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North Carolina v. Robinson10/3/1991
y, and no witness gave testimony concerning defendant's guilt. Under the circumstances, we are satisfied that defendant's absence during the conferences and discussions did not prejudice defendant in any way. We thus find the error harmless beyond a reasonable doubt.
In defendant's next argument, he contends that the trial court committed prejudicial error by permitting Detectives Grubb and McNeil to testify that the dumpster in which money bags and other physical evidence had allegedly been placed had been emptied prior to being searched by law enforcement officers. Defendant argues that the testimony of Detectives Grubb and McNeil concerning the emptying of the dumpster prior to their 8 March 1986 search contains no indication that either witness personally observed the emptying of that container, and was therefore inadmissible under Rule 602 of the North Carolina Rules of Evidence. N.C.G.S. § 8C-1, Rule 602 (1988). Furthermore, defendant argues that the only reasonable inference permitted by their testimony is that an employee of the Thomasville Sanitation Department told the officers that the dumpster had been emptied between 2 March and 8 March 1986, and therefore the testimony was inadmissible hearsay. N.C.G.S. § 8C-1, Rule 801(c) (1988).
Defendant argues that this testimony was crucial because it provided an explanation as to why the evidence was not found in the dumpster. Police were led to the dumpster by Thomas Wood, who testified at trial that he had driven defendant to the Western
Steer the night of the crime . Without this evidence, defendant argues, Wood's credibility would have been seriously damaged.
The State contends, and defendant concedes, that defendant did not object to or make a motion to strike the testimony at trial. Thus, defendant waived his right to argue before an appellate court that the trial judge erred by allowing the evidence. N.C.R. App. P. 10(b)(1); N.C.G.S. § 15A-1446(a) (1988); N.C.G.S. § 8C-1, Rule 103(a)(1) (1988). Nevertheless, defendant contends that the failure of the trial judge to act ex mero motu to exclude the testimony should be considered by this Court under the "plain error" rule.
We find it unnecessary to address the merits of defendant's argument. Even assuming, arguendo, that the testimony at issue was improperly admitted, we do not believe defendant has met the heavy burden placed on him under the plain error rule.
Before granting a new trial to a defendant under the plain error rule, the appellate court must be convinced that absent the alleged error, a jury probably would have reached a different verdict. State v. Mitchell, 328 N.C. 705, 711, 403 S.E.2d 287, 290 (1991); State v. Black, 308 N.C. 736, 303 S.E.2d 804 (1983). The appellate court must determine that the error in question "tilted the scales" in favor of conviction. State v. Short, 322 N.C. 783, 790, 370 S.E.2d 351, 355 (1988).
The plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a "fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot be done," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has "resulted in a miscarriage of justice or in the denial to appellant of a fair trial" or where the error is such as to "seriously affect th
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