Appeal by defendant from Barefoot, Judge. Judgement entered 18 June 1981 in Superior Court, Sampson County. Heard in the Court of Appeals 29 April 1982.
Hill, Judge. Judge Hedrick concurs. Judge Becton concurs in part and dissents in part.
The State's evidence tends to show that on 14 November 1980, defendant was tending bar at Ronnie Parker's Pool Hall when a fight broke out between Linda Gail McNeil and co-defendant Ruth Parker. Willie Leon Frederick attempted to end the fight by placing McNeil in his car, but co-defendants James Jarvis Finch and Ronnie Parker and defendant began fighting with Frederick. During that fight, Frederick testified, defendant "grabbed me right at my backpocket and snatched my pocketbook out, so I knowed it was him, I was looking at him." However, he also testified that Ronnie Parker took his wallet which contained approximately $290 dollars. When asked whether defendant had anything to do with his wallet, Frederick replied, "Him and Ronnie were the first two big ones that came to me." He also stated he never saw defendant touch the wallet in his presence "because Ronnie had it."
Defendant's evidence tends to show that he merely attempted to break up the fight and "never heard anything about any wallet." On rebuttal, the State recalled Frederick who testified that defendant first touched the wallet when it came out and Parker put it in his back pocket.
In his first argument, defendant contends that the trial judge erred in allowing the State's motion to join for trial all defendants, even though no objection to such joinder was made at trial. Nevertheless, we review defendant's assignment of error pursuant to G.S. 15A-1446(b), as he requests.
G.S. 15A-926(b)(2) states as follows:
Upon written motion of the prosecutor, charges against two or more defendants may be joined for trial:
b. When, even if all of the defendants are not charged with accountability for each offense; the several offenses charged:
1. Were part of a common scheme or plan; or
2. Were part of the same act or transaction; or
3. Were so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others.
Wether the trials should be joint or separate is within the discretion of the trial judge, and absent a showing that joinder deprived defendant of a fair trial, the exercise of the judge's discretion will not be reviewed on appeal. State v. Braxton, 294 N.C. 446, 242 ...