A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

NO. COA01-462

NORTH CAROLINA COURT OF APPEALS

Filed: 2 April 2002

STATE OF NORTH CAROLINA

v .                         Wake County
                            No. 99 CRS 67171
LINWOOD MARTIN

    Appeal by defendant from judgment entered 24 February 2000 by Judge Henry V. Barnette, Jr., in Wake County Superior Court. Heard in the Court of Appeals 20 February 2002.

    Attorney General Roy Cooper, by Assistant Attorney General Staci Telliver Meyer, for the State.

    Ligon and Hinton, by Lemuel W. Hinton, for defendant appellant.

    TIMMONS-GOODSON, Judge.

    On 24 February 2000, a jury found Linwood Martin (“defendant”) guilty of common law robbery and of being an habitual felon based on evidence tending to show the following: On the morning of 3 August 1999, Kenneth Jefferies (“Jefferies”) encountered defendant and a second man, Thomas McNeil (“McNeil”), at a small sandwich shop located in downtown Raleigh, North Carolina. Jefferies was acquainted with defendant, and the two men spoke briefly while Jefferies ate lunch and defendant purchased several sandwiches. During the course of their conversation, Jefferies mentioned that he had cashed his disability check earlier during the morning and was on his way to pay bills. Defendant suggested that Jefferies join defendant and McNeil in their automobile. According toJefferies, defendant told him that they had to “drop these sandwiches off first and then we are going to take you to pay your bills.” Jefferies, who was confined to a wheelchair, accepted defendant's offer, and the three men left the restaurant. McNeil drove the vehicle, Jefferies sat in the front passenger-side seat, and defendant sat in the back seat next to Jefferies' wheelchair. Shortly thereafter, defendant reached forward and began rifling through Jefferies' pockets. When Jefferies demanded an explanation for his actions, defendant replied, “[I]t's a stick up.” Defendant then ordered McNeil to “hand me the gun.” Jefferies testified that, although he never saw a gun, he nevertheless was “scared” because he “had the seat belt on and [was] sitting there with no legs.” Defendant took approximately $313.00 in cash from Jefferies, whereupon McNeil stopped the vehicle near a house. Defendant ordered Jefferies to exit the vehicle and removed his wheelchair from the back seat. As defendant and McNeil drove away, Jefferies noted the vehicle license plate number. Jefferies wheeled himself to a nearby telephone and contacted law enforcement. Raleigh police officers apprehended defendant and McNeil shortly thereafter, and Jefferies identified them as the men who had taken his money.
    Defendant and McNeil were joined for trial, and the jury found both men guilty of common law robbery. The jury also found defendant to be an habitual felon. The trial court subsequently sentenced defendant to a minimum term of imprisonment of 145 months and a maximum term of imprisonment of 183 months. From hisconviction and resulting sentence, defendant appeals.
    ___________________________________________________
    Defendant presents two issues for review, contending that the trial court erred by (1) allowing the State to comment on defendant's silence while in custody; and (2) denying defendant's motion to sever his trial from that of his codefendant. For the reasons stated herein, we find no error by the trial court.
    Defendant argues that the trial court committed plain error in allowing the following testimony into evidence:
        [Prosecutor]:    Were the defendants cooperative with both you and Officer Marshburn?
        
        [Officer Gertner]:    Yes.
        
        Q:    Did you accompany either one of them on a ride downtown?
        
        A:    Yes.
        
        Q:    Which one?
        
        A:    Office -- excuse me, Mr. Martin.
        
        Q:    And how did that come about?
        
        A:    After Officer Stroud had went [sic] and got Mr. Jefferies, we -- Officer Marshburn and myself had the two defendants stand on the side of the road so Officer Stroud could do the show up. After Mr. Jefferies advised that those two were the suspects, we then placed them in handcuffs and drove them to the fourth floor of the police station.
        
