State v. Holland

201 S.E.2d 85, 20 N.C. App. 235, 1973 N.C. App. LEXIS 1527
CourtCourt of Appeals of North Carolina
DecidedDecember 19, 1973
DocketNo. 7327SC705
StatusPublished
Cited by1 cases

This text of 201 S.E.2d 85 (State v. Holland) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Holland, 201 S.E.2d 85, 20 N.C. App. 235, 1973 N.C. App. LEXIS 1527 (N.C. Ct. App. 1973).

Opinion

MORRIS, Judge.

Although in some instances assignments of error are not identical, and an assignment may not be applicable to both defendants, for the most part, their contentions are the same. We will first treat the assignments of error applying to both. If deemed necessary, we will discuss exceptions and assignments of error which apply only to one defendant.

Both defendants contend that identification evidence should not have been admitted. They asked for a voir dire after the evidence for the State was in. The court announced that although [237]*237it recognized this was a highly irregular procedure and not approved by it, the voir dire examination would be allowed. After the examination, the court found as facts that the evidence showed that the prosecuting witnesses had had over ten minutes to observe the defendants; that this was ample opportunity to observe the defendants; that the in-court identification “did not result from any out-of-court confrontation or pre-trial identification or proceedings or conducive to mistaken identity. The court does not find that any pre-trial procedure was so unpermissive as suggested as to give rise to have substance (sic).” The evidence before the court, both from the State’s evidence and the evidence on voir dire, was more than sufficient to support the court’s findings. Upon its findings the court concluded that it would “allow this evidence to remain before the jury.” In this we find no error.

Both defendants contend that the court erred in allowing the State, in its cross-examination of defendant Holland, to examine him with respect to a pistol which had not been identified and was displayed to the jury. The pistol had been found in defendant Burris’s car. Both defendants moved for a mistrial and excepted to the court’s allowing the State to put on additional evidence relating to the gun after it had closed its case. This is also the subject of an assignment of error for each defendant.

The evidence from both prosecuting witnesses was that Burris and Holland came in the store; Burris asked whether the gas pumps were working; that when Burris was told they were working, Holland pulled a twenty-two caliber nickel plated pistol and said: “This is a holdup.” The solicitor had the pistol marked for identification, and the witness was unable, or refused, to identify it. It was not, therefore, introduced into evidence. We fail to see where defendants have been prejudiced.

With respect to the court’s allowing the State to put on additional evidence relating to the gun after it had closed its case, “[i]t is discretionary with the trial court to permit the introduction of additional evidence after both parties have rested and arguments have been made to the jury, but the opposing party must be given an opportunity to offer additional evidence in rebuttal. (Citations omitted.)” State v. Anderson, 281 N.C. 261, 266, 188 S.E. 2d 336 (1972). In this case, after the evidence was in, the court instructed the jury to disregard it, strike [238]*238it from their minds, and not consider it during their deliberations. The State rested and defendants were asked if they had any further evidence. Both answered in the negative. We see no abuse of discretion, the defendants have shown none, and this assignment of error is overruled.

In connection with the cross-examination of defendant Holland concerning the pistol, defendant Burris contends that the court engaged in an exchange of derogatory remarks with counsel for defendant Holland. We find nothing in the record indicating the court made any derogatory remarks. The court did tell counsel at one point to sit down. This, the court had every right, in fact obligation, to do.

Both defendants contend that the court erred in its charge in that by its charge it intertwined the guilt or innocence of the two defendants in such a manner that it required that they must both be acquitted jointly or found guilty jointly. This assignment of error is without merit. The court carefully instructed the jury that an issue would be submitted as to each defendant; that though the actions were consolidated, there were still two separate actions. The court further said “Now, the court instructs you that you may find both defendants guilty or you may find both defendants not guilty, or one of the defendants guilty and the other not guilty as you find the truth to be, you being the jury in this action.” Conceding that at one point in the charge the court did use language which could, standing alone, be construed as defendants contend; nevertheless, in his final instruction he again told them there would be two issues— one as to the guilt or innocence of Holland and one as to the guilt or innocence of Burris. Read contextually, as it must be, we see no possible way for the jury to be confused or misled on this point.

Defendants both contend that the court erred in allowing witness Williams to testify with respect to the arrest of Burris without restricting the jury’s consideration of this evidence to defendant Burris. This assignment of error cannot be sustained because the court, after Williams’s evidence, instructed the jury not to consider any of it in their deliberation and ordered it stricken from the record.

Both defendants also urge that reversible error occurred when, in his charge to the jury, the court referred to Bridges along with Stroupe as having been robbed. It is true that the [239]*239indictment charged armed robbery of only Stroupe. However, all the evidence was to the effect that Stroupe and Bridges were in the store at the time. Stroupe owned the store, and Bridges worked for him. The uncontradicted evidence was that defendants took all the money from the cash register and some $12 from Bridges. We cannot perceive how this inadvertence could possibly have prejudiced either defendant.

We now discuss defendant Holland’s assignments of error which are separate and distinct from defendant Burris. One of his contentions is that the court committed prejudicial error in allowing the State to question the defendant Holland about whether he had enough money to get out of jail by posting a bond. Because of this, counsel for Holland twice moved for a mistrial — once at the time the question was asked and again by motion out of the presence of the jury. There was evidence with respect to defendant Holland’s unsteady employment for the time preceding the alleged robbery. There was also evidence that over $600 was taken in the robbery. We think the question relevant. Certainly defendant Holland would have every opportunity to explain it on redirect examination. Additionally, the witness never answered the question. It appears that counsel’s real objection is to the statement of the solicitor. Before the court had an opportunity to rule on defendant’s objection and motion for mistrial, counsel for defendant said: “I think it’s a ridiculous and improper question.” Whereupon the solicitor stated: “Your Honor, I think it’s proper to show that he had that three hundred dollars in possession.” Defendant moved for a mistrial again, and the motion was overruled. He did not move that the statement be stricken from the record or that the court instruct the jury not to consider it. See State v. Gooding, 196 N.C. 710, 146 S.E. 806 (1929). We see no prejudicial error in the court’s refusal of the several motions for mistrial, and this assignment of error is overruled.

Defendant Holland’s seventh and last assignment of error is to the polling of the jury. Upon the coming in of the verdict, both defendants moved that the jury be polled.

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Related

State v. Martin
222 S.E.2d 718 (Court of Appeals of North Carolina, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
201 S.E.2d 85, 20 N.C. App. 235, 1973 N.C. App. LEXIS 1527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-holland-ncctapp-1973.