State v. Mink , 23 N.C. App. 203 ( 1974 )

208 S.E.2d 522 (1974) 23 N.C. App. 203

STATE of North Carolina
v.
Tony MINK.

No. 7422SC676.

Court of Appeals of North Carolina.

October 2, 1974. Certiorari Denied December 30, 1974.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. George W. Boylan, Raleigh, for the State.

Edward L. Hedrick, Taylorsville, for defendant-appellant.

Certiorari Denied by Supreme Court December 30, 1974.

HEDRICK, Judge.

The defendant assigns as error the denial of his motion for nonsuit. The defendant contends "that the court erred in failing to nonsuit the case based on the uncorroborated testimony of an accomplice. . . ." The record is replete with evidence tending to corroborate the testimony of the accomplice, Jesse Johnson. Furthermore, the unsupported testimony of an accomplice is sufficient to sustain a conviction if it satisfies the jury beyond a reasonable doubt of the guilt of the defendant. State v. Tilley, 239 N.C. 245, 79 S.E.2d 473 (1954); State v. Bailey, 18 N.C.App. 313, 196 S.E.2d 556 (1973), cert. denied, 283 N.C. 754, 198 S.E.2d 724 (1973), cert. denied, 415 U.S. 976, 94 S.Ct. 1561, 39 L.Ed.2d 871 (1974). This assignment of error is not sustained.

Defendant also contends that he was prejudiced by the trial court's summary of the testimony of Sheriff Bebber wherein the court stated that, upon approaching the automobile in which the defendant and his friends had been riding, Bebber "saw movements and saw Tony Mink and David Connor switch." The court had earlier ruled that the sheriff's statement that there was movement in the front seat "as if somebody was switching drivers" should be stricken. This contention is without merit.

"Slight inadvertencies in recapitulating the evidence or stating contentions must be called to the attention of the court in time for correction. Objection after verdict comes too late." State v. Goines, 273 N.C. 509, 514, 160 S.E.2d 469, 472 (1968) (citations omitted). It does not appear that the court's misstatement of the evidence was called to the attention of the trial court during the trial. Furthermore, in view of the fact that Jesse Johnson testified, without objection, that the defendant was driving the car and that he switched places with David Connor when the sheriff stopped them, we are of the opinion that this assignment of error should be overruled.

Defendant, by his third assignment of error, contends the court erred in allowing the assistant district attorney on cross-examination of the defendant to elicit evidence that the defendant made no statement to anyone, and particularly to Sheriff Bebber, regarding the fact that the television set and radios were in the automobile occupied by the defendant and the two accomplices. The defendant further contends that the court committed prejudicial error in allowing the assistant district attorney to cross-examine David Connor with respect to the defendant's silence.

We recognize the principle that evidence as to the silence of a defendant in the face of an accusatory statement is incompetent when the accused has been taken into custody and police officers are present. Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Stansbury, N.C. Evidence, Brandis Revision, Vol. 2, § 179, p. 54. There is nothing, however, in this record to indicate that the sheriff made any accusatory statement to the defendant or any of the accomplices. Moreover, it is clear from the record that the questions objected to were for the purpose of attacking the credibility of the defendant's contention that he had been asleep during the commission of the crime.

Finally, the defendant contends, based on four exceptions noted in the record, that the assistant district attorney made prejudicial and improper statements to the jury which entitle the defendant to a new trial. Procedurally, none of the defendant's objections to the argument of the assistant district attorney is properly before this Court in that the record clearly discloses that such objections were not brought to the attention of the trial court for rulings thereon prior to submission of the case to the jury. Objections to portions of the State's argument to the jury should be made before the case is submitted to the jury. State v. Peele, 274 N.C. 106, 161 S.E.2d 568 (1968), cert. denied, 393 U.S. 1042, 89 S.Ct. 669, 21 L.Ed.2d 590 (1969). Furthermore, control of the argument of the district attorney and counsel rests largely in the discretion of the trial court, and only in extreme cases of abuse where the court fails to intervene or correct an impropriety will a new trial be awarded on appeal. State v. Smith, 4 N.C.App. 261, 166 S.E.2d 473 (1969), cert. denied, 275 N.C. 341 (1969); State v. Burgess, 1 N.C.App. 104, 160 S.E.2d 110 (1968).

We have carefully examined each exception upon which these assignments of error are based and find no impropriety upon the part of the assistant district attorney in his argument to the jury which would warrant the trial judge's intervention. These assignments of error have no merit.

The defendant had a fair trial free from prejudicial error.

No error.

BRITT and BALEY, JJ., concur.