Opinion
No. COA12–519.
2013-03-19
STATE of North Carolina v. Ernest Eli COOK, III.
Attorney General Roy Cooper, by Assistant Attorney General Scott K. Beaver, for the State. Levine & Stewart, by James E. Tanner III, for Defendant.
Appeal by Defendant from judgment entered 2 November 2011 by Judge Anderson D. Cromer in Superior Court, Guilford County. Heard in the Court of Appeals 8 January 2013. Attorney General Roy Cooper, by Assistant Attorney General Scott K. Beaver, for the State. Levine & Stewart, by James E. Tanner III, for Defendant.
McGEE, Judge.
Ernest Eli Cook, III (Defendant) was convicted of possession of a controlled substance in violation of N.C. Gen.Stat. § 90–95(e)(9). Defendant was awaiting trial in the Guilford County Jail on 23 January 2011. Around 1:30 a.m., after the lights were out and the cell-block had been locked down for the night, officers at the jail became aware of a disturbance in cell-block C2 and conducted a search. During the search, Officer J.M. Rouse (Officer Rouse) found marijuana in Defendant's personal belongings.
At that time, approximately twenty-four inmates were housed in cell-block C2 and, due to overcrowding, about eight inmates, including Defendant, were located in a common area called the “day room.” Officer Rouse testified that he found marijuana in Defendant's “area,” which was located in the day room and consisted of Defendant's sleeping mat, as well as his personal belongings. Officer Rouse further testified that it was possible another inmate could have placed the marijuana in Defendant's property.
Following the search, the officers began an investigation and Defendant was removed from the cell-block. Defendant was strip-searched and nothing was found on his person. Officer Rouse testified that he asked Defendant if the marijuana belonged to him and Defendant admitted that it did. Officer Rouse also testified that Defendant did not make a written statement because “whenever an inmate admits guilt, then the statement is no longer needed,” though “[t]hey have that opportunity.” At about 6:00 a.m., Defendant underwent a disciplinary action where he completed a disciplinary action form. Defendant marked an “X” in the area on the form that indicated he admitted guilt. The form also contained a statement of the sanction Defendant was to receive as a result of the disciplinary offense. Defendant signed both sides of the form. At trial, however, Defendant testified on direct examination that he thought he was signing a “not guilty” form. Six inmates, including Defendant, were charged with disciplinary infractions resulting from the incident. Defendant and one other inmate were charged with an additional criminal offense.
Defendant's sole argument on appeal is that “the trial court committed plain error by admitting evidence of defendant's confession because without such confession the evidence of constructive possession was insufficient to establish guilt beyond a reasonable doubt and would not have survived a motion to dismiss[.]” We disagree.
Defendant presents his argument as a review of the motion to dismiss; however, his entire argument is based upon his contention that the trial court erred in admitting certain evidence at trial. Specifically, Defendant argues that the disciplinary action form, and Officer Rouse's testimony about Defendant's alleged oral admission of guilt, were admitted in error. However, because Defendant failed to object at trial to the admission of the disciplinary action form, and to Officer Rouse's testimony about Defendant's the alleged confession, we review for plain error. N.C.R.App. P. 10(a)(4); State v. Lawrence, 365 N.C. 506, ––––, 723 S.E.2d 326, 333–34 (2012). Plain error must be “fundamental.” Id. at ––––, 723 S.E.2d at 334. In the present case, to show that the error was fundamental, Defendant must be able to establish prejudice by showing “that, after examination of the entire record, the error ‘had a probable impact on the jury's finding that the defendant was guilty.” ’ Id. (quoting State v.. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)). Defendant must demonstrate that, without the error, the jury likely would have reached a different verdict. Id.
Defendant specifically argues the trial court committed plain error by failing to sua sponte deny the admission of the disciplinary action form. Defendant further argues that the trial court committed plain error by allowing Officer Rouse's testimony regarding Defendant's alleged oral confession.
