State v. Anderson , 31 N.C. App. 113 ( 1976 )

BRITT, Judge.

Defendant assigns as error the failure of the trial court to grant his motion to sequester the State’s witnesses. We find no merit in this assignment. It is well settled that a motion to sequester witnesses is addressed to the sound discretion of the trial judge and his ruling is not reviewable except for abuse of discretion. State v. Sparrow, 276 N.C. 499, 173 S.E. 2d 897 (1970), cert. denied, 403 U.S. 940, 29 L.Ed. 2d 719, 91 S.Ct. 2258 (1971) ; State v. Friday, 21 N.C. App. 154, 203 S.E. 2d 670 (1974). We perceive no abuse of discretion.

Defendant assigns as error the denial of his motion to suppress the testimony of two police officers with respect to the tennis shoes worn by defendant and certain statements allegedly made by him. We find no merit in this assignment.

The record discloses that the trial judge conducted a lengthy voir dire hearing relating to the admissibility of the evidence proposed to be given by the police. Following the hearing His Honor made extensive findings of fact and conclusions of law and ordered that the evidence be admitted. The main thrust of defendant’s argument is that there were conflicts in the testimony, even between the testimony of the two officers, therefore, the findings of fact and conclusions of law were not supported by the evidence.

A careful review of the evidence presented at the voir dire reveals that while there were conflicts in the evidence every finding of fact is supported by competent testimony by one witness or another. It is clear that the responsibility of resolving conflicts in the evidence presented at a voir dire vests in the presiding judge; he hears the evidence and observes the demeanor of the witnesses, therefore, he is the appropriate one to resolve the question. State v. Barber, 268 N.C. 509, 151 S.E. 2d 51 (1966). His findings as to the voluntariness of any statements made by the defendant, and any other facts which determine whether the evidence meets the requirements for admissibility, are conclusive if they are supported by competent evidence in the record. State v. Fox, 277 N.C. 1, 175 S.E. 2d 561 (1970).

We hold that the trial court did not err in denying defendant’s motion to suppress the testimony.

Finally, defendant assigns as error a portion of the trial court’s charge to the jury. We find no merit in this assignment.

Toward the end of the charge, as the court was giving its mandate with respect to second-degree murder, the record discloses :

“And so, members of the jury, first as to the charge of second-degree murder: I charge you, members of the jury, that if the State has satisfied you from the evidence and beyond a reasonable doubt, the burden being on the State to so satisfy you, that on or about May 25, 1975, at 11:30 p.m., Donald Ray Anderson intentionally, unlawfully and willfully, that is without just cause or excuse, assaulted John Daniluk by knocking him to the ground and by stomping him while he was on the ground and that although he was a much heavier man than John Daniluk, did kick and stomp him about the head and body while Daniluk was lying helpless on the ground with the intent to inflict death or serious bodily injury on John Daniluk, and that his actions caused serious injuries to the head and brain of John Daniluk that proximately caused his death on June 30, 1975, and, members of the jury, if the State has further satisfied you beyond a reasonable doubt that the defendant’s actions on that occasion were done out of ill will and malice which the defendant Mr. Anderson harbored against John Daniluk, then it would be your duty to return a verdict of second-degree murder. (B) By that I mean if the State has satisfied you beyond a reasonable doubt, or if you have a reasonable doubt as to each and all of those elements which I have just outlined and heretofore explained to you, it is your duty to return a verdict of guilty of second-degree murder. (B).

Dependant’s Exception # 80.

If the State has failed to satisfy you beyond a reasonable doubt, or if you have a reasonable doubt as to any one of those elements, it is your duty to acquit the defendant of the charge of second-degree murder.”

Defendant contends that the instruction between (B) and (B) was erroneous. While we agree that the challenged instruction was erroneous, we hold that the error was harmless. Our Supreme Court has held in many cases that the trial court’s charge to the jury will be construed contextually and segregated portions will not be held prejudicial error when the charge as a whole is free from objection. 3 Strong, N. C. Index 2d, Criminal Law § 168, and cases therein cited.

In the case at hand the instructions immediately preceding and succeeding the challenged instruction were proper in every respect and we cannot believe that the jury was misled by His Honor’s brief misstatement. A lapsus linguae in the instructions not called to the attention of the court at the time will not be held prejudicial error when it is apparent from the record that the jury could not have been misled thereby. State v. Gray, 268 N.C. 69, 150 S.E. 2d 1 (1966), cert. denied, 386 U.S. 911, 17 L.Ed. 2d 784, 87 S.Ct. 860 (1967).

After a thorough review of the entire record, we conclude that defendant received a fair trial free from prejudicial error.

No error.

Judges Parker and Clark concur.