State v. Bumgarner, 261 S.E.2d 105

State v. Bumgarner

261 S.E.2d 105

N.C.

1980

Check Treatment

CARLTON, Justice.

Thе Court of Appeals ordered a new trial on the sole ground that “it appears defendant was prevented from cаlling as a witness an eyewitness to the alleged crime because of an erroneous interpretation of the law by the presiding judge.” The Court of Appeals reached its conclusion after reviewing a colloquy which took place between the trial court, counsel for the defendant, counsel for an eyewitness to the crime, and the assistant district attorney. The record discloses that when defendant’s attorney stated to the trial court that he would call the eyewitness James Deаn McGinnis as a witness for the defendant, McGin-nis’ attorney advised the court , that his client would refuse to answer certain questions on fifth amendment grounds. During the ensuing colloquy, the trial court inquired whether his understanding was correct that the rules of ethics preclude an аttorney from calling a witness when he knows the witness will take the fifth. The Canon of Ethics does not forbid this practice. The Court of Appeals, held, in essence, that this comment by the trial court was intimidating to counsel for defendant, was an erroneous interpretation of the law, and therefore entitled defendant to a new trial.

We do not think the Court of Appeals has propеrly interpreted the colloquy. Only a portion of that colloquy is printed in its opinion, but full reading of the exchange indicates thаt on at least five occasions during the colloquy, the trial court stated to defense counsel that he could call the witness if he desired to do so. At one point the trial court even said, “Now if you want to call this person you may do so.” Moreover, the State did not object to the calling of the witness at any time. While the trial court was obviously confused about the Canоn of Ethics, we think his subsequent statements made it clear that defendant was free to call this witness to testify for him. Where the court cоrrects an error or inadvertence, the error is ordinarily cured. Cf. State v. Culp, 5 N.C. App. 625, 169 S.E. 2d 10 (1969). (Court immediately corrected inadvertent ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍reading of рart of indictment in charge to *116 jury.) See also State v. Withers, 271 N.C. 364, 156 S.E. 2d 733 (1967).

Moreover, to warrant a new trial, defendant must show the ruling complained of was material аnd prejudicial to his right, State v. Jones, 278 N.C. 259, 179 S.E. 2d 433 (1971), and that a different result would likely have ensued, State v. Sanders, 276 N.C. 598, 174 S.E. 2d 487 (1970), death sentence vacated, 403 U.S. 948, 91 S.Ct. 2290, 29 L.Ed. 2d 860 (1971); State v. Paige, 272 N.C. 417, 158 S.E. 2d 522 (1968). Even if there were any conceivable error in the trial сourt’s statement to counsel, it was subsequently rendered nonprejudicial when the State called the same witness McGinnis on rebuttal. At that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍time, defense counsel had full opportunity to present this witness’s testimony on cross-examination, and the record revеals the witness told a story that supported defendant’s version of the facts.

Defendant contends that the manner, tone, inflection and attitude of the trial court during this exchange were such that no subsequent statements by him could relieve the intimidation felt by his counsel so that he would be free to call the desired witness. On oral argument, defense counsel noted that this was his first experience in the trial court. The record discloses, and defense counsel concedes, however, that at the time of this exсhange defense counsel was being assisted by another member of the Catawba County Bar whom he had associated because of his relative inexperience. Defense counsel argues that even the most experienced trial lawyer would have been intimidated by this trial court’s behavior. Suffice it to say that the record before us does not disclose any prеjudicial behavior on the part of this trial judge nor any intimidation by him of counsel for defendant. We agree with defendant that the сold record before an appellate court does not reveal the “tone” and “inflection” of trial participants. The only answer is that we give the most careful review to the record before us to ensure that no prejudicial еrror has occurred. We do not believe that the trial court erred in this instance and reverse the Court of Appeals.

In light оf our holding above, it is necessary that we address the defendant’s remaining assignments of error presented to the Court of Appeals. Prior to trial, defendant moved that the State’s witnesses be sequestered on the grounds that it was necessary so *117 the jury cоuld accurately gauge the veracity of these witnesses. The trial court denied the motion on the grounds that no notice had been given, that there was no reason appearing from the statement of counsel to sequester, and that the number ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of witnesses involved was too great for the limited area in the courthouse. The sequestration of witnesses is a matter of discrеtion within the trial judge and his ruling thereon is not reviewable absent a showing of abuse of that discretion. State v. Willard, 293 N.C. 394, 238 S.E. 2d 509 (1977); State v. Tatum, 291 N.C. 73, 229 S.E. 2d 562 (1976); Stansbury, North Carolina Evidence § 20 (Brandis rev. ed. 1973). Here, defendant has failed to show any prejudice by denial of the motion and we find no abuse of the trial court’s discretion.

Finally, defendant contends that the trial court erred in denying his motions for directed verdict of not guilty and his motion for a mistrial. Dеfendant cites no authority in support of these contentions but requests this Court to review the record to determine the prоpriety of the trial court’s action.

A motion for a mistrial in a case such as this one is addressed to the trial court’s sound ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍discrеtion, and his ruling thereon is not reviewable without a showing of gross abuse. State v. Yancey, 291 N.C. 656, 231 S.E. 2d 637 (1977); State v. Daye, 281 N.C. 592, 189 S.E. 2d 481 (1972). A motion for a directed verdict of not guilty challenges the sufficiency of the evidence to justify submission to the jury. State v. Wilson, 296 N.C. 298, 250 S.E. 2d 621 (1979); State v. Glover, 270 N.C. 319, 154 S.E. 2d 305 (1967); State v. Wiley, 242 N.C. 114, 86 S.E. 2d 913 (1955); State v. Woodlief, 2 N.C. App. 495, 163 S.E. 2d 407 (1968). Upon such a challenge, all the evidence admitted must be considered in thе light most favorable to the State, and the State is entitled to every reasonable inference therefrom. See Statе v. Wilson, supra; State v. Glover, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍supra; State v. Woodlief, supra.

Suffice it to say that we have reviewed the entire record bеfore us and find no error in the trial court’s rulings on these motions. The evidence of defendant’s guilt was certainly sufficient to permit thе case to be submitted to the jury and defendant has failed to show any abuse of the trial court’s discretion in denying the motion for mistrial.

*118 Defendant had a fair trial, free from prejudicial error. The decision of the Court of Appeals is reversed and this case is remanded to that court with the instructions that it remand to the Superior Court of Catawba County for reinstatement of the trial court’s judgment.

Reversed and remanded.