STATE OF NORTH CAROLINA
v. Iredell County
Nos. 99 CRS 21376, 21896-97
DAVID DEWAYNE SMITH
Attorney General Roy Cooper, by Assistant Attorney General
Anne Goco Kirby, for the State.
Michael E. Casterline for defendant-appellant.
WALKER, Judge.
In early December 1999, defendant was arrested and charged
with assault on a female, communicating threats, and misdemeanor
simple assault. On 2 February 2000, defendant pled no contest in
district court to assault on a female and was sentenced to a
suspended term of seventy-five days in prison and placed on
supervised probation for thirty-six months. Defendant appealed.
All three charges were consolidated for trial at the 16 July 2001
Criminal Session of Iredell County Superior Court.
The State presented evidence at trial which tended to show the
following: On 4 December 1999, defendant and his daughter, Claire,
entered a Burger King in Statesville, North Carolina, approachedthe counter, and ordered some food. After ordering, defendant
asked Felicia Brown, the cashier who took his order, whether she
had any Pokemon Gold Cards, which were being given out as part of
a promotion. Brown told defendant that they were sold out.
Shortly thereafter, while defendant was waiting for his food,
another customer asked for a Pokemon card. Brown told the customer
she had one that was “broken.” Immediately, defendant began to
verbally abuse Brown, cursing her, and using racial slurs. Then,
one of Brown's co-workers, Duwan Murdock, told defendant “you don't
need to be calling her all these names and stuff like that.” Then,
defendant started cursing Murdock. The manager then came to the
front and instructed Brown and the other employees to go to the
back.
While the other employees went to the back, Murdock went
around the counter, into the lobby, and told defendant to leave the
restaurant. Defendant then hit Murdock in her right eye with his
fist, and the two started fighting. Meanwhile, a customer in the
restaurant, George Cardin, was preparing to leave the restaurant
because of defendant's conduct. After seeing defendant hit
Murdock, Cardin grabbed defendant and told someone to call the
police. While defendant struggled to get away from Cardin, he
threatened to “kill everybody in the store.” Defendant then told
his daughter to tell everybody “what I just got out of prison for.”
Defendant's daughter cried and responded “murder.”
Defendant was convicted on all charges and sentenced to
seventy-five days in prison for the assault on a female charge anda consecutive term of forty-five days in prison for communicating
threats. Defendant was also sentenced to a consecutive term of
forty-five days in prison for simple assault. However, that
sentence was suspended and defendant was placed on supervised
probation for thirty-six months. Defendant appeals.
Defendant's sole argument on appeal is that the trial court
erred by denying his motion for a mistrial because several
witnesses referred to his prior conviction for murder during their
testimony. Defendant argues that the testimony was solely to show
the jury that he had a propensity for violence and was inflammatory
and prejudicial. Additionally, Marie Cooper Cardin testified that,
when defendant threatened to kill everyone at the restaurant, she
thought of the Columbine High School shooting. Defendant argues
that this testimony was similarly improper and was an attempt to
appeal to the jury's emotions.
After careful review of the record, briefs, and contentions of
the parties, we find no error. This Court has stated that:
A trial judge “must declare a mistrial upon
the defendant's motion if there occurs during
the trial an error or legal defect in the
proceedings, or conduct inside or outside the
courtroom, resulting in substantial and
irreparable prejudice to the defendant's
case.” Whether a motion for mistrial should be
granted is a matter which rests in the sound
discretion of the trial judge. The decision to
grant or deny such a motion will not be
disturbed on appeal unless it is so clearly
erroneous as to amount to a manifest abuse of
discretion.
State v. Harris, 145 N.C. App. 570, 576, 551 S.E.2d 499, 503
(2001), disc. rev. denied, 355 N.C. 218, 560 S.E.2d 146(2002)(citations omitted). In the present case, defendant was
convicted of communicating threats. To convict a defendant of
communicating threats, the State must prove the following:
(1) He willfully threatens to physically
injure the person . . . or willfully
threatens to damage the property of
another;
(2) The threat is communicated to the other
person, orally, in writing, or by any
other means;
(3) The threat is made in a manner and under
circumstances which would cause a
reasonable person to believe that
the threat is likely to be carried out;
and
(4) The person threatened believes that the
threat will be carried out.
N.C. Gen. Stat. § 14-277.1(a)(2001)(emphasis added). Several
witnesses testified that, during the altercation at the Burger
King, defendant threatened to kill everyone in the restaurant and
told his daughter to tell everybody that he just got out of prison
for murder. Although defendant argues that the testimony regarding
his prior conviction for murder was prejudicial and should have
resulted in a mistrial, we conclude that it was admissible to show
the state of mind of the witnesses. Specifically, the testimony
was admissible to prove an essential element of the State's case
and to prove why the witnesses believed that defendant would carry
out his threat. Accordingly, since the testimony was properly
admitted, we hold the trial court did not abuse its discretion by
denying defendant's motion for a mistrial based on this testimony. Defendant also contends that the trial court should have
declared a mistrial based on Ms. Cardin's testimony that
defendant's threats reminded her of the Columbine High School
shooting. However, defendant's objections to the testimony were
sustained. We note that defendant did not move to strike the
testimony. Even so, we conclude that Ms. Cardin's unsolicited
testimony, while improper, did not result in “substantial and
irreparable prejudice to the defendant's case,” especially in light
of the overwhelming evidence of defendant's guilt. Harris, 145
N.C. App. at 576, 551 S.E.2d at 503. Accordingly, we hold the
trial court did not abuse its discretion by denying defendant's
motion for a mistrial.
No error.
Judges THOMAS and BIGGS concur.
Report per Rule 30(e).
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