Criminal Practice – Larceny of a Dog – Evidence – Present Recollection Refreshed – Reading of Statement – Sent to Jury Room – Constitutional – Fifth Amendment

State v. Harrison (Lawyers Weekly No. 12-07-0154, 20 pp.) (Rick Elmore, J.) Appealed from Nash County Superior Court. (Quentin T. Sumner, J.) N.C. App. Click here for full-text opinion.

Holding: Witness Kristyn Stanco testified that her past recorded statement refreshed her memory; nevertheless, she was allowed to read that statement to the jury. Even if this was error, it was not plain error.

Stanco testified independently about the contents of the statement, and the jury heard nothing from her reading of the statement that it did not hear from her. In addition, defendant had the opportunity both to cross-examine Stanco about the statement and to testify himself when he took the stand.

We find no prejudicial or plain error in defendant’s conviction of larceny of a dog.

Even though the trial court erred when it gave Stanco’s written statement to the jury to review in the jury room as a “court’s exhibit” and did not conduct the jury back to the courtroom, the error was not prejudicial. Nevertheless, we expressly discourage this practice.

For the first time, on appeal, defendant argues that “the cumulative effect of the trial court’s errors” deprived him of a fair trial, in violation of the Sixth and Fourteenth Amendments of the U.S. Constitution and N.C. Const. art. I, §§19 and

23. A constitutional issue not raised at trial will generally not be considered for the first time on appeal.

Defense counsel raised no objections at trial based on constitutional challenges. Indeed, defense counsel made no objections at all with respect to the arguments raised by defendant on appeal. Accordingly, we do not review defendant’s constitutional argument.

Although it was error for the trial court to allow Deputy Bryant to testify regarding defendant’s pre- and post-arrest silence, these errors do not rise to the level of plain error.

No plain or prejudicial error.