STATE OF NORTH CAROLINA
v. Columbus County
No. 03-CrS-53352
KELVIN T. SPAIN
Attorney General Roy Cooper, by Assistant Attorney General
Marc X. Sneed, for the State.
Russell J. Hollers III for defendant appellant.
McCULLOUGH, Judge.
Defendant was found guilty of felonious breaking or entering
and felonious larceny. He was sentenced to consecutive terms of
ten to twelve months.
The State presented evidence tending to show that at about
9:45 a.m. on 1 August 2003, Wayne Murray drove to his home in rural
Columbus County and encountered a strange automobile parked in his
driveway. The trunk of the vehicle was open. A man, whom Murray
identified as defendant, walked out of Murray's house holding a
black box. Murray told defendant to put the item down and to
leave. Defendant reached into his back pocket and displayed a
small revolver. After seeing the gun, Murray backed out of his
driveway as fast as he could. Murray looked back and saw defendantleave in the opposite direction. Murray returned to his residence
and observed that the door had been kicked in. He discovered that
the large compact disc player located in the utility room he used
as an office was missing.
Defendant did not present any evidence.
By his sole assignment of error, defendant contends the court
committed plain error by admitting into evidence a motor vehicle
accident report which showed that on 29 May 2004 a passenger van
entered an intersection into the path of a vehicle operated by
defendant. The van collided with defendant's vehicle and five
occupants of the van died in the collision. The report stated that
defendant was charged with driving while impaired and driving
without an operator's license. The report also stated that the
operator of the van was charged with the same offenses and,
additionally, with five counts of death by vehicle. Defendant
argues the report should not have been admitted because it was not
properly identified or authenticated, because it was irrelevant and
highly prejudicial, and because it was admitted despite defendant's
stipulation that he was injured in an automobile accident.
By assigning plain error, defendant acknowledges that he did
not object to admission of the report in the court below. See
State v. Oliver, 309 N.C. 326, 335, 307 S.E.2d 304, 312 (1983).
Defendant's failure to object limits our review to a determination
of whether this is
the exceptional case where, after reviewing the entire
record, it can be said the claimed error is “fundamental
error, something so basic, so prejudicial, so lacking in
its elements that justice cannot have been done,” or“where [the error] is grave error which amounts to a
denial of a fundamental right of the accused,” or the
error has “'resulted in a miscarriage of justice or in
the denial to appellant of a fair trial'” or where the
error is such as to “seriously affect the fairness,
integrity or public reputation of judicial proceedings”
or where it can be fairly said “the instructional mistake
had a probable impact on the jury's finding that the
defendant was guilty.”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting
United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.
N.C. 1982)) (footnotes omitted).
After carefully reviewing the record, we are unable to say
that this case is such an exceptional case. The report was
admitted into evidence to show that defendant had sustained the
injuries visible in court after the date Murray testified he saw
defendant breaking into his residence.
Murray had ample opportunity
for observation sufficient to make an identification as he viewed
the perpetrator's undisguised face for thirty to forty-five seconds
from a distance of fifteen to eighteen feet in broad daylight.
Murray took only three to four seconds to identify defendant as the
perpetrator when he was shown a photograph lineup. Murray also
positively identified defendant in court as the perpetrator. Given
the overwhelming evidence presented by the State regarding Murray's
positive identification of defendant and the fact defendant did not
offer any evidence to refute the positive identification, we hold
that the admission of the accident report into evidence did not
constitute plain error.
No error.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).
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