State v. McGuire, 57

• Decision Date: 20 April 1979
• Docket Number: No. 57,57
• Citation: 254 S.E.2d 165,297 N.C. 69
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Forest Denzil McGUIRE, Alton Wayne Ruff, Ronald Hal Wellman.

Page 165

254 S.E.2d 165

297 N.C. 69

STATE of North Carolina v. Forest Denzil McGUIRE, Alton Wayne Ruff, Ronald Hal Wellman.

No. 57.

Supreme Court of North Carolina.

April 20, 1979.

Lefler, Gordon & Waddell by Lewis E. Waddell, Jr., Newton, for defendant Wellman.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Roy A. Giles, Jr., Raleigh, for the State.

COPELAND, Justice.

For the reasons stated below, we find the defendants had a trial free from error.

This appeal concerns three defendants who submitted separate briefs to this Court. We will deal first with those assignments of error brought forth by both defendant McGuire and defendant Wellman. A contention made by defendant Wellman alone will then be discussed. Last we will examine those questions presented by defendant Ruff alone.

In their first assignment of error, defendant McGuire and defendant Wellman argue the trial court erred in denying their motions for severance and for a mistrial. The defendants contend they did not receive a fair and impartial trial due to the in-court outbursts of defendant Ruff.

Defendant Ruff made numerous outbursts during defendants' joint trial, many of which occurred while the jury was out of the courtroom. He did, however, disrupt the trial several times in the presence of the jury. He called the witness Williamson a liar three times. As the jury was retiring from the courtroom, defendant Ruff said "Good-bye girl!" on one occasion and "Keep cool. Peace!" another time. After the trial judge sustained one of his objections to a question asked by the State, the defendant made the comment, "Lay in there" to his attorney. As court was opening one morning, defendant Ruff stated to defendant Wellman that "Pete, I believe we have got it won;" however, neither the judge nor a majority of the jury heard this remark. Near the end of the trial, defendant Ruff broke into a tirade of obscenities and blasphemies. At that point, he was removed from the courtroom with his consent.

Several times during the trial defendant McGuire and defendant Wellman moved for a mistrial or for separate trials. The trial court denied these motions, finding that defendant Ruff's outbursts did not prejudice the other defendants and that the jury could disregard them.

It is undisputed that the initial joinder of these three defendants was proper under G.S. 15A-926(b)(2)(b)(1) because all charges against them stemmed from a common scheme or plan. However, G.S. 15A-927(c)(2)(b) states that a severance must be granted "(i)f during trial, . . . it is found necessary to achieve a fair determination of the guilt or innocence of that defendant (making the motion)." We have held that the question whether to order separate trials is within the trial court's discretion, and its decision will not be disturbed on appeal unless it is shown that the movant did not receive a fair trial. State v. Slade, 291 N.C. 275, 229 S.E.2d 921 (1976). Similarly, under G.S. 15A-1061, a mistrial must be declared "if there occurs during the trial . . . conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case." This Court has stated that the resolution of this issue also is within the trial court's discretion. State v. Swift, 290 N.C. 383, 226 S.E.2d 652 (1976).

There is good reason for appellate courts to defer to the trial judge's determination of these matters. As Judge Parker aptly stated:

"When such an incident involving an unexpected emotional outburst occurs, the judge must act promptly and decisively to restore order and to erase any bias or prejudice which may have been aroused. Whether it is possible to accomplish this in a particular case is a question necessarily first addressed to the sound discretion of the trial judge. 'Not every disruptive event occurring during the course of trial requires the court automatically to declare a mistrial,' and if in the sound discretion of the trial judge it is possible despite the untoward event, to preserve defendant's basic right to receive a fair trial before an unbiased jury, then the motion for mistrial should be denied. On appeal, the decision of the trial judge in this regard is entitled to the greatest respect. He is present while the events unfold and is in a position to know far better than the printed record can even reflect just how far the jury may have been influenced by the events occurring during the trial and whether it has been possible to erase the prejudicial effect of some emotional outburst. Therefore, unless his ruling is clearly erroneous so as to amount to a manifest abuse of discretion, it will not be disturbed on appeal." State v. Sorrells, 33 N.C.App. 374, 376-77, 235 S.E.2d 70, 72 (1977), Cert. denied, 293 N.C 257, 237 S.E.2d 539 (1977). (Citations omitted). See also State v. Nowell, 156 N.C. 648, 72 S.E. 590 (1911).

