An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-166

NORTH CAROLINA COURT OF APPEALS

Filed: 6 April 2004

STATE OF NORTH CAROLINA

     v .                              Mecklenburg County
                                     Nos. 01-CRS-16172
RILEY MASON, JR.                         01-CRS-128449     

    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.

Fifth Amendment Right Against Self-Incrimination
    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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