        Q:    And on the way down -- down to the police station, did -- did Mr. Martin make any statements to you?
        
        A:    No, ma'am.

Defendant contends that the above-stated testimony penalized defendant for exercising his Fifth Amendment privilege to remainsilent while in custody. Defendant notes that in Miranda v. Arizona, the United States Supreme Court explained that “it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.” Miranda v. Arizona, 384 U.S. 436, 468 n.37, 16 L. Ed. 2d 694, 720 n.37 (1966). Thus, “[a]dverse comments on a defendant's failure to testify at trial are impermissible under North Carolina law, Constitution of North Carolina, Article I, Section 23, N.C.G.S. § 8-54, and under the Fifth and Fourteenth Amendments to the Constitution of the United States.” State v. Castor, 285 N.C. 286, 291, 204 S.E.2d 848, 852-53 (1974).
    Defendant concedes that he made no objections at trial to the proffered testimony by the State. Because defendant failed to object, he must now demonstrate plain error by the trial court in order to obtain relief from this Court. See N.C.R. App. P. 10 (c)(4) (2002). The plain error rule applies only in the exceptional case where, upon reviewing the entire record, it is clear that the error had a probable impact on the jury's finding that the defendant was guilty. See State v. Black, 308 N.C. 736, 740-41, 303 S.E.2d 804, 806-07 (1983). We conclude that defendant has failed to demonstrate plain error.
    In State v. Alexander, 337 N.C. 182, 446 S.E.2d 83 (1994), the defendant assigned error to the following testimony elicited by the State at trial:
        [Prosecutor]:    Who did you attempt to speak to?
        
        [Officer Hunt]:    I attempted to speak toMr. Cunningham first.
        
        . . . .
        
        Q:    To your knowledge, had he been advised of his rights prior to that time?
        
        A:    He had been, sir.
        
        . . . .
        
        Q:    And did Mr. Cunningham speak to you or talk to you at all?
        
        A:    No sir. If it was, it was to indicate that he wished not to talk to me.

Id. at 194, 446 S.E.2d at 90. The defendant argued that admission of such testimony was an impermissible violation of his right to remain silent, and as such, constituted plain error by the trial court. In rejecting the defendant's argument, our Supreme Court stated that the “comments [of the witness] were relatively benign” and “that the prosecutor made no attempt to emphasize the fact that defendants did not speak with [law enforcement] after having been arrested.” Id. at 196, 446 S.E.2d at 91. Similarly, in State v. Elmore, 337 N.C. 789, 448 S.E.2d 501 (1994), the defendant objected to the following testimony:
        PROSECUTOR:    What happened - when did you next see the Defendant?
        
        AGENT GREEN:    The next morning we picked him up from the Douglas County Correctional Facility, at which time we took him to our office, processed him, which includes fingerprinting and photographing him.
            On our transportation to the office, I again advised him of his Constitutional rights, asked him if he was willing to make a statement, at which time he said he wanted to consult with an attorney before talking about the arresting matter.

Id. at 792, 448 S.E.2d at 502 (alteration in original). The Court in Elmore concluded that, assuming arguendo that such evidence was improperly admitted, “any violation of the defendant's rights was de minimus.” Id. at 792, 448 S.E.2d at 503. Because there had been only “the single brief mention by one witness” with no further reference or emphasis by the State, the objectionable evidence constituted harmless error. Id.
    As was the case in Alexander and Elmore, we conclude that the admission of the challenged testimony in the instant case was harmless error. Even assuming that such evidence was improperly admitted, the testimony consisted of a “single brief mention by one witness,” unlikely to be interpreted and accorded special weight by the average juror. See State v. Taylor, 289 N.C. 223, 228, 221 S.E.2d 359, 363 (1976). Moreover, the State made no attempt to emphasize the fact that defendant did not speak with law enforcement officers. We also note that there was substantial evidence of defendant's guilt before the jury. As such, we determine that the admittance of such evidence did not constitute “fundamental error” resulting in a “miscarriage of justice.” We therefore overrule defendant's first assignment of error.
    By his second assignment of error, defendant asserts that the trial court erred in denying defendant's motion to sever his trial from the trial of his codefendant, McNeil. Defendant argues that in joining defendant's trial with the trial of McNeil, the State was allowed to introduce evidence that would have otherwise been inadmissible against defendant. Specifically, defendant directsthis Court's attention to the following testimony concerning McNeil's statement to law enforcement officers:
        [Prosecutor]:    After you did that, did you question the defendant Mr. McNeil?
        
