State v. Fogler

BROCK, Chief Judge. Defendant assigns as error that the trial judge denied defense counsel the right to examine notes of a State’s witness, Officer Sam Hudson. At the conclusion of defense counsel’s [660] cross-examination of Officer Hudson, counsel requested permission to inspect Officer Hudson’s notes. The request was denied by the trial judge. The record on appeal is barren of evidence that Officer Hudson used notes in his testimony or that he used notes to refresh his recollection. There is no evidence of what type of notes counsel sought to inspect, and there is no evidence of who prepared the notes to which counsel referred. Under these circumstances it cannot be shown that the denial of counsel’s request was prejudicial error. This assignment of error is overruled. Defendant assigns as error the explanation of the trial judge to the jury for the absence of co-defendant Wilbanks and his counsel. At the close of all the evidence, in the absence of the jury, co-defendant Wilbanks entered pleas of guilty to the charges against him. After the jury returned to the courtroom to receive instructions from the trial judge, the following instruction was given: “The Court: ‘Ladies and gentlemen, by agreement of the District Attorney and counsel for the defendant, after consulting with the Court, have agreed that I should advise the jury why the defendant, Wilbanks, is not now seated at the defense table with his attorney and that the only defendant seated at the defense table is Mr. Fogler with his attorney, Mr. Mercer and while you were out Mr. Wil-banks entered a plea of guilty and what I do in that regard is a question of punishment for the Court. So you are not concerned with the case against Mr. Wilbanks anymore. You may be concerned with it, but it is not for you to decide for he has already entered a plea of guilty and in your absence, also, I dismissed the charge of felonious conspiracy against Mr. Fogler. Therefore, the case will go to the jury against Mr. Fogler only on the question of felonious larceny.’ ” It seems obvious to us that defendant requested, or at least consented to, the explanation of the absence of Wilbanks. Apparently at that time defendant considered the explanation to be advantageous. He should not now be heard to complain. This assignment of error is overruled. The remaining assignments of error brought forward and argued in defendant’s brief are addressed to four phases of the trial judge’s charge to the jury. We have considered each of [661] these, and in our opinion error prejudicial to the defendant has not been shown. In our opinion the parts of the charge addressed by these assignments of error do not constitute such error as was pointed out in State v. Powell, 6 N.C. App. 8, 169 S.E. 2d 210 (1969) ; State v. Beamon, 2 N.C. App. 588, 163 S.E. 2d 544 (1968) ; and State v. Watson, 1 N.C. App. 250, 161 S.E. 2d 159 (1968), which are relied upon by defendant. The assignments of error to the charge are overruled. No error. Judges Hedrick and Clark concur.