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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-1482


Filed: 19 June 2007


v .                         Wayne County
                            No. 05 CRS 56983

    Appeal by defendant from a judgment dated 28 June 2006 by Judge Jerry Braswell in Wayne County Superior Court. Heard in the Court of Appeals 24 May 2007.

    Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State.

    Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, for defendant.

    BRYANT, Judge.

    Roderick Demetrius Blount (defendant) appeals from a judgment dated 28 June 2006 and entered consistent with a jury verdict finding him guilty of possession of a firearm by a convicted felon. For the reasons stated herein, we find defendant received a fair trial free from error.


    During the afternoon of 19 August 2005, Officer Chad Calloway of the Goldsboro Police Department was driving an unmarked police car outside the Goldsboro city limits. Officer Calloway stopped at an intersection and was third in a group of cars stopped at a stop sign. The first car was red, and the second was white. While atthe stop sign, Officer Calloway observed defendant get out of the red car and walk back to the white car where some kind of argument appeared to take place. Defendant then walked back to the car he had been in and got back into the front passenger seat.
    The red car then turned left at the intersection, the white car followed, and Officer Calloway followed the two cars. Officer Calloway observed the white car tailgating the red car, and Officer Calloway testified that he saw defendant's “entire torso come out of the red car. His entire torso is hanging out the passenger side window, and he's got a gun in his hand and he's pointing it at the car that's behind him.” Both the white car and Officer Calloway's car fell back, and Officer Calloway radioed for backup. When Officer Calloway knew he was within the jurisdiction where he could make a stop he activated his lights and siren, and both cars pulled over to the side of the road.
    Officer Calloway ordered the driver of the red car to turn off the ignition and ordered the occupants of the car to show their hands. In addition to defendant, there were two females in the red car. Officer Calloway ordered defendant out of the car, and placed defendant under arrest; the two females were instructed to stand at the front of the car. Officer Calloway made a cursory search of the car, but did not find any weapon. He asked the two females where the weapon was and they said they did not know.
    Meanwhile, additional officers arrived for backup. Officer Karl Michael Rabun searched the car and found a gun underneath the driver's seat of the car which was consistent with what OfficerCalloway had seen in Mr. Blount's hand. After Officer Rabun seized the gun, defendant was transferred to the patrol car and taken to the magistrate's office where he was charged with being a felon in possession of a firearm. Officer Rabun testified that, during the booking process, defendant made a statement asking, “What kind of girl did he have that wouldn't take a charge for him[?]”
    Testifying in his own defense, defendant denied making any statements to Officer Calloway other than that he did not have a weapon. Defendant further testified that he was holding a cell phone in his hand when he was leaning out of the car and was trying to get the occupants of the white car to give him a call.
    The driver of the red car, Ms. Jackie Barnes, testified on behalf of defendant and stated she did not see defendant with a handgun, but he did have a cell phone because he was calling them trying to tell them to stop following them. Ms. Barnes was driving her sister's car, and she did not check to see if any weapons were in the car when she got it from her sister and did not know to whom the gun belonged.
Procedural History

    Defendant was indicted at the 5 December 2005 Session of the Wayne County Superior Court Division for the offense of possession of a firearm by a convicted felon. Defendant was subsequently tried on this charge at the 26 June 2006 Criminal Session of the Superior Court of Wayne County, the Honorable Jerry Braswell, judge presiding. On 28 June 2006, the jury returned a verdict finding defendant guilty of possession of a firearm by a convicted felon. The trial court entered a judgment, dated 28 June 2006, consistent with the jury verdict sentencing defendant to a term of imprisonment with the North Carolina Department of Correction for fifteen to eighteen months. Defendant appeals.

    Defendant presents the issues of whether the court erred in: (I) admitting defendant's self-incriminating statements into evidence; (II) admitting Officer Calloway's opinion testimony concerning defendant's knowledge of whether or not he was allowed to possess a gun; and (III) permitting the State to elicit testimony about, and perform demonstrations with, the handgun and to publish the handgun to the jury when it had not been formally admitted into evidence.

    Defendant first argues the trial court erred in allowing defendant's self-incriminating statements into evidence because the statements were obtained from him while in custody, but without him having been warned of his constitutional rights. We disagree.
    As a general rule, a defendant's statements made in response to custodial interrogation may not be admitted against him at trial unless the defendant had first been informed of his constitutional rights. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966); State v. Hyatt, 355 N.C. 642, 653-54, 566 S.E.2d 61, 69 (2002), cert. denied, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003). However, the United States Supreme Court has recognized certain exceptions to Miranda warnings. New York v. Quarles, 467 U.S. 649, 81 L. Ed.2d 550 (1984). One of those exceptions is the public safety exception, which provides that “questions asked by law enforcement officers to secure their own safety or the safety of the public and limited to information necessary for that purpose are excepted from the Miranda rule.” State v. Brooks, 337 N.C. 132, 144, 446 S.E.2d 579, 587 (1994).
    Here, the trial court allowed Officer Calloway to testify that defendant stated he did not have a gun and that one of the females had thrown it off a bridge. These statements were made in response to Officer Calloway's question, “Where is the gun?,” asked as Officer Calloway was taking defendant into custody and prior to defendant having been advised of his Miranda rights. The question as to the location of the handgun was asked by Officer Calloway to secure his safety in a potentially volatile situation. While defendant appeared to be unarmed, Officer Calloway had seen defendant with a gun just a few moments beforehand and had not seen anything thrown from the car. The two females were standing at the front of the car and thus the presence of an unsecured handgun still posed a danger to Officer Calloway as he secured the scene prior to the arrival of backup. Therefore, the public safety exception applies given the facts of this case. But see State v. Crudup, 157 N.C. App. 657, 661, 580 S.E.2d 21, 25 (2003) (holding the public safety exception did not apply where the defendant was asked several questions after he was handcuffed and surrounded by multiple officers and no one else was present at the scene of the arrest). These assignments of error are overruled.

