State v. Campbell

250 S.E.2d 228 (1979)

296 N.C. 394

STATE of North Carolina v. Stefan Michael CAMPBELL.

No. 4.

Supreme Court of North Carolina.

January 4, 1979.

*230 Atty. Gen. Rufus L. Edmisten, by Associate Atty. Gen., Tiare Smiley Farris, and Sp. Deputy Atty. Gen., David S. Crump, Raleigh, for the State.

Charles H. Burgardt, Fayetteville, for defendant-appellant.

BRITT, Justice.

Defendant has brought forward a single assignment of error. By it he contends that the court erroneously allowed the district attorney to introduce evidence of codefendant Mincey's guilty plea and sentence. We find no merit in this assignment.

Defendant testified that Mincey stabbed the prosecutrix after both men had intercourse with her. He also testified that Mincey had made a "deal" with the district attorney and obtained a lighter sentence in exchange for his testimony against defendant. On cross-examination of defendant the following exchange took place:

"I don't know which detective Danny Mincey talked to. I know he talked to the police when he got locked up. I don't know what Danny told them. He did tell me that he had a deal with you that if he convicted me that you would cut his time. I know that some time ago Danny Mincey was tried in this courtroom. It was during the week of October 24, 1977. I know that Danny Mincey was convicted. "Q. But he was convicted of aggravated kidnapping, wasn't he? "MR. BURGARDT: Objection your Honor. "COURT: Sustained. "Q. You know that he was convicted of assault with the intent to commit rape? "MR. BURGARDT: Objection your Honor. "COURT: Sustained. "Q. Now, "A. I also know, Mr. Gregory, I also know that each time that I did see him like in the chapel, he brung up the fact that he wasn't given no time because he made a deal with you. That's exactly what he said to me. "Q. He got seventy years, didn't he "MR. BURGARDT: Objection your Honor. "COURT: Sustained."

The clear rule is that neither a conviction, nor a guilty plea, nor a plea of nolo contendere by one defendant is competent as evidence of the guilt of a codefendant on the same charges. A defendant's guilt must be determined solely on the basis of the evidence presented against him, and it is improper to make reference to the disposition of charges against a codefendant. State v. Jackson, 270 N.C. 773, 155 S.E.2d 236 (1967); State v. Kerley, 246 N.C. 157, 97 S.E.2d 876 (1957).

*231 This rule has not been violated in the case sub judice. The court sustained the objection of defendant to every question asked by the prosecutor with regard to the disposition of the charges against his codefendant. There is no answer in the record which reveals the answer the witness would have given if he had been allowed to respond. Ordinarily, the asking of the question alone will not result in prejudice to the defendant. State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970); State v. Butler, 269 N.C. 483, 153 S.E.2d 70 (1967); State v. Williams, 255 N.C. 82, 120 S.E.2d 442 (1961); State v. Hoover, 252 N.C. 133, 113 S.E.2d 281 (1960). In this case there was no evidence admitted over objection relative to the disposition of the charges against the codefendant stemming from the incidents in question. We also note that defendant did not request the court to instruct the jury to disregard the questions.

Furthermore, even had the trial judge admitted the evidence which the prosecutor sought to elicit in his cross-examination, we would be compelled to find that, on the record in this case, there was no prejudice to defendant. The State on rebuttal, and without objection by defendant, offered the testimony of Danny Mincey who stated that he had been convicted of kidnapping, assault with a deadly weapon, common law robbery, and assault with intent to commit rape. He further testified that he had been sentenced to seventy years imprisonment in connection with these charges. This is the same evidence which the solicitor sought to introduce by cross-examination of defendant. It is well established that the admission of evidence without objection waives prior or subsequent objection to the admission of evidence of a similar character. State v. Owens, 277 N.C. 697, 178 S.E.2d 442 (1971); State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968); 1 Stansbury's North Carolina Evidence § 30, p. 79 (Brandis Rev., 1973).

In defendant's trial and the judgments entered, we find

No error.

BROCK, J., did not participate in this decision.