State v. Gardner

316 S.E.2d 131, 68 N.C. App. 515, 1984 N.C. App. LEXIS 3413
CourtCourt of Appeals of North Carolina
DecidedJune 5, 1984
Docket8327SC966
StatusPublished
Cited by9 cases

This text of 316 S.E.2d 131 (State v. Gardner) 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. Gardner, 316 S.E.2d 131, 68 N.C. App. 515, 1984 N.C. App. LEXIS 3413 (N.C. Ct. App. 1984).

Opinions

ARNOLD, Judge.

Defendant brings forward three assignments of error in his brief regarding his cross-examination, the court’s conduct during the jury’s deliberation and his conviction of felonious breaking and entering. We conclude that no reversible error was committed by the trial court.

Defendant first assigns error to his cross-examination involving whether he gave the arresting officer a statement. He contends that his constitutional rights against self-incrimination and to due process of law were violated on cross-examination.

On direct examination defendant testified that his relationship with Grigg was not good, because Grigg had damaged defendant’s car in 1979 and had stolen diet pills from him. Defendant further testified that prior to 7 July 1983 Grigg became angry with him, because he refused to lend Grigg money. Thereafter, on cross-examination, the following exchange occurred:

[518]*518Q. Are you saying he’s 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 talk to any detective about this?
A. I talked to one. When they looked me up, they come 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 clothes and officer in a uniform come 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 didn’t give him no 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.

Defendant now argues that this cross-examination concerning defendant’s failure to give a statement to the police after his arrest violated his constitutional right to remain silent. He bases his argument upon State v. Lane, 301 N.C. 382, 271 S.E. 2d 273 (1980). In Lane the North Carolina Supreme Court found a violation of defendant’s constitutional rights where defendant was [519]*519asked on cross-examination if he had previously told police, any of the district attorneys or anyone else about the alibi to which he testified at trial. The Court concluded, “Since we cannot declare beyond a reasonable doubt that there was no reasonable possibility that this evidence might have contributed to defendant’s conviction, we hold that it was sufficiently prejudicial to warrant a new trial.” Id. at 387, 271 S.E. 2d at 277.

Defendant also relies upon Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed. 2d 91 (1976). The United States Supreme Court found error where defendants during their trial related for the first time that they were “framed” by narcotics agents and were cross-examined about their post-arrest silence concerning the “frame.”

Both Lane and Doyle are distinguishable from the case before us, in that the defendant here was merely asked if he gave the arresting officer a statement. No clear implication was made regarding defendant’s failure to tell the officer about his alibi. Defense counsel in Lane and Doyle also made timely objections to the cross-examination and these objections were overruled. Counsel properly preserved for appellate review these specific objections and assignments of error. Trial counsel in the present case made no objections to the cross-examination. Instead, appellate counsel, who is different from trial counsel, has sifted the record and inserted exceptions to the cross-examination in the record on appeal.

On numerous occasions our Supreme Court has stated “that a failure to except or object to errors at trial constitutes a waiver of the right to assert the alleged error on appeal. (Citations omitted.)” State v. Oliver, 309 N.C. 326, 334, 307 S.E. 2d 304, 311 (1983). This doctrine of waiver has been applied where appellant has raised constitutional errors in the introduction of evidence for which he noted no objection. State v. Mitchell, 276 N.C. 404, 172 S.E. 2d 527 (1970).

The subsequent insertion of “exception” in the record and trial transcript is also a violation of App. R. 10(b). “Were the rule otherwise, an undue if not impossible burden would be placed on the trial judge.” State v. Black, 308 N.C. 736, 740, 303 S.E. 2d 804, 806 (1983).

[520]*520The defendant on appeal violated App. R. 10(b) and waived his right to except to his cross-examination by not objecting to this evidence at the trial level.

Our distinguished colleague in his dissent has concluded that the allowance of defendant’s cross-examination was “plain error,” thus necessitating a new trial. As supporting authority he cites the application of the plain error rule in State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983) (where defendant failed to object to jury instructions) and State v. Black, supra (where defendant failed to object to the admission of evidence). These cases are distinguishable, because the defendants therein specifically suggested plain error or highly prejudicial error to the appellate court by brief on that specific assignment of error.

The defendant on appeal has not asserted plain error in his cross-examination as a basis for either the pertinent assignment of error or the corresponding argument in his brief. He asserts only constitutional violations arising from his cross-examination. Since defendant did not object to cross-examination, he has waived any appellate review of these alleged violations.

Our Supreme Court recently adopted rules consistent with our holding.

1. 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 Rule 10(b).
2. Where no action was taken by counsel during the course of the proceedings, the burden is on the party alleging error to establish its right to review; that is, that an exception, “by rule or law was deemed preserved or taken without any such action,” or that the alleged error constitutes plain error.
In so doing, a party must, prior to arguing the alleged error in his brief, (a) alert the appellate court that no action was taken by counsel at the trial level, and (b) establish his right to review by asserting in what manner the exception is preserved by rule or law or, when applicable, how the error amounted to a plain error or defect affecting a substantial right which may be noticed although not brought to the at[521]*521tention of the trial court.

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State v. Gardner
316 S.E.2d 131 (Court of Appeals of North Carolina, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
316 S.E.2d 131, 68 N.C. App. 515, 1984 N.C. App. LEXIS 3413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gardner-ncctapp-1984.