Appeal by defendant from Brown, Judge. Judgment entered 10 June 1981 in Superior Court, Edgecombe County. Heard in the Court of Appeals 10 March 1982.
Wells, Judge. Judge Hill concurs. Judge Becton concurs in the result.
In his first assignment of error, defendant contends that the trial court erred in granting the State's motion to join the two charges for trial, over his objection. Defendant first contends that the State's motion was not timely because it was not made prior to arraignment, citing the provisions of G.S. 15A-952 in support of this argument. The record shows that defendant was arraigned on both charges on 16 February 1981, when he entered a plea of not guilty. The State's motion for joinder was filed on 4 June 1981. The motion was heard and granted on 8 June 1981, the day the trial began. We reject defendant's contention on two bases: first, the provisions of the cited statute apply only to motions for joinder made by a defendant; second, it is within the discretion of the trial judge to permit pre-trial motions to be filed at a later time than set out in the statute. See G.S. 15A-952(b).
Defendant next contends that the two cases against him were improperly joined for trial. G.S. 15A-926, in pertinent part, provides as follows:
§ 15A-926. Joinder of offenses and defendants -- (a) Joinder of Offenses. -- Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan. Each offense must be stated in a separate count as required by G.S. 15A-924.
Because of the many-faceted factual situations confronting trial judges on joinder motions by the State, it is difficult to lay down hard and fast joinder rules; hence, our appellate courts have generally held that joinder motions are properly decided in the sound discretion of the trial court. The statutory criteria is not without meaning, however, and where there is a serious question of prejudice resulting from consolidation for trial of two or more offenses, the appropriate function of appellate review is to determine whether the case meets the statutory requirements. The following statement of our Supreme Court in State v. Clark, 301 N.C. 176, 270 S.E.2d 425 (1980), provides guidance for our decision here:
In ruling upon a motion for joinder, the trial judge should consider whether the accused can be fairly ed upon more than one charge at the same trial. If such consolidation hinders or deprives the accused of his ability to present his defense, the cases should not be consolidated. State v. Davis, 289 N.C. 500, 223 S.E.2d 296 (1976), [ death penalty vacated, 429 U.S. 809, 50 L. Ed. 2d 69, 97 S. Ct. 47 (1976).] In determining whether defendant has been prejudiced, the question posed is whether the offenses are so separate in time and place and so distinct in circumstances as to render a consolidation unjust and prejudicial to an accused. State v. Greene, 294 N.C. 418, 241 S.E.2d 662 (1978). However, it is well established that the motion to join is addressed to the sound discretion of the trial judge and his ruling will not be disturbed absent a showing of abuse of discretion. State v. Davis, supra; Dunaway v. United States, 205 F.2d 23 (D.C. Cir., 1953). In the instant case, all of the matters out of which the joined cases grew occurred on the same afternoon of the same day and each was perpetrated according to a common modus operandi. Thus, the facts of this case meet the statutory requirements for joinder, and the record shows that the respective charges are not so distinct in time and circumstances as to prejudicially hinder or deprive defendant of his ability to defend any one of the charges.
In State v. Greene, relied on by the court in Clark, the court emphasized the transactional requirement implicit in the statute. We quote in pertinent part:
G.s. 15A-926 differs from its predecessor in that it does not permit joinder on the basis that the acts were of the same class of crime or offense when there is no transactional connection, and in that it contains new language permitting joinder of offenses or crimes which are based on a series of acts or transactions "constituting parts of a single scheme or plan." See. G.S. 15A-926, Official Commentary.
In Clark, Greene, and Davis, a brief time interval between offenses is a common denominator. In Clark, all of the offenses occurred on the same afternoon, one following soon after the other. In Greene, the two offenses occurred within a time span of three hours. In Davis, the four offenses occurred within a time span of approximately two and one-half hours. In State v. Frazier, 280 N.C. 181, 185 S.E.2d 652 (1971), death penalty vacated, 409 U.S. 1004, 34 L. Ed. 2d 295, 93 S. Ct. 453 (1972), the offenses took place within a time span of three hours. In State v. Old, 272, N.C. 42, 157 S.E.2d 651 (1967), the three offenses took place within two hours. In resolving the issue in these cases, the Court has described the transaction as "all parts of a continuing program of action", Frazier, supra; and "entire episode", Olds, supra; "entire series of events comprising the four crimes", Davis, supra; and "whole affair", Greene, supra; compare State v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981).
The evidence in the case now before us shows that the contract with the Whiteheads was entered into on 19 July 1979, while the contract with Whitaker was entered into on 10 August 1979, almost three weeks later. While the two offenses for which defendant was tried have common characteristics, the present statute, as the Court pointed out in Greene, does not allow joinder on the basis that the offenses charged are of the same class of crime. The offenses for which defendant was tried were separate and distinct, not part of "a single scheme or plan". We hold that the necessary ...