An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-688


Filed: 17 January 2006


         v.                             Cumberland County
                                 No. 02 CRS 59193

    Appeal by defendant from judgment entered 11 February 2005 by Judge Jack A. Thompson in Cumberland County Superior Court. Heard in the Court of Appeals 9 January 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Mary Carla Hollis, for the State.

    Jeffrey Evan Noecker for defendant appellant.

    McCULLOUGH, Judge.

    By the sole assignment of error brought forward in his brief, defendant contends the court erred by denying defendant's motion to continue and trying defendant in absentia.
    The record shows that defendant's case was called for trial on 27 October 2003. Defendant was present with counsel. After twelve jurors and one alternate were selected but before they were empaneled, court recessed overnight. Defendant did not appear at the opening of court the next day. The court issued an order for defendant's arrest. The court denied defendant's motion to continue and proceeded to conduct the entire trial in defendant's absence. The jury found defendant guilty as charged of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. The court continued entry of judgment “until such time asthe State prays judgment.” Defendant did not appear in court again until his sentencing on 11 February 2005. The court sentenced defendant to consecutive terms of a minimum of 103 months to a maximum of 133 months and of a minimum of 27 months to a maximum of 42 months.
    Defendant concedes the prevailing authorities hold that a non- capital defendant may waive his right to confrontation by his voluntary absence from trial. See, e.g., State v. Richardson, 330 N.C. 174, 178, 410 S.E.2d 61, 63 (1991); State v. Teeder, 169 N.C. App. 446, 451, 610 S.E.2d 774, 777 (2005); State v. Skipper, 146 N.C. App. 532, 535, 553 S.E.2d 690, 692 (2001). Nonetheless, he requests this Court to re-examine Richardson and its progeny in light of Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004).
    We overrule defendant's assignment of error. We first note that this Court is bound to follow decisions of the North Carolina Supreme Court unless otherwise ordered by the Court. Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985); State v. Parker, 140 N.C. App. 169, 172, 539 S.E.2d 656, 659 (2000), appeal dismissed and disc. review denied, 353 N.C. 394, 547 S.E.2d 37, cert. denied, 532 U.S. 1032, 149 L. Ed. 2d 277 (2001). Moreover, even if this Court could “revisit” the Richardson holding in light of Crawford, we conclude Crawford is inapposite. In Crawford the United States Supreme Court held that the constitutional right to confront one's accusers “demands” that before “testimonial statements” of an absent declarant can be admitted into evidence, the declarant mustbe unavailable and the testimony must have been previously subject to cross-examination. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203. In this case, it was defendant who was absent at trial, not a witness against him. Through his counsel, defendant was able to cross-examine all of the witnesses against him.
    By failing to bring forward and argue in his brief the other assignments of error listed in the record on appeal, defendant is deemed to have abandoned them. N.C.R. App. P. 28(b)(6).
    We hold defendant received a fair trial, free of prejudicial error.
    No error.
    Judges TYSON and ELMORE concur.
    Report per Rule 30(e).

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