State v. Holmes

ARNOLD, Judge.

Deféndant first contends that the trial court erred in allowing the State to consolidate the cases for trial pursuant to ’G.S. *58315-152. In State v. White, 256 N.C. 244, 247, 123 S.E. 2d 483, 486 (1962), the North Carolina Supreme Court said:

“Where a defendant is indicted in separate bills ‘for two or more transactions of the same class of crimes or offenses’ the court may in its discretion consolidate the indictments for trial. In exercising discretion the presiding judge should consider whether the offenses alleged are so separate in time or place and so distinct in circumstances as to render a consolidation unjust and prejudicial to defendant.”

In the case at bar we have four charges of armed robbery, all in Goldsboro. Leo Davis’ testimony dealt directly with two of the robberies and was relevant to the others. In none of the robberies was defendant actually seen by the victims, but in each he was alleged to have driven the getaway car. Given these identities and similarities, we find no abuse of discretion in consolidating these cases for trial.

Defendant next contends that the court erred in allowing Davis to testify concerning defendant’s statements about participating in other robberies in Goldsboro. Evidence of other offenses is admissible, however, when as in the case at bar, it tends to show a general plan or design. State v. McClain, 282 N.C. 357, 193 S.E. 2d 108 (1972) ; State v. Fowler, 230 N.C. 470, 53 S.E. 2d 853 (1949). Defendant also objected to the State’s use of leading questions in examining Davis. This was within the court’s discretion, see State v. Staten, 271 N.C. 600, 157 S.E. 2d 225 (1967) ; State v. Painter, 265 N.C. 277, 144 S.E. 2d 6 (1965), which was not shown to have been abused. Defendant correctly contends that Creo Merritt’s testimony that a Mr. Gooding told him that Leo Davis had shot at him is hearsay.' Nevertheless, we believe its admission was harmless error in view of Davis’ testimony that he shot close to the person who pursued him from Merritt’s Grocery.

Defendant further contends that the court erred in allowing Kennimore to plead the Fifth Amendment, with respect to his and defendant’s involvement in the offenses charged. It is well settled that the court should deny the witness’s claim of privilege only if there is no possibility that a truthful answer might incriminate him. 1 Stansbury, N. C. Evidence (Brandis rev.) § 57; see State v. Smith, 13 N.C. App. 46, 184 S.E. 2d 906 (1971) . The record shows that Kennimore was under indictment *584for these offenses and did not have an attorney to represent him. Despite discussions between Kennimore and the solicitor, no binding plea bargain was in effect, and it was possible that Kennimore’s testimony could incriminate him. The court properly allowed him not to testify.

Finally, defendant contends that the court erred in denying his motions for nonsuit as to the robberies at the Kentucky Fried Chicken restaurant and Bob’s Supermarket. Defendant’s confession plus independent evidence of the corpus delicti is sufficient to overcome a motion for nonsuit. See State v. Jenerett, 281 N.C. 81, 187 S.E. 2d 735 (1972) ; State v. Elam, 268 N.C. 273, 139 S.E. 2d 601 (1965). See also 2 Stansbury, supra, § 182; 2 Strong, N. C. Index 2d, Criminal Law § 106, pp. 659-60. The corroborative evidence may be circumstantial. State v. Whittemore, 255 N.C. 583, 122 S.E. 2d 396 (1961). Taken in the light most favorable to the State, the evidence shows that defendant confessed to Davis that he and Kennimore committed the robberies. The victim identified Kennimore, and one saw defendant in the store minutes before the robbery. Another witness saw a blue Ford LTD behind the store. We find the evidence sufficient to go to the jury on each offense charged.

Defendant has received a fair trial free from prejudicial error.

No error.

Chief Judge Brock and Judge Parker concur.