State v. Corbett

• Decision Date: 27 September 1983
• Docket Number: No. 198A82,198A82
• Citation: State v. Corbett, 309 N.C. 382, 307 S.E.2d 139 (N.C. 1983)
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Frederick W. CORBETT.

Page 139

307 S.E.2d 139

309 N.C. 382

STATE of North Carolina v.Frederick W. CORBETT.

No. 198A82.

Supreme Court of North Carolina.

Sept. 27, 1983.

Rufus L. Edmisten, Atty. Gen. by Christopher P. Brewer, Asst. Atty. Gen., Raleigh, for the State.

Daniel H. Monroe, Jr., Graham, for defendant.

MARTIN, Justice.

We have carefully reviewed each of defendant's assignments of error and conclude that he received a fair trial, free of prejudicial error.

Defendant first contends that the trial court ruled erroneously with respect to several of his motions during the jury selection process.During the state's questioning of prospective juror Little, the state asked the following:

[STATE]: All right.Have you prior to coming to court heard or read anything that you think pertains to these charges from any source?

MR. LITTLE: Been following it pretty close.

[STATE]: In the newspapers?

MR. LITTLE: Newspapers and ...

[STATE]: Based on what you've read in the papers, sir, did you form any kind of opinion about how the cases ought to come out?

MR. LITTLE: Guilty as far as I'm concerned.

At this juncture, defendant moved for a mistrial, which the court denied.Shortly thereafter, defendant moved to excuse Mr. Little for cause, and this motion was also denied.Mr. Little was excused for cause on other grounds later in the proceedings.Defendant argues that Mr. Little's remark that he believed defendant was guilty so prejudiced his defense that it was impossible for defendant to receive a fair trial by the jury that was eventually impaneled.Defendant assumes that the remark of one prospective juror before jury selection was completed so infected the ability of the remaining prospective jurors to exercise their own judgment that a mistrial ought to have been granted.

"[T]he right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors."Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755(1961).Generally, a juror who has formed an opinion as to defendant's guilt or innocence is not impartial and ought not serve.N.C.Gen.Stat. § 15A-1212(6)(1978).The defendant must prove the existence of an opinion in the mind of a juror that will raise a presumption of partiality.Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 595(1975).

It is not required, however, that the jurors be totally ignorant of the facts and issues involved.In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.This is particularly true in criminal cases.To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard.It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Irvin v. Dowd, supra, 366 U.S. at 722-23, 81 S.Ct. at 1642-43, 6 L.Ed.2d at 756.

Defendant has failed to establish that the mere fact that one prospective juror who was later excused for cause stated that in his opinion defendant was guilty caused the remaining prospective jurors to become unable to render a verdict based on the evidence presented in court.Defendant has presented no evidence that Mr. Little's opinion carried any weight with the jurors selected.Mr. Little did not serve as a juror.The trial court's denial of defendant's motion for a mistrial was not error.

Defendant next argues that the trial court erred in granting the state's motion to consolidate defendant's five cases for trial.N.C.G.S. 15A-926 provides in part as follows:

§ 15A-926.Joinder of offenses and defendants.--(a) Joinder of Offenses.--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, which became effective in 1975, differs from its predecessor, in part by disallowing joinder on the basis that the acts were of the same class of crime or offense when there is no transactional connection among the offenses.State v. Greene, 294 N.C. 418, 241 S.E.2d 662(1978).See alsoState v. Silva, 304 N.C. 122, 282 S.E.2d 449(1981);State v. Bracey, 303 N.C. 112, 277 S.E.2d 390(1981);State v. Powell, 297 N.C. 419, 255 S.E.2d 154(1979).As we stated in Silva:

A mere finding of the transactional connection required by the statute is not enough, however.In ruling on a motion to consolidate, the trial judge must consider whether the accused can receive a fair hearing on more than one charge at the same trial; if consolidation hinders or deprives the accused of his ability to present his defense, the charges should not be consolidated.State v. Greene, 294 N.C. 418, 241 S.E.2d 662(1978);State v. Davis, 289 N.C. 500, 508, 223 S.E.2d 296, 301, death sentence vacated, 429 U.S. 809, 97 S.Ct. 47, 50 L.Ed.2d 69(1976).A motion to consolidate charges for trial is addressed to the sound discretion of the trial judge and that ruling will not be disturbed on appeal absent an abuse of discretion.E.g., State v. Bracey, 303 N.C. 112, 277 S.E.2d 390(1981);State v. Davis, 289 N.C. 500, 223 S.E.2d 296.If, however, the charges consolidated for trial possess no transactional connection, then the consolidation is improper as a matter of law.SeeG.S. § 15A-926(a).

