State v. Gardner

• Decision Date: 18 February 1986
• Docket Number: No. 390A84,390A84
• Parties: , 54 USLW 2479 STATE of North Carolina v. Franklin D. GARDNER, Jr.
• Court: North Carolina Supreme Court

Page 701

340 S.E.2d 701

315 N.C. 444, 54 USLW 2479

STATE of North Carolina v. Franklin D. GARDNER, Jr.

No. 390A84.

Supreme Court of North Carolina.

Feb. 18, 1986.

Lacy H. Thornburg, Atty. Gen. by Henry T. Rosser, Asst. Atty. Gen., Raleigh, for the State.

Adam Stein, Appellate Defender, and Marc D. Towler, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MEYER, Justice.

Defendant brings forward two assignments of error on appeal. The first involves the cross-examination of the defendant concerning his post-arrest silence. In addition, defendant argues that double jeopardy principles prohibit his conviction and sentencing for both breaking or entering and felony larceny pursuant to that breaking or entering. For the reasons set forth below, we find no error and, therefore, affirm the decision of the Court of Appeals.

Defendant was convicted of breaking or entering a home in Gastonia, North Carolina, while the occupants were on vacation, and of felony larceny pursuant to the breaking or entering. The value of the goods stolen was placed at approximately $4,000. Evidence against the defendant consisted of the testimony of Bobby Grigg, who lived with his parents in a house across the street from the victim's residence. Grigg saw the defendant at approximately 6:00 p.m. on the day of the break-in. Grigg, the defendant, and an unidentified man rode in defendant's car to visit one of Grigg's friends. After leaving Grigg at his house at 7:30 p.m., the defendant and the unidentified man drove off.

Later that night as Grigg was walking to a friend's house, the defendant and the unidentified man pulled up in defendant's car and asked Grigg to accompany them to Blacksburg, South Carolina. Grigg noticed some guns, a television, a stereo, and a file cabinet in the trunk and back seat of defendant's car. Defendant told Grigg that he had broken into the Barrow residence.

At some point during the trip, the defendant stopped and removed the file cabinet from his car. Grigg's fingerprints were later found on the file cabinet.

In Blacksburg, defendant met with Bobby Cooper, to whom he eventually sold a rifle and a revolver. These items were later recovered and identified as items stolen from the victim's home.

Defendant presented two alibi witnesses--his girl friend and his father. Defendant testified on his own behalf and denied seeing Grigg at any time on the evening of the break-in.

I.

Defendant first argues that in cross-examining him concerning his post-arrest silence, the prosecutor committed "plain error of constitutional magnitude." Defendant's theory at trial was that Grigg's testimony "was a calculated attempt to 'frame' " him. On cross-examination, the following exchange took place:

Q. Are you saying he's [Grigg] concocted this entire story because you didn't loan him some money when you were playing pool?

A. To tell you the truth, I don't know why he's got me in on this.

Q. You don't have any idea, do you?

A. No, sir.

Q. Did you have an occasion to talk with Detective Duncan?

A. No, sir.

Q. You ever seen Detective Duncan?

A. You talking about that lady?

Q. Yes, sir.

A. No, sir.

Q. You ever talk to any detective about this?

A. I talked to one. When they looked me up, they come [sic] and got me off my job, and I went down there in Gaffney, and they locked me up over there, and a detective and plain clothed officer in a uniform come [sic] down there and got me and brought me up here.

Q. What, if any, statement did you give that officer?

A. Any statement?

Q. Yes, sir.

A. I don't [sic] give him no [sic] statement.

Q. You didn't give him a statement did you?

A. No, sir. He was asking me questions about this break-in.

Q. And you didn't give a statement, did you?

A. No, sir. I didn't know what he was talking about.

There was no objection to the testimony. Nevertheless, defendant now complains that "by so attempting to impeach the defendant's exculpatory testimony on the basis of [his] post-arrest silence--i.e., the defendant's failure to relate either his alibi or Bobby Grigg's possible motive for implicating defendant in a crime--the prosecutor violated the defendant's constitutional right to remain silent and, thus, denied the defendant a fair trial." We do not agree.

