State v. Sampson

237 S.E.2d 883 (1977)

STATE of North Carolina v. Broadie SAMPSON, Jr.

No. 778SC347.

Court of Appeals of North Carolina.

October 19, 1977.

*884 Atty. Gen. Rufus L. Edmisten by Associate Atty. Richard L. Griffin, Raleigh, for the State.

Barnes, Braswell & Haithcock, P. A. by Michael A. Ellis, Goldsboro, for defendant-appellant.

CLARK, Judge.

The evidence, considered in the light most favorable to the State, was sufficient to show that defendant, acting in concert with Charles Bryant, unlawfully restrained and removed Coker from one place to another for the purpose of committing the crime of armed robbery, in violation of the new kidnapping statute, G.S. 14-39(a)(2). The trial court properly denied defendant's motions for judgment as of nonsuit and to set aside the verdict.

Defendant assigns as error the admission of Coker's testimony that while riding in the car he heard Charles Bryant tell defendant "that Royal Avenue would be okeah." The witness further testified that defendant drove his car to and on Royal Avenue. The evidence was relevant for the purpose of showing that defendant, operator of his car, followed the advice of Bryant, from which it could be inferred that they were acting in concert in the commission of the kidnapping. Defendant contends that the evidence was inadmissible because it was hearsay. The statement was not objectionable as hearsay because it was offered for a purpose other than that of proving the truth of the matter stated. 1 Stansbury's N.C. Evidence, (Brandis Rev. 1973) § 141.

Defendant contends it was error for a judge other than the trial judge to impose *885 judgment because "the sentencing Judge cannot possibly be as knowledgeable as the trial judge as to the age, character, education, environment, habits, mentality, propensities, and the record of the defendant." The sentencing was delayed for the purpose of a diagnostic evaluation of the defendant. G.S. 148-12 requires that a copy of the diagnostic study report be transmitted to the trial court. With the benefit of the report the sentencing judge would likely be more knowledgeable as to the factors enumerated than the trial judge who did not have the report. In any event, we find no statutory or case law prohibition against a judge other than the judge who presided at trial imposing judgment. Where the trial judge orders a diagnostic study of a defendant, under our system of rotation and assignment of judges, in most cases the trial judge would not be the sentencing judge because of a substantial delay between verdict and sentencing. Where the sentencing judge is not the judge who presided at trial, he would not have firsthand knowledge of the evidence in the case; but a transcript of the trial, or the testimony of the major witnesses in the trial, or even a summary of the evidence by the prosecuting attorney and defense counsel, would appear to be sufficient to enable the sentencing judge to exercise his sentencing authority with intelligence.

The judgment is not void merely because the trial or plea was before one judge and the sentence was imposed by another. 24 C.J.S. Criminal Law § 1561. And the defendant in the record on appeal has not in any way supported his contention that the sentencing judge did not have available sufficient information to impose intelligently the judgment appealed from.

No error.

VAUGHN and HEDRICK, JJ., concur.