State v. Netcliff

GRAHAM, Judge. Defendant assigns as error the denial of his motion for judgment as of nonsuit. In our opinion substantial evidence was presented in support of every essential element of the offense for which defendant was convicted. This assignment of error is overruled. Defendant contends that the court erred in permitting an investigating officer to testify as to a statement made by the witness James McCoy. This testimony was admitted for the sole purpose of corroborating testimony already given by McCoy, in the event the jury found that it did corroborate McCoy’s testimony. It was competent for this limited purpose. State v. Paige, 272 N.C. 417, 158 S.E. 2d 522. Proper instructions were given limiting the purpose of the testimony at the time the officer testified and again in the court’s charge to the jury. [103] Defendant contends that in relating McCoy’s statement to the jury, the officer should not have been permitted to testify as to that portion of the statement to the effect defendant said he shot “the dudes” because they were white. It is noted that McCoy made this identical statement on the witness stand. Defendant did not object or move to strike the testimony at that time. Even if such a motion had been made, defendant would not have been entitled to have the testimony stricken. The statement constituted an admission by defendant and was highly relevant on the question of defendant’s motive in firing the pistol at deceased and his companion. Defendant’s final contention is that the court intimated an opinion on the evidence in the following portion of the charge: “Now, Ladies and Gentlemen, it is absolutely necessary that you understand and apply the law as I give it to you, not as you think it is, not as you might like it to be. This is important, for what I say the law is, is being taken down by the court reporter and if I get it wrong, that can be corrected by the Court of Appeals.” The court continued its charge by stating: “If you guess at it or if you do not concur with the law, there is no way of correcting your mistakes as to the law. Justice requires that everyone tried for the same crime be tried under the same law and have the same law applied to him. So I ask that you accept what I say the law is.” In this portion of the charge, the court was simply emphasizing to the jury the importance of applying the law as given to them by the court. We do not see how this could possibly be construed to constitute an expression of opinion on the evidence. Certainly it was important to the defendant, as well as to the State, that the jury pay close attention to the court’s charge as to the law. We have reviewed the entire record and conclude that defendant had a fair trial free from prejudicial error. No error. Judges Campbell and Britt concur.