        [Detective Howard]:    Yes, I did.
        
        Q:    What did you ask him and what did he tell you?
        
        A:    I asked him what -- if he could recall what happened or what had occurred during the day that day and what had happened.
        
        Q:    What did he tell you?
        
        A:    He started out by saying, I picked up my girl at work this morning at seven o'clock and we went back to her house. I was there all morning. Fly and this guy name [sic] came back, came back with the car. I didn't know they had the car. We hung around for about ten minutes. I went out to the car and Fly asked my girl if I -- typographical error here, someone him to the store. I said that I was going to my cousin's house and we were going to the -- we got in the car. We were going to the cousin's house when the cops stopped us. Next thing I know they were talking about a robbery. I don't know nothing [sic] about a robbery.

Defendant argues that his codefendant's statement to law enforcement officers implicated defendant's involvement in the robbery. Defendant contends that, by process of elimination, a jury could determine that McNeil's reference to the individual known as “Fly,” was in fact a reference to defendant, and that defendant was present in the vehicle when law enforcement officers stopped them. Thus, defendant argues, McNeil's statement was incriminating and inadmissible against defendant, and formed the basis for his motion to sever. Defendant's argument is withoutmerit.
    Under section 15A-927(c) of our General Statutes,
        (1) When a defendant objects to joinder of charges against two or more defendants for trial because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court must require the prosecutor to select one of the following courses:
        
            a.    A joint trial at which the statement is not admitted into evidence; or
        
            b.    A joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been effectively deleted so that the statement will not prejudice him; or
        
            c.    A separate trial of the objecting defendant.

N.C. Gen. Stat. § 15A-927(c)(1) (1999). “Absent a showing that a defendant has been deprived of a fair trial by joinder, the trial court's discretionary ruling on the question will not be disturbed.” State v. Green, 321 N.C. 594, 600, 365 S.E.2d 587, 591, cert. denied, 488 U.S. 900, 102 L. Ed. 2d 235 (1988). Thus, a defendant seeking to overturn the trial court's ruling must demonstrate that the joinder deprived him of a fair trial. See State v. Porter, 303 N.C. 680, 688, 281 S.E.2d 377, 383 (1981). In the case at bar, defendant has failed to make such a showing on several grounds.
    First, we do not agree with defendant that McNeil's statement to law enforcement officers implicated defendant's involvement in any criminal activity. See State v. Jones, 280 N.C. 322, 340, 185 S.E.2d 858, 869 (1972) (noting that incrimination is a necessaryelement of a defendant's claim of incrimination without confrontation). Second, McNeil's statement did not refer to defendant by name or otherwise clearly identify him to the jury. See State v. Hayes, 314 N.C. 460, 469, 334 S.E.2d 741, 746 (1985) (stating that the introduction of a codefendant's statement that does not name the defendant may nevertheless violate defendant's rights if “the statement clearly implicate[s]” the defendant).     Moreover, we conclude that even if the introduction of McNeil's statement was error, it was harmless error in light of the substantial evidence offered against defendant. See State v. Littlejohn, 340 N.C. 750, 756, 459 S.E.2d 629, 632 (1995). We therefore overrule defendant's second assignment of error.
    In conclusion, we hold defendant received a fair trial, free from prejudicial error.
    No error.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).
    

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