Appeal by defendant from judgment entered 10 July 2002 by
Judge Ola M. Lewis in Mecklenburg County Superior Court. Heard in
the Court of Appeals 13 January 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Kristine L. Lanning, for the State.
David Childers for defendant appellant.
McCULLOUGH, Judge.
Defendant, Riley Mason, Jr., was found guilty by a jury of the
charges of common law robbery and assault on a female on 10 July
2002. The State's evidence tended to show the following: On the
evening of 3 December 2000, Melissa Smith pulled into the parking
lot of her apartment complex in her 1999 Ford Contour. She had
with her $1,200 of rent money from her business, a cell phone, and
her .38 magnum pistol. As she was exiting her car, she was
accosted by a black male, approximately six feet tall, weighing
between 155 and 185 pounds, and who was in his mid-thirties. She
surrendered the keys of her vehicle to the assailant, but he then
struck her in the forehead and knocked her across the front seat.
Ms. Smith reached for her gun. The assailant then jumped on her,grabbing her hair and banging her head against the car window. From
the second floor of the apartment complex, a witness was able to
observe the attack because the interior lights of the car where
illuminated. Eventually the assailant forced Ms. Smith out of the
car and drove away with her property. Ms. Smith identified
defendant as her attacker in a photographic lineup, and again later
at trial.
The gun and car were later recovered after an incident in
Robeson County involving a Mr. Jaunton Carter. After being
Mirandized by Sergeant Al Collins, Mr. Carter gave a statement as
to a transaction with defendant, where forty dollars worth of crack
cocaine was exchanged for the gun and car.
After a finding of guilty on both counts, defendant was
sentenced to 20-24 months for the common law robbery charge. For
the assault on a female charge, he was sentenced to 150 days'
active imprisonment, $1,700 restitution to Ms. Smith, and $3,926
restitution to the State of North Carolina.
On appeal, defendant raises the single issue that it was plain
error by the trial court to allow the testimony of Mr. Carter
because Mr. Carter had invoked his Fifth Amendment right against
self-incrimination. Pursuant to the following analysis, we hold
defendant lacks any standing to make such an argument before this
Court. Furthermore, we hold that Mr. Carter's right against self-
incrimination was not violated, and the trial court was not in
error in admitting his testimony.
Defendant contends that it was plain error by the trial court
to admit the testimony of Mr. Carter, a State's witness, after Mr.
Carter had evoked his Fifth Amendment right against self-
incrimination. We disagree.
A. No Standing to Assert Another's Fifth Amendment Right
We hold that defendant lacks any standing to challenge the
testimony of Mr. Carter on the grounds that it violated Mr.
Carter's Fifth Amendment right against self-incrimination. In
State
v. Lipford, 81 N.C. App. 464, 467-68, 344 S.E.2d 307, 310 (1986),
this Court held that “[a]s with Fourth Amendment rights, Fifth
Amendment rights are personal and may not be vicariously asserted.”
See United States v. Wise, 603 F.2d 1101, 1104 (4th Cir. 1979)
(Even if the testifying witness's waiver of his Fifth Amendment
right was not knowingly and voluntarily rendered,
defendant could
not assert as error by the trial court a violation of the
witness's
Fifth Amendment privilege.). “There is no constitutional right not
to be incriminated by the testimony of another.”
United States v.
Skolek, 474 F.2d 582, 584 (10th Cir. 1973). Therefore, a defendant
cannot seek reversal on the grounds that evidence elicited in
violation of another party's right against self-incrimination is
inadmissible against the defendant.
B. Assuming Defendant Had Standing: No Plain Error
Assuming
arguendo defendant had standing to challenge a
violation of Mr. Carter's Fifth Amendment right, we hold the record
does not evidence plain error by the court. “Under the Fifth Amendment to the United States Constitution
and Article I, § 23 of the North Carolina Constitution, a witness
cannot be compelled to give self-incriminating evidence.”
State v.
Ray, 336 N.C. 463, 468, 444 S.E.2d 918, 922 (1994). When a witness
invokes this privilege, the trial court is to “determine whether
the question is such that it may reasonably be inferred that the
answer may be self-incriminating”.
State v. Eason, 328 N.C. 409,
418, 402 S.E.2d 809, 813 (1991). “[A] witness may not arbitrarily
refuse to testify without existence in fact of a real danger, it is
for the court to determine whether that real danger exists.”
