Converted WP file 041376-1

Appeal by defendant from judgment entered 16 March 2004 by Judge William Z. Wood, Jr., in Superior Court, Forsyth County. Heard in the Court of Appeals 30 May 2005.

Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.

Brannon Strickland, PLLC, by Marlet M. Edwards and Anthony M. Brannon, for defendant-appellant.

McGEE, Judge.

     Defendant was convicted by a jury on 7 November 2000 of breaking or entering a motor vehicle. The trial court then determined that defendant was an habitual felon and he was sentenced to a term of seventy to ninety-three months imprisonment. This Court found no error on appeal in an unpublished opinion, State v. Morgan, 148 N.C. App.407, 560 S.E.2d 886 (2002).
    Defendant filed a motion for appropriate relief in Superior Court in Forsyth County on 21 April 2003 . Defendant argued that he never pled guilty to being an habitual felon, but merely stipulated to habitual felon status. The trial court agreed, allowed defendant's motion for appropriate relief and ordered that he beretried on the habitual felon charge.
    At defendant's retrial, Julia King, Deputy Clerk of Court for Forsyth County, testified for the State. King testified that the clerk's records contained, and she authenticated copies of, records of three prior felony convictions for Maurice Anthony Morgan. Admitted into evidence were copies of the following judgments: (1) 98 CRS 36813, felony breaking or entering a motor vehicle, offense date of 1 August 1998, conviction on 4 September 1998; (2) 99 CRS 57341, felony breaking and/or entering, offense date of 30 June 1999, conviction on 27 October 1999 ; and (3) 00 CRS 3395, felony breaking and entering a motor vehicle, offense date of 18 January 2000, conviction on 4 February 2000 .
    The State also introduced a portion of the transcript from defendant's first trial:
        [THE COURT]: I certainly will. Let me ask you this, are you going to find it necessary for the State to call someone from the clerk's office or introduce into evidence the records of those three prior convictions, or are you going to stipulate that your client has three prior felony convictions on his record, therefore raising him to the level of habitual felon?

        [DEFENDANT'S COUNSEL]: Judge, in talking with him, he has acknowledged and I will be acknowledging that we do have those three prior felonies.

        [THE COURT]: Do you agree with that, sir?
        [DEFENDANT]: Yes.
The jury found defendant was an habitual felon and he was sentenced to the same sentence he received at his first trial. Defendant appeals.      Defendant argues that the trial court erred by admitting into evidence his statement from his first trial that he agreed with counsel's acknowledgment of his three prior felonies. Defendant contends that the evidence should have been excluded because: (1) no evidence of any erroneous conviction may be admitted in any manner in a subsequent trial for the same offense; (2) his statements were involuntary and made while in custody and thus could not be used as evidence; and (3) the State failed to properly notify him that it intended to use the evidence.
     We note that, even assuming arguendo that admission of defendant's prior statement was error, defendant must show he was prejudiced by the evidence admitted. We conclude that any error in admitting defendant's prior statement was harmless error in light of the overwhelming evidence at trial of defendant's three prior felony convictions. Deputy Clerk of Court Julia King testified at trial, authenticating records showing defendant's three prior felony convictions. These judgments were introduced into evidence without objection and were provided to the jury. These judgments, which bear defendant's name, race, sex and date of birth, are contained in the record. Defendant did not assign error to their admission and has not denied that the convictions were his. The record contains plenary evidence admitted at trial of defendant's three prior felony convictions . Defendant has failed to show the likelihood of a different verdict if the statement made by him at his prior trial had been excluded.
    No prejudicial error .
    Judges HUDSON and LEVINSON concur.
     Report per Rule 30(e).

*** Converted from WordPerfect ***