An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1602


Filed: 19 August 2003


         v.                        Onslow County
                                No. 00 CRS 59928

    Appeal by defendant from judgment entered 3 April 2002 by Judge Russell J. Lanier, Jr. in Superior Court, Onslow County. Heard in the Court of Appeals 4 August 2003.

    Attorney General Roy Cooper, by Assistant Attorney General John P. Barkley, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Beth S. Posner, for defendant-appellant.

    McGEE, Judge.

    Defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury. The trial court sentenced him within the presumptive range to 100 to 129 months' imprisonment.
    The State's evidence tended to show that defendant shot William N. Gantt in the chest and abdomen with a .25 caliber handgun in front of Gantt's apartment in Jacksonville, North Carolina around 4:00 a.m. on 24 September 2000. After having emergency surgery, Gantt told police that defendant had shot him. Testifying at trial, Gantt detailed the events leading up to the shooting, including defendant's warning to Gantt on 22 September2000 that he was "a dead man walking."
    Defendant argues the trial court erroneously allowed the State to introduce evidence that violated defendant's right to remain silent and his right to counsel under the fifth and fourteenth amendments to the U.S. Constitution and article I § 23 of the N.C. Constitution. The transcript reflects that defendant raised two generalized objections during the testimony of Jacksonville Police Officer John Fifield, who obtained a brief oral statement from defendant after defendant waived his Miranda rights. Defendant's counsel first objected during Officer Fifield's description of defendant's failure to provide details about a woman defendant identified as a possible alibi witness:
        Q. What type of statement did the defendant make?

        A. After I read him his rights, he made a short oral statement, but declined to give me a written statement.

        . . .

        He denied shooting Mr. Gantt, said he was in the area with a female named Tameka. Would not provide a last name or address or phone number. I explained to him "if I was in your position and I was facing the charges you were, I would probably have --

        [DEFENSE COUNSEL]: Objection.

        THE COURT: Overruled. Defendant was present.

    " Use of a defendant's exercise of his right to silence after he has been arrested . . . is a violation of the due process clause of the Fourteenth Amendment. . . . Courts have also condemned reference by the prosecution to an accused's exercise of his rightto counsel." See State v. Freeland, 316 N.C. 13, 18-19, 340 S.E.2d 35, 38 (1986). However, to the extent Officer Fifield's testimony alluded to defendant's exercise of his right to remain silent, defendant waived any objection by allowing the State to introduce equivalent evidence without objection. See State v. White, 355 N.C. 696, 707, 565 S.E.2d 55, 62 (2002), cert. denied, __ U.S. __, 154 L. Ed. 2d 900 (2003). Specifically, defendant failed to object to Officer Fifield's testimony that: (1) defendant declined to give a written statement; and (2) Officer Fifield terminated the interview when defendant asked to speak to a lawyer. "'Where evidence is admitted without objection, the benefit of a prior objection to the same or similar evidence is lost, and the defendant is deemed to have waived his right to assign as error the prior admission of the evidence.'" State v. Jolly, 332 N.C. 351, 361, 420 S.E.2d 661, 667 (1992) (quoting State v. Wilson, 313 N.C. 516, 532, 330 S.E.2d 450, 461 (1985)).
    Defendant further waived his objection by eliciting similar testimony from Officer Fifield during cross-examination:
        Q. Now, would you read that statement to the jury, please?

        A. Yes, ma'am. [Defendant] denied shooting Gantt. Said he was with a female named Tameka. Would not provide a last name or address or phone number. When pressed said he wanted a lawyer.

        Q. Okay. So that's the statement that you wrote on that day, is that correct?

        A. Ma'am, [it is] not a statement. [It is] a summary of his statement.

        Q. And he denied shooting anybody.
        A. Yes, ma'am.

        Q. And said he wanted a lawyer, said he was with a girl named Tameka. He wanted a lawyer.

        A. Yes, ma'am.
In that defendant did not seek to discredit this portion of Officer Fifield's testimony, its introduction on cross-examination forecloses defendant's appeal on this issue. See State v. Alford, 339 N.C. 562, 570, 453 S.E.2d 512, 516 (1995) (citing State v. Adams, 331 N.C. 317, 328, 416 S.E.2d 380, 387 (1992); State v. Van Landingham, 283 N.C. 589, 603, 197 S.E.2d 539, 548 (1973)).
    Defendant assigns plain error in the record on appeal "[t]o the extent that this error is not otherwise preserved[.]" However, his brief to this Court makes no reference to the plain error standard and contains no argument in support thereof. "Accordingly, the issue of whether any alleged errors resulted in plain error pursuant to Rule 10(d) of the North Carolina Rules of Appellate Procedure is not properly before this Court." State v. Kimble, 141 N.C. App. 144, 148, 539 S.E.2d 342, 345 (2000) (citing State v. Cummings, 352 N.C. 600, 636-37, 536 S.E.2d 36, 61 (2000) ("Defendant's empty assertion of plain error, without supporting argument or analysis of prejudicial impact, does not meet the spirit or intent of the plain error rule.")).
    We note that defendant raised a second objection in response to Officer Fifield's testimony that no woman named Tameka had ever appeared to corroborate defendant's proffered alibi:
        Q. Since the defendant was arrested back on September 25th of 2000, has a Tameka ever come forward in this case to talk to you about it?
        A. No, sir.

            [DEFENSE COUNSEL]: Objection.

            THE COURT: Overruled.

        A. No, sir.
However, evidence regarding Tameka's silence or absence in no way infringed upon defendant's constitutional rights. Cf. State v. Young, 317 N.C. 396, 414-15, 346 S.E.2d 626, 637 (1986) (allowing the prosecutor to note "defendant's failure to produce witnesses to corroborate the truth of a pretrial alibi."); see also State v. Sidden, 347 N.C. 218, 228-29, 491 S.E.2d 225, 230 (1997), cert. denied, 523 U.S. 1097, 140 L. Ed. 2d 797 (1998).
    The record on appeal contains additional assignments of error not addressed in defendant's brief and they are deemed abandoned, pursuant to N.C.R. App. P. 28(b)(6).
    No error.
    Judges HUDSON and GEER concur.
    Report per Rule 30(e).

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