Appeal by defendant from judgment entered 1 August 2002 by
Judge Dwight L. Cranford in Halifax County Superior Court. Heard
in the Court of Appeals 13 October 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III, and Assistant Attorney General
Patricia A. Duffy, for the State.
Joseph E. Zeszotarski, Jr., for defendant-appellant.
EAGLES, Chief Judge.
Defendant appeals from judgment entered upon a jury's verdict
convicting him of involuntary manslaughter and driving while his
license was revoked.
The State's evidence tends to establish the following: Shortly
after 12:00 a.m. on 9 September 2001, defendant was driving east on
West Tenth Street in Roanoke Rapids, North Carolina. After passing
another vehicle at a high rate of speed, defendant lost control of
the car he was driving and struck a utility pole. One of the
passengers in defendant's car, Damien Pullen, was ejected from the
car upon impact and died as a result of his injuries. Although the
speed limit on Tenth Street is thirty-five miles per hour,defendant was traveling between seventy and eighty-three miles per
hour just before impact. A sample of defendant's blood, taken at
the hospital at 2:10 a.m., revealed that defendant's blood alcohol
concentration was 0.15 percent.
I.
Defendant first contends that he has been prejudiced by an
incomplete trial transcript. Specifically, defendant contends that
the absence of a complete trial transcript has deprived him of the
ability to obtain meaningful appellate review, in violation of his
constitutional rights to due process, equal protection and
effective assistance of appellate counsel. We disagree.
During the course of deliberations, the jury submitted two
notes to the trial judge. The first note is not at issue; rather,
this assignment of error concerns the absence of a complete
transcript regarding the manner in which the trial court handled
the second note. In the second note, the jury indicated that its
vote was divided equally, six to six, “no changing.” Although a
copy of the handwritten note has been incorporated into the record
on appeal, the trial judge does not specifically refer to or
acknowledge receipt of the note in the trial transcript. Similarly,
the transcript does not specifically indicate what action, if any,
the trial court took in response to the note.
Defendant argues that without a complete transcript, one that
specifically reflects how the trial court addressed the jury's
note, he cannot effectively assign error to the trial court'sactions. Defendant argues that this absence of a transcript
precludes him from obtaining meaningful appellate review.
“[T]he absence of a complete transcript does not prejudice the
defendant where alternatives are available that would fulfill the
same functions as a transcript and provide the defendant with a
meaningful appeal.”
State v. Lawrence, 352 N.C. 1, 16, 530 S.E.2d
807, 817 (2000),
cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684
(2001). “Defense counsel and the district attorney, as officers of
the court, have an equal duty to see that reporting errors in the
transcript are corrected. This duty does not, however, embrace the
right to perpetuate and then take advantage of transcript
mistakes.”
State v. Robinson, 327 N.C. 346, 360, 395 S.E.2d 402,
410 (1990)(citations omitted),
cert. denied, 515 U.S. 1135, 132 L.
Ed. 2d 818 (1995).
Omissions or errors in the trial transcript will
not be held prejudicial where there is (1) “no indication of
efforts to work with either the court reporter or the district
attorney to attempt to correct them,” and (2) no “suggestion that
the transcript could not have been reconstructed if this were truly
necessary for a proper understanding of the case on appeal.”
Id. at
361, 395 S.E.2d at 410-11.
Cf.
State v. Sanders, 312 N.C. 318, 321
S.E.2d 836 (1984)(per curiam),
cert. denied, 498 U.S. 1051, 112 L.
Ed. 2d 782 (1991).
Here, there is no evidence in the record suggesting that
defendant made any effort to reconstruct the missing portions of
the transcript. Furthermore, there is no indication that an
adequate reconstruction of the missing portions of the transcriptcould not be made if it were necessary for a proper understanding
of the case on appeal. Accordingly, this assignment of error is
overruled.
II.
Defendant next contends the trial court committed plain error
by allowing into evidence a statement he made to police.
Miranda v.
Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966). We disagree.
On 15 September 2001, Officer Adam Bondarek of the Roanoke
Rapids Police Department went to defendant's home with warrants for
defendant's arrest. Upon speaking to defendant, Officer Bondarek
told defendant that he had warrants for his arrest and that
defendant needed to come with him. Officer Bondarek placed
defendant in his patrol car without incident and drove defendant to
the Roanoke Rapids Police Station to be photographed and
fingerprinted. Once at the police station, Officer Bondarek began
reviewing and explaining the charges to defendant. Officer Bondarek
also attempted to answer any questions defendant had concerning the
charges. In the course of explaining his accident report and
investigative findings to defendant, Officer Bondarek asked
defendant: “[D]o you know how lucky you are, you guys? Do you have
any idea how fast you were going?” In response, defendant replied:
“[A]bout ninety-five.” At this point, Officer Bondarek stopped
defendant and read him his
Miranda warnings. Although defendant
made a statement to Officer Bondarek after he had been advised of
his rights, defendant's statement, after he was advised of his
Miranda rights, made no mention of his speed prior to impact. Attrial, Officer Bondarek testified as to defendant's estimation of
his speed prior to impact without objection.
