State v. McAdoo

241 S.E.2d 336 (1978)

35 N.C. App. 364

STATE of North Carolina v. Lawrence McADOO, Anthony Jones and Coy Kirkpatrick.

No. 7715SC794.

Court of Appeals of North Carolina.

February 21, 1978.

*337 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Claude W. Harris, Raleigh, for the State.

Angela R. Bryant, Graham, for defendant-appellant, Lawrence McAdoo.

Daniel H. Monroe, Jr., Graham, for defendant-appellant, Anthony Jones.

Hemric & Hemric, P. A., by W. Kelly Elder, Jr. and H. Clay Hemric, Jr., Burlington, for defendant-appellant, Coy Kirkpatrick.

WEBB, Judge.

Each of the defendants assigns as error the failure of the trial judge to grant motions for mistrial made by each defendant when a prospective juror said that he knew the defendant Kirkpatrick because Kirkpatrick "had tried to lift a power saw from [him]." Each relies on State v. Drake, 31 N.C.App. 187, 229 S.E.2d 51 (1976). In that case, a disinterested witness overheard a juror express the opinion after the State's evidence was complete but before the defendant had offered evidence that the defendant would probably offer evidence of self-defense which he, the juror, felt would be manufactured. In Drake, a new trial was ordered because the Court did not conduct an investigation by calling the juror as a witness or otherwise. The defendants contend this case is governed by Drake.

We believe this case is distinguishable from the Drake case. In Drake, the jury had been selected and the trial was in progress. The defendant's attorney made a motion to call the juror for examination and the motion was denied. There was no opportunity in Drake to determine if the jury failed to follow the Court's mandate not to reach any conclusion until all the evidence was heard and the jury charged. In this case, there is no showing that any of the parties did not have adequate opportunity to question the jury as to any prejudicial effect the statement of Mr. Gilliam may have had.

It was prejudicial to the defendants that a juror announced in open court that one of the defendants had tried to steal a chain saw from him. This prejudice was only partly cured by the juror's statement that *338 the defendant was found not guilty of this charge. The question which we face is whether this statement is so prejudicial as to require a new trial. We hold that it is not. There is nothing in the record to show that any defendant was prevented from questioning the jury on voir dire as to what weight they gave Mr. Gilliam's statement. Without any more than has been shown on this record, we cannot hold the defendants are entitled to a new trial.

The defendant, Anthony Jones, assigns as error the allowance of testimony by defendant McAdoo as to what Jones had told him. Defendant Jones cites Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) and State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968) in support of this contention. The rule of Bruton precludes the use of a confession by a nontestifying defendant if it implicates a codefendant. The rationale of this rule is that it prevents the codefendant from confronting the defendant who is a witness against him. Under Bruton, if the defendant who makes the confession testifies, the codefendant cannot exclude the confession. Jones properly states in his brief that he had the right to cross-examine McAdoo. We believe this right makes admissible McAdoo's testimony as to what Jones told him. Admissions by defendant in criminal actions have been admissible in our courts for many years. See 2 Stansbury's N. C. Evidence, § 167 n. 20 (Brandis Rev. 1973), citing many cases. This assignment of error is overruled.

Defendant McAdoo assigns as error the exclusion of offered testimony by one of the police officers that defendant Jones told the officer that McAdoo did not enter the building until the police car came by. McAdoo contends that this evidence would have corroborated his own testimony. We note that the testimony offered in corroboration of McAdoo was not a prior consistent statement by McAdoo, but a hearsay statement by Jones. 1 Stansbury's N. C. Evidence, § 52 (Brandis Rev. 1973), at page 153 says:

"The grounds upon which the witness's own prior statements are admitted do not justify the reception of another person's extrajudicial statements, and such statements would seem to be inadmissible hearsay unless they fall within some exception to the hearsay rule or are offered to impeach or corroborate the declarant's own testimony in the case."

This assignment of error is overruled.

As his final assignment of error, defendant McAdoo says that the trial judge expressed an opinion on the evidence while stating the contentions of the parties. At one point, the judge said "of course they [the defendants] contend." Defendant McAdoo argues that this implies an untruth as to McAdoo. We cannot accept this implication. The Court also said "[t]he State contends . . . the testimony of the defendant McAdoo, which the State contends, that you should not believe, certainly in that respect." Defendant McAdoo contends this is error under State v. Rhinehart, 209 N.C. 150, 183 S.E. 388 (1935). We do not believe the Rhinehart case is controlling. In that case, the trial judge made several statements which our Supreme Court held put too much emphasis on the good character of the State's witnesses and the unreasonableness of defendant's testimony. In this case, we believe the Court gave a fair statement of the State's contention without expressing an opinion. The defendant McAdoo offered evidence that he did not go into the building with the other defendants, but waited outside and only went in after the police car had passed the building the first time. The Court in giving the contention of the State on this point said:

"[t]he State contends . . . that McAdoo . . . that he could have gone back to his girl friend's apartment nearby; that he could have gone home into Orange County if he had wished to; and that he would not have gone into a building about which he knew nothing to get two men out who were not particularly close friends of his to keep them from getting in trouble; nor the State contends, would he have stood outdoors after 1:30 at night on a railroad track not knowing what was going on or what his purpose was in being there."

*339 Defendant McAdoo complains that this statement of the contention of the State involves assumptions of evidence not supported by the record. He contends that his evidence shows that he knew why he was there, and there was no evidence his girl friend had an apartment nearby.

Reading this portion of the charge, contextually we believe it fairly states the contention of the State without expressing an opinion. We believe that reading the entire record, the State could contend the defendant McAdoo was contending he did not know why he was there and the State could legitimately contend McAdoo should have gone to his girl friend's apartment or somewhere other than standing outside a building while he knew or should have known it was being broken into by persons he had accompanied to the building.

In the trial we find

No error.

BRITT and HEDRICK, JJ., concur.