STATE OF NORTH CAROLINA
v. Guilford County
No. 01 CRS 77735
TIMOTHY BERNARD HARVEY
Attorney General Roy Cooper, by Special Deputy Attorney
General John F. Maddrey, for the State.
J. Clark Fischer, for defendant-appellant.
THOMAS, Judge.
Defendant, Timothy Bernard Harvey, appeals a conviction of
first-degree burglary. He was sentenced to a minimum term of 62
months and a maximum term of 84 months. For the reasons discussed
herein, we find no error.
The State presented evidence that between 9:30 p.m. and 10:30
p.m. on 24 January 2001, defendant entered a dwelling occupied by
his daughter-in-law and grandson by breaking through plastic
covering a broken window. Defendant ran to the back bedroom,
grabbed the purse of his daughter-in-law and fled. After the
police apprehended him later that evening, defendant told where the
stolen purse could be located. The police found the purse where he
had indicated. Defendant presented evidence that he only went to visit his
grandson. As he stood outside, he heard his grandson crying inside
the dwelling, so he broke through the plastic to check on him. He
claimed he “[didn't] know what possessed” him to grab the purse and
flee.
By defendant's first argument, he contends the trial court
erred by denying his motion for a mistrial when, during cross
examination by defendant of a police officer, the police officer
testified: “When I arrived, sir, he was _ he wasn't saying
anything. He refused to answer any questions. He initially
wouldn't tell us his name, wouldn't tell us where he lived.” The
court sustained defendant's objection and allowed defendant's
motion to strike but denied his motion for a mistrial.
When a defendant moves for a mistrial, the trial judge must
allow the motion if an error or legal defect in the proceedings
occurs resulting in substantial and irreparable prejudice to the
defendant's case. N.C. Gen. Stat. § 15A-1061 (1999). The
determination of whether a defendant's case has been substantially
and irreparably prejudiced is within the discretion of the trial
judge. State v. King, 343 N.C. 29, 44, 468 S.E.2d 232, 242 (1996).
The ruling of the judge will not be disturbed unless it is so
arbitrary that it could not have been the product of a reasoned
decision. State v. Barts, 316 N.C. 666, 682, 343 S.E.2d 828, 839
(1986).
Here, the court immediately sustained defendant's objection
and allowed defendant's motion to strike the testimony. Ordinarilywhen the court sustains an objection and instructs the jury to
disregard the testimony, the court does not abuse its discretion by
refusing to declare a mistrial. State v. Hogan, 321 N.C. 719, 722-
23, 365 S.E.2d 289, 290-91 (1988). Although the court did not give
a curative instruction at the time it sustained the objection and
allowed the motion to strike, the court did instruct the jury at
the outset of trial that any time the court sustained an objection
to a question or allowed a motion to strike an answer, the jury was
to disregard the question or answer. Our Supreme Court has held
that when curative instructions to disregard testimony are given at
the beginning of trial, the court's failure to repeat the
instructions immediately after allowing a motion to strike is not
prejudicial error. State v. Franks, 300 N.C. 1, 13, 265 S.E.2d
177, 184 (1980). In addition, our Supreme Court has held that the
court does not err by failing to give a curative instruction after
sustaining an objection when the instruction is not requested.
State v. Williams, 350 N.C. 1, 24, 510 S.E.2d 626, 641, cert.
denied, 528 U.S. 880, 145 L. Ed. 2d 162 (1999). Defendant did not
request a curative instruction. Under these circumstances, the
court did not abuse its discretion by denying the motion for a
mistrial and we reject defendant's argument.
By his second argument, defendant contends the trial court
erred in allowing the following cross-examination of defendant:
Q. Do you remember going down to the police
station with Officer Chambliss?
A. Yes, I went down there.
Q. Did he ask you questions to get your
personal information to book you?
A. Yes, sir. MR. LIND: Objection.
THE COURT: Overruled.
Q. And, isn't it true, sir, that you refused
to answer those questions.
MR. LIND: Objection.
THE COURT: Overruled.
A. For a period. But I did answer them. I
did answer them.
Q. But you refused at first, correct?
A. Yes.
Q. What else did you tell Officer Chambliss?
A. Pardon me?
Q. What other statements did you make to
Officer Chambliss when you were at the police
station?
A. I didn't make any more.
We disagree.
Following the cross-examination, the prosecutor proceeded to
ask defendant whether he told Officer Chambliss that he took the
purse from his daughter-in-law because he believed she owed him
money.
The use of a defendant's post-arrest exercise of his right to
remain silent for impeachment purposes is considered a violation of
due process under the Fourteenth Amendment. Doyle v. Ohio, 426
U.S. 610, 619, 49 L. Ed. 2d 91, 98 (1976). However, the violation
may not be reversible error if it can be determined, under the
facts and circumstances of the particular case, that the violation
was harmless beyond a reasonable doubt. State v. Freeland, 316
N.C. 13, 19, 340 S.E.2d 35, 38 (1986). Assuming, arguendo, the
prosecutor's cross-examination in the case at bar constituted
improper inquiry into defendant's exercise of his right to remain
silent, we conclude the error was harmless beyond a reasonable
doubt given the overwhelming evidence of defendant's guilt,
including defendant's own testimony admitting that he broke intothe dwelling and took the purse.
We therefore hold defendant received a fair trial, free of
prejudicial error.
NO ERROR.
Judges WALKER and BIGGS concur.
Report per Rule 30(e).
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