State v. Bracey

• Decision Date: 05 May 1981
• Docket Number: No. 24,24
• Citation: 277 S.E.2d 390,303 N.C. 112
• Parties: STATE of North Carolina v. Frederick BRACEY, Jr.
• Court: North Carolina Supreme Court

Page 390

277 S.E.2d 390

303 N.C. 112

STATE of North Carolina v. Frederick BRACEY, Jr.

No. 24.

Supreme Court of North Carolina.

May 5, 1981.

Rufus L. Edmisten, Atty. Gen. by Barry S. McNeill, Associate Atty. Gen., Raleigh, for the State.

D. Webster Trask, Wilmington, for defendant-appellee.

HUSKINS, Justice:

The first issue we must address is whether the Court of Appeals erred in holding the three separate charges were erroneously consolidated for trial. The Court of Appeals interpreted State v. Greene, 294 N.C. 418, 241 S.E.2d 662 (1978), a case wherein a charge of assault with intent to commit rape was held to have been properly consolidated with charges of kidnapping and rape which occurred three hours later, to require this result. The Court of Appeals reasoned:

The rationale of that case was that two separate charges may be consolidated if the scheme or plan is to accomplish one thing. We do not believe it applies in this case. We believe that implicit in the holding of Greene is the requirement that there be a transactional connection or a continuing program of action involving the crimes charged in order to consolidate them for trial. In the case sub judice there was no transactional connection or continuing program of action in regard to the three separate armed robberies. We hold that this scheme or plan to commit a series of several different robberies in the future is not a "series of acts or transactions" constituting a single scheme or plan within the meaning of the statute. It was error to consolidate the three separate charges for trial.

48 N.C.App. at 604-05, 269 S.E.2d at 290. We hold this reasoning and interpretation of Greene is erroneous and accordingly reverse.

Consolidation of the offenses for trial is controlled by G.S. 15A-926(a) which provides:

Two or more offenses may be joined in one pleading or for trial when the offenses whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan....

This statute supplanted former G.S. 15-152 effective 1 July 1975. See 1973 N.C.Sess. Laws c. 1286 §§ 26, 31. The repealed statute allowed joinder of multiple offenses on the basis that they were of the same or similar character without any transactional connection. Official Commentary to G.S. 15A-926. The statute now permits joinder of offenses which are based (1) on the same act or transaction or (2) on a series of acts or transactions connected together or constituting parts of a single scheme or plan. There must be some sort of "transactional connection" between cases consolidated for trial. State v. Powell, 297 N.C. 419, 255 S.E.2d 154 (1979). The court is required to grant a severance motion if it is necessary for "a fair determination of the defendant's guilt or innocence of each offense." G.S. 15A-927(b). The court must determine whether "in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense." G.S. 15A-927(b)(2).

The question before the court on a motion to sever is whether the offenses are so separate in time and place and so distinct in circumstances as to render consolidation unjust and prejudicial. Whether offenses should be joined is a matter addressed to the sound discretion of the trial judge. His ruling will be overturned only upon a showing that he abused his discretion. State v. Clark, 301 N.C. 176, 270 S.E.2d 425 (1980); State v. Brown, 300 N.C. 41, 265 S.E.2d 191 (1980); State v. Greene, supra.

In the present case, the trial judge denied defendant's motion to sever these three offenses and granted the State's motion to consolidate. There was a fourth case which the trial judge did sever from this trial. The trial judge ruled that "there are common issues of fact with respect to three of the cases." It is crucial to note the trial judge's ruling was based on commonality of facts and not just on a commonality of crimes. He did not permit joinder merely because the same criminal offense was involved. He ruled there was a transactional connection. We agree with his ruling.

The evidence in the three cases shows a similar modus operandi and similar circumstance in victims, location, time and motive. All the offenses occurred within ten days on the same street in Wilmington. All occurred in the late afternoon. In each case, two black males physically assaulted the attendant of a small business and took petty cash from the person of the victim or the cash box of the business. The assaults were of a similar nature. Each was without weapons, involved an element of surprise and involved choking, beating and kicking the victim. In each case, the robbers escaped on foot. The evidence was sufficient to justify joinder based on a series of acts or transactions connected together or constituting parts of a single scheme or plan. Joinder was proper under G.S. 15A-926.

