State v. Cook , 48 N.C. App. 685 ( 1980 )

269 S.E.2d 743 (1980)

STATE of North Carolina
v.
Roy Benjamin COOK and Fern Warren Whitaker.

No. 8026SC254.

Court of Appeals of North Carolina.

September 16, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Dennis P. Myers, Raleigh, for the State.

Lindsey, Schrimsher, Erwin, Bernhardt, Hewitt & Beddow by Laurence W. Hewitt, Charlotte, for defendant Roy Benjamin Cook.

Mecklenburg County Public Defender Theofanis X. Nixon, Charlotte, for defendant Fern Warren Whitaker.

ARNOLD, Judge.

Both defendants assign error to the court's ruling allowing joinder of the cases for trial. Defendant Cook questions the propriety of granting the prosecutor's motion for consolidation, while defendant Whitaker questions the denial of his timely motion to sever. Both contentions are incorrect.

N.C.G.S. 15A-926(b)(2)a authorizes consolidation or joinder of defendants for trial on the written motion of the prosecutor when "each of the defendants is charged with accountability for each offense." The State's case, based on the theory that defendants were "acting in concert," charged each defendant with responsibility for the death of Clarence Flowers. While only one defendant logically could have fired the fatal shots, the indictments charged each defendant with the murder of Clarence Flowers, not necessarily exclusive of each other but by the two defendants acting together. The North Carolina Supreme Court in State v. Joyner, 297 N.C. 349, 356, 255 S.E.2d 390, 395 (1979), stated: "To act in concert means to act together, in harmony or in conjunction one with another pursuant to a common plan or purpose." Therefore, consolidation of the trials of defendants was authorized by statute.

Further, whether defendants should be tried separately or together is in the discretion of the trial judge. Absent a showing that the joint trial denied the defendants of a fair determination of their guilt or innocence the exercise of the court's discretion will not be disturbed on appeal. State v. Ervin, 38 N.C.App. 261, 248 S.E.2d 91 (1978), citing State v. Slade, 291 N.C. 275, 229 S.E.2d 921 (1976). Consolidation of these two cases was proper as neither defendant has indicated an absence of a fair trial as a result of non-severance.

While defendants contend their antagonistic defenses mandate separate trials, they misread State v. Madden, 292 N.C. 114, 232 S.E.2d 656 (1977). As observed in State v. Nelson, 298 N.C. 573, 587, 260 S.E.2d 629, 640 (1979), Madden, "does not mean that antagonistic defenses necessarily warrant severance. The test is whether the conflict in defendants' respective positions at trial is of such a nature that, considering all of the other evidence in the case, defendants were denied a fair trial." G.S. 15A-927(c)(2). Though the case sub judice certainly involves antagonistic defenses, defendants made no showing that they were denied a fair trial because of the consolidation. Justice Exum further observed in Nelson that severance is generally allowed where the case is "an evidentiary contest more between defendants themselves than between the State and the defendants." Supra at 587, 260 S.E.2d at 640. Such was not the case in this trial. The State presented ample evidence to support a conviction of either or both defendants of Flowers' murder.

We see no merit in Whitaker's assertion that the trial judge was in error in failing to hold a voir dire hearing on the competence of Ruby Mae Powers, a witness for defendant Cook who identified Whitaker as the gunman. Determination of the competence of a witness to testify falls within the discretion of the trial judge, and his decision will not be overturned on appeal in the absence of clear abuse of discretion. State v. Fuller, 2 N.C.App. 204, 162 S.E.2d 517 (1968). The record discloses no evidence that the trial judge abused his discretion by allowing Ruby Mae Powers to testify.

Defendant Cook also challenges the denial of his motion for mistrial based on the State's failure to disclose an incriminating statement allegedly made by defendant Cook. As soon as the prosecutor learned it the prosecutor himself, according to the record, disclosed to defense counsel the witness's intent to testify about the incriminating statement. Moreover, the defendant failed to object to the statement or move to strike at trial. The decision to grant or deny a motion for mistrial is in the discretion of the trial judge and absent abuse will not be disturbed on appeal. State v. Mills, 39 N.C.App. 47, 249 S.E.2d 446 (1978), disc. rev. denied, 296 N.C. 588 (1979). The record indicates no abuse by the trial judge in denying defendants' motion for mistrial.

We find no error in the trial judge's ruling that Officer Overturf could testify concerning statements made by defendant Cook concerning the presence of the gun found in Cook's apartment. Likewise, the judge did not err in his instruction, apparently taken from N.C.P.I.-Crim. 202.10, on the State's theory that the defendants were acting in concert in the death of Clarence Flowers. See State v. Joyner, supra at 358, 255 S.E.2d at 397.

Finally, the judge's charge, in accordance with N.C.P.I.-Crim. 206.30, on the possible inferences due to the use of a deadly weapon contain no error. See, State v. Campbell, 42 N.C.App. 361, 256 S.E.2d 526 (1979), citing State v. Patterson, 297 N.C. 247, 254 S.E.2d 604 (1979).

No error.

ERWIN and WELLS, JJ., concur.