State v. Greene

• Citation: 294 N.C. 418,241 S.E.2d 662
• Decision Date: 07 March 1978
• Docket Number: No. 20,20
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Dennis L. GREENE.

Page 662

241 S.E.2d 662

294 N.C. 418

STATE of North Carolina v. Dennis L. GREENE.

No. 20.

Supreme Court of North Carolina.

March 7, 1978.

Rufus L. Edmisten, Atty. Gen., by James Wallace, Jr., Asst. Atty. Gen., Raleigh, for the State.

Bailey & Raynor, by Frank W. Erwin and Edward G. Bailey, Jacksonville, for defendant-appellant.

BRANCH, Justice.

The sole question presented by this appeal is whether the trial judge erred by consolidating the charge of assault with intent to commit rape upon Debbie Elerick with the charges of kidnapping and rape of Catherine Rutherford. Defendant does not contend that it was error to consolidate the charges of kidnapping and second degree rape for trial.

Consolidation of criminal offenses for trial is, in part, controlled by G.S. 15A-926 which, in pertinent part, provides:

Joinder of offenses and defendants. (a) Joinder of Offenses. Two or more offenses may be joined in one pleading 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. Each offense must be stated in a separate count as required by G.S. 15A-924.

This statute became effective on 1 July 1975 and supplanted former G.S. 15-152 which provided:

When there are several charges against any person for the same act or transaction or for two or more acts or transactions connected together, or for two or more transactions of the same class of crimes or offenses, which may be properly joined, instead of several indictments, the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court will order them to be consolidated . . . .

G.S. 15A-926 differs from its predecessor in that it does not permit joinder on the basis that the acts were of the same class of crime or offense when there is no transactional connection, and in that it contains new language permitting joinder of offenses or crimes which are based on a series of acts or transactions "constituting parts of a single scheme or plan." See, G.S. 15A-926, Official Commentary.

In ruling upon a motion for joinder of offenses, the trial judge should consider whether the accused can be fairly tried if joinder is permitted. If joinder would hinder or deprive defendant of his ability to present his defense, the motion should be denied. Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894); State v. Davis, 289 N.C. 500, 223 S.E.2d 296 (1976). However, it is well established that such a motion is ordinarily addressed to the sound discretion of the trial judge, and his ruling will not be disturbed absent a showing of abuse of discretion. State v. Davis, supra; State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974).

In instant case, defendant was indicted for two crimes of the same class or nature assault with intent to commit rape and rape. Although G.S. 15A-926 does not permit joinder of offenses solely on the basis that they are of the same class, we approve and adopt the language of the Court of Appeals, "that the nature of the offenses is one of the factors which may properly be considered in determining whether certain acts or transactions constitute 'parts of a single scheme or plan,' as those words are used in present G.S. 15A-926(a)."

In State v. Frazier, 280 N.C. 181, 195, 185 S.E.2d 652, 661 (1972), this Court considered the question of joinder and speaking through Lake, J., stated:

. . . In the present case, the State contends that the murder of Miss Underwood, the kidnapping of Mrs. Collins and the robbery of Mrs. Collins were all parts of a continuing program of action by the defendant and Westbrook, covering a period of approximately three hours. Under such circumstances, evidence of the whole affair is pertinent to the several charges and there is no error in consolidating them for trial. (Citations omitted.)

As in Frazier, the sexual assaults upon Mrs. Elerick and Mrs. Rutherford within a time span of three hours were "parts of a single scheme or plan" by defendant to satisfy his sexual desires on the afternoon of 3 May 1976. In instant case, evidence of the whole affair is therefore pertinent to the several charges and joinder is permissible under G.S. 15A-926(a).

Defendant, however, argues that even though the joinder might be permissible under the statute, the trial judge abused his discretion by joining the cases and thereby allowing Mrs. Elerick to testify concerning the assault upon her. In considering this contention, we initially note the general rule is that evidence of commission of other independent and unrelated crimes or offenses is not admissible to prove an accused to be guilty of the crime for which he is on trial. State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954); State v. Hight, 150 N.C. 817, 63 S.E. 1043 (1909). However, equally well-established exceptions to the rule permit proof of commission of like offenses to show, inter alia, intent, plan or design to commit the offense charged or to show identity of the accused. Our Court has been very liberal in admitting evidence of similar sex crimes in construing the exceptions to the general rule. State v. Arnold, 284 N.C. 41, 199 S.E.2d 423 (1973); State v. Davis, 229 N.C. 386, 50 S.E.2d 37 (1948); State v. Biggs, 224 N.C. 722, 32 S.E.2d 352 (1944). See also, 1 Stansbury's N.C. Evidence, Section 92 (Brandis Rev.1973).

Here evidence of the assault with intent to commit rape upon Mrs. Elerick was admissible in the cases charging defendant with kidnapping and raping Mrs. Rutherford to show defendant's intent and plan or design to commit the crimes, or, in the language of the statute, to show a "single scheme or plan." Evidence of the offenses of the kidnapping and rape of Mrs. Rutherford was admissible in the case of the assault upon Mrs. Elerick for the same reason. Since both victims described defendant's physical appearance and the clothing that he wore on the afternoon of 3 May 1976, evidence of the offenses committed against Mrs. Rutherford would have been admissible in the...