Defendant has failed to show any prejudice or abuse of discretion by the trial judge in the joinder. No showing has been made that severance was necessary in this case to insure a fair determination by the jury on each offense. The evidence was not complicated. The jury instruction clearly separates the offenses. The jury's ability to differentiate the offenses is evidenced by its not guilty verdict in two of the three offenses. See State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977). The offenses were not so separate in time and place and so distinct in circumstance that consolidation was rendered unjust and prejudicial to defendant. State v. Greene, supra.

The Court of Appeals erred in holding this scheme or plan to commit a series of several different robberies to be without the necessary transactional connection. The facts establish a transactional connection. We hold the trial judge, acting within the framework of G.S. 15A-926(a) and in the exercise of his discretion, properly joined the cases for trial without prejudice to defendant.

Defendant argues he was denied the opportunity to examine prospective jurors properly to determine whether he should exercise a peremptory challenge or whether challenge for cause existed. The trial judge sustained objection to the following question:

If, after the State has put on all of its evidence and after you have heard all the evidence in the case and after the Judge has instructed you, you held an opinion that the defendant was not guilty, that the State had not met its burden of proof in this case, would you change that opinion simply because eleven other jurors held a different opinion, that opinion being that the Defendant is guilty? Would any of you change your opinion simply for that reason?

Defendant contends the ruling denied him the right "to make direct oral inquiry of any prospective juror as to fitness and competency" as provided by G.S. 9-15(a) and required by due process guaranteed by the Fifth Amendment of the United States Constitution. We discern no error in the exclusion of this hypothetical question.

The voir dire examination of a juror serves the double purpose of (1) ascertaining whether challenge for cause exists and (2) enabling counsel to exercise intelligently the peremptory challenges allowed by law. The overall purpose is to secure an impartial jury. State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976). "However, counsel's examination into the fitness of the jurors is subject to the trial judge's close supervision. The regulation of the manner and extent of the inquiry rests largely in the trial judge's discretion." State v. Jackson, 284 N.C. 321, 325, 200 S.E.2d 626, 629 (1973); see also State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972), cert. den. 410 U.S. 958, 93 S.Ct. 1432, 35 L.Ed.2d 691, 410 U.S. 987, 93 S.Ct. 1516, 36 L.Ed.2d 184 (1973).

The hypothetical question posed here could not reasonably be expected to result in an answer bearing upon the qualification of the juror. Instead, it is designed to commit the juror to a fixed position in regard to the evidence before he has heard it from the witnesses and before he has been instructed on the law by the court. The trial court should not permit counsel to question prospective jurors as to the kind of verdict they would render or how they would be inclined to vote on a given state of facts. State v. Vinson, 287 N.C. 326, 215 S.E.2d 60 (1975), death sentence vacated, 428 U.S. 902, 96 S.Ct. 3204, 49 L.Ed.2d 1206 (1976); 47 Am.Jur.2d, Jury § 205; 50 C.J.S. Juries § 275 a. (2). In a majority of the jurisdictions which have addressed this problem, hypothetical questions of this nature have been considered improper. Annot. 99 A.L.R.2d 7, § 7 (1965).

No abuse of discretion is shown, and this assignment of error is overruled. However, we are constrained to note with disapproval the trial judge's poor choice of words in disallowing this voir dire question. His instruction to defense counsel to "quit asking crap over again" is hardly the best articulation of a ruling by a judge in a court of law.

The only other issue addressed by the Court of Appeals is set out in defendant's third argument. There, defendant contends it was error for the State to use information garnered from defendant's testimony during a suppression hearing to impeach his testimony at trial. At the suppression hearing, defendant testified he was under the influence of PCP or "bam" at the time he confessed to the crimes. At trial, the district attorney asked defendant whether he used "bam." Defendant answered over objection that he had used it once, the night before he was arrested. The Court of Appeals correctly rejected defendant's argument that Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), prohibited the use of this evidence by the State. Simmons holds "that when a defendant testifies in support of a motion to...