State v. Burnett , 39 N.C. App. 605 ( 1979 )

251 S.E.2d 717 (1979) 39 N.C. App. 605

STATE of North Carolina
v.
George E. BURNETT and Raymond Earl Sanders.

No. 7810SC833.

Court of Appeals of North Carolina.

February 6, 1979.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis, Raleigh, for the State.

Fred M. Morelock, Raleigh, for defendant-appellant.

MITCHELL, Judge.

The defendants first assign as error the trial court's admission of Deputy Rowland's testimony concerning a series of meetings he had with the defendants prior to 25 February 1978. Deputy Rowland testified that he was working in an undercover capacity buying property and returning it to its rightful owners on and prior to 25 February 1978. He additionally testified that he had seen Burnett sixteen times between 19 December 1977 and 25 February 1978 and that he had seen Sanders thirteen times during the same period. The defendants contend that this testimony was inadmissible evidence of prior crimes. We do not agree.

Evidence that a defendant has committed a criminal offense other than that for which he is being tried is generally inadmissible. State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). However, if the evidence tends to prove any relevant fact other than the defendant's character or his disposition to commit the crime charged, the evidence is admissible. State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978); 1 Stansbury's N.C. Evidence § 91 (Brandis Rev.1973). Here, Deputy Rowland testified that on each of the occasions on which he had seen the defendants prior to 25 February 1978, he had had occasion to talk with them. He then testified to receiving a telephone call from the defendants and being able to recognize their voices as a result of the numerous prior conversations he had had with each. Even if we accept the doubtful proposition that the complained of testimony of Deputy Rowland was in fact evidence of prior crimes, it was nonetheless admissible as competent to develop properly the evidence with regard to the telephone call he received from the defendants in connection with the crimes charged. State v. Jenerett, 281 N.C. 81, 187 S.E.2d 735 (1972). Additionally, this evidence served to identify the defendants as the individuals with whom the deputy had dealt and the circumstances under which the purchase of the photography equipment was made. This assignment of error is overruled.

The defendants next assign as error the admission of testimony by Deputy Rowland regarding a statement made to him by one of the defendants. Rowland testified that after he had entered Sanders' apartment, one of the defendants said, "We got this camera equipment man, what will you give me for it? " The defendants contend that this evidence was inadmissible as Rowland could not remember which defendant made the statement. Assuming arguendo that the admission of this testimony was error, we find it harmless beyond a reasonable doubt. Each defendant admitted participating in the sale of the photography equipment, and neither based his defense upon a denial of that sale. As each defendant admitted participating in the sale and this testimony by Rowland merely corroborated the defendants' evidence, the identity of the particular defendant making the statement was irrelevant. The admission of this testimony was not prejudicial to the defendants in any respect and, therefore, any error in its admission was clearly harmless. This assignment of error is overruled.

The defendants also contend that the trial court erred in allowing the prosecutor to question Sanders concerning his failure to make a statement after his arrest. The defendants argue that such questioning amounted to a prejudicial comment by the prosecutor on Sanders' exercise of his right to remain silent. Under the facts of these particular cases, we do not agree.

During the trial of these cases, the defendant Sanders chose to testify in his own behalf. On cross-examination, the prosecutor asked the defendant the following questions:

Q. Have you ever before this day, sitting on that witness stand, ever said anything to any law enforcement man, woman, or whatever, about this person Ike?

A. No.

Q. Have you ever said anything to the District Attorney's Office prior to today sitting on this witness stand here, said anything at all about this man Ike?

MR. HOWARD: Objection.

COURT: Overruled.

A. No.

In Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), the Supreme Court of the United States stated that "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." 426 U.S. at 619, 96 S.Ct. at 2245, 49 L. Ed. 2d at 98. The Court indicated that its holding was necessary because the Miranda warnings implicitly assured a defendant that his silence would not be used against him. However, the holding in Doyle appears to have been carefully limited to situations in which the defendant has been advised of his Miranda rights prior to his exercise of his right to remain silent. See Doyle v. Ohio, 426 U.S. 610, 625-26, 96 S. Ct. 2240, 2248, 49 L. Ed. 2d 91, 101 (1976) (Stevens, J., dissenting, joined by Blackmun and Rehnquist, JJ.).

Nothing in the record on appeal before us in these cases indicates that either of the defendants were advised of their Miranda rights. As there is no evidence that these defendants were ever advised of their Miranda rights, advice as to those rights could not have implicitly assured them that their silence would not be used. Therefore, the Court's holding in Doyle did not prohibit the use of the defendants' silence by the State in the context of the facts of these particular cases.

When a defendant receives no assurance whatsoever that his silence will not be used against him, we do not believe it would be unreasonable or unfair to expect the accused to tell the authorities the identity of the perpetrator of the crime with which the defendant is charged, if the defendant has reason to believe that the perpetrator is someone other than himself. If the defendant has not been advised of his right to remain silent and waits until he takes the witness stand in his defense to first reveal the identity of the allegedly true perpetrator, the prosecutor may reveal the tardiness of any such statement as it tends to reflect upon the credibility of the statement. As the defendant Sanders was not given any explicit or implicit assurance that his silence would not be used against him, the trial court did not commit error in allowing the prosecutor to cross-examine him with regard to his prior silence which was otherwise relevant and admissible.

In addition, the defendants did not properly object to the introduction of the evidence in question on cross-examination. Generally, when evidence is admitted without objection, any objection to the evidence is waived. State v. Banks, 295 N.C. 399, 245 S.E.2d 743 (1978); 1 Stansbury's N.C. Evidence § 27 (Brandis Rev.1973). The defendants objected to a second question eliciting the same evidence. Having once allowed this evidence to come in without objection, the defendants waived their objections to the evidence and lost the benefit of later objections to the same evidence. State v. Carey, 288 N.C. 254, 218 S.E.2d 387 (1975); State v. Pruitt, 286 N.C. 442, 212 S.E.2d 92 (1975); 1 Stansbury's N.C.Evidence § 30 (Brandis Rev.1973). As these defendants did not object to the first question and answer tending to impeach credibility in this matter, any objection to such questions was waived. Therefore, the defendants' final assignment of error is overruled.

The defendants received a fair trial free from prejudicial error. With regard to the judgments against each defendant in these cases, we find

No error.

ROBERT M. MARTIN and ERWIN, JJ., concur.