State v. Johnson

337 S.E.2d 81, 78 N.C. App. 68, 1985 N.C. App. LEXIS 4262
Court of Appeals of North Carolina·Decided December 3, 1985·No. No. 856SC609·Published·Cited by 4 cases

Opinion

MARTIN, Judge.

Defendant brings forward eight assignments of error challenging the admission of evidence, the sufficiency of the evidence, the denial of his motion for mistrial, and the denial of one of his requested jury instructions. We find no error prejudicial to defendant.

Defendant first contends that the trial court erred in admitting into evidence photographs depicting defendant in close proximity to marijuana plants, or holding or smoking marijuana. Defendant argues that such photographs were inadmissible because they were evidence of other offenses. We do not agree. G.S. 8C-1, Rule 404(b) provides: “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” We find that the photographs, which were found in defendant’s kitchen, were admissible as evidence that defendant was living at the house on Godwin Town Road, rather than at Jernigan’s Airport as Evans Johnson testified. They were also admissible to show defendant’s knowledge of the controlled substance marijuana. See State v. Snyder, [72]*7266 N.C. App. 191, 310 S.E. 2d 799 (1984); 1 H. Brandis, Brandis on North Carolina Evidence § 91 (2d rev. ed. 1982).

In a related assignment of error defendant argues that the trial court erred in permitting testimony that photographs of defendant’s girlfriend, partially nude, were found in an envelope in his bedroom. Defendant contends that the photographs had no relevance and were prejudicial. Again, these photographs were relevant as evidence that defendant lived in the house; if defendant had moved out it is unlikely that he would have left behind such personal photographs.

Defendant’s next four assignments of error relate to the denial of his motions for mistrial, made during the cross-examination of Evans Johnson and at the conclusion of the jury arguments. Defendant alleges that the cumulative effect of various eviden-tiary rulings by the court and improper questions and arguments by the prosecutor was to deny his right to a fair trial. We will discuss each of his contentions.

Defendant first directs us to the following portion of the prosecutor’s cross-examination of Evans Johnson:

[MR. Beard]: As a matter of fact, I’ll ask you if your brother —to your knowledge if your brother tell Vicki Baggett — let her know that she didn’t have much of a record so she wouldn’t have anything to fear if she came up here and took the credit for this.
MR. Baker and Mr. Jones: Object.
MR. JONES: I’d like to approach the bench.
THE COURT: Sustained.
[Bench conference and motion for mistrial made in the absence of the jury and denied.]
[Jury returns.]
[The COURT]: Let me again just say one thing to you and please keep this in mind. If a question is asked of a witness and if the Court sustains the objection to that question, that question is not to be answered. The question itself is not to be considered by you. The question asked of a witness to which an objection is sustained is not to be considered in any [73]*73way. You are not to draw any inference from it. It is not before you. It is not evidence in the case. You are to disregard it in your consideration of these cases.

Defendant contends that the District Attorney inferred by his question that defendant had a criminal record and that he had therefore attempted to solicit someone else to confess to the crimes. Defendant asserts that this inference was so prejudicial that the trial court should have granted his motion for a mistrial. We disagree. Although the prosecutor’s suggestion that defendant had a criminal record was improper, the court immediately sustained defendant’s objection to the offensive question and instructed the jury not to draw any inference from it and to disregard it. This instruction sufficed to remove any prejudice. State v. Robbin, 287 N.C. 483, 214 S.E. 2d 756 (1975), death sentence vacated, 428 U.S. 903, 49 L.Ed. 2d 1208, 96 S.Ct. 3208 (1976).

Defendant again moved for a mistrial at the conclusion of the prosecutor’s jury argument. He based his motion, and his assignment of error to its denial, upon his assertion that the District Attorney improperly argued facts not in evidence. Again we find that upon defendant’s objections to the District Attorney’s improper argument the trial court immediately sustained the objections and instructed the jury to disregard the statements. Thus, any impropriety in the argument was cured by the prompt action of the trial court. State v. Woods, 307 N.C. 213, 297 S.E. 2d 574 (1982).

As a further basis for his contention that the trial court abused its discretion in denying his motion for mistrial, defendant contends that the trial court erred in permitting a deputy sheriff to testify that defendant declined to make a statement after being advised of his Miranda rights. Although the court’s ruling on defendant’s objection was not argued by defendant when he made his later motions for mistrial, we will consider his exception to the testimony to determine if he was prejudiced thereby.

It is error to permit the prosecution to present evidence that an accused exercised his constitutional privilege against self-incrimination by remaining silent after having been advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966); State v. McCall, 286 N.C. 472, 212 S.E. 2d 132 (1975), vacated and remanded, 429 U.S. 912, 50 L.Ed. 2d 278, 97 [74]*74S.Ct. 301 (1976). However, not every violation of a constitutional right is sufficiently prejudicial to warrant a new trial; the test is whether there is no reasonable possibility that the error might have contributed to defendant’s conviction. State v. Lane, 301 N.C. 382, 271 S.E. 2d 273 (1980). In this case we find the error harmless beyond a reasonable doubt because of other overwhelming evidence of defendant’s guilt, e.g., the bags of cocaine and marijuana which were found in defendant’s part of the house, and defendant’s voluntary, inculpatory statements when the marijuana was found in his bedroom.

Defendant next contends that the trial court should have declared a mistrial because it erred in allowing a deputy sheriff to testify that defendant’s girlfriend, Vicki Baggett White had also been charged with possessing the cocaine in question as a result of some conversation which she had with the deputy. The substance of the conversation was not admitted. Defendant contends that this evidence implied that he coerced Vicki to confess in order to exonerate himself. We read no such implication in the evidence. Evidence that a third person had been charged with possession of cocaine could not have been prejudicial to defendant and could have been helpful. The evidence could be relevant to his case, in that it tended to show that the cocaine was owned by someone other than defendant.

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State v. Johnson, 337 S.E.2d 81, 78 N.C. App. 68, 1985 N.C. App. LEXIS 4262 (N.C. Ct. App. 1985).

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