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North Carolina v. Burgess

Filed: January 19, 1982.


Appeal by defendant from Washington, Judge. Judgment entered 19 February 1981 in Superior Court, Caswell County. Heard in the Court of Appeals 5 January 1982.

Vaughn, Judge. Judges Webb and Hill concur.


Defendant makes several assignments of error. We hold that none of them disclose prejudicial error.

Defendant first excepts to the admission of testimony of two State witnesses. On direct examination, Liles testified without objection to a phone conversation he had had with Stevenson concerning the tractors: "I told Mr. Stevenson that they were hot and he stated that his friend in Siler City did not care if the price was right."

Later, an S.B.I. agent testified to statements given to him by accomplices to the theft of the tractors. He repeated Liles' statement which contained the following: "I also told Gerald Stevenson that the tractors were stolen. He told me that he would call his friend up in the county and see if he wanted them. . . . After a few minutes Gerald Stevenson called me back and said. . . ." At that point, defendant objected.

The jury was excused while the judge heard arguments on the objection. The judge excluded testimony of the agent which included statements to which Liles had not previously testified. He overruled, however, defendant's objection to the above-quoted testimony. The court ruled the agent's testimony was admissible for corroboration. Defendant then moved to strike Liles' previous testimony. The court denied the motion. When the jury returned, the agent testified that Liles had told him, "After a few minutes Gerald Stevenson called me back and said that his friend wanted the tractors and didn't care if they were hot or stolen at that price."

To review the court's rulings, we must first determine whether Liles' testimony on direct examination was admissible. His testimony as to what Stevenson told him concerning defendant was clearly hearsay. As such, defendant had the right to object to its admission. Failure to object in apt time to inadmissible evidence, however, constitutes a waiver. State v. Neal, 19 N.C. App. 426, 430, 199 S.E.2d 143, 145 (1973). Usually, "apt time" to object is when the question calling for inadmissible evidence is asked. State v. Bost, 33 N.C. App. 673, 236 S.E.2d 296, cert. denied, 293 N.C. 254, 237 S.E.2d 537 (1977). Where the admissibility of evidence becomes apparent only upon the answer, the proper objection is a motion to strike. State v. Neal, supra. The present defendant failed to object immediately to the question or to move to have Liles' answer struck.

Defendant did not move to strike Liles' testimony until the S.B.I. agent testified. A motion to strike is addressed to the discretion of the trial court. Stein v. Levins, 205 N.C. 302, 171 S.E. 96 (1933); State v. Bost, supra. In State v. Beam, 45 N.C. App. 82, 262 S.E.2d 350 (1980), we held that a motion to strike, made after other questions were asked, would not relate back to earlier answers. It was, therefore, clearly proper for the present court to deny defendant's motion to strike made after several other witnesses had testified.

Concluding that defendant waived any objection he may have had to Liles' testimony by his failure to act timely, we next address defendant's objection to testimony by the S.B.I. agent. The State prefaced its questioning by stating the agent's testimony was admitted solely for the purpose of corroboration. The court, therefore, properly sustained objections to that part of the agent's testimony which introduced new evidence. Defendant, however, had earlier allowed Liles to testify that Stevenson had told him defendant did not care if the tractors were stolen. Since we have held that previous testimony admissible, testimony by the agent to a similar statement by Liles was properly admitted for corroborative purposes. As such, it came in not to prove the truth of the matter asserted but to prove the statement was in fact made. There was no hearsay violation. 1 Stansbury, N.C. Evidence ยง 141 (Brandis rev. 1973). See also State v. Madden, 292 N.C. 114, 232 S.E.2d 656 (1977); State v. Miller, 288 N.C. 582, 220 S.E.2d 326 (1975).

Defendant next argues the court erred in denying his motion for a mistrial. The S.B.I. agent testified concerning statements Inman had given him. He stated that Inman had said he became upset when defendant originally refused to purchase the tractors. The agent continued:

"I believe it was the next day that he said that there was a contact made and Mr. Burgess stated that he would give, I think that it was fifteen hundred dollars for the tractors. And that Mr. Inman stated that when he went down and met Mr. Burgess on the pull-off, off 421, I believe that he told him that you know that it cost him fifteen hundred ...

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