State v. DeBerry

248 S.E.2d 356 (1978) 38 N.C. App. 538

STATE of North Carolina
v.
Eddie Columbus DeBERRY.

No. 7819SC586.

Court of Appeals of North Carolina.

November 7, 1978.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Lucien Capone, Raleigh, for the State.

Charles H. Dorsett, Troy, for defendant-appellant.

ERWIN, Judge.

Defendant presents four arguments on this appeal. After having carefully examined them, we conclude that defendant received a fair trial, free of prejudicial error.

First, he contends that it was error to allow testimony that he had fled the courtroom in July 1977, when the case first came on for trial. Defendant remained at large until January 1978. He argues that the evidence of flight has "doubtful probative value" and that the escape occurred some six months after his arrest, making the evidence too remote and prejudicial. Defendant cites State v. Self, 280 N.C. 665, 187 S.E.2d 93 (1972), for the proposition that while an accused's flight is admissible as evidence of guilt, such flight must have occurred shortly after the crime's commission to render such evidence admissible. We do not, however, construe that case as rendering inadmissible evidence of defendant's flight herein. In Self, the flight occurred 16 days after the offenses.

We do not quarrel with defendant's assertion that plausible explanations for flight, other than guilt of the offense charged, can be advanced, particularly when flight is removed from the crime by a considerable period of time. Remoteness, however, goes only to the weight of the evidence, not to its admissibility. Our Supreme Court held as follows in State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977):

"[S]o long as there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged, the instruction is properly given. The fact that there may be other reasonable explanations for defendant's conduct does not render the instruction improper." (Citation omitted.)

See also State v. Jones, 292 N.C. 513, 234 S.E.2d 555 (1977); State v. Self, supra.

Defendant next contends that the trial court erred in failing to give requested limiting instructions when evidence of his past criminal record was first introduced. The trial court did, however, instruct as follows in its charge to the jury:

"Members of the Jury, the defendant has testified that at an earlier time he was convicted of breaking and entering and larceny on two or three occasions. The Court charges you that you may consider this evidence for one purpose only. If, considering the nature of the crime, you believe that this bears on truthfulness, then you may consider it together with all other facts and circumstances bearing upon the defendant's truthfulness in deciding whether you will believe or disbelieve his other testimony at this trial. It is not evidence of the defendant's guilt in this case, however. You may not convict him on the present charge because of something he may have done in the past."

Defendant does not except to the above portion of the charge and in his brief concedes that it was a proper instruction. He argues that it should have been given promptly as requested following the prosecution's question, "What have you been convicted of?" Defendant relies on State v. Norkett, 269 N.C. 679, 153 S.E.2d 362 (1967), and State v. Austin, 4 N.C.App. 481, 167 S.E.2d 10 (1969), in support of this argument. In both cases, however, the trial court failed to give a limiting instruction at any time, even though indicating that it would do so. Here, although better practice may have been for the court to have given the requested instruction at the time the request was made and in conjunction with the admission of the evidence, we see no prejudicial error, since the trial court, in its charge, gave a correct limiting instruction. See State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975), cert. denied, 433 U.S. 907, 97 S. Ct. 2971, 53 L. Ed. 2d 1091 (1977); State v. Dupree, 30 N.C.App. 232, 226 S.E.2d 670 (1976). We observe that when counsel objected and requested a limiting instruction, no answers as to past convictions had yet been given. The trial court responded, "All right, what do you contend at this stage I should instruct the jury on?" (Emphasis added.) Defendant did not renew his objection and request a limiting instruction after the answers had been given. At the time of objection and request, the trial court had no way of knowing to what purpose, if any, the evidence to be elicited should be limited. Indeed, at that point, defendant might have responded that he had been convicted of nothing. Thus, defendant may not have even been entitled to a limiting instruction. He received one in any event.

Defendant's next contention pertains to a portion of the testimony of one of the State's witnesses, Chief Jailer Johnny Smith. While defendant was confined in the county jail, he requested to see the robbery victim, Mason. Defendant met with Mason in Smith's office. Defendant excepts to the following:

"Q. Did the defendant . . . make any statement to Alvin Mason about returning Mr. Mason's money?

A. Not to my knowledge. I was there for protection for Mr. Mason as a jailer.

MR. DORSETT: I object to that and move to strike.

COURT: Well, objection sustained, motion allowed."

Defendant contends that the trial court should have gone further, instructing the jury to disregard Smith's testimony. Again, we see no prejudicial error. Upon allowing a motion to strike an unresponsive answer, it is proper procedure for the court immediately to instruct the jury not to consider the answer. The court did, however, promptly allow the motion to strike, a ruling the jury could only interpret as meaning that Smith's answer was not to be regarded as evidence. See State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974); Moore v. Insurance Co., 266 N.C. 440, 146 S.E.2d 492 (1966).

Finally, defendant argues that the trial court abused its discretion in sentencing him to a term of not less than 30 nor more than 40 years and recommending that he "serve this sentence at hard labor without the benefit of parole, commutation, work release or community leave." Where, as here, the sentence is within statutory limits, the punishment imposed is a matter of trial court discretion. State v. Barrow, 292 N.C. 227, 232 S.E.2d 693 (1977); State v. Slade, 291 N.C. 275, 229 S.E.2d 921 (1976). We see no abuse of that discretion.

Based on the foregoing, in the trial below, we find

No error.

CLARK and ARNOLD, JJ., concur.