State v. Lee

220 S.E.2d 164 (1975)

28 N.C. App. 156

STATE of North Carolina v. James G. LEE and Johnny Allen Woodle.

No. 7512SC456.

Court of Appeals of North Carolina.

December 17, 1975.

*166 Atty. Gen. Rufus L. Edmisten by Associate Atty. T. Lawrence Pollard, Raleigh, for the State.

Smith & Geimer, P. A., by W. S. Geimer and Kenneth Glusman, Fayetteville, for defendant appellant James G. Lee.

James D. Little, Public Defender, Twelfth Judicial District, Fayetteville, for defendant appellant Johnny Allen Woodle.

VAUGHN, Judge.

The evidence was sufficient to permit the jury to find defendants guilty as charged. There was, therefore, no error in failing to grant defendants' motions for nonsuit.

Defendant Lee contends that it was prejudicial error to consolidate the cases against him with those against Woodle. He argues primarily that Lee's denial of any guilt by his plea of not guilty and Woodle's contention that his actions were coerced by Lee's threats are antagonistic defenses that require separate trials as a matter of law. We reject this argument. Certainly Woodle's testimony was antagonistic to Lee's plea of not guilty. That fact standing alone, however, is not sufficient to require separate trials. All of the competent evidence introduced at the joint trial would have been competent against Lee at a separate trial. They were charged with identical crimes that occurred at the same time and place. The court, therefore, did not abuse its discretion in ordering that the cases be consolidated.

Both defendants bring forward assignments of error directed at the charge of the court. The judge who presided over this trial is able and experienced and it clearly appears that he endeavored to conduct a fair and impartial trial. Nevertheless, we must agree that the charge, when taken as a whole, contains erroneous and conflicting instructions on material questions that the jury was called upon to resolve. In particular, he gave conflicting instructions with respect to the permissible verdicts as to each defendant. The charge takes up about 33 pages in the record and we do not elect to reproduce it here in order to illustrate the prejudice to defendants.

Counsel for appellant Lee aptly observes that a correct charge could be gleaned from the whole if the conflicting instructions could be removed. In part the State responds, "[i]n a case involving multiple defendants, multiple victims, and multiple charges with numerous lesser included offenses, it is quite easy to confuse a jury even when a proper instruction is given." Even if that is the case, we simply say that the confusion is assured when incorrect and conflicting instructions are given. We also realize the almost impossible burden the case law of this State has imposed on the trial judges with reference to their instructions to the jury and that the burden was made heavier when all of these cases were consolidated.

Nevertheless, the court elected to compound its burden when it granted the State's motion to consolidate the cases. Each defendant is entitled to the same clarity in the instructions necessary to promote a fair determination of his guilt or innocence of each offense in a joint trial, as he would be given if tried separately.

*167 For the reasons stated there must be new trials of all of the cases.

New trials.

BROCK, C. J., and MARTIN, J., concur.