Opinion
No. COA10-1047
Filed 15 March 2011 This case not for publication
Appeal by defendant from judgments entered 22 April 2010 by Judge L. Todd Burke in Guilford County Superior Court. Heard in the Court of Appeals 21 February 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Scott T. Slusser, for the State. Irving Joyner for defendant appellant.
Guilford County Nos. 09 CRS 24832; 82484; 82486.
On 22 April 2010, a jury convicted John McCain, Jr. ("defendant") of first-degree kidnapping and robbery with a dangerous weapon. After the guilty verdict, defendant entered a guilty plea as to the status of an habitual felon. On appeal, defendant contends the trial court committed plain error in advising defendant about the risks of testifying on his own behalf, alleging that the comments made by the trial court to defendant caused defendant not to testify thereby subverting his constitutional rights. We find no error.
I. Background
On 13 May 2009, Brian Lamont Graham ("Graham") was at his home in Guilford County, North Carolina, when he woke up to loud knocking on his door. Jarrod McLean ("McLean"), a close friend and "god brother" of Graham, was at the door, along with defendant and a third man called "Los." After peering outside through the blinds and seeing McLean, Graham opened the door for the men.
The three men asked Graham for money and drugs, to which Graham responded he had none. The three men then forced their way inside Graham's home and proceeded to beat him. Defendant tied Graham up using shoelaces and cord while Los pointed a gun at Graham. The men laid Graham face down on the couch, placed pillows over his head, and ransacked his house, stealing many of his possessions. During the ordeal, the men stabbed Graham repeatedly in the stomach, back and leg, and Graham testified that he believed the men were torturing him to get money or drugs from him. Also during the ordeal, a gun was fired in the bedroom and a bullet hole was later discovered in Graham's dresser. Graham testified that just before the men left, defendant pressed a gun into his back and stated that defendant would have killed Graham if Graham had not been related to McLean.
After the men left, Graham was able to untie himself and went to the hospital where he received stitches for his stab wounds and was questioned by a police officer. Graham called a crime scene investigation ("CSI") unit from his cell phone as he was leaving the hospital, and a CSI investigator and a police officer were waiting at his home when he returned. The officers observed the scene of the home: the pictures were off the wall, the furniture was cut up, holes were kicked in the walls, and many items were broken or stolen. The officers took pictures of the damage at the scene, obtained fingerprints, and observed the shell casing from the fired shot in Graham's bedroom.
On 7 December 2009, defendant was indicted for first-degree kidnapping and robbery with a dangerous weapon in connection with the incident that occurred on 13 May 2009 at Graham's home. On 20 April 2010, defendant was tried by a jury for both offenses in Guilford County Superior Court. During the trial, at the close of the State's evidence, defense counsel informed the trial court that defendant would like to testify on his own behalf. Defense counsel stated that he had "conferred on this at great depth" with defendant and asked whether the court wanted to examine defendant on the record "to be sure." The trial court responded by inquiring of defendant his wish to testify and commenting on the risks involved in taking the stand. The trial court advised defendant that the prosecutor would go through "everything" and that she would "be able to cross-examine [defendant] about [his] prior record." The trial court further commented to defendant that despite the instruction the trial judge gives to the jury regarding impeachment, there is a strong risk that the jury will weigh defendant's prior convictions heavily in their present decision. The trial judge stated that he wanted to make sure defendant knew how the process worked.
At the end of the colloquy, defendant again stated that he wished to testify on his own behalf. Thereafter, the court initiated a recess, and defendant immediately indicated that he had changed his mind and no longer wished to testify. The trial court allowed defendant the time during the recess to consider his decision, and once the proceedings resumed, defendant reaffirmed his decision not to testify on his own behalf. At no time did defense counsel raise an objection to the trial court's inquiry of defendant. Defendant presented no evidence at the trial. On 22 April 2010, the jury returned a verdict of guilty for both offenses. Defendant appeals.
II. Plain error review
Defendant contends the trial court committed plain error in advising defendant about the risks of testifying on his own behalf, alleging that the comments made by the trial judge to defendant caused defendant not to testify thereby subverting his constitutional rights. Defendant made no objection at trial after the colloquy took place and asks this Court to review this issue under the plain error standard.
Plain error is "a fundamental error so prejudicial that justice cannot have been done." State v. Haselden, 357 N.C. 1, 13, 577 S.E.2d 594, 602 (2003). "The defendant has the heavy burden of showing that the error constituted plain error[.]" State v. Garris, 191 N.C. App. 276, 288, 663 S.E.2d 340, 349 (2008). "`The plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to plain error, the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.'" State v. Treadway, ___ N.C. App. ___, ___, 702 S.E.2d 335, 340 (2010) (quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)).
