State v. Young , 302 N.C. 385 ( 1981 )

275 S.E.2d 429 (1981)

STATE of North Carolina
v.
Darrell Lee YOUNG.

No. 54.

Supreme Court of North Carolina.

March 4, 1981.

Charles H. Harp, II, Lexington, for defendant-appellant.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Lisa Shepherd, Raleigh, for the State.

COPELAND, Justice.

Defendant argues four assignments of error on appeal. We have carefully considered each assignment and conclude that the trial court committed no error which would entitle defendant to a new trial.

Defendant first contends that the trial court erred in granting the State's motion to consolidate the charges against him for trial. G.S. 15A-926(a) provides that:

"Two or more offenses may be joined ... for trial when the offenses ... are based on ... a series of acts or transactions connected together or constituting parts of a single scheme or plan."

It is well established that the decision to consolidate charges is within the discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion. State v. Greene, 294 N.C. 418, 241 S.E.2d 662 (1978), State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977). In determining whether an accused has been prejudiced by joinder, "[t]he question is whether the offenses are so separate in time and place and so distinct in circumstances as to render a consolidation unjust and prejudicial to defendant." State v. Powell, 297 N.C. 419, 428, 255 S.E.2d 154, 160 (1979). See also State v. Greene, supra; State v. Johnson, 280 N.C. 700, 187 S.E.2d 98 (1972). Defendant does not contend that the events giving rise to the charges against him were so separate in time, place, and circumstances that he was prejudiced by having to defend the charges in one action. Instead, he argues that by consolidating the charge of felonious escape with the other charges against him, the trial judge allowed evidence of the fact that defendant was serving a prison sentence for a prior conviction to be presented to the jury, which prejudiced the jurors against him and prevented him from obtaining a fair trial. We find defendant's contention without merit. The events giving rise to the four charges against defendant all took place within a thirty minute time period and were so closely connected in time and place that they constituted separate segments of a continuing program of action by defendant. Even had the escape charge not been consolidated with the other charges, evidence that defendant had just escaped from a road crew consisting of prison inmates would have been relevant and admissible in defendant's trial on the other charges. See State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1972). We find that the trial judge's decision to consolidate charges was consistent with the guidelines set forth in G.S. 15A-926(a) and did not constitute an abuse of discretion. Defendant's assignment of error is overruled.

By his second assignment of error, defendant complains that the lapse of time between his arrest on 24 October 1979 and the commencement of trial on 28 April 1980 resulted in a denial of his right to speedy trial. The time limitations pertaining to defendant's trial are set forth in G.S. 15A-701(a1)(1), which mandates that defendant be brought to trial "[w]ithin 120 days from the date the defendant is arrested, served with criminal process, waives an indictment, or is indicted, whichever occurs last." Defendant was indicted on 11 February 1980 and brought to trial on 28 April 1980, 77 days later and clearly well within the statutory time limit. Defendant's argument that the lapse of more than 120 days between his arrest and the date of trial violated the "spirit" of the statute is without merit.

Defendant next alleges that the trial court erred in denying his motion for a new trial. Specifically, defendant argues that an unresponsive answer given by State's witness Stella Ivey was so prejudicial to his defense that instructions by the trial judge to ignore the answer were insufficient to negate the adverse effects of the statement, therefore a new trial is required. The unresponsive answer objected to by defendant was given during recross examination by the attorney for defendant as follows:

"Q. Did he try to choke you?

A. No, except when he choked me getting me to the couch.

Q. Didn't say anything to you about he was going to kill you or beat you up?

A. Just kept telling me to be quiet and do what he told me to do.

Q. To be quiet and do what he told you to do?

A. At that time I didn't know he had done killed another person.

Objection by Mr. Harp.

COURT: Disregard anything she thought he might have done before; disregard that last remark from your deliberation."

It is true that where a defendant does not testify as a witness and does not offer evidence of his good character, the State may not present evidence of his bad character, including the fact that he was convicted of an unrelated criminal offense. State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978); State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974), death penalty vacated 428 U.S. 903, 96 S.Ct. 3205, 49 L.Ed.2d 1206 (1976). However, where evidence of defendant's prior conviction comes before the jury in the form of an unresponsive answer to a question propounded by defendant, and the trial judge immediately instructs the jury not to consider the statement, a new trial is not automatically required. State v. Jarrette, supra. In this case, the evidence of defendant's guilt was overwhelming and uncontradicted.

"Where there is abundant evidence to support the main contentions of the state, the admission of evidence, even though technically incompetent, will not be held prejudicial when defendant does not affirmatively make it appear that he was prejudiced thereby or that the admission of the evidence could have affected the result." State v. Williams, 275 N.C. 77, 89, 165 S.E.2d 481, 489 (1969).

Defendant presented no evidence that would raise a reasonable possibility that the jury would have reached a different result had the unresponsive answer not been given. Under the circumstances of this case, we find that any prejudicial effect of Mrs. Ivey's answer was cured by the trial judge's instructions to the jury to disregard the statement. The trial judge did not abuse his discretion in failing to grant defendant's motion for a new trial.

Defendant concedes that his fourth assignment of error is without merit, therefore we consider this exception abandoned in accordance with Rule 28(b)(3) of the North Carolina Rules of Appellate Procedure.

Defendant received a fair trial free from prejudicial error and we find

NO ERROR.