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North Carolina v. Kevin E. Lake

Filed: January 27, 1982.


On appeal as a matter of right from the judgment of Rouse, J., entered at the 10 September 1980 Criminal Session, Onslow Superior Court. Defendant received a sentence of life imprisonment for his conviction of first degree murder.

Copeland, Justice.


Defendant argues four assignments of error in his brief. Our review of the factual circumstances of this record and the law applicable thereto does not, however, disclose prejudicial error requiring a new trial. We therefore affirm defendant's conviction for first degree murder.

Defendant first contends that the trial court erred in failing to grant his motion for severance from a joint murder trial with Abrams. We disagree.

To begin with, we hold that the cases of defendant and Abrams were properly joined for trial pursuant to G.S. 15A-926(b)(2) since both were charged with accountability for the same offense. That being so, it is clear that the disposition of defendant's subsequent motion for a separate trial was a matter governed by the judge's sound discretion. State v. Allen, 301 N.C. 489, 272 S.E.2d 116 (1980); State v. Slade, 291 N.C. 275, 229 S.E.2d 921 (1976). Our Court has held repeatedly that the ruling upon a motion for severance shall not be disturbed on appeal unless defendant demonstrates an abuse of judicial discretion which effectively deprived him of a fair trial. See, e.g., State v. Porter & Ross, 303 N.C. 680, 281 S.E.2d 377 (1981); State v. Crews, 296 N.C. 607, 252 S.E.2d 745 (1979); State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977); see G.S. 15A-927(c)(2). We find no such abuse here.

It is true that the testimony of Abrams and defendant was conflicting upon material facts, and their defenses were admittedly antagonistic. However, Abrams was subjected to vigorous cross-examination by defendant's counsel, and, more importantly, the State offered other sufficient evidence of defendant's guilt of the crime (in particular, the testimony of Toby Locke). It is also plain that Abrams could have testified about the very same incriminating

matters at defendant's separate trial.*fn1 Under these circumstances, we cannot say, as a matter of law, that the antagonistic defenses of the co-defendants converted this joint trial into an impermissible evidentiary contest or combative spectacle which prevented the jury from rendering a fair adjudication of defendant's individual guilt. See State v. Nelson, 298 N.C. 573, 260 S.E.2d 629 (1979), cert. denied, 446 U.S. 929, 100 S. Ct. 1867, 64 L. Ed. 2d 282 (1980); State v. Cook, 48 N.C. App. 685, 269 S.E.2d 743, petition for discretionary review denied, 301 N.C. 528, 273 S.E.2d 456 (1980). As there is an insufficient basis for finding that the judge abused his discretion in denying severance, the assignment of error is overruled.

Defendant additionally argues that the trial court should have suppressed the State's evidence of Toby Locke's written statement because he was not afforded, as requested, an opportunity for pre-trial discovery of its contents pursuant to G.S. 15A-903(b) and (d). Defendant's position is untenable. We agree that G.S. 15A-903(b) and (d) generally require the State to disclose the statements of a co-defendant and documents or tangible objects which are material to the preparation of the defense. However, neither of these discovery provisions applies in the instant case. First, the State did not have to reveal the statement's contents under G.S. 15A-903(b)(2) because Locke, although charged with the same murder, was not a co-defendant being jointly tried with defendant. State v. Moore, 301 N.C. 262, 271 S.E.2d 242 (1980). Second, the State had no statutory duty to divulge the prior recorded statement of Locke under G.S. 15A-903(d) because Locke was testifying for the prosecution (under an offer of immunity), and the State could properly resist discovery of its witness's statement under G.S. 15A-904(a). State v. Abernathy, 295 N.C. 147, 244 S.E.2d 373 (1978); State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977). In sum, we hold that Locke's statement was not discoverable by defendant under G.S. 15A-903; consequently, the statement was correctly admitted into evidence to corroborate Locke's in-court testimony.

Defendant's next assignment of error states that "[t]he trial judge abused his discretion by denying defendant's numerous motions for mistrial due to improper conduct on the part of the district attorney." (Emphasis added.) The record shows that defendant specifically moved for a mistrial only twice, yet this assignment attempts to incorporate, for our consideration, seventeen exceptions taken by defendant at various times throughout the trial. Only two of those exceptions, nos. 3 and 22, were directed to the denial of defendant's motions for a mistrial. It is, therefore, appropriate that we limit our review of this assignment of error to the specific matters challenged by exceptions 3 and 22. See North Carolina Rules of Appellate Procedure, Rule 10(a) ("no exception . . . which is not made the basis of an assignment of error may be considered on appeal"); Rule 10(c) ("[e]ach assignment of error . . . shall, so far as practicable, be confined to a single issue of law"); Rule 28(b)(3) (content of appellant's brief: "[i]mmediately following each question shall be a reference to . . . exceptions pertinent to the question").

With regard to exception no. 3, defendant essentially contends that the trial court should have ordered a mistrial upon the ground that a defense witness had been improperly questioned, on the night before trial, by two detectives of the Jacksonville Police Department at the behest of the district attorney. We disagree. The trial court conducted a prompt and thorough voir dire hearing investigating defendant's allegation. The two detectives involved and the witness interviewed by them were subjected to full examination by both the defense and prosecution. At the conclusion of its investigation, the court entered the following order:

From the evidence offered on the voir dire the Court makes the following findings of fact: Ronnie Guthrie, a witness under subpoena by the defendant, was returned from the Department of Correction to the Onslow County Jail on ...

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