State v. Sowell
342 S.E.2d 541
N.C. Ct. App.
1986
Check Treatment

Lead Opinion

MARTIN, Judge.

I

In his sole assignment of error relating to the trial, defendant Samuel contends that his constitutional rights were violated when a law enforcement officer, Detective Franklin Lovette, was permitted to testify that Samuel declined to talk with him until he had conferred with an attorney. Detective Lovette testified that he had attempted to interview Samuel while Samuel was in the hospital in Dillon, S. C. The following colloquy occurred between the рrosecutor and Detective Lovette:

Q. All right. Did you have any conversation with him there?
A. After getting approval of the attending physician in charge of intensive care, I went to interviеw Mr. Samuel for the purpose of trying to find out exactly what happened on the date of November the 14th, or the early morning hours of November 14th.
After being advised of his rights, verbally, to that fact that he had the right to remain silent and have an attorney present, Mr. Samuel stated that he had better wait until he talked to a lawyer.
Mr. REGAN: Objection. Move to strike.
THE Court-. Overruled.

*468We agree with defendant Samuel that the admission of this testimony was error. Samuel’s statement that he had “better wait until he tаlked to an attorney” was clearly an invocation of his right to counsel. Edwards v. Arizona, 451 U.S. 477, 68 L.Ed. 2d 378, 101 S.Ct. 1880, reh’g denied, 452 U.S. 973, 69 L.Ed. 2d 984, 101 S.Ct. 3128 (1981). The State may not present evidence that a defendant exercised his fifth ‍​​​‌‌​​‌​​​‌​‌​​‌​‌‌‌‌‌‌‌‌‌​​‌‌​​‌​​​​‌​‌​​‌‌​​​‍amendment right to remain silent or that he exercised his right to counsel. State v. Ladd, 308 N.C. 272, 302 S.E. 2d 164 (1983).

The erroneous admission of this testimony does not, however, entitle defendant Samuel to a new trial.

Every violation of a constitutional right is not prejudicial. Some constitutional errors are deemed harmless in the setting of a particular case, not requiring the automatic reversal of a conviction, where the appellate court cаn declare a belief that it was harmless beyond a reasonable doubt. [Citations omitted.] Unless there is a reasonable possibility that the evidence complained of might have contributed to the conviction, its admission is harmless. [Citation omitted.]

State v. Taylor, 280 N.C. 273, 280, 185 S.E. 2d 677, 682 (1972). Upon the evidence presented in this сase, we see no reasonable possibility that the testimony complained of might have contributed to defendant Samuel’s conviction. Samuel was seen in the company of Sowell earlier the same night by a Dillon, S. C. police officer. Both defendants were unequivocally identified by Elbert Owens and by the victim. Shortly after Mr. Sisk exchanged shots with his assailants, Samuel appeared at the home of an acquaintance seeking аssistance in obtaining medical treatment for a gunshot wound. In the face of such overwhelming evidence of guilt, it is clear beyond any reasonable doubt that the erroneous admission of the evidence that Samuel had invoked his right to counsel was harmless error.

II

Defendant Sowell contеnds that the trial court impermissibly expressed an opinion as to the evidence by stating, in supplemental instructions to the jury, that Mr. Sisk had received twо gunshot wounds. The record reveals that when the court summarized *469the evidence in the jury instructions, it stated that Mr. Sisk was shot one time in the mouth. After the jury retired, but bеfore it began deliberations, the prosecutor advised the court that his own recollection of the evidence was that ‍​​​‌‌​​‌​​​‌​‌​​‌​‌‌‌‌‌‌‌‌‌​​‌‌​​‌​​​​‌​‌​​‌‌​​​‍Mr. Sisk had recеived a second wound to the top of his head. After inquiring of counsel for both defendants, the court stated that it would “make the correction.” Thе court then recalled the jury and gave the following instruction:

The COURT: Ladies and Gentlemen, it was called to my attention that my recollection wаs not correct with respect to the testimony of the State’s witness, Charles Sisk.
The others recollection of the testimony is that he was shot twicе; once in the face and once in the top of the head.
I mention to you that my reference to the evidence was for illustrative рurposes and not to be considered by you in substitution to the evidence, but since the others recalled my recollection being different from thеirs, I thought it necessary to call you back and remind you that in that particular and in all others if my recollection does not accord with yours, then, of course, you disregard mine entirely and rely exclusively—not on their recollection or mine, but on your own recollection of what the evidence is.

