{ "id": 8552810, "name": "STATE OF NORTH CAROLINA v. ROY BENJAMIN COOK and FERN WARREN WHITAKER", "name_abbreviation": "State v. Cook", "decision_date": "1980-09-16", "docket_number": "No. 8026SC254", "first_page": "685", "last_page": "689", "citations": [ { "type": "official", "cite": "48 N.C. App. 685" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "254 S.E. 2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568581 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0247-01" ] }, { "cite": "256 S.E. 2d 526", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "42 N.C. App. 361", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554385 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/42/0361-01" ] }, { "cite": "296 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569633, 8569497, 8569593, 8569562, 8569532 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0588-05", "/nc/296/0588-01", "/nc/296/0588-04", "/nc/296/0588-03", "/nc/296/0588-02" ] }, { "cite": "249 S.E. 2d 446", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "39 N.C. App. 47", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550154 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/39/0047-01" ] }, { "cite": "162 S.E. 2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "2 N.C. App. 204", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552127 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/2/0204-01" ] }, { "cite": "260 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "640" } ], "opinion_index": 0 }, { "cite": "298 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573777 ], "year": 1979, "pin_cites": [ { "page": "587" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0573-01" ] }, { "cite": "232 S.E. 2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567549 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0114-01" ] }, { "cite": "229 S.E. 2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "291 N.C. 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557911 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0275-01" ] }, { "cite": "248 S.E. 2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "38 N.C. App. 261", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553318 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/38/0261-01" ] }, { "cite": "255 S.E. 2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "395" } ], "opinion_index": 0 }, { "cite": "297 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570297 ], "year": 1979, "pin_cites": [ { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0349-01" ] } ], "analysis": { "cardinality": 490, "char_count": 9089, "ocr_confidence": 0.711, "pagerank": { "raw": 2.808295909578776e-07, "percentile": 0.8373644563833644 }, "sha256": "4e89c628c374fdf066ae155ce978fad1c1749ea21e81be1b07615cb7642efd62", "simhash": "1:ca679c7a383169d8", "word_count": 1470 }, "last_updated": "2023-07-14T21:18:20.579461+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Erwin and Wells concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROY BENJAMIN COOK and FERN WARREN WHITAKER" ], "opinions": [ { "text": "ARNOLD, Judge.\nBoth defendants assign error to the court\u2019s ruling allowing joinder of the cases for trial. Defendant Cook questions the propriety of granting the prosecutor\u2019s motion for consolidation, while defendant Whitaker questions the denial of his timely motion to sever. Both contentions are incorrect.\nN.C.G.S. 15A-926(b)(2)a authorizes consolidation of joinder of defendants for trial on the written motion of the prosecutor when \u201ceach of the defendants is charged with accountability for each offense.\u201d The State\u2019s case, based on the theory that defendants were \u201cacting in concert,\u201d charged each defendant with responsibility for the death of Clarence Flowers. While only one defendant logically could have fired the fatal shots, the indictments charged each defendant with the murder of Clarence Flowers, not necessarily exclusive of each other but by the two defendants acting together. The North Carolina Supreme Court in State v. Joyner, 297 N.C. 349, 356, 255 S.E. 2d 390, 395 (1979), stated: \u201cTo act in concert means to act together, in harmony or in conjunction one with another pursuant to a common plan or purpose.\u201d Therefore, consolidation of the trials of defendants was authorized by statute.\nFurther, whether defendants should be tried separately or together is in the discretion of a trial judge. Absent a showing that the joint trial denied the defendants of a fair determination of their guilt or innocence the exercise of the court\u2019s discretion will not be disturbed on appeal. State v. Ervin, 38 N.C. App. 261, 248 S.E. 2d 91 (1978), citing State v. Slade, 291 N.C. 275, 229 S.E. 2d 921 (1976). Consolidation of these two cases was proper as neither defendant has indicated an absence of a fair trial as a result of non-severance.\nWhile defendants contend their antagonistic defenses mandate separate trials, they misread State v. Madden, 292 N.C. 114, 232 S.E. 2d 656 (1977). As observed in State v. Nelson, 298 N.C. 573, 587, 260 S.E. 2d 629, 640 (1979), Madden, \u201cdoes not mean that antagonistic defenses necessarily warrant severance. The test is whether the conflict in defendants\u2019 respective positions at trial is of such a nature that, considering all of the other evidence in the case, defendants were denied a fair trial.\u201d G.S. 15A-927(c)(2). Though the case sub judice certainly involves antagonistic defenses, defendants made no showing that they were denied a fair trial because of the consolidation. Justice Exum further observed in Nelson that severance is generally allowed where the case is \u201can evidentiary contest more between defendants themselves than between the State and the defendants.\u201d Supra at 587. Such was not the case in this trial. The State presented ample evidence to support a conviction of either or both defendants of Flowers\u2019 murder.\nWe see no merit in Whitaker\u2019s assertion that the trial judge was in error in failing to hold a voir dire hearing on the competence of Ruby Mae Powers, a witness for defendant Cook who identified Whitaker as the gunman. Determination of the competence of a witness to testify falls within the discretion of the trial judge, and his decision will not be overturned on appeal in the absence of clear abuse of discretion. State v. Fuller, 2 N.C. App. 204, 162 S.E. 2d 517 (1968). The record discloses no evidence that the trial judge abused his discretion by allowing Ruby Mae Powers to testify.