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North Carolina v. Carr

Filed: October 20, 1981.

STATE OF NORTH CAROLINA
v.
THOMAS CARR



Appeal by defendant from McLelland, Judge. Judgment entered 6 November 1980 in Superior Court, Durham County. Heard in the Court of Appeals 23 September 1981.

Martin (Harry C.), Judge. Judges Martin (Robert M.) and Becton concur.

Martin

Defendant first contends the court erred in reading a part of the bill of indictment to the jury, contrary to N.C.G.S. 15A-1221(b). This statute proscribes the reading of the bill of indictment to the prospective jurors or the jury. The record does not disclose that the trial judge read the bill to the jurors at any time. He made reference to the contents of the bill during his remarks to the jurors while they were being selected and during his charge. Defendant did not object to the remarks at jury selection and thereby waived any possible defect. Leaving aside the question of the constitutionality of N.C.G.S. 15A-1221(b), which has not been raised by the parties, we find that the court did not violate the statute, and the assignment of error is overruled. State v. McNeil, 47 N.C. App. 30, 266 S.E.2d 824, disc. rev. denied, 301 N.C. 102 (1980), cert. denied, 101 S. Ct. 1356 (1981).

Defendant makes several arguments concerning the evidence. The witness Lillian Best, defendant's girlfriend, testified that on the day after the robbery defendant had what seemed to her an unusual or large amount of money. On cross-examination the amount was stated to be $274. The witness's testimony was a shorthand statement of fact derived from her own experience. See State v. Spaulding, 288 N.C. 397, 219 S.E.2d 178 (1975), death penalty vacated, 428 U.S. 904 (1976); Edwards v. Junior Order, 220 N.C. 41, 16 S.E.2d 466 (1941). Moreover, once the amount was before the jury, the witness's characterization was not prejudicial. The testimony was relevant as a foundation for a series of questions concerning defendant's reaction when confronted with the witness's inquiry about the source of the money. Defendant did not object to these questions or answers at trial. See 1

Stansbury's N.C. Evidence §§ 79 and 27 (Brandis rev. 1973). We find no error in this testimony.

State's witness Brown testified that he was involved in the robbery along with defendant and several others. He, defendant and Paul Carter had planned the robbery at an earlier time. Defendant was living in California and flew into Durham the day of the robbery. Defendant objected to Brown testifying that Carter, one of the robbers, told him that he was going to the airport to pick up defendant. This testimony was competent as a statement of a coconspirator made in furtherance of the plan to commit the robbery. "When the State shows a prima facie conspiracy, the declarations of the coconspirators in furtherance of the common plan are competent against each of them. . . . This is so even where the defendants are not formally charged with a criminal conspiracy." State v. Covington, 290 N.C. 313, 325-26, 226 S.E.2d 629, 639 (1976) (citations omitted; emphasis added).

We find no prejudicial error in the testimony of Brown. His testimony concerning the plans to commit a robbery was competent. State v. Gregory, 37 N.C. App. 693, 247 S.E.2d 19 (1978). While the trial judge may not have accurately summarized this testimony in his jury charge, it was immaterial as there was abundant evidence that the robbery was planned in December 1979 and January 1980. Defendant failed to call the mistake to the attention of the court. State v. Willard, 293 N.C. 394, 238 S.E.2d 509 (1977). Brown also testified, over objection, that he was afraid of defendant and that during his incarceration in the Durham County jail he had experienced no difficulty in getting along with the prison personnel. This testimony was competent. Brown was testifying pursuant to an agreement with the state and this testimony was logically related to that agreement. Stansbury, supra, § 79. Moreover, defendant has failed to show any prejudice from the testimony. State v. Atkinson, 298 N.C. 673, 259 S.E.2d 858 (1979).

Next, defendant contends the court committed prejudicial error by failing to caution the jury with appropriate instructions concerning their behavior during the trial, in violation of N.C.G.S. 15A-1236(a). The constitutionality of this statute has not been raised. Defendant failed to object at the times he contends the court was remiss in its duty to instruct the jury, nor did he request further

instructions. Under the holding in State v. Turner, 48 N.C. App. 606, 269 S.E.2d 270 (1980), we find no prejudicial error.

Apparently after the noon recess on the second day of the trial, juror O'Neil Reams was absent. The trial judge seated an alternate juror in place of ...


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