State v. Smith

272 S.E.2d 852 (1981)

STATE of North Carolina v. Joseph Phillip SMITH and Johnny Benjamin Smith.

No. 85.

Supreme Court of North Carolina.

January 6, 1981.

*854 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Daniel F. McLawhorn, Raleigh, for the State.

E. Lynn Johnson, Fayetteville, for defendant Joseph Phillip Smith.

Richard M. Wiggins, Fayetteville, for defendant Johnny Benjamin Smith.

BRITT, Justice.

This defendant's sole assignment of error is that the trial court committed prejudicial error in denying his motion for a mistrial after striking the testimony of several witnesses. We find no merit in the assignment.

The evidence which the court ordered stricken did not directly involve either defendant. It tended to show that no fingerprints were found at the murder scene which matched those of any of the four participants and that those persons who entered the crime scene after the robbery-murder, but before the police arrived, had no traces of gunpowder on their hands. The motion to strike was allowed by the trial judge because the state failed to establish a sufficient foundation for the introduction of the evidence relating to either the handwipings of the bystanders or their fingerprints.

We perceive at least three reasons why this assignment is without merit.

First, after the motions to strike were allowed, the trial court instructed the jury not to consider the stricken evidence *855 and specifically referred to the evidence and the witness who provided it. It is well-settled in this jurisdiction that when the court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured. E. g., State v. Perry, 276 N.C. 339, 172 S.E.2d 541 (1970); State v. Moore, 276 N.C. 142, 171 S.E.2d 453 (1970).

Second, we are unable to deduce any way in which defendant would have been prejudiced by the evidence had it not been withdrawn from the jury's consideration. While it is true that the evidence did tend to show that certain persons who had arrived at the scene of the crimes in the interval between their commission and the time that police arrived had no part in the commission of the offenses, it also tended to show that no fingerprints matching those of defendant or any of the co-defendants were found at the scene. It is incumbent upon an appellant not only to show error but also to show that the error was prejudicial to him. E. g., State v. Partlow, 272 N.C. 60, 157 S.E.2d 688 (1967). Furthermore, in light of the other overwhelming evidence which was adduced at trial, this evidence could not have been the difference between a guilty verdict and an acquittal. See G.S. § 15A-1443(a) (1978).

Third, as to the motion for mistrial itself, this was a matter addressed to the sound discretion of the trial judge and his ruling thereon will not be disturbed absent a showing of abuse of discretion. G.S. § 15A-1061 (1978); e. g., State v. McLean, 294 N.C. 623, 242 S.E.2d 814 (1978). We find no abuse of discretion in the present case.

This defendant contends first that the trial court erred in consolidating his case for trial with that of defendant Joseph Smith. There is no merit in this contention.

G.S. § 15A-926(a) provides that "[t]wo or more offenses may be joined ... for trial 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 ...." In the case at hand, defendants Smith were charged in separate indictments with the same crimes. They were tried upon the theory that the murder, with which they were charged, was committed in connection with a robbery committed by them jointly. Their defenses were not antagonistic and neither attempted to incriminate the other in the presentation of an alibi. We hold that the court properly consolidated the cases for trial. State v. Madden, 292 N.C. 114, 232 S.E.2d 656 (1977); State v. Mitchell, 288 N.C. 360, 218 S.E.2d 332 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3209, 49 L. Ed. 2d 1210 (1976).

Defendant Johnny Smith contends next that the trial court erred in denying his motion in limine concerning evidence of an alleged armed robbery in Smithfield. We find no merit in this contention.

The record fails to disclose that any evidence relating to an armed robbery in Smithfield was introduced. When the state began questioning one of its witnesses with respect to the murder weapon being found in Smithfield on 7 April 1979, and defendant Joseph Smith being seen in that city on that date, the court in the absence of the jury cautioned the prosecuting attorney that any reference to an unrelated offense could result in a mistrial of the case sub judice. Thereupon, the state carefully limited the evidence to the finding of the murder weapon and the presence of defendant Joseph Smith in Smithfield on that date, evidence which was relevant to the case being tried. We perceive no error.

Finally, defendant Johnny Smith contends that the court erred in admitting evidence of fingerprints found on the murder weapon, as well as the cards containing his fingerprints. This contention has no merit. Defendant Johnny Smith argues that this evidence "was extraneous to the issues in the trial" and that the fingerprints found on the weapon were never linked to *856 him. We reject this argument. While the fingerprints were those of defendant Joseph Smith, rather than defendant Johnny Smith, the evidence of the fingerprints was relevant because the state proceeded upon a theory of acting in concert. "... [I]n criminal cases, every circumstance that is calculated to throw any light upon the supposed crime is admissible." State v. Hamilton, 264 N.C. 277, 286, 141 S.E.2d 506, 513 (1965), cert. denied, 384 U.S. 1020, 86 S. Ct. 1936, 16 L. Ed. 2d 1044 (1966).

As to the cards containing this defendant's fingerprints, the record indicates that they were not allowed to remain in evidence. Even so, since defendant Johnny Smith's prints were not found on the murder weapon or at any place at the scene of the offenses, we perceive no prejudice to him.

We conclude that both defendants received fair trials, free from prejudicial error.

No error.