\nDefendant Cook also challenges the denial of his motion for mistrial based on the State\u2019s failure to disclose an incriminating statement allegedly made by defendant Cook. As soon as the prosecutor learned it the prosecutor himself, according to the record, disclosed to defense counsel the witness\u2019s intent to testify about the incriminating' statement. Moreover, the defendant failed to object to the statement or move to strike at trial. The decision to grant or deny a motion for mistrial is in the discretion of the trial judge and absent abuse will not be disturbed on appeal. State v. Mills, 39 N.C. App. 47, 249 S.E. 2d 446 (1978), disc. rev. denied, 296 N.C. 588 (1979). The record indicates no abuse by the trial judge in denying defendants\u2019 motion for mistrial.\nWe find no error in the trial judge\u2019s ruling that Officer Overturf could testify concerning statements made by defendant Cook concerning the presence of the gun found in Cook\u2019s apartment. Likewise, the judge did not err in his instruction, apparently taken from N.C.P.I. \u2014 Crim. 202.10, on the State\u2019s theory that the defendants were acting in concert in the death of Clarence Flowers. See State v. Joyner, supra at 358.\nFinally, the judge\u2019s charge, in accordance with N.C.P.I. \u2014 Crim. 206.30, on the possible inferences due to the use of a deadly weapon contains no error. See, State v. Campbell, 42 N.C. App. 361, 256 S.E. 2d 526 (1979), citing State v. Patterson, 297 N.C. 247, 254 S.E. 2d 604 (1979).\nNo error.\nJudges Erwin and Wells concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Dennis P. Myers, for the State.", "Lindsey, Schrimsher, Erwin, Bernhardt, Hewitt & Beddow, by Laurence W. Hewitt, for defendant Roy Benjamin Cook.", "Assistant Public Defender Theo X. Nixon for defendant Fern Warren Whitaker." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROY BENJAMIN COOK and FERN WARREN WHITAKER\nNo. 8026SC254\n(Filed 16 September 1980)\n1. Criminal Law \u00a7 92.1- two defendants - same offense - consolidation proper\nConsolidation of the trials of defendants was authorized by G.S. 15A-926(b)(2) where the State\u2019s case, based on the theory that defendants were acting in concert, charged each defendant with responsibility for the death of a named person; there was no showing that a joint trial denied defendants a fair determination of their guilt or innocence, and the exercise of the trial court\u2019s discretion to consolidate will not be disturbed on appeal; and though defendants\u2019 defenses were antagonistic, defendants made no showing that they were denied a fair trial because of consolidation.\n2. Constitutional Law \u00a7 30- access to incriminating statement - statement timely revealed by prosecutor - failure to object\nThe trial court did not err in denying one defendant\u2019s motion for mistrial based on the State\u2019s failure to disclose an incriminating statement allegedly made by him, since the prosecutor, as soon as he learned it, disclosed to defense counsel the witness\u2019s intent to testify about the incriminating statement, and since defendant failed to object to the statement or move to strike at trial.\nAppeal by defendants from Grist, Judge. Judgment entered 21 September 1979 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 26 August 1980.\nDefendants were charged in separate bills of indictment with the first degree murder of Clarence William Flowers. Five days prior to trial the State successfully moved to join the two cases for trial under N.C.G.S. 15A-926. Defendant Whitaker\u2019s subsequent motion for a continuance or in the alternative for a severance based on his poor physical condition was denied. The court also denied both defendants\u2019 motions to dismiss at the close of the State\u2019s case and at the end of all the evidence. The jury found both defendants guilty of second degree murder.\nThe State presented evidence that Flowers was shot by a .32 caliber revolver found in Cook\u2019s apartment; that both defendants, Cook and Whitaker, lived in the same apartment building as the deceased; that in the midafternoon and evening of 1 April 1979 defendant Whitaker, at least once accompanied by defendant Cook, complained several times about the noise coming from Flowers\u2019 apartment. Testimony from several witnesses described the abusive nature of these complaints and the angry discussions between defendants and Flowers, including threats and banging on Flowers\u2019 apartment door. According to one witness, defendant Whitaker was knocked to the floor by Flowers opening his apartment door and helped off the floor by defendant Cook. The State also presented evidence that defendant Cook shot into Flowers\u2019 apartment door while Whitaker stood by watching. Defendants then were seen returning to Whitaker\u2019s apartment.\nDefendant Whitaker\u2019s evidence was consistent with that of the State except as to Whitaker\u2019s role in the shooting. He denied any intent to harm Flowers or any complicity with Cook in Flowers\u2019 death. Whitaker admitted being in the hallway outside Flowers\u2019 apartment at the time of the shooting, but testified that he tried to prevent Cook from shooting into the apartment. Further, Whitaker stated that he failed to report the shooting and denied any knowledge of it when talking with the police because he feabed for his own safety as a result of threats from Cook after the shooting.\nDefendant Cook\u2019s evidence, through the testimony of Cook himself, and Ruby Mae Powers, Flowers\u2019 sister who was in the apartment and also wounded during the incident, identified Whitaker as the gunman. Cook denied that he and Whitaker were acting together and testified that he failed to explain the shooting to the police because he was afraid of Whitaker\u2019s retaliation.\nBoth defendants appeal.\nAttorney General Edmisten, by Assistant Attorney General Dennis P. Myers, for the State.\nLindsey, Schrimsher, Erwin, Bernhardt, Hewitt & Beddow, by Laurence W. Hewitt, for defendant Roy Benjamin Cook.\nAssistant Public Defender Theo X. Nixon for defendant Fern Warren Whitaker." }, "file_name": "0685-01", "first_page_order": 713, "last_page_order": 717 }