In addition, our Supreme Court has expressly "limited application of the plain error doctrine to jury instructions and evidentiary matters." State v. Anderson, 355 N.C. 136, 142, 558 S.E.2d 87, 92 (2002); see also State v. Golphin, 352 N.C. 364, 460, 533 S.E.2d 168, 230 (2000) ("[P]lain error review is limited to errors in a trial court's jury instructions or a trial court's rulings on admissibility of evidence."); State v. Ross, ___ N.C. App. ___, ___, 700 S.E.2d 412, 416 (2010) ("Our Courts have consistently held that `plain error analysis applies only to jury instructions and evidentiary matters[.]'" (quoting State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39-40 (2002))). In the present case, defendant raises the denial of his right to testify on his own behalf, guaranteed by the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, sections 19 and 23 of the North Carolina Constitution, as the only issue for plain error review. As this issue does not involve the trial court's jury instructions or rulings on admissibility of evidence, plain error review does not apply in this case. "This Court has previously declined to extend plain error review to other issues, and we decline to do so now." Golphin, 352 N.C. at 460, 533 S.E.2d at 231.
Defendant relies on the case of State v. Rhodes, 290 N.C. 16, 224 S.E.2d 631 (1976) for his contention that the trial court's remarks to defendant unconstitutionally deterred him from testifying on his own behalf, thereby constituting reversible error. However, defendant's reliance on Rhodes is misplaced. The case of State v. Rhodes involved repeated comments made by the trial court to a witness presently testifying on the stand, indicating the trial court's belief that the witness was lying on the stand and admonishing the witness that such perjured testimony would not be tolerated. Id. at 19-21, 224 S.E.2d at 633-34. Our Supreme Court held that the trial judge's "extensive, accusatory, and threatening" remarks to the witness regarding perjury "probably had the effect of stifling the free presentation of competent, available testimony." Id. at 28, 224 S.E.2d at 638-39. This Court has previously stated that State v. Rhodes is "clearly limited to the inherent dangers concomitant with judicial warnings and admonitions to a witness with reference to perjury[.]" State v. Miller, 37 N.C. App. 163, 168, 245 S.E.2d 561, 563 (1978) (declining to extend plain error review to the trial court's comments to defense counsel). As the trial court's remarks to defendant in the present case did not center on perjury, the decision in State v. Rhodes is inapposite.
We note also that we see no impropriety with the trial court's inquiry in the present case. The trial court was invited by defense counsel to make comments to defendant regarding his decision to testify on his own behalf. In response, the trial court advised defendant of the strong risks involved in being cross-examined by the prosecutor and of his prior record being disclosed to the jury. The trial court made a thorough inquiry to ensure defendant was fully informed of the risks of testifying. Unlike the facts in Rhodes, the trial court's comments in no way rose to the level of "extensive, accusatory, [or] threatening." Rhodes, 290 N.C. at 28, 224 S.E.2d at 639.
Because plain error review does not apply to the constitutional issue raised by defendant, defendant was required to both object to the comments made by the trial court to defendant and state a constitutional basis for the objection during the trial in order to preserve the issue for appellate review. See State v. Ellis, ___ N.C. App. ___, ___, 696 S.E.2d 536, 539 (2010). "Generally, 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." Anderson, 355 N.C. at 142, 558 S.E.2d at 92. "Constitutional issues, which are not raised and ruled upon at trial, will not be considered for the first time on appeal." Ellis, ___ N.C. App. at ___, 696 S.E.2d at 539 (citing State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001)).
Defendant neither raised an objection nor stated a constitutional basis for an objection at trial, despite the opportunity to do so. After defendant changed his mind regarding whether to testify, the trial court took a recess, during which the trial court allowed defendant to further consider his decision whether to testify. When the trial court went back on the record, the proceedings continued to closing arguments, as defendant reaffirmed his decision not to testify. Defense counsel raised no objection to the trial court's previous comments, nor stated that the trial court's inquiry of defendant "subverted" defendant's constitutional right to testify on his own behalf. Further, at the close of proceedings, defense counsel again had another opportunity to raise the issue with the trial court, as the court asked if there was anything either party wished to bring to the court's attention, to which defense counsel stated, "No." Thus, the constitutional issue raised by defendant on appeal is not reviewable.
Defendant raised four additional assignments of error in the record on appeal, but those issues are not likewise raised in defendant's brief. "Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned." State v. Lloyd, 354 N.C. 76, 87, 552 S.E.2d 596, 607 (2001) (internal quotation marks and citation omitted); N.C. R. App. P. 28(b)(6) (2009). Consequently, those issues are deemed abandoned.
III. Conclusion
We hold that plain error review is inapplicable to the constitutional issue raised by defendant in the present case. Additionally, because defendant failed to both object to the trial court's inquiry of defendant's decision whether to testify on his own behalf and state a constitutional basis for the objection, he has not preserved this issue for appeal. Therefore, we find no error in defendant's trial.
No error.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).