the defendant did make to the officers were particularly incriminating.
¶7Because I join with the majority in its resolution of the other issues raised by the defendant, I concur with the ultimate disposition of “No error.”