It appears that this Court has not had occasion to consider the precise situation present in this case, to-wit: disruptions at a joint trial by one defendant that are alleged to have prejudiced the other defendants. We note, however, that several federal courts have decided cases in which this problem has arisen.

In United States v. Bamberger, 456 F.2d 1119 (3d Cir. 1972), Cert. denied sub nom. Crapps v. United States, 406 U.S. 969, 92 S.Ct. 2424, 32 L.Ed.2d 668 (1972), four defendants had been jointly tried for and convicted of bank robbery. Two of the defendants disrupted the trial. One of them called two State's witnesses liars, and he made derogatory remarks to and about the trial judge. Another defendant continually interrupted the testimony of an F.B.I. agent and finally swallowed one of the government's exhibits, a piece of paper. The trial judge instructed the jury to consider the evidence against each defendant separately. In upholding the trial court's denial of motions to sever and for a mistrial made by one of the passive defendants, the court said:

"This issue presents a delicate balancing of the right of a passive co-defendant to have his cause determined in an atmosphere free of inflammatory speech and gesture, society's interest in speedy trials for those accused of crime, the realities of sound judicial administration, and a consideration of convenience to witnesses. The accommodation of these countervailing considerations is entrusted to the trial judge. So long as he accords the necessary protection to the passive defendant within the parameters of sound judicial discretion we should not disturb his decision. We find no abuse of discretion here." Id. at 1128.

In United States v. Marshall, 458 F.2d 446 (2d Cir. 1972), there was a joint trial concerning three defendants charged with bank robbery. One defendant, Guglielmo, directed accusations and obscenities toward the witnesses, the trial judge and the prosecution throughout the trial. At one point he threw a water pitcher at the prosecutor and hurled a chair toward the jury box. During the summation of a codefendant's attorney, Guglielmo cut his wrists with a razor blade, cut his tongue and then apparently attempted to swallow the blade. The two passive defendants moved to sever and moved for a mistrial based on this behavior, but the trial court denied their motions. Finding no abuse of discretion below, the court of appeals noted that "(t)he trial court took great pains to repeatedly and carefully instruct the jury to disregard Guglielmo's trial conduct in determining the guilt of each of the appellants . . . as well as that of Guglielmo himself. There is no reason to assume that the court's instructions were not efficacious." Id. at 452. See also United States v. Smith, 578 F.2d 1227 (8th Cir. 1978); United States v. Bentvena, 319 F.2d 916 (2d Cir. 1963), Cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963).

Defendant Ruff's conduct in this case is mild when compared to that recited above. When possible, the able trial judge immediately removed the members of the jury from the courtroom when an outburst occurred, and he admonished them not to deliberate on it. When it became apparent that defendant Ruff would continue to disrupt the proceeding despite the court's warnings, he was removed from the courtroom. At this time the court told the jury to totally disregard the whole matter, and they unanimously indicated that they could do so. In his final charge to the jury, Judge Ferrell again instructed the jury not to allow defendant Ruff's behavior to "influence your decision in any way when you come to weigh the evidence or determine the issues of guilt either as to defendant Ruff or as to the defendant Wellman or McGuire." Under these circumstances, we cannot say the trial court abused its discretion in denying defendant McGuire's and defendant Wellman's motions for severance or for a mistrial.

Defendant McGuire also asserts that his motion to sever should have been allowed because evidence of an unrelated crime committed by him was brought out at trial during the cross-examination of Williamson by defendant Ruff's attorney. We do not agree.

At one point, defendant Ruff used a prior statement of Williamson to cross-examine that witness. The following exchange took place:

"Q. Now to read the rest of that part of your statement, did you read this in your statement, 'Williamson advised that the .30 caliber automatic rifle and the .45 caliber pistol that was taken in the robbery of Dock in Hickory were seized by the F.B.I. when Forest McGuire was arrested.'

OBJECTION.

SUSTAINED.

MOVE TO STRIKE IT.

COURT: Members of the jury, be advised to disregard that portion as to McGuire. Let me see it, sir. Do not consider statement of counsel, members of the jury, or deliberate upon it at any time."

In this instance, the trial court sustained defendant McGuire's objection, struck the evidence and immediately instructed the jury to disregard it. "(W) hen all evidence of a particular character is stricken and the jury instructed not to consider it,...