Defendant argues that the statement he made to Officer
Bondarek regarding his speed was inadmissible because defendant had
not, at that point, been advised of his
Miranda warnings. Defendant
further argues that because this statement “was the only evidence
of excessive speed by the Defendant[,]” the erroneous admission of
this statement constitutes plain error. We conclude that admission
of this statement into evidence was error, but does not amount to
plain error.
“It is well established that
Miranda warnings are required
only when a defendant is subjected to custodial interrogation.”
State v. Patterson, 146 N.C. App. 113, 121, 552 S.E.2d 246, 253,
disc. review denied, 354 N.C. 578, 559 S.E.2d 549 (2001). A suspect
is deemed to be “in custody” for purposes of
Miranda whenever there
was either a “formal arrest or a restraint on freedom of movement
of the degree associated with a formal arrest.”
State v. Gaines,
345 N.C. 647, 662, 483 S.E.2d 396, 405,
cert. denied, 522 U.S. 900,
139 L. Ed. 2d 177 (1997). Interrogation includes either “express
questioning by law enforcement officers,” or “'any words or actions
on the part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect.'”
State v. Golphin, 352 N.C. 364, 406, 533 S.E.2d 168, 199
(2000)(quoting
Rhode Island v. Innis, 446 U.S. 291, 302, 64 L. Ed.2d 297, 308 (1980)),
cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305
(2001).
The plain error rule applies only in truly exceptional cases.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).
Plain error review involves a two-step inquiry.
State v. Torain,
316 N.C. 111, 116, 340 S.E.2d 465, 468,
cert. denied, 479 U.S. 836,
93 L. Ed. 2d 77 (1986).
A prerequisite to . . . engaging in a “plain error”
analysis is the determination that . . . [admission of
the evidence] complained of constitutes “error” at all.
Then, “before deciding that an error by the trial court
amounts to 'plain error,' the appellate court must be
convinced that absent the error the jury probably would
have reached a different verdict.”
Id. (quoting
State v. Walker, 316 N.C. 33, 39, 340 S.E. 2d 80, 83
(1986)).
Here, at the time he made the challenged statement, defendant
had already been formally arrested pursuant to a validly issued
arrest warrant. Moreover, defendant's statement came in response to
a direct question posed by Officer Bondarek. Since this constituted
custodial interrogation and
defendant had not been advised of his
Miranda warnings until after he made the challenged statement, the
trial court improperly admitted the statement into evidence.
However, after careful review of the record and transcript, we
conclude the error does not amount to plain error.
Contrary to defendant's assertion, the State presented ample
other evidence of defendant's speed prior to impact. This evidence
included the statement of an eyewitness who estimated defendant's
speed at “over 70 miles an hour[]” and the testimony of an expertin accident reconstruction, who opined that defendant's car was
traveling somewhere between 70 and 83 miles per hour prior to its
impact with the utility pole. In light of the evidence, we are
convinced that even absent the error the jury would have reached
the same verdict. Accordingly, this assignment of error is
overruled.
III.
Finally, defendant mentions in a footnote to his brief that
the trial court erred by allowing Officer Roy Ball to testify
concerning a statement made by an eyewitness immediately following
the collision. We disagree.
Just before defendant lost control of the car he was driving,
he passed another vehicle on Tenth Street driven by Cathy
Patterson. Ms. Patterson saw defendant lose control of the car and
collide with the utility pole. Remembering that she had just passed
two police cars near the area of the crash, Ms. Patterson turned
around, found the officers and told them about the crash. Within
seconds, both Ms. Patterson and the police officers were back at
the scene of the crash. In the moments that followed, Officer Roy
Ball of the Roanoke Rapids Police Department interviewed Ms.
Patterson, who told Officer Ball that defendant's car was traveling
“over 70 miles an hour” just before impact. Although the trial
court sustained defendant's objection to Ms. Patterson testifying
as to her opinion of defendant's speed, Officer Ball testified
without objection as to Ms. Patterson's statement to him following
the collision. We first note that by merely asserting alleged error in a
footnote to his brief, with neither citation to legal authority nor
reference to the appropriate assignment of error, defendant has
failed to comply with N.C.R. App. P. 28(b)(6). Accordingly, this
assignment of error “will be taken as abandoned.”
Id.
Assuming
arguendo that this issue was properly preserved, we
find no error. First, defendant did not object to Officer Ball's
testimony at trial. Furthermore, Ms. Patterson's statement to
Officer Ball related to a startling event and was made while she
was still under the stress of excitement caused by the event.
Therefore, Officer Ball's testimony was properly admitted into
evidence under N.C.R. Evid. 803(2).
Accordingly, we hold defendant received a fair trial, free
from prejudicial error.
No prejudicial error.
Judges HUNTER and GEER concur.
Report per Rule 30(e).
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