State v. Singleton , 36 N.C. App. 645 ( 1978 )

MITCHELL, Judge.

The defendant assigns as error the trial court’s failure to immediately instruct the jury, at the time evidence of his prior conviction was admitted into evidence, that such evidence could be considered solely as bearing upon his credibility and not as substantive evidence of his guilt or innocence of the offense charged. The defendant contends that failure to so instruct the jury until the time of its final instructions constituted prejudicial error by the trial court.

Even when totally inadmissible evidence is admitted, it will ordinarily be regarded as harmless if later excluded or withdrawn and the jury instructed to disregard the evidence. 1 Stansbury, N.C. Evidence (Brandis Rev. 1973), § 28. In some cases, however, cautionary admonitions of the trial court are ineffective to erase from the minds of the jury the effects of prejudicial testimony. Bruton v. United States, 391 U.S. 123, 20 L.Ed. 2d 476, 88 S.Ct. 1620 (1968). Those cases in which cautionary instructions have been found insufficient to remove prejudice have involved situations in which it appeared from the entire record that the prejudicial effect of the evidence was not or probably could not be removed from the minds of the jurors by the court’s instruction. State v. Aycoth, 270 N.C. 270, 154 S.E. 2d 59 (1967); 4 Strong, N.C. Index 3d, Criminal Law, § 96, p. 473. No such situation is presented by this case.

In the case sub judice the State was entitled to ask questions of the defendant and to have him answer concerning his prior criminal convictions. The defendant was not entitled to have this evidence withdrawn or removed from the minds of the jurors. He was merely entitled to a limiting instruction. We find this was accomplished by the instructions of the trial court to the jury immediately before the jury began consideration of the case. No more was required.

The defendant was afforded a fair trial free from error, and we find

No error.

Chief Judge BROCK and Judge HEDRICK concur.