Defendant's counsel questioned Defendant on direct examination about the disciplinary action form, asking whether “there was ... a disciplinary action that took place in the jail” and whether Defendant was provided a “disciplinary report.” Defendant replied affirmatively to both questions. Defendant testified that he recognized the form and stated that his signature was on the form. Defendant's counsel asked whether the form showed that Defendant was sanctioned, and whether “there was a block on the paper indicating that [Defendant was] admitting guilt,” to which Defendant again replied affirmatively. Finally, defense counsel asked Defendant what he thought he was signing when he signed the disciplinary action form. Defendant replied that he thought he was signing “a ‘not guilty’ form.”
On cross-examination, the State introduced the disciplinary action form into evidence. The State questioned Defendant further about an “X” in the box indicating that Defendant admitted guilt, as well as his signature in two places on the form. Defendant argues that it was error to admit the disciplinary action form, as it constituted a conviction by a prison disciplinary board. See State v. Elliott, 25 N.C.App. 381, 384–85, 213 S.E.2d 365, 368 (1975) (“The solemnity of a trial assures one of a certain standard of proof, one sufficiently high that a finding of guilt is admissible in a later trial. A finding of guilt by prison officials in a disciplinary hearing is not of such solemnity and verity.”). Further, Defendant argues that because he did not verify his purported confession, and because the confession was not a verbatim record of his words, it was inadmissible. See State v. Bartlett, 121 N.C. App 521, 522, 466 S.E.2d 302, 303 (1996).
However, because Defendant opened the door to the evidence at issue, we need not address Defendant's arguments that the disciplinary action form was inadmissible.
[T]he law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself. Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.
State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981); see also State v. Garner, 330 N.C. 273, 290, 410 S.E.2d 861, 870 (1991). “ [E] ven where ‘ th [e] type of testimony is not allowed[,] ... when a party first raises an issue, it opens the door to questions in response to that issue and cannot later object to testimony regarding the subject raised.’ “ State v. Belfield, 144 N.C.App. 320, 324, 548 S.E.2d 549, 551 (2001) (citations omitted). Because defense counsel introduced the disciplinary action form and its contents to the jury, Defendant cannot now complain that the trial court committed plain error by failing to, sua sponte, prevent the form from being introduced into evidence, or prevent the State from questioning Defendant concerning the form.
Defendant also argues that, because he was not informed of his Miranda rights and did not waive them with respect to the criminal charge, it constituted plain error to allow Officer Rouse's testimony concerning Defendant's alleged oral confession. Indeed, this Court has held “that the improper admission of a defendant's confession cannot be considered harmless error.” State v. Harris, 27 N.C.App. 412, 413, 219 S.E.2d 266, 267 (1975). If a police questioning constitutes a custodial interrogation, the individual being questioned must expressly waive his right to have an attorney present; otherwise, his statements may not be used against him. State v. Blackmon, 280 N.C. 42, 48–49, 185 S.E.2d 123, 127–28 (1971). However, in the present case, Defendant states in his brief that
no actual interrogation took place regarding the incident; in fact Officer Rouse testified that [Defendant] did not make a statement, indicating that “when an inmate admits guilt, then the statement is no longer needed.”
The thing of it is that the purported admission of guilt, which [Defendant] denies, consists solely of his signature on a disciplinary action form, where the box indicating ‘guilty’ had been checked for him. [Defendant's] purported admission of guilt and the disciplinary action determining him to be guilty of possession of marijuana were one and the same form[.]
This Court will not conduct an analysis of whether Defendant properly waived his rights during a custodial interrogation when Defendant argues that no such interrogation occurred. “It is not the role of the appellate courts ... to create an appeal for an appellant.” Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005).
Defendant has failed to demonstrate that error, much less plain error, occurred by the admission of the contested evidence. Because we hold that Defendant has not demonstrated error in the admission of this contested evidence, we must further hold that Defendant's argument that the trial court erred in denying his motion to dismiss also fails.
No error. Judges HUNTER, ROBERT C. and ELMORE concur.
Report per Rule 30(e).