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67 N.C. App. 731

State v. Godwin

Court of Appeals of North Carolina

Decided April 17, 1984

Court of Appeals of North Carolina · decided 1984-04-17

1. Criminal Law 89.3 — prior statement of witness — admissibility for corroboration An officer's testimony that a cashier who had previously viewed a photographic lineup "stated that she had thought about this further and she was almost positive that this was the man that had held the gun<page_number>Page 732</page_number> on" the pharmacist was not inadmissible hearsay but was properly admitted to corroborate the cashier's testimony. 2. Criminal Law 116 — failure of defendant to testify — refusal to give requested instruction The trial court did not err in failing to give a requested jury instruction on defendant's failure to testify where the court gave the pattern jury instruction which clearly informed the jury of the law and gave the substance of the requested instruction. G.S. <cross_reference>15A-1232</cross_reference>. 3. Criminal Law 92.2 — consolidation of charges against two defendants — additional charge against one defendant — failure of other defendant to testify The trial court did not err in consolidating charges against defendant and a co-defendant for trial because defendant was charged with only armed robbery and the co-defendant was charged with armed robbery and misdemeanor possession of hydromorphone where there was evidence that the hydromorphone was taken in the robbery, and the possession charge was thus part of the same act or transaction as the robbery. Nor were the charges improperly consolidated on the ground that defendant's trial strategy was compromised by the co-defendant's failure to testify where defendant and the co-defendant did not raise any antagonistic defenses or try to shift the onus of criminal responsibility but offered mutually independent alibi defenses. G.S. <cross_reference>15A-926</cross_reference>(b).

Relies on State v. Slade · State v. Burns · State v. Frazier

Decided 1984-04-17

JOHNSON, Judge.

¶1Defendant Godwin’s Appeal

¶2Defendant Godwin contends that the court improperly admitted hearsay testimony through the investigating officer. The officer testified that he had taken a photographic lineup to the store and that the cashier had tentatively identified Godwin. He returned later with the same lineup. Over defendant Godwin’s objection, the officer then testified that the cashier “stated that she had thought about this further and she was almost positive that this was the man that had held the gun on” the pharmacist. The *734cashier had earlier testified on direct that she was able to identify Godwin positively. On cross-examination she admitted that she wasn’t sure that she identified him the first time she saw the lineup, but that she did identify him positively. The testimony objected to thus corroborated her testimony and was properly admitted. State v. Burns, 307 N.C. 224, 297 S.E. 2d 384 (1982). Assuming error, arguendo, defendant still must show prejudice. G.S. 15A-1443(a). The pharmacist testified repeatedly that he unequivocally identified defendant Godwin; in addition, the officer later repeated without objection substantially the same testimony concerning the cashier’s statements. Defendant Godwin has thus failed to meet his burden and this assignment is overruled. See State v. King, 64 N.C. App. 574, 307 S.E. 2d 805 (1983).

¶3Defendant Godwin also challenges the court’s failure to give a requested jury instruction on his failure to testify. Defendant Hall presented many witnesses and testified himself. Godwin argues that the jury was impressed to his prejudice by this “striking” difference, and the court’s failure to give his expanded instruction requires a new trial. The court gave the pattern jury instruction, which clearly informed the jury of the law and gave the substance of the requested instruction. That is all that is required by law. See G.S. 15A-1232. This assignment is overruled.

¶4Defendant Hall’s Appeal

¶5Upon oral motion of the prosecutor when defendant Hall’s case was called for trial, the court joined his trial with defendant Godwin’s. Defendant Hall assigns error. The prosecutor’s motion was timely and in proper form. State v. Slade, 291 N.C. 275, 229 S.E. 2d 921 (1976). Whether to allow it was within the discretion of the court. Id. Defendant Hall argues that his trial strategy was unfairly compromised by Godwin’s failure to testify. This argument has previously been rejected by this Court. State v. Wilhite; State v. Rankin; State v. Rankin, 58 N.C. App. 654, 294 S.E. 2d 396, cert. denied and appeal dismissed sub nom. State v. Wilhite & Rankin, 307 N.C. 129, 297 S.E. 2d 403 (1982). Defendant Hall also argues that the additional drug charge against Godwin made consolidation unfair. The chemical identity with the stolen drugs of the drugs found in Godwin’s car, the short time interval between their discovery and the robbery, and the relatively rare use of the drugs, easily permit the conclusion that the possession *735charge was part of the same act or transaction, G.S. 15A-926(b), and consolidation was thus proper. The defendants did not raise any antagonistic defenses or try to shift the onus of criminal responsibility. Instead, they offered mutually independent alibi defenses. We conclude that the court did not abuse its discretion in joining the cases. See State v. Cook, 48 N.C. App. 685, 269 S.E. 2d 743, disc. rev. denied, 301 N.C. 528, 273 S.E. 2d 456 (1980) (consolidation held proper where each defendant testified that the other shot victim).

¶6Defendant Hall’s other assignment challenges the sufficiency of the State’s evidence, apparently for its failure to refute his substantial alibi and identification evidence. There was ample contradictory eyewitness evidence from which the jury could find him guilty, however. This assignment is, therefore, totally without merit.

¶7Both defendants received a fair trial, free of prejudicial error.

¶8No error.

Judges Arnold and Phillips concur.
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