State v. Lankford ( 1976 )

228 S.E.2d 641 (1976) 31 N.C. App. 13

STATE of North Carolina
v.
Mitchell Wayne LANKFORD.

No. 7630SC314.

Court of Appeals of North Carolina.

October 6, 1976.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Alfred N. Salley, Raleigh, for the State.

Creighton W. Sossoman, Sylva, for defendant-appellant.

MORRIS, Judge.

Defendant assigns as error the failure of the trial judge to give limiting instructions to the jury as to the portions of Agent Crawford's testimony which related to his meeting with Conard. Agent Crawford's statements regarding what Conard told him on the night in question were clearly admissible to corroborate Conard's version of the transaction involving the defendant. The record reveals that defendant made only a general objection to the introduction of the testimony and did not request a limiting instruction at trial. "It is a well recognized rule of procedure that when evidence competent for one purpose only and not for another is offered it is incumbent upon the objecting party to request the court to restrict the consideration of the jury to that aspect of the evidence which is competent." State v. Ray, 212 N.C. 725, 729, 194 S.E. 482, 484 (1938); Stansbury's N.C. Evidence, § 79 (Brandis Revision 1973). Without request therefor, defendant was not entitled to a limiting instruction. This assignment of error is overruled.

Defendant's next assignment of error relates to the court's instructions to the jury. In the initial portion of the charge, the judge instructed as to the law but failed to summarize the evidence before the jury retired. Apparently realizing his omission, the judge recalled the jury after approximately two minutes had passed and then gave them additional instructions. During these supplementary instructions the judge recited the evidence as follows:

". . . the State has offered evidence which it contends tends to show, that on the 17th of April, 1975, Officer Conard went to the Greek's Place, here in Haywood County, and while there he met the defendant and bought from him a quantity of marijuana for the sum of $20.00. On the other hand, as the Court recalls, the defendant has offered evidence which he contends tends to show that on the 17th of April, 1975, he was not at the Greek's Place; that he never sold any marijuana to Howard Conard or anyone else, and had never sold or engaged in the sale of marijuana."

Immediately preceding this, the court told the jury:

"Members of the jury, you were brought back from the jury room for the purpose of additional instructions. Under the laws of this State it is required that the Judge give you at least a brief summary of the evidence and then apply the law to that evidence as the Court recalls that evidence to be. Now, at this point, I simply want to give you my recollection of what a part of the evidence offered by the parties tends to show, but only to the extent necessary to enable me to explain or apply the applicable law."

Defendant maintains that the charge was insufficient on the ground that the jury was instructed only as to the contentions of the parties. It is true that North Carolina has held that the judge, in his instructions to the jury, must recite the evidence and may not rely solely on the contentions of the parties. Faison v. Trucking Co., 266 N.C. 383, 146 S.E.2d 450 (1966); Bulluck v. Long, 256 N.C. 577, 124 S.E.2d 716 (1962). However, although the trial judge used language which suggests he instructed only as to the parties' contentions, the record reveals that he then went further and did in fact review the evidence presented at trial. The record further reveals that the court specifically instructed the jury that the next ensuing instructions would be his recollection of the evidence. G.S. § 1-180 does not require that the trial judge state all the evidence to the jury, but only such evidence "to the extent necessary to explain the application of the law thereto . . .." We hold that the recitation of the evidence here, though brief, was sufficient to state the evidence to the jury in conformance with G.S. § 1-180.

Defendant further contends that the bifurcated instructions were so disorganized and disjointed that the jury was confused to the prejudice of the defendant. The first portion of the charge, standing alone, did not contain a recital of the evidence as required by G.S. § 1-180. However, a charge to the jury must be read and considered in its entirety and not in detached fragments. Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967). We believe that the charge as a whole contained a statement of the evidence to the extent necessary to explain the application of the law arising thereon. Furthermore, the charge read as a whole was sufficiently coherent and no prejudice resulted to the defendant. "An inaccuracy in the instruction will not be held prejudicial error when it is apparent from the charge, construed contextually, that the jury could not have been misled." Houston v. Rivens, 22 N.C. App. 423, 427, 206 S.E.2d 739, 742 (1974). Accordingly, defendant's assignments of error relating to the jury instructions are overruled.

