STATE OF NORTH CAROLINA
v
.
Wake County
No. 99 CRS 67171
LINWOOD MARTIN
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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