State v. Burgess

285 S.E.2d 868 (1982)

STATE of North Carolina
v.
Grover Cleveland BURGESS, Jr.

No. 8117SC730.

Court of Appeals of North Carolina.

January 19, 1982.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Guy A. Hamlin, Raleigh, for the State.

Vernon, Vernon, Wooten, Brown & Andrews by Wiley P. Wooten, Burlington, for defendant-appellant.

VAUGHN, Judge.

Defendant makes several assignments of error. We hold that none of them disclose prejudicial error.

Defendant first excepts to the admission of testimony of two State witnesses. On direct examination, Liles testified without objection to a phone conversation he had had with Stevenson concerning the tractors: "I told Mr. Stevenson that they were hot and he stated that his friend in Siler City did not care if the price was right."

Later, an S.B.I. agent testified to statements given to him by accomplices to the theft of the tractors. He repeated Liles' statement which contained the following: "I also told Gerald Stevenson that the tractors were stolen. He told me that he would call his friend up in the county and see if he wanted them.... After a few minutes Gerald Stevenson called me back and said...." At that point, defendant objected.

The jury was excused while the judge heard arguments on the objection. The judge excluded testimony of the agent which included statements to which Liles had not previously testified. He overruled, however, defendant's objection to the above-quoted testimony. The court ruled the agent's testimony was admissible for corroboration. Defendant then moved to strike Liles' previous testimony. The court denied the motion. When the jury returned, the agent testified that Liles had told him, "After a few minutes Gerald Stevenson called me back and said that his friend wanted the tractors and didn't care if they were hot or stolen at that price."

To review the court's rulings, we must first determine whether Liles' testimony on direct examination was admissible. His testimony as to what Stevenson told him concerning defendant was clearly hearsay. As such, defendant had the right to object to its admission. Failure to object in apt time to inadmissible evidence, however, constitutes a waiver. State v. Neal, 19 N.C.App. 426, 430, 199 S.E.2d 143, 145 (1973). Usually, "apt time" to object is when the question calling for inadmissible evidence is asked. State v. Bost, 33 N.C. App. 673, 236 S.E.2d 296, cert. denied, 293 N.C. 254, 237 S.E.2d 537 (1977). Where the admissibility of evidence becomes apparent only upon the answer, the proper objection is a motion to strike. State v. Neal, supra. The present defendant failed to object immediately to the question or to move to have Liles' answer struck.

Defendant did not move to strike Liles' testimony until the S.B.I. agent testified. A motion to strike is addressed to the discretion of the trial court. Stein v. Levins, 205 N.C. 302, 171 S.E. 96 (1933); State v. Bost, supra. In State v. Beam, 45 N.C. App. 82, 262 S.E.2d 350 (1980), we held that a motion to strike, made after other questions were asked, would not relate back to earlier answers. It was, therefore, clearly proper for the present court to deny defendant's motion to strike made after several other witnesses had testified.

Concluding that defendant waived any objection he may have had to Liles' testimony by his failure to act timely, we next address defendant's objection to testimony by the S.B.I. agent. The State prefaced its questioning by stating the agent's testimony was admitted solely for the purpose of corroboration. The court, therefore, properly sustained objections to that part of the agent's testimony which introduced new evidence. Defendant, however, had earlier allowed Liles to testify that Stevenson had told him defendant did not care if the tractors were stolen. Since we have held that previous testimony admissible, testimony by the agent to a similar statement by Liles was properly admitted for corroborative purposes. As such, it came in not to prove the truth of the matter asserted but to prove the statement was in fact made. There was no hearsay violation. 1 Stansbury, N.C. Evidence § 141 (Brandeis rev. 1973). See also State v. Madden, 292 N.C. 114, 232 S.E.2d 656 (1977); State v. Miller, 288 N.C. 582, 220 S.E.2d 326 (1975).

Defendant next argues the court erred in denying his motion for a mistrial. The S.B.I. agent testified concerning statements Inman had given him. He stated that Inman had said he became upset when defendant originally refused to purchase the tractors. The agent continued:

"I believe it was the next day that he said that there was a contact made and Mr. Burgess stated that he would give, I think that it was fifteen hundred dollars for the tractors. And that Mr. Inman stated that when he went down and met Mr. Burgess on the pull-off, off 421, I believe that he told him that you know that it cost him fifteen hundred dollars for, just for the people to steal the tractors and he gave him sixteen hundred...."

Defendant made a motion to strike. The court overruled the motion as to testimony that Inman said he was given $1,600.00 by defendant. It sustained defendant's objection to the testimony concerning Inman's explanation to defendant of the cost.

After the ruling on his motion, defendant moved for a mistrial. Defense attorney argued outside the presence of the jury that the stricken statement was so prejudicial to defendant that a fair trial was no longer possible. The court denied defendant's motion. We conclude the court's ruling was proper.

A motion for mistrial in a case not involving a capital offense is within the court's discretion. The ruling is not reviewable without a showing of gross abuse of discretion. State v. Yancey, 291 N.C. 656, 664, 231 S.E.2d 637, 642 (1977). Here, the court struck the hearsay portions of the witness' testimony and gave the jury a limiting instruction. After ruling on defendant's motion for a mistrial, the court again instructed the jury. It explained what part of the agent's testimony the jury could consider, solely for corroborative purposes, and what part the jury should disregard. We must assume the jurors were capable of following the court's instructions. In light of the other evidence, we do not find the stricken testimony so prejudicial that its effect on the jury could not be erased. Compare with State v. Hunt, 287 N.C. 360, 215 S.E.2d 40 (1975); State v. Aycoth, 270 N.C. 270, 154 S.E.2d 59 (1967).

Defendant also argues the court erred in denying his motion to dismiss made at the close of the State's evidence and renewed at the close of all the evidence. We disagree.

In ruling on a motion to dismiss, the court must consider evidence in the light most favorable to the State. State v. Madden, 292 N.C. 114, 232 S.E.2d 656 (1977). In this action, there was ample evidence from which a jury could infer that defendant knew, or must have known, that the tractors were stolen. Compare with State v. Oxendine, 223 N.C. 659, 27 S.E.2d 814 (1943). Besides the unusual hours of the transactions, there was testimony that most of the people involved were strangers to defendant; they were anxious to sell the tractors; the name of L. H. Vernon Co., Inc. was printed on the side of the truck yet no one ever mentioned ownership of the truck and tractors; the tractors were left on defendant's land rather than taken to any place of business; defendant purchased the tractors for much less than their fair market value; defendant paid in cash yet did not request a bill of sale. We hold the court properly denied defendant's motion to dismiss.

Finally, defendant objects to the court's instructions that the indictment against him should not be considered as evidence of guilt "in and of itself." Defendant argues that the comment implies the indictment could become incriminating if there were other evidences of defendant's guilt and is thus an improper expression of opinion. G.S. 15A-1222. Upon examining the instruction in its entirety, we conclude the jury was properly charged.

No error.

WEBB and HILL, JJ., concur.