State v. Jones

VAUGHN, Judge.

Defendant contends the court erred in denying his timely motions for nonsuit and to set aside the verdict as contrary to the weight of the evidence. The evidence was clearly sufficient to' take the case to the jury and supports the verdict.

Defendant argues that the court erred in denying his motion to sequester the witnesses for the State. Defendant concedes that the denial is not reviewable except on the issue of abuse of discretion. We note that defendant made the motion after the State had begun to present its case and that defendant failed to explain why he wanted the witnesses sequestered. Compare State v. Clayton, 272 N.C. 377, 158 S.E. 2d 557. The record does not show abuse of discretion, and this assignment of error is overruled.

Defendant further contends that several times during the trial the court, in questioning witnesses, improperly expressed an opinion in violation of G.S. 1-180. The record indicates that the court was merely trying to clarify witness’ testimony, see State v. Freeman, 280 N.C. 622, 187 S.E. 2d 59, and in so doing did not violate G.S. 1-180. In one instance the court was obviously endeavoring to determine whether a defense witness stated that she had seen defendant wear a particular shirt or whether she stated that she had seen him wear a similar shirt. In response to the court’s question, the witness simply repeated the statement she had just made, namely, that she had seen defendant wear the shirt before. In this there was no error. In the other instance, the court was seemingly attempting to ascertain what a witness meant by the statement, “. . . to meet to deal or whatever.” The court asked, “What?” The witness replied, “To deal drugs.” In a related challenge, defendant asserts that the court erred in allowing the district attorney to ask the following question: “Have you ever used any of the drugs he [defendant] brought by?” The answer was “No.” Although the question assumed a fact not shown by the evidence and thus was improperly framed, the witness was under cross-examination, and we hold that defendant has shown neither abuse of discretion nor prejudicial error.

Defendant maintains that the trial court’s instructions to the jury contained numerous errors. Having carefully reviewed the charge as a contextual whole, we conclude that it was free of prejudicial error. Defendant maintains that in summarizing the evidence, the court made the following misstatement:

“Then, the defendant called Deputy Sheriff Brown, who gave evidence tending to show ... he was present when the defendant signed the waiver of his rights and he was in and out of the room, but wasn’t in there when the defendant admitted the robbery.”

That part of Brown’s testimony which the court was summarizing included the following:

“He, Andrew Jones, advised Deputy Womble and I if we would charge him with a misdemeanor, he would tell us all about it. I never heard him admit participating in Byrd’s Grocery Store robbery.”

Sheriff Womble in effect testified at trial that defendant admitted participating in the robbery. The court recapitulated this evidence in an earlier portion of its instructions. Defendant asserts that the court in summarizing Brown’s testimony expressed an opinion, i.e., that in the court’s view the evidence was sufficient to show defendant admitted the robbery, although defendant denied making such an admission. We disagree. There was evidence that defendant had made the admission to Sheriff Womble. The court was merely summarizing what evidence tended to show. If his remarks erroneously indicated that Brown’s testimony tended to show that defendant, contrary to his assertions, actually admitted participating in the robbery although Brown did not actually hear such an admission, defendant should have advised the court of its misconception regarding the evidence before the case was sent to the jury. State v. Butcher, 13 N.C. App. 97, 185 S.E. 2d 11, and cases cited therein. Moreover, even if it is assumed that better practice requires the court to say “allegedly admitted” rather than “admitted,” failure to use the former expression is not reversible error. “ [T] here is no reason to think the incorrect word misled the jury or was understood by them as taking away their power to say whether matters in evidence,” including those relating to defendant’s confession, “were facts or not. . . .” State v. Jones, 67 N.C. 285. Defendant also contends the court was obligated to define the term “confession” for the jury. We hold that the court was not required to do so. No request was made for a definition of the term, which is a word of common usage and meaning. See State v. Jennings, 276 N.C. 157, 171 S.E. 2d 447. Defendant maintains the court erred in not instructing that the testimony of accomplices required special scrutiny, although defendant did not request such an instruction. This contention is without merit. State v. Roux, 266 N.C. 555, 146 S.E. 2d 654. Defendant’s other exception to the charge has been considered and is overruled.

Defendant also argues that his sentence was discriminatory because his coparticipants in the crime, who pled guilty and testified against defendant, received lighter sentences than the one imposed on defendant and that he thus, in effect, was punished for exercising his right to plead not guilty. There is nothing in the record to support the contention and the same is overruled. We find no prejudicial error in defendant’s trial.

No error.

Judges Parker and Carson concur.