State v. Dellinger

ARNOLD, Judge.

Defendant Dellinger assigns error to trial court’s admission into evidence of the extra-judicial statement of codefendant Jones. Quoting from State v. Jones, 280 N.C. 322, 339, 185 S.E. 2d 858, 868 (1972), she argues that “the prejudicial impact of testimony of out-of-court declarations of a codefendant, even when, the right to confrontation is afforded, must be evaluated in the light of the competent admitted evidence against the nondeclarent defendant referred to in such declarations.” Defendant contends that since Jones’ statement tended to corroborate Payseur’s testimony, which was suspect because of his use of drugs, the court’s limiting instruction had no effect and the admission of the statement was prejudicial. We disagree. Pay-seur’s account of the events surrounding Smith’s death was competent evidence incriminating defendant Dellinger. It was corroborated at various points by other competent evidence. In this case, as in Jones, supra, there was no gap between the impact of the statement made by Arnold Jones and of other evidence competent against defendant Dellinger. This assignment of error is overruled.

Defendant next assigns error to the court’s denial of her motions for. nonsuit. This assignment of error also is. pverruled. Viewed in the light most favorable to the State, there was ample evidence of acts both before and after the murder to support a jury finding that defendant agreed with Payseur to have Smith killed. See State v. Horton, 275 N.C. 651, 170 S.E. 2d 466, cert. denied 398 U.S. 959, rehearing denied 400 U.S. 857 (1970) ; State v. Locklear, 8 N.C. App. 535, 174 S.E. 2d 641 (1970).

Finally, defendant assigns as error the court’s refusal to declare a mistrial when the solicitor used portions of Jones’ statement dealing with Dellinger in his argument to the jury. In noncapital cases, a ruling on motion for mistrial rests largely in the discretion of the trial court. State v. Daye, 281 N.C. 592, 189 S.E. 2d 481 (1972) ; State v. Brown, 18 N.C. App. 35, 195 S.E. 2d 567, cert. denied 283 N.C. 586, 196 S.E. 2d 810 (1973). The record shows that, upon defendant’s objection to the solicitor’s argument, the court repeated its limiting instruction to the jury. Under these circumstances, we find no abuse of discretion in denying defendant’s motion.

Defendant has received a fair trial free from prejudicial error.

No error.

Judges Martin and Clark concur.