State v. Riley

ERWIN, Judge.

Defendant presents two questions for our resolution. He first contends that his right to remain silent was violated when defendant was cross-examined in an effort to impeach his contention of self-defense, which was asserted for the first time at trial. Defendant was questioned by the prosecution as to why he did not give his exculpatory version of the incident to the officers after being *215arrested and after he had been given his Miranda warnings. In support of this argument, defendant relies primarily on Doyle v. Ohio, 426 U.S. 610, 49 L.Ed. 2d 91, 96 S.Ct. 2240 (1976), State v. Williams, 288 N.C. 680, 220 S.E. 2d 558 (1975), and State v. Castor, 285 N.C. 286, 204 S.E. 2d 848 (1974).

Defendant has noted four exceptions which, he asserts, support this first assignment of error. Three relate to the cross-examination of defendant, and the fourth is noted in the cross-examination of one of defendant’s witnesses. In three of the instances complained of, defendant neither made an objection nor a motion to strike. (The fourth exception is noted following defendant’s objection to a question which sought to determine when defendant first told his attorney that he had acted in self-defense; defendant’s objection was sustained as to his conversation with his counsel.)

In Doyle, supra, the U.S. Supreme Court noted that defendant had made timely objections to the questions asked. As Justice Lake wrote for our Supreme Court in State v. Mitchell, 276 N.C. 404, 409-10, 172 S.E. 2d 527, 530 (1970):

“It is elementary that, ‘nothing else appearing, the admission of incompetent evidence is not ground for a new trial where there was no objection at the time the evidence was offered.’ . . . An assertion in this Court by the appellant that evidence, to the introduction of which he interposed no objection, was obtained in violation of his rights under the Constitution of the United States, or under the Constitution of this State, does not prevent the operation of this rule.”

See also State v. Lowery, 286 N.C. 698, 213 S.E. 2d 255 (1975), modified on other grounds, 428 U.S. 902, 49 L.Ed. 2d 1206, 96 S.Ct. 3203 (1976); State v. Jones, 280 N.C. 322, 185 S.E. 2d 858 (1972). We note also that in the case of State v. Foddrell, 291 N.C. 546, 231 S.E. 2d 618 (1977), defendant sought to raise the same issues as defendant herein does. In Foddrell, Chief Justice Sharp cited the above rule with approval and observed:

“To this contention there are several answers, each sufficient to overrule Assignment No. 16. One is that defendant neither objected to the questions at the time they were asked nor moved to strike the answers which were made. *216The final question, to which objection was made and sustained, was not answered.” 291 N.C. at 557, 231 S.E. 2d at 625-6.

This assignment of error is, therefore, overruled.

Defendant’s remaining argument is that he was prejudiced by the prosecutor’s asking, during cross-examination of defendant, when he first advised his attorney of his exculpatory explanation. Defendant asserts that this was an improper inquiry into a matter covered by attorney-client privilege.

Two exceptions are noted in support of this argument. As to the first exception, again no objection was made and, in any event, the line of questioning at that point pertained to what defendant did or did not tell Deputy Brame, not his attorney. In the other instance, defendant’s objection to the question was sustained. (There was an earlier question pertaining to communications between defendant and his attorney, to which defendant had his objection sustained. And in any event, no exception appears in the record as to that question.) Defendant’s remaining assignment of error is overruled.

In the trial below, we find

No error.

Judges Britt and Arnold concur.