Trust
Co. v. Grainger, 42 N.C. App. 337, 339, 256 S.E.2d 500, 502,
cert.
denied, 298 N.C. 304, 259 S.E.2d 300 (1979).
“In order to prevail under a plain error analysis, a defendant
must show: (1) there was error; and (2) without this error, the
jury would probably have reached a different verdict.”
State v.
Smith, 152 N.C. App. 29, 37-38, 566 S.E.2d 793, 799 (2002).
In this case, when Mr. Carter asserted his Fifth Amendment
right by saying, “I would rather not answer that question,” the
court immediately removed the jury to determine the reasons for Mr.
Carter's assertion. While the jury was absent, it was made clear
that the State had not and would not pursue any charges against Mr.
Carter as to the facts of this case. Furthermore, Mr. Carter's
mirandized statement as to these facts had come some eighteen
months earlier, with no charges pressed. Satisfied that the
State's line of questioning did not carry any threat of
incriminating Mr. Carter in a future prosecution, the court had himtestify. We hold this sufficient to conclude that no “real danger”
existed of Mr. Carter being incriminated by his own testimony, and
therefore that his Fifth Amendment right was not violated.
Defendant assigned as error that he should have been able to
discuss before the jury that Mr. Carter had been offered
de facto
immunity by the State in the jury's absence, and that only upon
this tacit offer did Mr. Carter go forward with his testimony.
However, this assignment was not properly set out in defendant's
brief, and we deem it abandoned pursuant to the North Carolina
Rules of Appellate Procedure, Rule 28(b)(6).
Regardless, whether the court was in error as to the arguable
immunity offered by the State absent the jury, allowing Mr.
Carter's testimony surely would not meet the second prong of the
plain error standard: that the verdict would have probably come out
differently absent the improperly admitted evidence. The testimony
in question related to Mr. Carter's sale of crack cocaine to
defendant in exchange for the victim's car and gun. The substance
of this testimony was later admitted in State's exhibit number
seven as Sergeant Collins was testifying. The exhibit, read then at
trial by Sergeant Collins, was a record of his interview of Mr.
Carter after Mr. Carter had been mirandized:
About two weeks ago I was in Charlotte, North
Carolina, when this guy named Riley Mason,
Junior, came to me and traded his car for a
handgun for drugs--his car and a handgun for
drugs. I gave him four dime pieces. I wanted
to see my daughter, so I went to Fairmont,
North Carolina. I never went back to Charlotte
with the car.
While the admittance of exhibit number seven was objected to at
trial, it was not preserved in any assignment of error. The jury
was given the same substance of Mr. Carter's testimony through the
testimony of Officer Collins and exhibit number seven. Thus, even
assuming error by the court in pursuing the testimony of Mr.
Carter, the jury still had the same evidence before it, and would
not likely have rendered a different verdict.
In summary, we hold that defendant did not have standing to
challenge the lower court's determination as to a testifying
witness's Fifth Amendment right against self-incrimination.
Furthermore, assuming
arguendo that defendant had standing to make
such a challenge, and assuming further that there was some error
surrounding the testimony of Mr. Carter, it does not meet the
strict plain error standard. We therefore hold
No error.
Judge Timmons-Goodson concurs in the result with a separate
opinion.
Judge WYNN concurs in the result and with Judge Timmons-
Goodson's concurring opinion.
Report per Rule 30(e).
NO. COA03-166
NORTH CAROLINA COURT OF APPEALS
Filed: 6 April 2004
STATE OF NORTH CAROLINA
v
.
Mecklenburg County
No. 01-CRS-16172
RILEY MASON, JR. 01-CRS-128449
TIMMONS-GOODSON, Judge, concurring in the result.
I agree with the majority that defendant lacks standing to
challenge Mr. Carter's testimony on Fifth Amendment grounds. The
majority cites to well-established law which unequivocally holds
that “Fifth Amendment rights are personal and may not be
vicariously asserted.” United States v. Wise, 603 F.2d 1101, 1104
(4th Cir. 1979). Thus, there is no need to assume the alternative
and conduct a plain error analysis of the trial court's ruling.
As I conclude, however, that the majority reaches the correct
result, I agree that there is no error.
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