State v. Jacobs , 51 N.C. App. 324 ( 1981 )

276 S.E.2d 482 (1981)

STATE of North Carolina
v.
Floyd Eugene JACOBS.

No. 8017SC773.

Court of Appeals of North Carolina.

April 7, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Norma S. Harrell, Raleigh, for the State.

Stover, Dellinger & Browder by James L. Dellinger, Jr., King, for defendant-appellant.

BECTON, Judge.

The defendant first contends that the trial court committed prejudicial error in concluding that he was mentally capable of standing trial. The defendant also contends that the trial court erred by failing to make specific findings of fact as to his capacity to stand trial.

At trial, defendant renewed his earlier motion, under G.S. 15A-1001, "concerning the competency of the defendant to stand trial." Defendant's renewed motion was based entirely upon the second discharge summary of the psychiatrist, Dr. Billy W. Royal, who opined that the defendant was "able to meet the minimum standards relating to competency to proceed at trial." We note that Dr. Royal's first discharge summary, dated 6 November 1979, also indicates that defendant was capable of standing trial. Moreover, Dr. Royal, in his second discharge summary, found that defendant had improved since the first admission and was "able to discuss his legal charges with consistency and basic appropriateness...." While it is clear that Dr. Royal also noted "that the [defendant] has had a fluctuating mental status and at intervals he may not be viewed as being competent," it is equally clear that defendant presented no evidence at the time he renewed his motion suggesting that his mental status had fluctuated in any manner since the second discharge summary of 12 February 1980. Significantly, there was no allegation that defendant failed to cooperate with his attorney; there was no suggestion that defendant acted irrationally during the seven week period between the second discharge summary and the 31 March 1980 trial.

Defendant had the burden of persuasion on his G.S. 15A-1001 motion. State v. Womble, 44 N.C.App. 503, 505, 261 S.E.2d 263, 265 (1980). Defendant failed to carry this burden. Indeed, defendant introduced no additional evidence at the time of his renewed motion except Dr. Royal's second medical report which clearly indicated that defendant was capable of standing trial. Consequently, the trial court did not err in denying defendant's motion and in concluding that defendant was capable of standing trial.

On the facts of this case, it was not prejudicial error for the trial court to fail to make findings of fact and conclusions of law in denying defendant's motion. The language in State v. Womble, supra, bears repeating:

Better practice requires the trial court to make findings of fact in its order on a motion suggesting incapacity to proceed under G.S. 15A-1002. In the case sub judice, the court did not make findings of fact; however, such was harmless error inasmuch as the evidence presented would have compelled the trial court to find against defendant.

Id. at 505, 261 S.E.2d at 265-66.

Under G.S. 15A-1002, of course, the court is required to hold a hearing to determine defendant's capacity to proceed. If an examination is ordered pursuant to G.S. 15A-1002(b)(2), the hearing is required to be held after the examination. Here, the record indicates that a hearing was held on 29 January 1980 after the first examination and discharge. No hearing was held following the second examination and discharge at the time the motion was renewed. However, defendant did not seek to introduce any new or additional evidence except for the psychiatric report. Under such circumstances, the right to a hearing has been held to be waived. See, e. g., State v. Woods, 293 N.C. 58, 64, 235 S.E.2d 47, 50 (1977); State v. Young, 291 N.C. 562, 568, 231 S.E.2d 577, 580-81 (1977); State v. Potts, 42 N.C.App. 357, 359, 256 S.E.2d 497, 499 (1979); State v. Williams, 38 N.C.App. 183, 189, 247 S.E.2d 620, 623 (1978). In this case there were no findings and conclusions for the court to make at a second hearing except to enumerate the findings in the second discharge summary. This the court was not required to do under Womble. Moreover, defendant did not object or except to the lack of a hearing at the time he renewed his motion or to the failure of the court to make findings of fact and conclusions of law. On the facts of this case, the trial judge's review of the second discharge summary—the only evidence before him—was sufficient compliance with the hearing requirement of G.S. 15A-1002(b)(2).

In his next assignment of error, defendant contends that the trial court erred in allowing the State to cross examine him about pending criminal charges. Defendant's assignment of error was based on the portion of the cross examination that follows:

I don't know what time I went to Mrs. Nelson's house. I was arrested at 10:30 p. m. for traffic violation.

MR. DELLINGER: Objection.

THE COURT: Overruled.

MR. BOWMAN: Were you arrested for failure to stop for a blue light and a siren?

A. Yes, sir.

MR. BOWMAN: Were you arrested for speeding to elude arrest?

A. I don't know if I was arrested for failing to pursue and all.

Q. You don't know about that?

A. No.

Q. Were you arrested for careless and reckless driving after drinking?

A. No.

Q. Were you arrested for no operator's license?

A. Yes, sir.

Q. And all these were after you left the Nelson house.

A. Yes, sir.

Q. Were you also arrested at this time for the larceny of a vehicle?

MR. DELLINGER: Objection.

