STATE of North Carolina
v.
Walter D. BOYKIN, Jr. and Willie James Boykin.
No. 91A81.
Supreme Court of North Carolina.
November 3, 1982.*260 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. David Roy Blackwell, Raleigh, for the State.
John R. Parker, Clinton, for defendant Walter Dal Boykin, Jr.
William M. Bacon, III, Clinton, for defendant Willie James Boykin.
COPELAND, Justice.
Defendant Walter Dal Boykin, Jr. presented three assignments of error and defendant Willie James Boykin presented five assignments of error for our consideration on appeal.
We find merit in the first assignment of error of defendant Willie James Boykin and remand the case of this defendant to the trial court for a new trial. Although defendant Walter Dal Boykin, Jr. did not raise on appeal an assignment of error corresponding to defendant Willie James Boykin's first assignment of error, we remand the case of defendant Walter Dal Boykin, Jr. for a new trial. We remand the case of Walter Dal Boykin, Jr. under our supervisory power pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure in order to prevent a manifest injustice to defendant Walter Dal Boykin, Jr.
In his first assignment of error, defendant Willie James Boykin argues that the trial court erred in consolidating the cases against him with the cases against his brother, Walter Dal Boykin, Jr.
It is a well settled rule of law in this jurisdiction that the decision whether to try the defendants separately or jointly is ordinarily within the sound discretion of the trial judge and, absent an abuse of that discretion, will not be overturned on appeal. State v. Slade, 291 N.C. 275, 229 S.E.2d 921 (1976); State v. Brower, 289 N.C. 644, 224 S.E.2d 551 (1976); State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968). However, where the defendants' defenses are antagonistic, as they were here, or where it is impossible for one defendant to receive a fair trial, it has been held error to allow a joint trial over the objection of the defendant. State v. Alford, 289 N.C. 372, 222 S.E.2d 222 (1976).
In this case, defendant, Willie James Boykin was prejudiced by the court's consolidation of cases because he was prevented from testifying as to his motive in making his "false confessions." The record discloses numerous admissions made by defendant Willie James Boykin to the effect that he had shot "Pap" Lamb and Tommy Fennell. The court permitted the State to introduce each of these admissions into evidence. However, since Walter Dal Boykin, Jr. was a co-defendant in the murder charge, the trial court did not permit defendant Willie James Boykin to explain that the admissions were intended to protect Walter, his brother, who had previously been convicted of murder. The only explanation the defendant was able to give the jury for those admissions was that he was drunk. In addition, Willie James Boykin was prejudiced when the trial court prevented him, on the cross-examination of Deputy Sheriff Spell, from eliciting that his co-defendant, Walter Dal Boykin, Jr., had also confessed to shooting the deceased. This left the jury with the mistaken impression that Willie James Boykin was the only defendant who had made a statement confessing to the shooting.
The impact of unexplained admissions, like the ones in this case when combined with other evidence which suggested that the only rifle present during the shooting was in the hands of the co-defendant Walter Dal Boykin, Jr., leads us to conclude that Willie James Boykin did not receive a fair trial. As Justice Exum stated in State v. Nelson, 298 N.C. 573, 587, 260 S.E.2d 629, 640 (1979), cert. denied, 446 U.S. 929, 100 S. Ct. 1867, 64 L. Ed. 2d 282 (1980), "[t]he test is whether the conflict in defendants' 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." (Emphasis added.) See also G.S. 15A-927(c)(2).
*261 "One of the statutory bases for joining two or more defendants for trial is that each defendant is sought to be held accountable for the same crime or crimes. G.S. 15A-926(b)(2)(a). In such cases public policy strongly compels consolidation as the rule rather than the exception." State v. Nelson, 298 N.C. at 586, 260 S.E.2d at 639. This strong public policy was perhaps best summarized by the Ninth Circuit Court of Appeals that consolidation
"expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once."
Parker v. United States, 404 F.2d 1193, 1196 (9th Cir. 1968), cert. denied, 394 U.S. 1004, 89 S. Ct. 1602, 22 L. Ed. 2d 782 (1969). However, no matter how appealing such public policy may be, it must not stand in the way of "a fair determination of ... guilt or innocence...." G.S. 15A-927(c)(2)(a), (b). Whether there is to be a joinder of cases must depend upon the circumstances of each case. State v. Battle, 267 N.C. 513, 148 S.E.2d 599 (1966).
Under the facts in this case there is no doubt that the position of Walter Dal Boykin, Jr. was antagonistic toward the position of defendant Willie James Boykin. The presence of defendant Walter Dal Boykin, Jr. as a co-defendant, denied Willie James Boykin the opportunity to introduce evidence which could have explained his admissions, some of the State's strongest evidence against him. In effect, the denial of such evidence left the jury with the impression that defendant Willie James Boykin had spoken out of both sides of his mouth without any reasonable explanation.
We believe that there was enough evidence to go to the jury in either case, but we feel that justice requires a separate trial for these two defendants under the facts of this case. Therefore we grant a new trial to defendant Willie James Boykin.
Walter Dal Boykin, Jr. did not make a motion for severance nor did he make a motion against consolidation. Nevertheless, in view of our action as to Willie James Boykin, we feel justice requires the same treatment for defendant Walter Dal Boykin, Jr. Accordingly, we grant a new trial to defendant Walter Dal Boykin, Jr. under our supervisory powers pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure in order to prevent manifest injustice to Walter Dal Boykin, Jr.
The defendants' remaining assignments of error are unlikely to recur at retrial, therefore we deem it unnecessary to discuss these at this time.
For the reasons stated above, this case is remanded to the Superior Court of Sampson County, in order that each defendant may receive new and separate trials.
NEW TRIAL.