    Defendant next contends the trial court erred in admitting Officer Calloway's opinion testimony concerning defendant's knowledge of whether or not he was allowed to possess a gun. At the conclusion of the State's re-direct examination of Officer Calloway, the following occurred:
        Q. And the defendant's statement that, “Donja, tell him this is your gun because you ain't got no felonies,” does that imply to you that the defendant knew he was not allowed to have a gun?

        A. Yes, ma'am.

Defendant argues Officer Calloway's opinion as to whether defendant knew he was not allowed to have a gun was irrelevant and prejudicial to defendant. We disagree.
    Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401 (2005). Generally, “[a]ll relevant evidence is admissible[.]” N.C. Gen. Stat. § 8C-1, Rule 402 (2005). Our Supreme Court has further held that:
        [e]vidence is relevant if it has any logical tendency to prove a fact at issue in a case, and in a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible. It is not required that evidence bear directly on the question in issue[.]

State v. Arnold, 284 N.C. 41, 47-48, 199 S.E.2d 423, 427 (1973) (internal citations omitted). Additionally,        Rule 401 sets a standard to which trial judges must adhere in determining whether proffered evidence is relevant; at the same time, this standard gives the judge great freedom to admit evidence because the rule makes evidence relevant if it has any logical tendency to prove any fact that is of consequence. Thus, even though a trial court's rulings on relevancy technically are not discretionary and therefore are not reviewed under the abuse of discretion standard applicable to Rule 403, such rulings are given great deference on appeal.

State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991) (internal citations omitted), disc. rev. denied, 331 N.C. 290, 416 S.E.2d 398, cert. denied, 506 U.S. 915, 121 L. Ed. 2d 241 (1992).     At trial, defendant denied pointing a gun at the white car when hanging out the car window and claimed that he was, in fact, gesturing with his cell phone. Defendant repeatedly denied having possessed a gun, and denied knowing the gun was in the car. However, just after his arrest, and while defendant was being transferred to a different patrol vehicle, defendant asked one of the females to tell the officers the gun was hers “because you ain't got no felonies.” This statement may be interpreted as essentially an admission by defendant that he possessed the gun and was asking one of the females to tell the officers the gun was hers, not because the gun was actually hers, but in order to protect himself from criminal liability for possessing the gun. Officer Calloway's opinion regarding this statement was permissible to provide the jury with a clear understanding of relevance and importance of the statement and defendant's actions at the time of his arrest. See N.C. Gen. Stat. § 8C-1, Rule 701 (2005)(“[T]estimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.”). This assignment of error is overruled.

    Defendant lastly argues the trial court committed plain error when it permitted the State to elicit testimony about, and perform demonstrations with, the handgun before the jury and to publish the handgun to the jury when it had not been formally admitted into evidence. At trial, Officers Calloway and Rabun testified that State's Exhibit Number Two was the gun found in the car in which defendant was a passenger. The handgun was published to the jury; however it was never formally admitted into evidence, although the magazine accompanying the gun was formally admitted into evidence. Defendant did not object to the use of the gun during the testimony of Officers Calloway and Rabun, nor to the publication of the gun to the jury, thus we will review this argument under the standard of plain error.
    “Under the plain error standard of review, defendant has the burden of showing: '(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.'” State v. Jones, 358 N.C. 330, 346, 595 S.E.2d 124, 135 (2004) (quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)). Defendant correctly states the plain errorstandard of review applicable to his argument; however, defendant deviates from this standard of review and argues that “[b]ecause the jury's consideration of extraneous information represents constitutional error, prejudice is presumed unless the State demonstrates beyond a reasonable doubt that the error could not have contributed to the verdict.” By failing to present any objections based on constitutional rights to the trial court, defendant has waived his right to review except under the plain error standard. State v. Anderson, 355 N.C. 136, 142, 558 S.E.2d 87, 92 (2002) (“[A] purported error, even one of constitutional magnitude, that is not raised and ruled upon in the trial court is waived and will not be considered on appeal.”); see also Bishop, 346 N.C. at 385, 488 S.E.2d at 779 (holding the defendant has the burden of showing that the error constituted plain error where no objection was made at trial and the error implicated the defendant's constitutional rights). Thus, prejudice to defendant will not be presumed and defendant has the burden of showing that, because of the error, he was prejudiced to the extent that there was a miscarriage of justice or that a different result probably would have been reached at trial.
    In the instant case, the question of whether a gun was found in the car was never an issue at trial, only whether defendant actually possessed a gun. Further, during the cross examination of Officer Rabun, defendant's trial counsel elicited the following:
        Q. And if you would, indicate for the jury what items it is that you are stating on that evidence control sheet that you took from thevehicle search that you conducted on August 19th.

        A. As bag 1, item 1, collected on August 19th, I indicated gun box -- which is what I put the evidence into -- containing a nine-millimeter semiautomatic pistol, a Ruger P89DC, serial number 30789901, found under the front driver's seat of the suspect vehicle. . . .

This description matches that of State's Exhibit Number Two. While the State never formally moved to admit the handgun into evidence, it is apparent from the record before this Court that everyone at the trial considered the handgun to have been admitted into evidence. Given the conduct of all parties at trial, defendant has failed to meet his burden under our plain error standard of review. This assignment of error is overruled.
    No error.
    Judges McCULLOUGH and STROUD concur.
    Report per Rule 30(e).

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