Defendant next argues that, despite the statutory designation of separate and distinct offenses (G.S. § 90-95), the two counts of sale of marijuana and possession of marijuana for sale cannot be separate and distinct offenses where, as here, the same evidence is used to convict on each count; and, further, that because there was no separate evidence of possession with intent to distribute, defendant's motions to dismiss and to set aside the verdict as to that count should have been allowed. The Supreme Court, in State v. Cameron, 283 N.C. 191, 195 S.E.2d 481 (1973), effectively disposed of this contention. There the Court (at 199, 195 S.E.2d at 486) noted the defendant's contention in State v. Chavis, 232 N.C. 83, 59 S.E.2d 348 (1950), "that it is not competent to find the defendant guilty of two offenses and fix separate punishments therefor when the facts constituting the two purported crimes are identical, the possession being physically necessary to the act of transportation." The Court quoted from the opinion of Justice Seawell:

"Two things will help us in our thinking: we are not dealing with common law crimes but with statutory offenses; and not with a single act with two criminal labels but with component transactions violative of distinct statutory provisions denouncing them as crimes. Neither in fact nor law are they the same, State v. Midgett, 214 N.C. 107, 198 S.E. 613. They are not related as different degrees or major and minor parts of the same crime and the doctrine of merger does not apply. The incidental fact that possession goes with the transportation is not significant in law as defeating the legislative right to ban both or either. When the distinction between the offenses is considered in the light of their purpose, vastly different social implications are involved and the impact of the crime of greater magnitude on the attempted suppression of the liquor traffic is sufficient to preserve the legislative distinction and intent in denouncing each as a separate punishable offense."

The sale of a controlled substance is a specific act and occurs only at one specific time. However, the possession of that controlled substance with the intent to sell it is a continuing offense from the time it was unlawfully obtained until the time the possessor divests himself of the possession. State v. Cameron, supra. The fact that a sale occurred was sufficient evidence for the jury to infer that defendant had possessed the marijuana with intent to sell it, particularly in view of the evidence that the marijuana was in defendant's truck, that he went to the truck, took the keys from his pocket, unlocked the door, and took from the truck a paper bag from which he withdrew a plastic bag containing the marijuana which he sold to the agent. He could have possessed the marijuana for an hour or less or a week or more. The length of time is immaterial. Nor did he hand the agent the paper bag. He retained the brown paper bag and gave the agent only the plastic bag of marijuana which he took from the brown paper bag.

These contentions of defendant are without merit.

Defendant's final assignment of error relates to the State's cross-examination of defense witness Jack Harris. Harris testified, inter alia, that he had been defendant's roommate on the night in question, that he had borrowed and was in possession of defendant's truck at the time the sale of marijuana took place, and that he had left defendant at home studying while he borrowed defendant's truck. On cross-examination, the State asked Harris whether he had told the authorities of defendant's alibi at any time prior to trial. The court allowed the witness to answer, over objection, and defendant contends that the admission of this testimony constituted prejudicial error. Again, we disagree.

The questions to which defendant objected were intended to impeach the witness's testimony regarding defendant's alibi. Questions designed to impeach the witness, if relevant, may cover a wide range and are permissible within the discretion of the court. State v. Dawson, 278 N.C. 351, 180 S.E.2d 140 (1971); Stansbury's N.C. Evidence, § 38 (Brandis Revision 1973). "The silence of the witness in the face of another person's statement, or any other conduct inconsistent with his testimony may be used to discredit him." Stansbury's N.C. Evidence, § 46 (Brandis Revision 1973). The witness's failure to inform the authorities of facts which would have tended to absolve his roommate of any criminal wrongdoing was a proper subject for impeachment by the State during cross-examination. Accordingly, we find no abuse of discretion by the trial judge in permitting this line of questioning.

Even though the line of questioning was proper for impeachment purposes, defendant further contends that the admission of the testimony regarding the witness's previous silence constitutes reversible error and cites State v. Williams, 288 N.C. 680, 220 S.E.2d 558 (1975), as authority for this position. In Williams, the North Carolina Supreme Court held that the State could not offer defendant's silence during the police investigation as evidence of his guilt or for the purpose of impeaching defendant as a witness. This holding was based on the defendant's right against self-incrimination as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and by Article I, Section 23 of the North Carolina Constitution. Defendant urges us to extend the rule of Williams to the instant case. Here, however, the questions were being asked not of the defendant, but of the defendant's witness. Obviously, the defendant's privilege against self-incrimination does not extend and apply to defendant's witnesses as well. Therefore, this assignment of error is overruled.

No error.

VAUGHN and CLARK, JJ., concur.