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North Carolina v. McBryde

Filed: January 19, 1982.

STATE OF NORTH CAROLINA
v.
ROGER LEE MCBRYDE



Appeal by defendant from Lee, Judge. Judgment entered on the verdict 18 February 1981 in Superior Court, Cumberland County. Heard in the Court of Appeals 20 November 1981.

Wells, Judge. Judges Arnold and Martin (h. C.) concur.

Wells

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.

[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), ...


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