Appeal by defendants from Lamm, Judge. Judgments entered 18 September 1980 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 13 January 1982.
Whichard, Judge. Judges Clark and Arnold concur.
Janet Brooks was employed at the Party Junction Store in Charlotte on 15 December 1979 when three men attempted to cash a check there. She declined to cash the check, because company policy precluded this for anyone except old customers. The men paid for their purchase and left.
About one hour later they returned. One put a gun in the face of Ms. Brooks' fellow employee and told him to lie on the floor in the rear of the store. Another placed a gun in Ms. Brooks' face and told her to open the cash register. The third stood "about halfway between the register and the door."
Ms. Brooks gave the gunman "almost a hundred dollars." The man who stood between the register and the door then said, "Let's go man, let's go." The two men thereupon left together.
Ms. Brooks subsequently viewed a series of photographs from which she identified defendant Woods as the gunman and defendant Moore as the accomplice who said, "Let's go, man, let's go." She testified: "[T]here is no doubt about those two individuals in the photographs."
The only assignment of error brought forward is to the denial of defendant Woods' motion to sever his trial from that of
defendant Moore. He contends he was denied a fair trial and due process because defendant Moore's counsel, in his questioning of witnesses and jury argument, portrayed defendant Woods as the gunman and defendant Moore as a passive observer.
Absent a showing that a defendant has been deprived of a fair trial by joinder, the trial judge's discretionary ruling on the question will not be disturbed . . . . The test is whether the conflict in defendant's respective positions at trial is of such a nature that, considering all of the other evidence in the case, defendants were denied a fair trial . . . . In a case where antagonistic defenses were urged as a ground for severance this Court said long ago, 'Unless the accused suffered some apparent and palpable injustice in the trial below, this court will not interfere with the decision of the [trial] court on the motion for a severance.'
State v. Nelson, 298 N.C. 573, 586-587, 260 S.E.2d 629, 640 (1979), cert. denied, 446 U.S. 929, 64 L. Ed. 2d 282, 100 S. Ct. 1867 (1980).
All the evidence here portrayed defendant Woods as the gunman and defendant Moore as an accomplice. Neither the State nor defendants offered evidence which in any way countered that version of the facts. There thus was no conflict in the defendants' positions at trial of such a nature as to deny defendant Moore a fair trial. In light of the prosecuting witness' uncontradicted and unequivocal identification of defendant Woods as the gunman, there is no "reasonable possibility that . . . a different result would have been reached" had the cases been severed. G.S. 15A-1443. Defendant Woods ...