An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1663


Filed: 17 January 2006


v .                         Pender County
                            No. 01 CRS 4712

    Appeal by defendant from judgment entered 23 August 2002 by Judge Ernest B. Fullwood in Pender County Superior Court. Heard in the Court of Appeals 15 September 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Donna D. Smith, for the State.

    Sofie W. Hosford, for defendant-appellant.

    HUDSON, Judge.
    In August 2002, a jury convicted defendant of felonious maiming and simple assault. The court sentenced defendant to a prison term of 45 to 63 months. Defendant appeals.
    The evidence tends to show the following facts. On the evening of 7 September 2001, defendant and a friend, Wade Penland, went to Blackbeard's Restaurant and Bar in Surf City, to have drinks, play pool, and listen to a band. At around 10:45 p.m., a fight broke out between defendant and another patron, Wesley Willis. At trial, defendant and the State's witnesses offered different versions of how the fight began. Defendant contends that Willis, while seated at a table with defendant and some women, insulted him and raised a beer bottle, as if to hit him, and thathe struck Willis with the back of his hand to prevent him from hitting him with the beer bottle. Willis testified that he was seated with some women and that the defendant approached him and hit him on the side of the face. However the fight began, it is undisputed that Phillip Gregory Bradley, Willis' supervisor on a cable-laying job, intervened. As defendant and Bradley struggled, they fell to the floor, rolling around, and defendant bit off Bradley's nose. Defendant then left the restaurant with Penland. At trial, Dr. Ricciardelli, the plastic surgeon who operated on Bradley the night of the incident, testified that Bradley was missing more than half of the right side of his lower nose and had suffered cuts and scrapes on the other side of his nose. The skin, cartilage, and lining of the nose were missing, leaving a big hole so that one could see inside the nose. Dr. Ricciardelli testified that such an injury would require 18 months to two years of reconstructive surgery. When Bradley went out in public, he wore tape over his nose.
    Prior to defendant's criminal trial, Bradley filed a civil suit against defendant. During the course of this suit, defendant's attorney, Joseph Stroud, deposed Bradley. The prosecutor, Bradley's attorney, and Randall's father were also present during the videotaped deposition taken by Stroud. A couple of weeks before defendant's trial, Bradley committed suicide. The prosecutor notified Stroud, who also represented defendant in his criminal trial, that she intended to offer the videotaped deposition of Bradley into evidence at the criminal trial. Defendant moved to suppress the videotaped deposition, but the trial court denied the motion and the tape was introduced into evidence at trial.
    Defendant argues that the trial court violated his confrontation clause rights by admitting the videotaped deposition of Bradley into evidence. We disagree.
    At trial, the court admitted the tape per evidence Rule 804(b)(1), which allows former testimony to be admitted where the declarant is unavailable and the earlier testimony was given
        in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

N.C. Gen. Stat. § 8C-1, Rule 804(b)(1) (2002). Defendant argues that the United States Supreme Court's decision in Crawford v. Washington, 158 L. Ed. 2d 177 (2004), prohibits the admission of Bradley's videotaped deposition. In Crawford, the Court held that for testimonial evidence to be admitted against a defendant, the Confrontation Clause of the Sixth Amendment to the United States Constitution requires witness unavailability and a prior opportunity for cross-examination by the defendant. Id. However, we conclude that defendant did not properly preserve this issue for appellate review.
    It is well-established that our appellate courts will only review constitutional questions raised and passed upon at trial. State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982);N.C. R. App. P. 10(b)(1) (2004). Here, defendant objected to the admission of the videotape on hearsay grounds, but did not object on constitutional grounds or file a motion for appropriate relief. Although Crawford had not been decided at the time of defendant's trial, defendant could have made a confrontation clause claim and did not. See Bunton v. State, 136 S.W.3d 355, 367-69 (Tex. Ct. App. 2004) (holding there was nothing new or novel about Crawford that prevented defendant from making a confrontation clause objection and that such failure to object resulted in waiver of the issue). Where a defendant fails to properly object at trial, he may argue plain error on appeal. N.C. R. App. P. 10(c)(4) (2004). Here, defendant has not asserted plain error, and has thus waived plain error review. State v. Dennison, 359 N.C. 312, 608 S.E.2d 756 (2005). Accordingly, defendant's constitutional argument is not properly before us and we overrule this assignment of error.
    Defendant also argues that the court's failure to conduct an inquiry of a juror who knew the victim's attorney in his civil suit constituted plain error. During the State's case-in-chief, a juror revealed that she knew Lee Biggar, Mr. Bradley's attorney in his civil suit against defendant. Without objection from either party, the court asked the juror whether she could be fair and impartial. The juror responded that she could, but the court did not provide counsel an opportunity to examine the juror further concerning her relationship with Mr. Biggar. As defendant did not object or request such an opportunity, he asks us to review this issue for plain error. N.C. R. App. P. 10(b)(1) & (c)(4) (2004). However,our Supreme Court has limited plain error review to errors in a trial court's jury instructions or rulings on admissibility of evidence. State v. Golphin, 352 N.C. 364, 460, 533 S.E.2d 168, 230 (2000). Our Courts have repeatedly declined to extend plain error review to other issues. See id. at 460, 533 S.E.2d at 231; State v. Fleming, 350 N.C. 109, 133, 512 S.E.2d 720, 737 (1999). Furthermore, we review the trial court's decisions relating to the service of jurors, and their competency to serve after impanelment, for abuse of discretion, State v. Richardson, 341 N.C. 658, 673, 462 S.E.2d 492, 502 (1995), and our Courts have declined to apply plain error analysis to issues within the trial court's discretion. State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000). Accordingly, we overrule this assignment of error.
    No error.
    Judges ELMORE and LEWIS concur.
    Report per Rule 30(e).

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