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State v. Golphin8/25/2000
1140 (1982)). In considering joinder for sentencing, this Court has relied on the general rules governing joinder for trial. See Barnes, 345 N.C. at 224, 481 S.E.2d at 66 (where this Court relied on Pickens, 335 N.C. 717, 440 S.E.2d 552, which addresses joinder for trial, and held two of the three defendants were not denied a fair capital sentencing proceeding because testimony of a third defendant did not result in antagonistic defenses, as each defendant could show why he should not receive the death penalty).
" he propriety of joinder depends upon the circumstances of each case and is within the sound discretion of the trial judge." Pickens, 335 N.C. at 724, 440 S.E.2d at 556. When a decision is within the trial court's discretion, the court's determination will not be disturbed absent an abuse of discretion. See id. As we previously stated, the North Carolina General Statutes provide for joinder of defendants in situations where each defendant is charged with accountability for each offense. See N.C.G.S. § 15A-926(b). Joinder of defendants is also appropriate if the several offenses charged were part of a common plan or scheme; were part of the same act or transaction; or were so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others. See id.
Tilmon argues severance was appropriate because Williams would not testify for him otherwise. Tilmon's argument, however, makes the unsubstantiated assumption that Williams would have testified favorably on his behalf and unfavorably on behalf of Kevin. Such an assertion can be substantiated only by an offer of proof.
"It is well established that an exception to the exclusion of evidence cannot be sustained where the record fails to show what the witness' testimony would have been had he been permitted to testify." State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985) (citing State v. Cheek, 307 N.C. 552, 299 S.E.2d 633 (1983)). " n order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record." Id. at 370, 334 S.E.2d at 60 (citing Currence v. Hardin, 296 N.C. 95, 249 S.E.2d 387 (1978)). State v. Johnson, 340 N.C. 32, 49, 455 S.E.2d 644, 653 (1995).
However, Tilmon made no offer of proof in the instant case as to the actual substance of Williams' testimony, and the significance of the testimony is not apparent from the record. Thus, we are unable to rely on this reasoning in support of Tilmon's argument. Furthermore, we note that Tilmon could have subpoenaed Williams to testify. See Coffey, 326 N.C. at 292, 389 S.E.2d at 62. There was no indication that she would not testify truthfully if she had been subpoenaed.
In addition, Tilmon contends that information Williams would have provided regarding his difficult childhood could have supported mitigating circumstances that would have led the jury to impose life imprisonment rather than death. This information, however, had already been provided by other witnesses, and Tilmon has offered no proof that Williams' testimony would have expanded on what had already been made known to the jury.
Further, Tilmon cannot show he was denied individualized consideration during the joint sentencing proceeding. The trial court's instructions to the jury at the conclusion of the sentencing proceeding included the following: " ou must consider the evidence separately as to each defendant and as to each victim. You must evaluate and make a separate recommendation based upon a separate and
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