THE COURT: Overruled.

A. No.

EXCEPTION NO. 2.

As can be seen, defendant testified without objection that he was arrested at 10:30 p.m. for traffic violations. The objection that followed his testimony on this point was lodged too late. Further, there is no exception at this point. Moreover, there are no objections, motions to strike, or exceptions noted to any of the next series of questions and answers concerning defendant's arrest for specific traffic violations.

While the State is not generally allowed to show evidence of a previous distinct, independent or separate offense, evidence of other offenses is admissible if it tends to prove any other relevant fact. If evidence of another offense tends to show anything other than the character of the accused or his disposition to commit an offense of the nature of the one charged, then that evidence is not inadmissible simply because it also shows the accused to have committed an independent crime. See, e. g., State v. Barfield, 298 N.C. 306, 328, 259 S.E.2d 510, 528 (1979), cert. denied, 448 U.S. 907, 100 U.S. 3050, 65 L. Ed. 2d 1137 (1980); State v. McQueen, 295 N.C. 96, 123, 244 S.E.2d 414, 430 (1978); State v. Tate, 294 N.C. 189, 196, 239 S.E.2d 821, 826 (1978); State v. Williams, 292 N.C. 391, 396-97, 233 S.E.2d 507, 510 (1977); State v. Watson, 287 N.C. 147, 160, 214 S.E.2d 85, 93 (1975). In this case the evidence tended to prove other relevant facts. The traffic arrests were made as defendant was leaving the Nelson home and established the time frame in which the alleged burglary took place. Thus, they constitute part of the chain of circumstances surrounding the crime. Speeding and the failure to stop for a blue light and siren indicate an attempt to evade police officers and suggest "flight." Evidence of flight, together with all other facts and circumstances in the case, has long been recognized as admissible on the question of "consciousness of guilt." State v. Lampkins, 283 N.C. 520, 523, 196 S.E.2d 697, 698 (1973). See also State v. Self, 280 N.C. 665, 187 S.E.2d 93 (1972).

The last question in the portion of the cross examination set forth above concerns an arrest for larceny of a vehicle. Defendant objected and preserved his objection to that question. Even though the relevancy of an arrest for larceny of a vehicle is less tenuous on the facts of this case than the series of questions dealing with traffic violations, we find no prejudicial error in the trial court's decision to overrule the objection. Indeed, defendant's negative answer to the question seems to erase any prejudice that might arise from the asking of the question. This seems especially true when, as here, the defendant had just previously answered that he had been arrested for traffic offenses. Compare State v. Brice, 17 N.C.App. 189, 193 S.E.2d 299 (1972), cert. denied, 283 N.C. 258, 195 S.E.2d 690 (1973) (No prejudice resulted when defendant was asked about being previously tried for another offense when his answer was unresponsive and he never admitted anything.), with State v. Crews, 296 N.C. 607, 252 S.E.2d 745 (1979) (No prejudice resulted in allowing the defendant to be questioned about an outstanding warrant when the defendant testified that he did not know of any such warrant and when other evidence amply established his guilt.).

In his final assignment of error, the defendant contends that the trial court erred in denying his motion to set aside the verdict as being against the greater weight of the evidence. Defendant's evidence was squarely in conflict with the State's evidence. He stated that he was not in the house; the State's evidence showed that he was in the house. Defendant's evidence was that Mrs. Nelson was up and moving around; the State's evidence indicated that Mrs. Nelson was physically incapable of being up and moving around. Defendant's evidence was that he went to talk to Mrs. Lamb, with an implication that he knew her; Mrs. Lamb, testifying for the State, said she did not know defendant and further testified that she performed a job inconsistent with the job defendant suggested that she performed. Under these circumstances, the trial judge properly submitted the conflict in the evidence to the jury for it to resolve. See State v. Alexander, 18 N.C. App. 460, 197 S.E.2d 272, cert. denied, 283 N.C. 666, 198 S.E.2d 721, cert. denied, 284 N.C. 255, 200 S.E.2d 655 (1973).

A motion to set aside the verdict as being against the greater weight of the evidence is addressed to the trial judge's discretion and is not reviewable on appeal, in the absence of evidence of abuse of discretion. State v. McLean, 294 N.C. 623, 633, 242 S.E.2d 814, 820 (1978); State v. Puckett, 46 N.C.App. 719, 724, 266 S.E.2d 48 (1980); State v. Shufford, 34 N.C.App. 115, 119, 237 S.E.2d 481, 484 (1977), cert. denied, 293 N.C. 592, 239 S.E.2d 265 (1977). In this case, the trial judge did not abuse his discretion and commit prejudicial error by denying defendant's motion to set aside the verdict as being against the greater weight of the evidence.

In this trial, we find

No Error.

MORRIS, C. J., and VAUGHN, J., concur.