An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1466

NORTH CAROLINA COURT OF APPEALS

Filed: 3 August 2004

STATE OF NORTH CAROLINA

v .                         Onslow County
                            No. 01 CRS 50599
ANGELA REECE MORGAN,
        Defendant.

    Appeal by defendant from judgment entered 17 April 2002 by Judge Thomas D. Haigwood in Onslow County Superior Court. Heard in the Court of Appeals 28 August 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Elizabeth J. Weese, for the State.

    Poyner & Spruill, L.L.P., by Joseph E. Zeszotarski, Jr., for defendant-appellant.

    GEER, Judge.

    On 17 April 2002, a jury found defendant Angela Reece Morgan guilty of assault with a deadly weapon inflicting serious injury and of conspiring to commit that assault. On appeal, defendant argues that the trial court erred in sustaining objections to questions relating to the victim's drug use and to questions that would require the victim to invoke his Fifth Amendment rights. Because these questions did not seek relevant information within the meaning of the North Carolina Rules of Evidence, we conclude that there was no error.

Facts
    The State's evidence tended to show the following. Michael Morgan testified that on 19 December 2000, he was spending time with his family at their home. Morgan and defendant were married; they lived with defendant's children from a prior relationship, Roger (nicknamed "Junior") and Kiomie, and the couple's son, Tyree. Morgan's sons, Tyleek and Jameel, were visiting for the holidays.     After the family finished playing Monopoly, Morgan took a shower and lay down on his bed. His son Tyleek, who was nine or ten years old at the time, came running into the bedroom asking him to tell defendant's son Junior to stop punching him. Junior followed Tyleek into the room and started punching him in the face in front of Morgan. According to Morgan, he stuck his hands between the boys and pushed them apart. Defendant then punched Morgan in the back of the head and said, "Get your hands off my child." When defendant's daughter Kiomie started punching Morgan in the face, Morgan pushed her off of him. Morgan stood up and told his boys to get their belongings so that they could leave.
    At that point, defendant telephoned her son Andre Spates. Thomas McIntosh, Spates' cousin, answered the phone and defendant asked, "Thomas, where is Andre?" Defendant then said, "Well, is Garrett [Beckley] there? . . . Tell him to bring you over here. . . . Michael punched me in my face. Tell him to come over and kill this nigger." Morgan locked the doors and went to check on his sons to make sure they were gathering their belongings.     When he reached the bathroom door, Morgan heard Spates' voice say, "Oh, you're gonna punch my mother in the face." Morgan was hit in the temple and in the eye with a golf club. Spates and McIntosh then continued hitting and kicking Morgan. Defendant finally pulled the two men off of Morgan. Morgan's son helped him stand up and he went into the living room and said to defendant, "You just tried to have me killed for nothing." In response, defendant said nothing, folded her arms, and stood there.
    Onslow County Deputy Sheriff Jeff Latham responded to a report of an assault at the Morgans' house. Deputy Latham testified that when he arrived at the house, "Mr. Morgan was sitting on the couch bleeding heavily from the head and face." The deputy had difficulty understanding Morgan due to his swollen mouth and knocked-out teeth. EMS arrived shortly thereafter and left with Morgan.
    Deputy Latham then spoke with defendant, who told him that she and Morgan "had gotten into an argument about their kids, and that Mr. Morgan had assaulted her, and she had called for her son to come and assist her." Defendant admitted that her son and his cousin had assaulted Morgan. According to Deputy Latham, defendant did not appear to be injured, she did not complain of any injuries, and she did not request any medical treatment.
    Onslow County Sheriff's Department investigator Tom Robinson interviewed both Morgan and defendant. When Robinson initially met with Morgan on 21 December 2000, Morgan's left arm was in a sling; his left eye was swollen shut; his shoulders, arms, and wrists werebruised; and he had stitches on the right side of his head. Morgan told him:
        [T]hat it was an altercation between he and his wife, the defendant, Angela Morgan. Pretty much it boiled down to each of their kids getting into a fight. He tries to break it up. She accused him of hitting the child and then makes the phone call to her son's residence. And then they come over to the house and commence to kick and beat him and hit him with a golf club.

