State v. Burnett, 7810SC833

• Citation: 251 S.E.2d 717,39 N.C.App. 605
• Decision Date: 06 February 1979
• Docket Number: No. 7810SC833,7810SC833
• Parties: STATE of North Carolina v. George E. BURNETT and Raymond Earl Sanders.
• Court: North Carolina Court of Appeals

Page 717

251 S.E.2d 717

39 N.C.App. 605

STATE of North Carolina v. George E. BURNETT and Raymond Earl Sanders.

No. 7810SC833.

Court of Appeals of North Carolina.

Feb. 6, 1979.

Fred M. Morelock, Raleigh, for defendant-appellant.

MITCHELL, Judge.

The defendants first assign as error the trial court's admission of Deputy Rowland's testimony concerning a series of meetings he had with the defendants prior to 25 February 1978. Deputy Rowland testified that he was working in an undercover capacity buying property and returning it to its rightful owners on and prior to 25 February 1978. He additionally testified that he had seen Burnett sixteen times between 19 December 1977 and 25 February 1978 and that he had seen Sanders thirteen times during the same period. The defendants contend that this testimony was inadmissible evidence of prior crimes. We do not agree.

Evidence that a defendant has committed a criminal offense other than that for which he is being tried is generally inadmissible. State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954). However, if the evidence tends to prove any relevant fact other than the defendant's character or his disposition to commit the crime charged, the evidence is admissible. State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978); 1 Stansbury's N.C.Evidence § 91 (Brandis Rev.1973). Here, Deputy Rowland testified that on each of the occasions on which he had seen the defendants prior to 25 February 1978, he had had occasion to talk with them. He then testified to receiving a telephone call from the defendants and being able to recognize their voices as a result of the numerous prior conversations he had had with each. Even if we accept the doubtful proposition that the complained of testimony of Deputy Rowland was in fact evidence of prior crimes, it was nonetheless admissible as competent to develop properly the evidence with regard to the telephone call he received from the defendants in connection with the crimes charged. State v. Jenerett, 281 N.C. 81, 187 S.E.2d 735 (1972). Additionally, this evidence served to identify the defendants as the individuals with whom the deputy had dealt and the circumstances under which the purchase of the photography equipment was made. This assignment of error is overruled.

The defendants next assign as error the admission of testimony by Deputy Rowland regarding a statement made to him by one of the defendants. Rowland testified that after he had entered Sanders' apartment, one of the defendants said, "We got this camera equipment man, what will you give me for it? " The defendants contend that this evidence was inadmissible as Rowland could not remember which defendant made the statement. Assuming arguendo that the admission of this testimony was error, we find it harmless beyond a reasonable doubt. Each defendant admitted participating in the sale of the photography equipment, and neither based his defense upon a denial of that sale. As each defendant admitted participating in the sale and this testimony by Rowland merely corroborated the defendants' evidence, the identity of the particular defendant making the statement was irrelevant. The admission of this testimony was not prejudicial to the defendants in any respect and, therefore, any error in its admission was clearly harmless. This assignment of error is overruled.

The defendants also contend that the trial court erred in allowing the prosecutor to question Sanders concerning his failure to make a statement after his arrest. The defendants argue that such questioning amounted to a prejudicial comment by the prosecutor on Sanders' exercise of his right to remain silent. Under the facts of these particular cases, we do not agree.

During the trial of these cases, the defendant Sanders chose to testify in his own behalf. On cross-examination, the prosecutor asked the defendant the following questions:

Q. Have you ever before this day, sitting on that witness stand, ever said anything to any law enforcement man, woman, or whatever, about this person Ike?

A. No.

Q. Have you ever said anything to the District Attorney's Office prior to today sitting on this witness stand here, said anything at all about this man Ike?

MR. HOWARD: Objection.

COURT: Overruled.

A. No.

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court of the United States stated that "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment." 426 U.S. at 619, 96 S.Ct. at 2245, 49 L.Ed.2d at 98. The Court indicated that its holding was necessary because the Miranda warnings implicitly assured a defendant that his silence would not be used against him. However, the holding in Doyle appears to have been carefully limited...