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North Carolina v. Jones

Filed: June 1, 1982.


Appeal by defendants from Tillery, Judge. Judgement entered 3 June 1981 in Superior Court, Lenoir County. Heard in the Court of Appeals 27 April 1982.

Martin (Robert M.), Judge. Judges Vaughn and Arnold concur.


By their first assignment of error, defendants contend that the trial court erred in consolidating their trials. Each contends that the other's election to testify effectively denied his own right to remain silent. We find no merit in this assignment.

Ordinarily, the decision to join the charges against two or more defendants for trial is within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of discretion. State v, Porter, 303 N.C. 680, 281 S.E.2d 377 (1981); {PA}

Page 463} State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977). Absent a showing that a joint trial has deprived an accused of a fair trial, the exercise of the court's discretion will not be disturbed on appeal. Id.; State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968). Such prejudice arises most often where the defendants offer antagonistic defenses, State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death sentence vacated 429 U.S. 809, 50 L. Ed. 2d 69, 97 S. Ct. 46 (1976), or where one defendant has made a confession which is inadmissible against the other, State v. Fox, supra. In this case the testimony of each defendant was entirely consistent, not antagonistic. There was no unfair compulsion on either defendant to testify in his own defense. Consolidation was proper and no abuse of discretion was shown. Defendants' first assignment of error is overruled.

The defendants next argue that the trial court erred in denying their motions in limine to prevent reference during trial to ten other pending charges against each defendant for possession or receiving stolen goods. We also consider defendants' seventh assignment of error, in which they contend that these unrelated items of stolen property were improperly admitted into evidence. We diasgree. Our Supreme Court has stated the rule pertaining to such references as follows:

While the general rule is that in a prosecution for a particular crime, the state cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense, the rule is subject to certain exceptions. One of those exceptions is that where a specific mental intent or state is an essential element of the crime charged, evidence may be offered of such acts or declarations of the accused as tend to establish the requisite mental intent or state, even though the evidence discloses the commission of another offense by the accused. State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954); accord, State v. Tate, 294 N.C. 189, 239 S.E.2d 821 (1978); State v. Williams, 292 N.C. 391, 233 S.E.2d 507 (1977).

State v. King, 301 N.C. 186, 191-92, 270 S.E.2d 98, 101 (1980). In robbery, as in larceny, the taking of the property must be with the felonious intent permanently to deprive the owner of his property. State v. Smith, 268 N.C. 167, 150 S.E.2d 194 (1966). Thus intent

was an essential element of the crimes charged in this case which the State had to prove.

The defendants denied such intent, offering as their defense to the robbery charges that the stolen money was found in a ditch behind Michael's apartment and that they intended to turn it over to the authorities. Here, the presence of the unrelated items of stolen property found in Michael's apartment negated this defense and tended to establish that the defendants, acting together, had the requisite felonious intent. Thus this evidence was competent and properly admissible on the issue of defendants' felonious intent. Further the trial court gave a clear limiting instruction to the jury on the purpose of this evidence. For these reasons the trial court properly refused to grant the pretrial motions in limine and overruled defendants' objections to this evidence.

In their third assignment of error defendants argue that the trial court abused its discretion in denying their motions for a change of venue because publicity about the trial made it impossible for them to obtain a fair trial in Lenoir County. In support of their argument, they cite an excerpt from the Kinston Daily Free Press newspaper which reported that the defendants were charged with the robbery and larceny; the circumstances of the robbery; the alleged use of the station wagon in the robbery; the circumstances of their arrests; the fruits of the search of Michael's apartment; that Michael was also charged with another robbery and two counts of kidnapping; and that both defendants faced charges of 10 counts of possession and receiving stolen goods in connection with other robberies.

North Carolina law authorizes the trial court, upon motion of a defendant, to transfer a criminal trial to another county or order a special venire if it determines that "there exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial." N.C. Gen. Stat. ยง 15A-957. Such a determination is addressed to the sound discretion of the trial court and will not be ...

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