Robinson met with defendant on 29 December 2000. Defendant did not appear to have received any recent medical treatment and was not suffering from any apparent cuts, abrasions, stitches, or other injuries.
    Defendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury and with conspiracy to commit assault with a deadly weapon with intent to kill inflicting serious injury. The jury returned a verdict on the lesser-included offenses of assault with a deadly weapon inflicting serious injury and conspiracy to commit that assault.
I
    Defendant argues that the trial court erred in refusing to permit defendant to cross-examine Morgan about his drug use and in refusing to permit defendant to testify about Morgan's drug use. Defendant claims on appeal that Morgan's drug use was relevant to his ability to recall the events, a significant issue since Morgan was the State's only eye witness.
    Defendant did not, however, make this relevance argument to the trial court. When cross-examining Morgan, defense counselasked: "Now, Mr. Morgan, you do admit that you do have a problem with drugs?" After the trial court sustained the State's objection to that question, the trial court gave counsel the opportunity to ask additional, specific questions outside the presence of the jury. Counsel asked defendant whether he had been in possession of cocaine on 2 March 2002 and whether he had sold and delivered two rocks of cocaine on 2 March 2002. Defense counsel did not attempt to ask any questions about whether defendant had taken drugs on 19 December 2002 or subsequently or whether drug usage affected his ability to recall events.
    The questions asked by defense counsel related to charges currently pending against Morgan. During the course of a motion in limine hearing prior to trial, in which the State requested that any evidence of pending charges against Morgan be held inadmissible, defense counsel responded that "part of our defense . . . is that Mr. Morgan is a habitual drug user and that usage of drugs makes him violent whenever he's under the influence." Counsel did not make the argument asserted on appeal: that drug usage affected Morgan's ability to recall events.
    During direct examination of defendant, counsel asked, "Have you had trouble with your husband and drugs?" The trial court sustained the State's objection. Defense counsel did not make any offer of proof or make any argument as to the relevance of the information sought.
    Defendant is correct in arguing that a witness' drug use is proper impeachment evidence when used to challenge the witness'ability to recall and relate events. State v. Williams, 330 N.C. 711, 719, 412 S.E.2d 359, 364 (1992) (specific instances of drug use or mental instability may properly be admitted to cast doubt upon the capacity of a witness to observe); State v. Alkano, 119 N.C. App. 256, 263, 458 S.E.2d 258, 263 (1995) ("Impeachment of a witness concerning alcohol use near the time of the observed incident is permissible to show such impairment."). Defendant did not, however, make this relevance argument to the trial court and, based on counsel's questions, there was no apparent effort to elicit testimony from Morgan or defendant that would support such an argument.
    It is well established "that where a theory argued on appeal was not raised before the trial court, 'the law does not permit parties to swap horses between courts in order to get a better mount in the [appellate courts].'" State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). With respect to the admission of evidence, "defendant cannot argue for the first time on appeal [a] new ground for admissibility that he did not present to the trial court." Id. at 195, 473 S.E.2d at 6. Since there is no indication in the record that defendant argued that Morgan's drug usage was relevant to his ability to recall events, this assignment of error is overruled.
II
    Defendant also argues that the trial court erred in refusing to permit defendant to cross-examine Morgan about whether hecommitted certain crimes for the purpose of Morgan's invoking his Fifth Amendment privilege in the presence of the jury. The following questions and answers, out of the presence of the jury, are the basis for this assignment of error:
            DEFENSE COUNSEL: Mr. Morgan, did you, on March the 2nd, 2002, sell and deliver two rocks of cocaine?

            MORGAN: I refuse to answer. . . . I plead the Fifth[.]

            DEFENSE COUNSEL: Mr. Morgan, did you assault Malette Lowery?

            MORGAN: I plead the Fifth.

            DEFENSE COUNSEL: Okay. Mr. Morgan, did you steal two pairs of shoes from Shoe Carnival with Tabatha Ham and April Akerman.

            MORGAN: I plead the Fifth.

The trial court ruled defendant could not ask these questions before the jury.
    Defendant contends that the trial court's ruling violated his right to confrontation under the Sixth Amendment. Defendant is not arguing that Morgan's testimony should have been struck as a result of his assertion of the Fifth Amendment. See State v. Ray, 336 N.C. 463, 472, 444 S.E.2d 918, 924 (1994) (when witness asserted the Fifth Amendment on questions directly relevant to the case, "[t]he trial court should have either required [the witness] to answer the questions, or stricken all or part of his direct testimony after allowing him to assert the testimonial privilege"). Instead, defendant argues that his right to confront Morgan underthe Sixth Amendment means that Morgan should have been required to assert his Fifth Amendment privilege in front of the jury.
    Defendant did not, however, raise the Sixth Amendment argument below. "Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal." State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001). Even assuming arguendo that defendant properly preserved the Sixth Amendment issue for appellate review, there must be a proper evidentiary basis for asking the question before the witness can be compelled to answer the question, whether or not the answer involves assertion of a Fifth Amendment privilege. In each of the cases relied upon by defendant, the defendant first established the relevance of the questions. See United States v. Kaplan, 832 F.2d 676, 685 (1st Cir. 1987) (defendant argued at trial that question regarding cocaine use was relevant to whether witness' powers of memory or observation might be impaired), cert. denied, 485 U.S. 907, 99 L. Ed. 2d 239, 108 S. Ct. 1080 (1988); United States v. Seifert, 648 F.2d 557, 560 (9th Cir. 1980) (through offer of proof, defendant established that question was directly relevant to defense theory of case).
    Here, the only basis offered for counsel's questions is that questioning Morgan about the pending drug charge would tend to show that Morgan's drug problem was ongoing and serious. As we discussed above, defendant did not argue below that evidence of Morgan's drug usage was relevant to his ability to recall and, therefore, that theory cannot properly be argued to this Court. During Morgan's cross-examination, defense counsel relied generally upon Rule 404(b) of the Rules of Evidence without explaining in what way the questions sought information admissible under Rule 404(b). Assuming that counsel was relying upon the same theory argued during the hearing on the motion in limine _ that defendant is violent when using drugs _ we cannot see any way in which counsel's questions relating to pending charges for the sale of drugs or the theft of shoes would elicit testimony relating to that theory. Without an offer of proof as to the question relating to an assault on another woman, we cannot determine whether that question is relevant to defendant's theory of the case or not. Without a showing of relevance to defendant's trial theory, the trial court properly precluded defense counsel from asking the questions. See State v. Clark, 128 N.C. App. 87, 96, 493 S.E.2d 770, 776 (1997) (evidence regarding aggressive nature of victim was irrelevant when defendant's theory of the case was diminished capacity), cert. denied, 348 N.C. 285, 501 S.E.2d 913 (1998). This assignment of error is also overruled.

    No Error.
    Judges MCGEE and BRYANT concur.
    Report per Rule 30(e).

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