State v. Harrill

MARTIN, Judge. Defendant contends that the trial court erred in denying defendant’s motion for a voir dire to determine the competency of witness Barrett. At the time Barrett was called to testify, defendant objected and made a motion for a voir dire as to the witness’s competency. The trial court denied the motion and allowed Barrett to testify. Defendant argues that he is entitled as a matter of right to a preliminary examination of a witness whose competency is challenged. It is well settled law that the competency of a witness to testify is to be determined at the time the witness is called to testify; and such determination rests mainly, if not entirely, in the sound discretion of the trial judge in light of his examination and observation of the particular witness. State v. Wetmore, 287 N.C. 344, 215 S.E. 2d 51 (1975); State v. Cooke, 278 N.C. 288, 179 S.E. 2d 365 (1971). Defendant’s contention thus presents the question whether a party making timely objection to the competency of a witness is entitled as a matter of right to a voir dire determination of such competency. We are of the opinion and so hold that where, as in the case at bar, a party seeking to challenge the competency of a witness makes objection but fails to state any basis therefor, the trial court does not abuse its discretion by refusing to allow a voir dire determination of the witness’s competency. Defendant stated no grounds for his objection which appear of record and has failed to allege any grounds in his brief. This assignment of error is overruled. [225] Defendant next contends that the trial judge committed prejudicial error, in violation of G.S. 1-180, by his comments to defense counsel. On two occasions the trial judge interrupted defense counsel and admonished him not to interrupt the State’s witness. Defendant argues that the trial judge’s admonition tended to belittle defense counsel in the eyes of the jury and conveyed the impression that the judge favored the prosecution. This contention is without merit. It is clear that the trial judge was merely exercising his duty and inherent authority to control the court proceedings and to assist the jury in hearing and comprehending the evidence. Moreover, this Court has held that the remarks of a judge during the trial will not entitle a defendant to a new trial unless the defendant can establish prejudice arising therefrom; a bare possibility that they were prejudicial is insufficient. State v. Walsh, 19 N.C. App. 420, 199 S.E. 2d 38 (1973). In the instant case, defendant has failed to show prejudice. Defendant further contends that the admission into evidence of certain statements allegedly made by defendant was prejudicial error. A State’s witness was allowed to testify on direct examination that during the argument with Cornelius in Officer Ledbetter’s office, defendant stated, among other things, that he “whipped Jack Bell over Snake” Barrett; that he “will whip John Davis . . . when he meets him”; that when he hits a man, “he’s hit”; and that if Officer Ledbetter would meet him on the street, “the first time I hit you, I’ll lay you out.” Defendant argues that these statements constitute evidence of other crimes, and cites the rule that evidence of other crimes is inadmissible on the issue of guilt if its only relevancy is to show the character of the accused, or his disposition to commit an offense in the nature of the one with which he is charged. State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954). In our opinion the evidence of the statements made by defendant on the morning after the assault was relevant to show his extremely bellicose and overly aggressive attitude at that time and thus was relevant on the issue of his guilt of the offense for which he was tried. It was not rendered incompetent because it may have incidentally shown him guilty of other offenses. 1 Stansbury’s N.C. Evidence (Brandis Revision), § 91. This assignment is overruled. [226] Finally, defendant contends that the trial court erred in failing to submit to the jury the lesser offense of simple assault. The necessity for instructing the jury as to an included crime of lesser degree than that charged arises only when there is evidence from which the jury could find that such lesser included offense was committed. “The presence of such evidence is the determinative factor.” State v. Griffin, 280 N.C. 142, 185 S.E. 2d 149 (1971); State v. Williams, 31 N.C. App. 111, 228 S.E. 2d 668 (1976). In the instant case, there can be no doubt from the evidence adduced at trial that if an assault occurred, it was an assault inflicting serious injury. State’s witnesses testified that Barrett was bleeding from numerous cuts and from his mouth and ears, was missing a tooth, and had multiple bruises about his face and back. As a result of these injuries, Barrett was hospitalized in intensive care for two days. Thus, defendant was not entitled to an instruction on simple assault and no error arises from the failure of the court to so instruct. This assignment is overruled. In the trial we find no prejudicial error. No error. Judges Parker and Arnold concur.