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.
TIMMONS-GOODSON, Judge.
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).
*** Converted from WordPerfect ***