State v. Hairston, 36 N.C. App. 641

36 N.C. App. 641 | N.C. Ct. App. | 1978

HEDRICK, Judge.

By his third assignment of error the defendant contends that the trial court erred to his prejudice in allowing the State to cross-examine the defense witness, Joyce Orr, as to her prior silence with respect to the substance of a portion of her testimony at trial. In an effort to impeach her testimony that she had possessed the gun found on the premises and that she had dropped it to the floor when the police officers entered the house, the District Attorney asked her why she had failed to disclose this information when she talked to a police officer on the day of the arrest. Over the objection of the defendant the witness replied, “I don’t know. I just didn’t tell him about it.”

Citing State v. Mack, 282 N.C. 334, 193 S.E. 2d 71 (1972), the defendant argues that the witness’ prior failure to exculpate the defendant by claiming the gun at the time of arrest could not be used to impeach her testimony at trial. We do not agree. It is established that prior silence can be used to impeach the in-court testimony of a witness as an indirect inconsistency if “ ‘it would have been natural to mention’ ” the substance of the testimony at the previous time. 282 N.C. at 340, 193 S.E. 2d at 75. We are of the opinion that if the gun had belonged to the witness and she had dropped it upon the floor as she claimed at trial it would have been reasonable and natural for her to have mentioned this in her prior conversation with the police officer. Her failure to do so was the proper subject of impeachment by the State. Thus, we think the question excepted to was proper for impeachment purposes.

The defendant also contends that “[t]he consolidation of a charge of possession of heroin with a charge of an unrelated felony stigmatizes the defendant and prevents the jury from fairly considering the charge of the other felony.” According to G.S. 15A-926, “[tjwo or more offenses may be joined ... for trial when the offenses, . . . 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.” The determination of whether to consolidate charges against a defendant in a single trial is addressed to the sound discretion of the trial judge. State v. White, 256 N.C. 244, 123 S.E. 2d 483 (1962). However, with several exceptions not pertinent to this case, “[a]ny right to severance is waived” if the defendant fails to make a motion therefor prior to trial. G.S. 15A-927(a)(l). The defendant in the present case failed to make a motion for severance at any time before or during trial. Furthermore, the trial judge instructed the jury that “the Court has withdrawn from your consideration [the charge of possession of heroin] and you will not consider that particular charge further.” Accordingly, this assignment of error is overruled.

No error.

Chief Judge BROCK and Judge Mitchell concur.