State v. Mink, 7422SC676

• Decision Date: 02 October 1974
• Docket Number: No. 7422SC676,7422SC676
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Tony MINK.

Page 522

208 S.E.2d 522

23 N.C.App. 203

STATE of North Carolina v. Tony MINK.

No. 7422SC676.

Court of Appeals of North Carolina.

Oct. 2, 1974 Certiorari Denied by Supreme Court Dec. 30, 1974.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. George W. Boylan, Raleigh, for the State.

Edward L. Hedrick, Taylorsville, for defendant-appellant.

HEDRICK, Judge.

The defendant assigns as error the denial of his motion for nonsuit. The defendant contends 'that the court erred in failing to nonsuit the case based on the uncorroborated testimony of an accomplice . . ..' The record is replete with evidence tending to corroborate the testimony of the accomplice, Jesse Johnson. Furthermore, the unsupported testimony of an accomplice is sufficient to sustain a conviction if it satisfies the jury beyond a reasonable doubt of the guilt of the defendant. State v. Tilley, 239 N.C. 245, 79 S.E.2d 473 (1954); State v. Bailey, 18 N.C.App. 313, 196 S.E.2d 556 (1973), cert. denied, 283 N.C. 754, 198 S.E.2d 724 (1973), cert. denied, 415 U.S. 976, 94 S.Ct. 1561, 39 L.Ed.2d 871 (1974). This assignment of error is not sustained.

Defendant also contends that he was prejudiced by the trial court's summary of the testimony of Sheriff Bebber wherein the court stated that, upon approaching the automobile in which the defendant and his friends had been riding, Bebber 'saw movements and saw Tony Mink and David Connor switch.' The court had earlier ruled that the sheriff's statement that there was movement in the front seat 'as if somebody was switching drivers' should be stricken. This contention is without merit.

'Slight inadvertencies in recapitulating the evidence or stating contentions must be called to the attention of the court in time for correction. Objection after verdict comes too late.' State v. Goines, 273 N.C. 509, 514, 160 S.E.2d 469, 472 (1968) (citations omitted). It does not appear that the court's misstatement of the evidence was called to the attention of the trial court during the trial. Furthermore, in view of the fact that Jesse Johnson testified, without objection, that the defendant was driving the car and that he switched places with David Connor when the sheriff stopped them, we are of the opinion that this assignment of error should be overruled.

Defendant, by his third assignment of error, contends the court erred in allowing the assistant district attorney on cross-examination of the defendant to elicit evidence that the defendant made no statement to anyone, and particularly to Sheriff Bebber, regarding the fact that the television set and radios were in the automobile occupied by the defendant and the two accomplices. The defendant further contends that the court committed prejudicial error in allowing the assistant district attorney to cross-examine David Connor with respect to the defendant's silence.

We recognize the principle that evidence as to the silence of a defendant in the face of an accusatory statement is incompetent when the accused has been taken into custody and police officers are present. Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Stansbury, N.C. Evidence, Brandis Revision, Vol. 2, § 179, p. 54. There is nothing, however, in this record to indicate that the sheriff made any accusatory statement to the defendant or any of the accomplices. Moreover, it is clear from the record that...