Appeal by defendant from judgment entered 13 June 2002 by
Judge Stafford G. Bullock in Wake County Superior Court. Heard in
the Court of Appeals 13 October 2003.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General John G. Barnwell, for the State.
Glover & Petersen, P.A., by James R. Glover and Ann B.
Petersen, for defendant-appellant.
HUNTER, Judge.
Mackson Brodie (“defendant”) appeals from a judgment dated 13
June 2002 entered consistent with a jury verdict finding him guilty
of first degree rape and first degree kidnapping. Judgment was
arrested on the kidnapping charge and defendant was sentenced only
on the first degree rape conviction. Consequently, defendant was
sentenced to a minimum term of imprisonment of 384 months and a
maximum term of 470 months. We conclude there was no prejudicial
error.
The evidence presented at trial tends to show that on the
night of 30 November 2000, the victim was confronted by a man she
identified as defendant who asked her to “go with him and get
high.” The victim declined and walked away from defendant. Defendant grabbed the victim, covered her mouth with his hands so
she could not breathe, and dragged her to a secluded area where
there were blankets and coats. Defendant threatened the victim
with a rock and repeatedly raped the victim throughout the night
releasing her the next morning after he ejaculated. Throughout the
rape, defendant repeated the phrase, “I got to get this nut.” The
victim reported the rape to the police and was treated at a
hospital where a rape kit was prepared. DNA testing of spermatozoa
recovered from the victim revealed a match with defendant.
Two other women testified that a man they identified as
defendant had previously raped them in a fashion similar to that
testified to by the victim. In one instance, the rapist repeated
the phrase, “'[y]ou can't go until I get this nut[,]'” and in the
other instance the rapist repeatedly said “'I am going to do this
until I get my nut. Until I nut[,]'” and “'I am gonna nut, and
when I nut, I am gonna let you go.'” One of the victims had
initially misidentified a man she saw while in a jail holding cell
from “pretty far” away as her rapist, but after being shown a
photographic lineup including defendant, identified defendant as
the rapist. The other woman also identified defendant as her
rapist from a photographic lineup. The trial court admitted the
testimony of these two women solely under Rule 404(b) of the Rules
of Evidence.
On direct examination, the investigating police officer
testified that she “was reading [defendant] his charges and he
would ask me questions because he did lawyer up -- lawyer up.” TheState further inquired what “lawyer[ing] up” meant, and the officer
testified that it meant that she “[b]asically read him his Miranda
rights and he wanted a lawyer.” Defendant did not object to this
testimony or move to strike it, however, upon a later objection,
the trial court refused to allow any further testimony on the
matter.
The issues are whether (I) evidence of the prior rapes was
admissible under Rule 404(b), and (II) testimony that defendant
“lawyered up” after being read his Miranda rights constituted plain
error.
I.
Defendant first contends that admission of the testimony of
the two other women about being raped by defendant under Rule
404(b) of the North Carolina Rules of Evidence violated his state
and federal constitutional rights. Defendant did not, however,
object to the constitutionality of admitting this testimony under
Rule 404(b) and does not assign plain error to its
constitutionality. Thus, defendant has waived any constitutional
argument on appeal.
See State v. Walters, 357 N.C. 68, 85-86, ___
S.E.2d ___, ___ (2003).
Defendant further contends that this evidence was inadmissible
under Rule 404(b) of the North Carolina Rules of Evidence. Under
this rule, evidence tending to show a defendant committed other
wrongs, crimes, or acts and his propensity to commit such acts is,
nevertheless, admissible as long as it is relevant for some purpose
other than to show the propensity of a defendant to commit thecrime charged.
State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d
48, 54 (1990). Examples of purposes for which evidence of other
crimes, wrongs, or acts is admissible include: motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake, entrapment, or accident. N.C. Gen. Stat. § 8C-
1, Rule 404(b) (2001). “Under Rule 404(b) a prior act or crime is
'similar' if there are '“some unusual facts present in both crimes
or particularly similar acts which would indicate that the same
person committed both.”'”
State v. Stager, 329 N.C. 278, 304, 406
S.E.2d 876, 890-91 (1991) (citations omitted).
In this case, all three women were raped repeatedly under
similar circumstances by a man they all identified as defendant and
testified that in each rape he repeatedly used a phrase similar to
“I got to get this nut.” The similarity of the rapes and the
phrases repeated by defendant in each instance creates a reasonable
inference that the person who raped the victim was the same person
who raped the other two women, and both of the other women
ultimately identified defendant as the rapist. As such, evidence
of the prior rapes tended to prove the identity of the person who
raped the victim in the present case.
Defendant also argues that the probative value of this
evidence was substantially outweighed by its prejudicial effect.
The decision whether to exclude relevant but prejudicial evidence
under Rule 403 of the North Carolina Rules of Evidence is left to
the sound discretion of the trial court.
State v. Handy, 331 N.C.
515, 532, 419 S.E.2d 545, 554 (1992); N.C. Gen. Stat. § 8C-1, Rule403 (2001). In the present case, the trial court found that the
probative value of this testimony outweighed any prejudicial effect
and we conclude there was no abuse of discretion in making this
finding. Thus, the trial court did not err in admitting testimony
about the other rapes.
II.
Defendant next argues that the trial court committed plain
error in allowing the State to elicit testimony from the
investigating officer that defendant “lawyered up” and explaining
that meant defendant asked for his lawyer after being read his
Miranda rights. Defendant did not object or move to strike this
testimony. We assume
arguendo that the direct examination about
which defendant now complains violates “the implicit assurance
contained in the
Miranda warnings that silence will carry no
penalty.”
State v. Walker, 316 N.C. 33, 38, 340 S.E.2d 80, 83
(1986). Where, however, a defendant fails to object to questioning
in violation of
Miranda rights, that violation is subject only to
plain error review on appeal.
See id. “The plain error rule
applies only in truly exceptional cases. 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. at 39, 340 S.E.2d at
83.
In this case, the evidence against defendant includes both the
testimony of the victim describing in detail the rape and
identifying him as the rapist as well as DNA evidence revealing hehad sexual intercourse with the victim and testimony of two other
victims identifying defendant as the man who raped them in a
similar fashion and under similar circumstances. Given this
substantial evidence of defendant's guilt, we cannot say that
without the investigating officer's testimony that defendant
“lawyered up,” the jury probably would have reached a different
verdict. Thus, the violation of the implicit assurances of
defendant's
Miranda rights did not result in plain error.
Accordingly, there was no prejudicial error in defendant's trial.
No error.
Chief Judge EAGLES and Judge GEER concur.
Report per Rule 30(e).
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