An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-524


Filed: 3 June 2003


         v.                        Cumberland County
                                No. 01 CRS 50696

    Appeal by defendant from judgment entered 28 November 2001 by Judge E. Lynn Johnson in Cumberland County Superior Court. Heard in the Court of Appeals 12 May 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Elizabeth J. Weese, for the State.

    RUDOLF MAHER WIDENHOUSE & FIALKO, by Andrew G. Schopler, for defendant appellant.


    Mujahid Suluki (“defendant”) appeals from his conviction of trafficking in cocaine by possession and trafficking in cocaine by transportation in an amount of 400 or more grams. For the reasons that follow, we find no error by the trial court.
    The State presented evidence at trial tending to show the following: On 11 January 2001, Investigator John Ingraldi (“Investigator Ingraldi”) and Investigator Scott Sikkink (“Investigator Sikkink”) of the Fayetteville Police Department were engaged in drug interdiction at the Greyhound Bus Station in Fayetteville. Investigator Ingraldi and Investigator Sikkink noticed defendant boarding a bus carrying a black and gray backpack. The officers then noticed defendant and Talibdin Suluki(“Talibdin”), defendant's brother, occupying seats at the rear of the bus. Investigator Ingraldi identified a black and gray backpack placed under defendant's seat. Subsequently, Investigator Ingraldi asked defendant and Talibdin if they had any luggage and both men denied having any baggage. Investigator Ingraldi retrieved the backpack from under defendant's seat and asked defendant and Talibdin if the backpack was their property. Defendant and Talibdin did not respond to Investigator Ingraldi's questioning. The officers then asked all of the passengers on the bus whether the bag belonged to any of them. Hearing no claim to possession or ownership, the officers treated the backpack as abandoned and opened the backpack. Upon opening the backpack, the officers found approximately one and one half pounds of powder cocaine, two-thirds of a pound of crack cocaine, digital scales, a cellular telephone, one airline ticket in defendant's name, one airline ticket in Talibdin's name, and defendant's birth certificate. Investigator Ingraldi searched defendant's person and found $1,031.00 in his pocket. Defendant and Talibdin were arrested.
    At trial, defendant testified that he was in the process of moving from New Jersey to Atlanta, and that he had three pieces of luggage located in the luggage compartment underneath the bus. Defendant stated that his mother gave him $1,500.00 to assist with his moving expenses to Atlanta. According to defendant, his airline ticket and birth certificate was located in his pocket and not in the seized bag. Defendant was found guilty of traffickingin cocaine by possession and trafficking in cocaine by transportation in an amount of 400 or more grams. As a result, defendant was sentenced to a minimum term of imprisonment of 175 months and a maximum term of 219 months. Defendant appeals.


    Defendant presents two issues for review, contending that the trial court erred in (1) admitting evidence that Talibdin had been prosecuted, and (2) allowing defendant to be impeached with his post-arrest silence. For the reasons set forth herein, we conclude that the trial court committed no error.
    In his first assignment of error, defendant argues that the admission of evidence showing that Talibdin was also prosecuted violated defendants's constitutional right to confront witnesses. Defendant contends that he is entitled to a new trial because the error is prejudicial. We disagree.
    Ordinarily the erroneous admission of evidence in violation of constitutional mandates is deemed prejudicial error unless it is shown to be harmless beyond a reasonable doubt. See N.C. Gen. Stat. § 15A-1443(b) (2001). However, if the defendant does not object to the admission of the evidence, even though the alleged error is of constitutional dimension, review is under the plain error standard. State v. Lemons, 352 N.C. 87, 96, 530 S.E.2d 542, 547-48 (2000), cert. denied, 531 U.S. 1091, 148 L. Ed. 2d 698 (2001). Under this standard, the appellate court must be convinced that absent the error, the jury probably would have reached a different verdict. State v. Black, 308 N.C. 736, 740-41, 303S.E.2d 804, 806-07 (1983). Therefore, the appellate court must determine whether the error caused the jury to find the defendant guilty. State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).
    Here, the record reveals that during direct examination the prosecutor and Investigator Ingraldi had the following colloquy:
        Q: So both this defendant and his - Talibdin Suluki were arrested?
        A: Yes, sir.
        Q: And Talibdin Suluki has been prosecuted?
        A: Yes, sir.

The prosecutor then moved to a different line of questioning. Both Investigator Ingraldi and Investigator Sikkink testified that they saw defendant carrying the backpack in question onto the bus, that the cocaine was in the backpack and that the backpack contained defendant's birth certificate and an airplane ticket in his name. Given the overwhelming evidence of defendant's guilt, we are unable to conclude that absent the limited inquiry regarding Talibdin's arrest and prosecution the jury would have reached a different verdict. This assignment of error is overruled.
    In his final assignment of error, defendant argues that the trial court committed plain error by permitting him to be impeached with evidence of his post-arrest silence. Defendant contends that the prosecutor improperly cross-examined him regarding his post- arrest silence. We disagree.
    A defendant's post-arrest exercise of his right to remain silent may not be used to impeach the defendant. Doyle v. Ohio,426 U.S. 610, 619, 49 L. Ed. 2d 91, 98 (1976). There is no constitutional violation, however, when a defendant's pre-arrest silence is used for impeachment purposes. Jenkins v. Anderson, 447 U.S. 231, 239, 65 L. Ed. 2d 86, 95 (1980). If the defendant chooses to testify, he is subject to impeachment when his earlier silence is inconsistent with his testimony on the stand. State v. Fair, 354 N.C. 131, 160-61, 557 S.E.2d 500, 521 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). Cross- examination into prior inconsistent statements is allowed when information disclosed at trial is not contained within the prior statement. Id. at 156, 557 S.E.2d at 519. Under North Carolina law, a prior statement is considered inconsistent if it fails to mention a material circumstance disclosed at trial that would have been natural to mention in the prior statement. State v. Lane, 301 N.C. 382, 386, 271 S.E.2d 273, 276 (1980).
    Here, assuming arguendo that the prosecutor's inquiry was improper, we do not believe plain error is shown. Defendant testified that he talked to the officers before he was arrested. He therefore subjected himself to impeachment by prior inconsistent statements in accordance with the above principles. Defendant also testified that he provided false information to the officers about his identity, thereby weakening his credibility. Moreover, the State's evidence against defendant was overwhelming. Defendant was seen by two officers carrying a bag in which a substantial quantity of cocaine was found. The bag was seized in close proximity to defendant's person. Items containing defendant's name, includinghis birth certificate, were found inside the bag. Defendant's uncorroborated and self-serving testimony is the only evidence to contradict this showing. Given the foregoing facts and circumstances, it is not probable that a different outcome would have occurred had the error not been made.
    For the reasons contained herein, we hold that the trial court did not err.
    No error.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

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