STATE of North Carolina
v.
James Benjamin WATTS.
No. 8422SC1342.
Court of Appeals of North Carolina.
October 1, 1985.*402 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Catherine McLamb, Raleigh, for the State.
Jason R. Parker, Hickory, for defendant, appellant.
HEDRICK, Chief Judge.
Defendant first assigns error to the court reporter's failure to record the opening and closing arguments of counsel. Recordation of trial proceedings is governed by G.S. 15A-1241 which provides in relevant part that "[t]he motion for recordation of jury arguments must be made before the commencement of any argument...." In the present case defendant made a pre-trial motion "for complete recordation of all proceedings." This motion was allowed in an order entered 25 January 1984. The court reporter did not record the jury arguments and defendant now contends this is prejudicial error.
Assuming arguendo that the trial court erred in not having the jury arguments recorded, we do not perceive any possible prejudice to defendant in this regard. G.S. 15A-1443 places upon the defendant the burden of showing that "there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial...." Defendant has not met this burden. The only assignment of error relating to the oral argument properly brought forward by defendant is his contention that 1) it was error for the court reporter to fail to record the arguments since this precluded effective appellate review, and 2) the court erred in allowing the district attorney to comment on defendant's refusal to answer a question on cross examination relating to his arrest for possession of marijuana in February 1984. The jury had witnessed the district attorney question defendant about this matter and had heard defendant invoke the fifth amendment privilege against self incrimination. Further, even assuming that the district attorney's remarks constituted a violation of Rule 608 of the North Carolina Rules of Evidence, we are not convinced that, had the district attorney not made this comment, there would have been "a reasonable possibility that ... a different result would have been reached at the trial." This assignment of error is without merit.
Defendant also assigns error to a ruling by the court which required defendant to place into evidence certain photographs in order to use them for illustrative purposes during cross examination of a witness for the State. Defendant claims that this ruling was prejudicial "since he lost the right to opening and closing argument by being required to introduce those photographs into evidence...." This contention is without merit. Even if the photographs had not been introduced into evidence, defendant would not have had the right to opening and closing argument before the jury. Rule 10 of the General Rules of Practice for the Superior and District Courts gives defendant this right only when he introduces no evidence. In the present case defendant introduced his own evidence, including the testimony of three witnesses. It was this evidence which cost defendant the opening and closing arguments. This assignment of error is without merit.
Defendant also assigns error to the court's "allowing the district attorney to bring to the attention of the jury the fact that the defendant had been arrested and charged with possession of marijuana on another occasion...." Counsel apparently had an agreement based upon defendant's motion in limine that the district attorney would not raise or discuss this arrest which occurred some four months after the offenses for which defendant was being tried. This arrangement was respected by the district attorney. The subsequent offense was not raised during the State's evidence. But when defendant took the stand to testify in his own behalf he testified that "[t]raffic ticket, that's the only thing I've ever been convicted of. The only *403 thing I've ever been charged with except this." This latter remark was a manifest untruth. By falsely stating his arrest record, defendant opened the door and relieved the State of any obligation not to pursue this matter. The record reveals that the judge admonished the district attorney to limit his cross examination in this matter to questions necessary "to straighten out the record...." As the record shows that the district attorney's questioning on this matter was within the permissible limits, this assignment of error is without merit.
Defendant also assigns error to the court's refusal to grant his motion for mistrial "due to the prosecutor's misconduct while cross-examining the defendant concerning his second arrest." Defendant's motion for mistrial was made when the district attorney asked defendant "Mr. Watts, do you own any weapon?" The trial judge had earlier told the district attorney not to question defendant concerning his ownership of a weapon on the date of his second arrest. Defendant's objection to this question was properly sustained, and the court instructed the jury to disregard the question. Defendant contends, however, that the mere asking of this question so prejudiced defendant that a mistrial should have been declared. We disagree. Our Supreme Court has held that "[a] motion for mistrial in a case less than capital is addressed to the trial judge's sound discretion and his ruling thereon is not reviewable without a showing of gross abuse." State v. Yancey, 291 N.C. 656, 664, 231 S.E.2d 637, 642 (1977). Defendant has failed to show any abuse of discretion by the trial judge. This assignment of error is without merit.
Defendant's Assignments of Error Nos. 2-8, 10-11, and 13-18, based on Exceptions Nos. 2-6, 23-24, 29-30, 32-33, 40-71, 73-79, and 83-84, all relate to the admission and exclusion of evidence. Based on Exceptions Nos. 2, 4, 29, 30, 71, 83, and 84 defendant contends that the trial court erred in refusing to allow defendant to elicit, during cross examination of several of the State's witnesses, exculpatory statements allegedly made by defendant to those witnesses. We see no prejudice in the rulings of the court inasmuch as the matters sought to be introduced were in fact admitted into evidence during defendant's own testimony. This assignment of error is without merit.
Based on Exception No. 5 defendant contends that it was prejudicial error for the court to allow the introduction of the signed consent to search form. While the effect of this evidence may have been prejudicial to defendant, we are unable to say that the court committed error. It is an established principle that a valid assignment of error must show both prejudice and error. State v. Milby and State v. Boyd, 302 N.C. 137, 273 S.E.2d 716 (1981). For example, eyewitness testimony that a defendant had committed an armed robbery would be prejudicial to the defendant, but it would not be error for a court to admit it. In the present case the consent to search form had probative value because it tended to show defendant exercised control over the buildings in question. As such its admission was not error. This assignment of error is without merit.
Based on Exceptions Nos. 6, 23-24, 32, and 40-45, defendant alleges the testimony of two SBI special agents on the grounds that they were allowed to testify as expert witnesses when they were in fact not so qualified. Suffice it to say the record reveals that both agents were properly qualified as experts, and that the court committed no prejudicial error in allowing them to testify as expert witnesses.
Based on Exceptions Nos. 26 and 31 defendant contends that it was error for the court to allow the State to pile 240 pounds of marijuana on the courtroom floor. Defendant claims that this is "analogous to allowing the State to bring in a decaying corpse in a murder trial." Defendant was charged with trafficking in marijuana, and the evidence tends to show that defendant did in fact possess a large quantity of that controlled substance. *404 Therefore, it was proper for the State to bring in a large quantity of marijuana as illustrative evidence of the offense. We do not believe that the presence of 240 pounds of marijuana could possibly have the same effect on a jury as the presence of "a decaying corpse." We are unable to find prejudicial error resulting from this incident.
We have examined each of the remaining assignments of error in detail and conclude that they are equally without merit.
No error.
ARNOLD and COZORT, JJ., concur.