After the jury had again retired, counsel for defendant Sowell objected to the additional instruction “as a statement of opiniоn.”

G.S. 15A-1232 prohibits the judge from expressing, in the instructions to the jury, any opinion as to whether a fact has been proved. We find no violation of the statutе in this case. The court merely advised the jurors that ‍​​​‌‌​​‌​​​‌​‌​​‌​‌‌‌‌‌‌‌‌‌​​‌‌​​‌​​​​‌​‌​​‌‌​​​‍the recollection of others differed from his own recollection of the evidence and that, in any event, the jurors should rely entirely on their own recollections of the evidence. This assignment of error is overruled.

Ill

Both defendants assign error to the sentencing proceeding. They contend that the trial court improperly found and considered, as a factor in aggravаtion of punishment, that “the offense involved damage causing great monetary loss.” We disagree.

*470The statutory aggravating factor upon which the court’s finding was based is contained in N.C. Gen. Stat. § 15A-1340.4(a)(l)m and reads as follows:

The offense involved an attempted or actual taking of property of great monetary value or damage causing great monetary loss, or the offense involved an unusually large quantity of contraband. [Emphasis added.]

Defendants first contend that the clear legislative intent of the factor was that it apply only to cases involving loss or damage ‍​​​‌‌​​‌​​​‌​‌​​‌​‌‌‌‌‌‌‌‌‌​​‌‌​​‌​​​​‌​‌​​‌‌​​​‍to property. This issue has been resolved against defendants by the opinion rendered by another panel of this Court in State v. Bryant, 80 N.C. App. 63, 341 S.E. 2d 358 (1986) (but see dissenting opinion by Eagles, J.). For the reasons stated in Bryant, we reject this contention.

Secondly, defendants сontend that the evidence of “great monetary loss,” i.e., the victim’s medical bills, was used by the State to prove that the victim had sustained a serious injury, a necessary element of the crime. We reject this contention as well. The State did not offer evidence of the amount of Mr. Sisk’s mediсal expense until the sentencing hearing. Thus, the amount of monetary loss occasioned by the defendant’s criminal acts was clearly not used by the State to prove any element of the offenses. Moreover, the uncontradicted evidence of the injuries suffered by Mr. Sisk and the residual disability resulting therefrom was clearly sufficient, standing alone, to prove the element of serious injury. The additional evidence of medical еxpense was not necessary to prove that or any other element of the offenses for which defendants were convicted. Seе State v. Thompson, 309 N.C. 421, 307 S.E. 2d 156 (1983); State v. Bryant, supra.

Finally, defendants contend that the factor was not proven by a preponderance of the evidence. Mr. Sisk testified, without objection, that he had personally seen medical bills totalling from $30,000.00 to $40,000.00 and that he had been informed that the total costs of his medical treatment would be between $75,000.00 and $100,000.00. We find his uncontradicted testimony sufficient to support the trial court’s finding of great monetary loss.

The defendants received a fair trial free from prejudicial error.

*471No error.

Judge JOHNSON concurs. Judge BECTON concurs in part, and dissents in part.



Concurrence in Part

Judge BECTON

concurring in part and dissenting in part.

For the reasons stated in Judge Eagles’ dissent in State v. Bryant, 80 N.C. App. 63, 341 S.E. 2d 358 (1986), and because I believe the defendants in this case should benefit immediately ‍​​​‌‌​​‌​​​‌​‌​​‌​‌‌‌‌‌‌‌‌‌​​‌‌​​‌​​​​‌​‌​​‌‌​​​‍from any possible favorable ruling by our Supreme Court in the Bryant case, I dissent from that portion of the majority opinion relating to the sentencing proceeding.