STATE OF NORTH CAROLINA
v. Onslow County
No. 00 CRS 59928
RICHARD KENTA McGOWAN
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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