State v. McBryde

WELLS, Judge. Defendant brings forth three assignments of error relating to the admission of evidence of defendant’s post -Miranda silence, to evidence that a magistrate had found probable cause to issue an arrest warrant, and to the court’s instructions to the jury, “requiring” them to reach a verdict. Defendant first assigns error to the trial court’s failure first to exclude ex mero motu and later on defendant’s objection evidence regarding defendant’s post -Miranda silence. Officer Jimmy Johnson testified on direct examination as follows: [A] [W]e had advised him of his Miranda rights when we asked him some questions. [475] [Q] . . . he make a statement at that point? A. He did not open up with a statement. Q. Now, would you describe the physical condition of Mr. McBryde at the time? A. [H]e didn’t basically answer a lot of questions. He was very quiet, you know. He would maybe answer a little bit and then wouldn’t say any more. Mr. Britt: Objection to that; move to strike. COURT: Motion denied; overruled. By failing to object to the first question and answer eliciting this evidence, defendant waived his objection and right to assert its admission as grounds for a new trial. State v. Logner, 297 N.C. 539, 256 S.E. 2d 166 (1979), State v. Sanders, 288 N.C. 285, 218 S.E. 2d 352 (1975), cert. denied, 423 U.S. 1091 (1976), State v. Little, 278 N.C. 484, 180 S.E. 2d 17 (1971). This assignment is overruled. In his next assignment, defendant contends that the trial court erred in failing to exclude testimony that a magistrate had found probable cause to arrest defendant and had issued a warrant for his arrest. Defendant did not object to this testimony, nor did he make a motion to strike. He has therefore waived his right to assert its admission as grounds for a new trial. See G.S. 15A-1446(a) and (b), State v. Foddrell, 291 N.C. 546, 231 S.E. 2d 618 (1976), State v. Jones, 280 N.C. 322, 185 S.E. 2d 858 (1972). Defendant contends that the jury may have accepted this testimony as a previous judicial determination and opinion of defendant’s guilt. In light of the substantial evidence connecting defendant to this crime, we do not find that this testimony was prejudicial to defendant’s case, and we overrule this assignment. Defendant finally contends that the court coerced a guilty verdict by giving the following charge: Under the law and evidence, Members of the Jury, it will be your duty, as to Count Number One, to return one of two possible verdicts: guilty of felonious breaking or entering or not guilty; and as to Count Number Two, it will be your [476] duty to return one of two possible verdicts: guilty of felonious larceny or not guilty. Defendant contends that the jury also should have been instructed that if they were unable to reach a verdict, a mistrial would be declared. In charging the jury upon the law and evidence pursuant to G.S. 15A-1232, and in instructing that a verdict must be unanimous, G.S. 15A-1237(b), the trial judge is not required to anticipate that the jury may be unable to reach a verdict, much less to express such anticipated result by instructing that a mistrial would result if the jury could not reach a verdict. Such an instruction, if given before the jury began its deliberations, would in itself tend to coerce a verdict, increasing the risk of error. See State v. Alston, 294 N.C. 577, 243 S.E. 2d 354 (1978). This assignment is overruled. No error. Judges Arnold and Martin (H. C.) concur.