State v. Franklin , 23 N.C. App. 93 ( 1974 )

208 S.E.2d 381 (1974) 23 N.C. App. 93

STATE of North Carolina
v.
Earl Andrew FRANKLIN.

No. 7421SC635.

Court of Appeals of North Carolina.

September 18, 1974.

Atty. Gen. Robert Morgan by Archie W. Anders, Associate Attorney, Raleigh, for the State.

John J. Schramm, Jr., Winston-Salem, for defendant appellant.

VAUGHN, Judge.

Defendant raises two points on appeal: (1) whether the Court erred in denying defendant's motion for continuance, and (2) whether the Court erred in permitting State's witness to testify regarding State's exhibits numbered five and six when said exhibits were not properly introduced into evidence.

Defendant moved for a continuance on the grounds that the jury panel was present in court when defendant made his pleas at the arraignment; and, when defendant voiced dissatisfaction with his court-appointed counsel and requested new counsel or permission to employ his own attorney. Defendant contends the Court erred in denying this motion. We do not agree.

"A motion for continuance is ordinarily addressed to the sound discretion of the trial court, and its ruling thereon is not subject to review absent an abuse of discretion [citations]." State v. Baldwin, 276 N.C. 690, 697, 174 S.E.2d 526, 531. "Whether a defendant bases his appeal upon an abuse of judicial discretion, or a denial of his constitutional rights, to entitle him to a new trial because his motion to continue was not allowed, he must show both error and prejudice." State v. Fountain, 14 N.C. App. 82, 84, 187 S.E.2d 493, 494, as quoted in State v. Moses, 272 N.C. 509, 158 S.E.2d 617.

Defendant, of his own volition, made his original plea of guilty. He also chose to change the plea in open court. Further, defendant voluntarily voiced his dissatisfaction with his attorney before the prospective jurors. The jurors could not avoid hearing what defendant said. A defendant cannot by his own acts allow matters to come before jurors and then allege error by the Court in an attempt to escape the effects of his own acts.

The Court worked to avoid prejudice and minimize the effects of defendant's action. For example, after defendant's expression of dissatisfaction, the Court conducted a hearing on the matter outside the presence of prospective jurors. In its instruction to jurors before accepting evidence, the Court instructed them to disregard the proceedings at arraignment and to base their verdict "solely upon the evidence as it comes from the witness stand and not anything which took place in the beginning of the Court's questioning of the defendant pertaining to his plea."

Our survey of the record reveals that the Court acted properly and defendant failed to show error and prejudice, or an abuse of discretion.

As to the second point, the Court's permitting the testimony of a State's witness regarding exhibits numbered five and six, we also affirm the Court's ruling. The substance of this testimony was that defendant's fingerprints were found on the stolen automobile. Defendant readily admitted on at least two occasions that his fingerprints were on the car. One of these admissions came at the conclusion of his cross-examination of State's witness. In view of defendant's admission, there is no prejudice as a result of the admission of the evidence. A verdict or judgment is not to be set aside on the basis of mere error and no more. The ruling complained of must not only be erroneous. It must also be material and prejudicial, and prove that but for the error a different result likely would have ensued. See State v. Paige, 272 N.C. 417, 424, 158 S.E.2d 522, 527. The burden to prove that a different result would have ensued is on appellant.

Careful consideration of defendant's assignments of error leads us to conclude that they are without merit.

No error.

CAMPBELL and PARKER, JJ., concur.