State v. Abbitt

327 S.E.2d 590, 73 N.C. App. 679, 1985 N.C. App. LEXIS 3346
CourtCourt of Appeals of North Carolina
DecidedApril 2, 1985
DocketNo. 8421SC394
StatusPublished
Cited by3 cases

This text of 327 S.E.2d 590 (State v. Abbitt) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Abbitt, 327 S.E.2d 590, 73 N.C. App. 679, 1985 N.C. App. LEXIS 3346 (N.C. Ct. App. 1985).

Opinions

PARKER, Judge.

In his two assignments of error defendant argues that although he failed to object at trial to the alleged errors, we should review these errors by applying the plain error rule as adopted by our Supreme Court in State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983). The plain error rule allows review of assignments of error normally barred by waiver rules such as Rule 10, Rules of Appellate Procedure. The rule is defined 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 error is a 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. at 660, 300 S.E. 2d at 378, quoting 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) (footnotes omitted) (emphasis in original).

In his first assignment of error defendant contends the trial court erred by instructing the jury that defendant took property from the person or presence of Hunt while the indictment alleged defendant took property from the place of business of Hop-In Food Stores.

[681]*681Robbery with firearms or other dangerous weapons, 6.S. 14-87, provides that “[a]ny person or persons who, having in possession or with the use or threatened use of any firearms or other dangerous weapon . . . whereby the life of a person is endangered or threatened, unlawfully takes . . . personal property from another or from any place of business . . . shall be guilty of a Class D felony.”

The indictment alleged that defendant took sixty-nine dollars from the place of business of Hop-In Food Stores. In his charge to the jury the trial judge said the State must prove beyond a reasonable doubt that defendant took property from the person of Lynne Hunt. Defendant contends the trial judge erred in failing to instruct the jury that they must find that defendant took property from the place of business of Hop-In Stores. Defendant, however, failed to raise this issue when, out of the presence of the jury, the judge asked if there were any requests for corrections to the charge to the jury. Thus, defendant is precluded by Rule 10(b)(2), Rules of Appellate Procedure1 from assigning error to this portion of the jury charge. State v. Bennett, 308 N.C. 530, 302 S.E. 2d 786 (1983). Moreover, after reviewing the entire record, we find the trial court did not commit plain error according to the standard set forth in Odom; thus defendant’s failure to comply with Rule 10(b)(2) precludes his right to appeal this issue.

In his second assignment of error defendant argues that his constitutional right to silence was violated when the trial court allowed the State to attempt to impeach him at trial with his silence at the time of his arrest and after his arrest. Defendant failed to object at trial to these questions, instead he merely inserted “exception” throughout this portion of the trial transcript. A party may not comb through the transcript and randomly insert “exception” in disregard of Rule 10, Rules of Appellate Procedure. State v. Oliver, 309 N.C. 326, 307 S.E. 2d 304 (1983). Failure to object to error at trial is a waiver of the right to assert the error on appeal, unless the exception “by rule or law was [682]*682deemed preserved or taken without any such action,” Rule 10(b)(1), Rules of Appellate Procedure, or the party alleging error contends the error was plain error. Id.

In State v. Black, 308 N.C. 736, 303 S.E. 2d 804 (1983), the plain error rule adopted in Odom was extended to the situation in which no objection or exception was made to evidence at trial. Review, in this situation, is limited to determining whether plain error was committed at trial.

The issues of impeachment by silence and by inadmissible statements have been addressed by the United States Supreme Court. In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed. 2d 1 (1971), the court held that the trial judge did not commit error by allowing the State to introduce into evidence, for impeachment purposes, prior inconsistent statements made by the defendant, which were inadmissible to establish the State’s case in chief under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966).

In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed. 2d 86 (1980), the United States Supreme Court held that a defendant, who at trial testified that he acted in self-defense, could be impeached by his prearrest silence. The court observed that attempted impeachment on cross-examination of a defendant may enhance the reliability of the criminal process. “[IJmpeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial.” Jenkins v. Anderson, 447 U.S. at 238, 100 S.Ct. at 2129, 65 L.Ed. 2d at 94. The court concluded that although each State is entitled to formulate evidentiary rules defining the situations in which silence is considered more probative than prejudicial, the use of prearrest silence to impeach a defendant’s credibility does not violate his Constitutional rights.

In Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed. 2d 490 (1982), the United States Supreme Court, in a per curiam decision, held it did not violate due process for a State to permit cross-examination to impeach defendant as to his postarrest silence when defendant chooses to testify, and there is no evidence that Miranda warnings were given. The Court reiterated that each State is entitled to resolve, under its own rules of evidence, [683]*683the extent to which postarrest silence may be deemed to impeach a criminal defendant who chooses to testify.

The North Carolina Supreme Court has not passed upon the question of impeachment of a criminal defendant by his pretrial silence. In State v. Lane, 301 N.C. 382, 271 S.E. 2d 273 (1980), our Supreme Court addressed the question of whether a defendant was prejudicially deprived of his constitutional rights when the trial court permitted the State to cross-examine him concerning his failure to disclose his alibi at the time he made a statement to police officers or at any time before trial. The court noted that with or without Miranda warnings, defendant’s exercise of his right to remain silent was guaranteed by Article I, Section 23, of the North Carolina Constitution and the Fifth Amendment as incorporated by the Fourteenth Amendment to the United States Constitution.

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Cite This Page — Counsel Stack

Bluebook (online)
327 S.E.2d 590, 73 N.C. App. 679, 1985 N.C. App. LEXIS 3346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-abbitt-ncctapp-1985.