An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-134


Filed: 18 November 2003


         v.                        Forsyth County
                                No. 00 CRS 58510

    Appeal by defendant from judgment entered 17 October 2002 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 27 October 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State.

    Bruce T. Cunningham, Jr., for defendant-appellant.

    HUDSON, Judge.

    On 25 June 2001, defendant Devon Lamont Gist was indicted for the murder of Corey Little. The case was tried at the 14 October 2002 Criminal Session of Forsyth County Superior Court.
    At the beginning of the defendant's trial, before jury selection, the court made some introductory remarks. After introducing the defendant and his attorney, the court advised the jury pool:
        Now, the Defendant in this case has been charged with first-degree murder. I will tell you in advance that it is not a capital case, in other words, the State is not seeking the death penalty in this case, it is not.

Defendant did not object or make any motion.    Defendant was convicted of second-degree murder and sentenced to a term of 189 to 236 months imprisonment. Defendant appeals.
    Defendant's sole argument on appeal is that the trial court erred by telling the jury that the State was not seeking the death penalty, and by not thereafter declaring a mistrial ex mero motu. Defendant argues that the statement made by the court “was unnecessary, not relevant to any issue in the case and gave the unavoidable impression that the State had already given the defendant a substantial concession.” Defendant contends that “the crime was of the most serious type in the criminal system and it diminishes the jury's sense of responsibility for the verdict because it suggests that the State has already exercised its discretion to reduce the charge.” Accordingly, defendant argues that he is entitled to a new trial.
    After careful review of the record, briefs and contentions of the parties, we find no error. Defendant did not object to the trial court's introductory remarks. Since these remarks do not fall within any of the exceptions of N.C. Gen. Stat. § 1446(d) (2001), specifying issues that may be raised upon appeal without objection at trial, defendant must establish that the remarks constituted plain error. Although defendant's assignment of error asserts plain error, defendant has not argued plain error in his brief and, therefore, has abandoned that claim.
    In any event, the record reveals that even if the trial court's remarks were in error, an issue we need not reach, defendant cannot show that, absent the error, a different verdictprobably would have been reached. State v. Tucker, 317 N.C. 532, 539, 346 S.E.2d 417, 421 (1986).
    Defendant argues that he was prejudiced by the remarks because they “diminishe[d] the jury's sense of responsibility for the verdict because [they] suggest[ed] that the State had already exercised its discretion to reduce the charge.” The jury, however, ultimately elected to convict defendant of second-degree murder rather than first-degree murder. This fact demonstrates that the jury took its responsibility seriously and that the trial court's disclosure of the non-capital nature of the trial did not likely affect the verdict. See State v. Murphy, 937 P.2d 1173, 1176 (Wash. Ct. App. 1997), review denied, 953 P.2d 95 (Wash. 1998) (any error in instructing that case was non-capital was harmless when jury acquitted defendant of first-degree murder and convicted him of second-degree murder). Accordingly, we find no error.
    No error.
    Judges MCGEE and GEER concur.
    Report per Rule 30(e).

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