State v. Hyatt , 32 N.C. App. 623 ( 1977 )

233 S.E.2d 649 (1977) 32 N.C. App. 623

STATE of North Carolina
v.
William Ray HYATT.

No. 7630SC762.

Court of Appeals of North Carolina.

April 6, 1977.

Atty. Gen., Rufus L. Edmisten by Asst. Atty. Gen., Ralf F. Haskell, Raleigh, for the State.

Rodgers, Cabler & Henson by John Edwin Henson, Highlands, for defendant-appellant.

VAUGHN, Judge.

Defendant brings forward nine assignments of error which have been grouped into eight arguments. His first assignment is that the trial court erred in failing to grant his motion to sever the three cases for trial. Defendant contends that if the cases had been tried separately, he would have had the election of presenting evidence in one case without being forced to present evidence in the others. Severance of criminal cases is governed by G.S. 15A-927.

In State v. Davis, 289 N.C. 500, 507, 508, 223 S.E.2d 296, 300, the Supreme Court stated:

"The general rule in this jurisdiction is that the trial judge may consolidate for trial two or more indictments in which the defendant is charged with crimes of the same class and the crimes are so connected in time or place that evidence at the trial of one indictment will be competent at the trial of the other. State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721; State v. Anderson, 281 N.C. 261, 188 S.E.2d 336; State v. Frazier, 280 N.C. 181, 185 S.E.2d 652."

The Supreme Court in Davis stated further that:

"It is true that in ruling upon a motion consolidation of charges, the trial judge should consider whether the accused can fairly be tried upon more than one charge at the same trial. If such consolidation hinders or deprives the accused of his ability to present his defense, the cases should not be consolidated. Pointer v. United States, 151 U.S. 396, 14 S. Ct. 410, 38 L. Ed. 208; Dunaway v. United States, 92 U.S.App.D.C. 299, 205 F.2d 23. Nevertheless, it is well established that the motion to consolidate is addressed to the sound discretion of the trial judge and his ruling will not be disturbed absent a showing of abuse of discretion. State v. Jarrette, supra; State v. Yoes and Hale v. State, 271 N.C. 616, 157 S.E.2d 386; State v. Overman, 269 N.C. 453, 153 S.E.2d 44; Dunaway v. United States, supra."

There was no error in the court's refusal to grant defendant's motion to sever the three cases for trial. Moreover, defendant waived any right to severance by failing to renew his motion as required by G.S. 15A-927(a)(2).

Defendant next assigns as error the trial court's failure to grant his motion for a continuance. No motion to continue the case had been made until after the case was called for trial. see G.S. 15A-952.

During the hearing on the motion, defendant's counsel stressed that they had worked almost full time on defendant's case since their appointment and said they were ready to go to trial. They also said that an extension of time would not necessarily enable them to locate any witnesses beneficial to the defendant. There was no evidence offered as to what defendant would attempt to prove by any witness that was not available. It is clear from the record that the trial court did not abuse its discretion or deny defendant any substantial right when it denied defendant's untimely motion for continuance and, in the absence of a showing of an abuse of discretion or a denial of a substantial right, the court's ruling is not subject to review on appeal. State v. Brower, 289 N.C. 644, 224 S.E.2d 551. This assignment of error is, therefore, without merit.

Defendant's third assignment of error is that the trial court erred in failing to grant his motion for the sequestration of the jury during the taking of evidence in this case.

It is within the sound discretion of the trial court whether to require the sequestration of the jury during the course of trial. State v. Bynum, 282 N.C. 552, 193 S.E.2d 725, cert. den., 414 U.S. 869, 94 S. Ct. 182, 38 L. Ed. 2d 116. There is not the slightest suggestion in this record of any impropriety on behalf of any juror. The assignment of error is overruled.

The defendant next assigns as error the admission into evidence of testimony that warrants were issued charging defendant and Lloyd Green with the murders for which defendant was being tried. We find this assignment of error to be without merit. The warrants were not read or shown to the jury and their contents were not revealed. The warrants were simply shown to the sheriff in order to refresh his recollection as to the date when the defendant was finally charged after months of investigation. In this, there was no error. Moreover, defendant's counsel, during cross-examination of the sheriff elicited the same information about which he complains in this assignment of error. An objection to certain evidence, even though seasonably made upon a sound ground, is waived when like evidence is thereafter admitted without objection and especially where like evidence is subsequently offered or elicited by the objecting party himself. State v. Williams, 274 N.C. 328, 163 S.E.2d 353; State v. Vestal, 278 N.C. 561, 180 S.E.2d 755, cert. den., 414 U.S. 874, 94 S. Ct. 157, 38 L. Ed. 2d 114.

Defendant's fifth assignment of error is that the court erred in allowing into evidence testimony concerning admissions made by him as to his involvement in the crimes for which he was being tried and other crimes for which he was not being tried. Defendant concedes that his alleged admissions of having killed three people was admissible under the rule that "[a]nything that a party to the action has done, said or written, if relevant to the issues and not subject to some specific exclusionary statute or rule, is admissible against him as an admission." 2 Stansbury, N.C.Evidence (Brandis rev.), § 167. It is his contention that evidence that he had been charged with receiving in connection with the breaking and entering at White's Auto Store was irrelevant to the issue of his guilt in this case and should have been excluded. The testimony was competent for the purpose of establishing defendant's intent and motive for the killings. The State's evidence disclosed that Wayne Buchanan, Billy Joe Franks, Kenneth Potts and others were involved in a breaking and entering at White's Auto Store in Jackson County, North Carolina. Defendant expressed to several of the State's witnesses his fear that Buchanan and Franks would testify against him in the receiving stolen goods case that was pending against him. Defendant also offered a witness for the State $5,000.00 to "knock off" two of the three decedents and openly discussed with another witness having all of those involved in the breaking and entering "beaten up" or "knocked off." The evidence was properly admitted.

Defendant also assigns as error the trial court's denial of his motion for dismissal at the close of the State's evidence and at the conclusion of all the evidence. When considering the sufficiency of the evidence to survive a motion to dismiss, the evidence, considered in the light most favorable to the State, is deemed to be true and inconsistencies or contradictions therein are disregarded. After the evidence is considered in the light most favorable to the State, the ultimate question for the court's determination is whether there is a reasonable basis upon which the jury might find that the offenses charged in the indictments had been committed and that the defendant was the perpetrator, or one of the perpetrators of the offenses. State v. Price, 280 N.C. 154, 184 S.E.2d 866. The evidence in this case points unerringly to defendant's guilt. The motion to dismiss was properly overruled.

Defendant's seventh assignment of error is that the judge erred in failing to instruct the jury on the law of manslaughter and in failing to submit voluntary manslaughter to the jury as a possible verdict. The jury was told that it could return three possible verdicts: guilty of murder in the first degree, guilty of murder in the second degree, or not guilty. It suffices to say that there was no evidence in the record to justify an instruction on manslaughter as a possible verdict. State v. Vestal, supra; State v. Crews, 284 N.C. 427, 201 S.E.2d 840.

Defendant's final assignment of error, directed to a portion of the judge's charge to the jury, has been carefully considered. It fails to disclose prejudicial error.

We find no prejudicial error in defendant's trial.

No error.

MORRIS and MARTIN, JJ., concur.