304 N.C. at 126, 282 S.E.2d at 452.

In the instant case, the state's evidence tends to show that during the early morning of 16 August 1981, defendant forced Ms. Overby's car off the road in Graham.He then kidnapped Ms. Overby, drove her behind a house, and raped her.Further, on 2 September 1981 between 2:00 a.m. and 4:00 a.m., defendant kidnapped Ms. Small at knifepoint from a telephone booth in Burlington and drove her out into the country.He then forced her to drink two cups of liquor and raped her at knifepoint.Finally, in the early morning hours of 10 September 1981, defendant forced himself into Ms. Ray's car just after she had pulled into a parking place.He forcibly restrained Ms. Ray and unsuccessfully attempted to start her car before running from the scene.While the events occurring on each of these three dates appear to have common characteristics, N.C.G.S. 15A-926 does not allow joinder merely if the offenses are of the same class of crime.While it would have been permissible to join the charges arising out of the crimes committed on 16 August for one trial and those arising from the 2 September incident for another, it was error to join all five charges for a single trial.The events arising on each of the three dates were separate and distinct and not obviously part of a single scheme or plan.State v. Wilson, 57 N.C.App. 444, 291 S.E.2d 830, disc. rev. denied, 306 N.C. 563, 294 S.E.2d 375(1982).CompareState v. Greene, supra, 294 N.C. 418, 241 S.E.2d 662(rape of two different women within three hours held parts of a single scheme or plan of defendant to satisfy his sexual desires on the afternoon of 3 May 1976).Thus, under the statute it was error to consolidate all five charges against defendant for trial.

However, we have determined that although consolidation of the charges was error, it was not prejudicial error.Evidence of each of these offenses would have been admissible in the separate trials of the others in order to prove the identity of the assailant.Although, generally, evidence of crimes other than the one charged is inadmissible to show the character of the accused or his disposition to commit an offense of the nature of the one charged, such evidence is admissible if it is relevant to show the identity of the perpetrator of the crime charged.E.g., State v. Leggett, 305 N.C. 213, 287 S.E.2d 832(1982);State v. McClain, 240 N.C. 171, 81 S.E.2d 364(1954).In each of the instant cases, defendant relied on alibi as a defense, thereby "[making] the question of whether defendant was, indeed, the perpetrator the very heart of the case."State v. Freeman, 303 N.C. 299, 302, 278 S.E.2d 207, 208-09(1981).The crimes occurring on 16 August, 2 September, and 10 September were sufficiently similar to permit evidence of their occurrence to be admissible on the question of the identity of the assailant.

Although in determining whether a defendant has been prejudiced by joinder the test is not whether the evidence at trial in one case would be competent and admissible at the trial of the other, this factor may be considered in determining whether the consolidation was unjust and prejudicial to the defendant.The test to be applied is whether the offenses are so separate in time and place and so distinct in circumstances as to render consolidation unjust and prejudicial to the defendant.In so doing we must look to whether defendant was hindered or deprived of his ability to defend one or more of the charges.State v. Greene, supra, 294 N.C. 418, 241 S.E.2d 662.Although we hold that the consolidation violated the statute, the record does not support a conclusion that the defendant was thereby unjustly and prejudicially hindered or deprived of his ability to defend one or more of the charges.Id.

Defendant next contends that the trial court erred in denying his challenges for cause of prospective jurors Thompson, Butler and McRainey.Defendant argues that each of these jurors had formed an opinion before trial as to his guilt or innocence and therefore ought to have been excused under N.C.G.S. 15A-1212.

Defendant would have us interpret this statute to require dismissal of any juror who has...