It is undisputed that defendant did not object to any of the cross-examination set out above. Failure to make timely objection or exception at trial waives the right to assert error on appeal, N.C.R.App.P. 10(b)(1); State v. Murray, 310 N.C. 541, 545, 313 S.E.2d 523, 527 (1984); State v. Oliver, 309 N.C. 326, 334, 307 S.E.2d 304, 311 (1983); and a party may not, after trial and judgment, comb through the transcript of the proceedings and randomly insert an exception notation in disregard of the mandates of App.R. 10(b). State v. Oliver, 309 N.C. at 335, 307 S.E.2d at 312. When a defendant contends that an exception, in the words of App.R. 10(b)(1), "by rule or law was deemed preserved or taken without" objection made at trial, he has the burden of establishing his right to appellate review by showing that the exception was preserved by rule or law or that the error alleged constitutes plain error. In so doing, he must alert the appellate court that no action was taken by counsel at trial and then establish his right to review by asserting the manner in which the exception was preserved or how the error may be noticed although not brought to the attention of the trial court. State v. Oliver, 309 N.C. at 335, 307 S.E.2d at 312. As the majority decision in the Court of Appeals notes, defendant did not comply with these requirements and should be deemed to have waived his right to except on appeal to the cross-examination.

Even had defendant properly preserved and brought forward his exceptions, however, the cross-examination complained of entitles defendant to no relief. When first asked by the prosecution, "You ever talk to any detective about this?" defendant responded, "I talked to one." Following the apparent admission by defendant that he had talked to a detective about at least some aspects of the crime and the accusations against him, the prosecutor sought to ascertain what had been said. At that time, defendant denied having made any statement regarding the crime, because the detective "was asking me questions about this break-in," and defendant "didn't know what he [the detective] was talking about." The prosecutor then shifted his cross-examination to other matters.

This cross-examination did not violate defendant's constitutional right to remain silent. Defendant clearly indicated that he had not, in fact, remained silent but had talked with a detective about the matter. He further indicated that his conversation with the detective was not an inculpatory or exculpatory statement but rather a disavowal of any knowledge whatsoever of the crime. Under such circumstances, the cross-examination cannot be construed as an unconstitutional attempt by the State to use defendant's post-arrest silence to impeach his testimony at trial. the cross-examination did not involve an attempt to impeach defendant's credibility by reason of post-arrest silence, but was an inquiry into an admitted conversation between defendant and a police officer. Defendant's response to the cross-examination was that he was unable to make any statement to the officer because he had no knowledge of the crime. This was totally consistent with defendant's position at trial and had no impeaching effect.

Stripped of excess verbiage, the cross-examination testimony consisted of a question by the prosecutor as to whether defendant had talked to any detective "about this"; defendant's response that he had talked to one detective; the prosecutor's question of what defendant had said to the detective; and defendant's response that he didn't know anything about the break-in that was the subject of the detective's inquiry. The clear implication of defendant's response is that he stated to the detective that he knew nothing of the break-in under investigation.

Whatever motives prompted the cross-examination questions, neither they nor defendant's responses constituted an impermissible comment upon the defendant's invocation of his constitutional right to remain silent.

However, even assuming, arguendo, the violation of a constitutional right, admission of the evidence complained of was harmless beyond a reasonable doubt. State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972); N.C.G.S. § 15A-1443(b) (1983). This is so because the evidence presented by the State was very convincing. State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 807(1983); State v. Brown, 306 N.C. 151, 164, 293 S.E.2d 569, 578, cert. denied, 459 U.S. 1080, 103 S.Ct. 503, 74 L.Ed.2d 642 (1982). As was said in State v. Williams, 288 N.C. 680, 693, 220 S.E.2d 558, 568 (1975), "[T]his evidence was of such insignificant probative value when compared with the overwhelming competent evidence of guilt that its admission did not contribute to defendant's conviction and therefore admission of the evidence was harmless error beyond a reasonable doubt." See also State v. Castor, 285 N.C. 286, 293, 204 S.E.2d 848, 853 (1974) (Huskins, J., dissenting).

Nor does this cross-examination without objection by defendant constitute "plain error" which would entitle defendant to relief upon our review of his subsequently asserted exceptions. In State v. Black, 308 N.C. 736, 303 S.E.2d 804 (1983), this Court adopted the plain error rule with regard to App.R. 10(b)(1) when no objection or exception to evidence presented and admitted was made at trial. In so doing, this Court quoted with approval from United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 103 S.Ct. 381, 74 L.Ed.2d 513 (1982), as follows:

[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed...