An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1648


Filed: 2 December 2003

                                Halifax County
v.                            Nos. 01 CRS 54309
                                    02 CRS 1549

    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from judgment entered upon a jury's verdict convicting him of involuntary manslaughter and driving while his license was revoked.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.


    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.

    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.

    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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