State v. Hartman , 90 N.C. App. 379 ( 1988 )

368 S.E.2d 396 (1988)

STATE of North Carolina
v.
James Kent HARTMAN.

No. 8728SC1227.

Court of Appeals of North Carolina.

May 31, 1988.

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Barbara A. Shaw, Raleigh, for the State.

James R. Parish, Fayetteville, for defendant-appellant.

ARNOLD, Judge.

Defendant first contends that the trial court erred in failing to suppress his out-of-court statements. Defense counsel argued four contentions concerning the voluntariness of the statements but did not attack the admission of the statements on the ground that defendant was unlawfully arrested. The trial court concluded that defendant's statements were given voluntarily and freely, and the statements were admitted at trial.

In State v. Hunter, 305 N.C. 106, 286 S.E.2d 535 (1982), our Supreme Court addressed an almost identical issue. The defendant in Hunter generally attacked the voluntariness of his confession at the voir dire hearing and failed to raise a fourth amendment challenge to his arrest. The defendant first raised the issue on appeal and the Court held that it was not timely raised. The Court stated:

[w]hen a confession is challenged on other grounds which are not clearly brought to the attention of the trial judge, a specific objection or explanation pointing out the reason for the objection or motion to suppress is necessary. In order to clarify any misunderstanding about the duty of counsel in these matters, we specifically hold that when there is an objection to the admission of a confession or a motion to suppress a confession, counsel must specifically state to the court before voir dire evidence is received the basis for his motion to suppress or for his objection to the admission of the evidence.

Id. at 112, 286 S.E.2d at 539 (citations omitted).

In the case sub judice, defendant failed to raise the issue of his alleged unlawful arrest in a timely manner. Therefore, the question is not properly before this Court.

Defendant next contends that the trial court erred in failing to dismiss the charges against him because the evidence was insufficient. We do not agree.

In ruling on a motion to dismiss the trial court is to consider the evidence in the light most favorable to the State. In so doing, the State is entitled to every reasonable intendment and every reasonable inference to be drawn from the evidence; contradictions and discrepancies do not warrant dismissal of the case — they are for the jury to resolve.

State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652-53 (1982) (citations omitted).

Defendants' own statements in the present case place him at the Last Chance Package Store, in the cooler with a woman and in the truck. His appearance was consistent with the general descriptions given by the victim and Eddie Putnam. The fact that defendant altered his appearance immediately after the incident, left the state when Investigator Mull attempted to contact him and initially told Mull that he had walked home after his car had broken down is also evidence against defendant. The trial court did not err in refusing to dismiss the charges against defendant.

Defendant finally contends that the trial court committed plain error in allowing Investigator Mull to testify that the charges against Michael Morgan had been dismissed. We disagree.

Defendant failed to object to the admission of the testimony at trial. A failure to except or object to errors at trial constitutes a waiver of the right to assert the alleged error on appeal. State v. Oliver, 309 N.C. 326, 307 S.E.2d 304 (1983). Our Supreme Court has indicated, however, that on rare occasions the "plain error" rule first announced in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983), may allow a party relief even though no objection was made. State v. Mitchell, 317 N.C. 661, 346 S.E.2d 458 (1986). Before relief will be granted under the "plain error" rule,

the appellate court must be convinced that absent the error the jury probably would have reached a different verdict. In other words, the appellate court must determine that the error in question "tilted the scales" and caused the jury to reach its verdict convicting the defendant. Therefore, the test for "plain error" places a much heavier burden upon the defendant than that imposed by N.C. G.S. § 15A-1443 upon defendants who have preserved their rights by timely objection. This is so in part at least because the defendant could have prevented any error by making a timely objection.

State v. Walker, 316 N.C. 33, 39, 340 S.E. 2d 80, 83 (1986) (citations omitted).

We are not convinced that Investigator Mull's testimony concerning the dismissal of the charges against Michael Morgan "tilted the scales" and caused the jury to reach its verdicts of guilty. Thus, we find no plain error.

Defendant had a fair trial, free of prejudicial error.

No error.

ORR and GREENE, JJ., concur.