STATE OF NORTH CAROLINA
v
.
New Hanover County
No. 99 CRS 53350
BOBBY F. IRVING,
Defendant.
Appeal by defendant from judgment entered 17 August 2001 by
Judge W. Douglas Albright in Superior Court, New Hanover County.
Heard at a special session of the Court of Appeals in Dare County
on 31 October 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Stewart L. Johnson for the State.
William D. Spence for the defendant-appellant.
WYNN, Judge.
On appeal from convictions for robbery with a firearm,
defendant makes thirty-two assignments of error. Of these
assignments, only two merit a response: (1) Whether defendant was
subject to double jeopardy, and (2) whether the trial court erred
by failing to grant a jury request to rehear certain testimony.
After carefully reviewing the record, we conclude defendant
received a fair trial free from prejudicial error.
The underlying facts to this appeal tend to show that on 19
February 1999, Robert Hester and Mike Styes were robbed of their
money, wallet, clothing and beer outside their apartment building. After calling the police, the two men went to the police station
and looked at several “mug shots” of various individuals fitting
the description of their two assailants. They were unable to
identify their assailants from the pictures. Several months later,
Hester contacted the police after recognizing defendant as one of
the robbers and finding out that defendant lived in his apartment
complex. From a photo array of six males, Hester identified
defendant as the robber. Defendant's initial trial, commencing on
31 July 2001, ended in a mistrial. From his conviction on retrial,
and sentence of two consecutive terms of 84-110 months, defendant
appeals.
(See footnote 1)
On appeal, defendant contends he was twice placed at jeopardy
and, therefore, his convictions should be vacated. Defendant
contends the first trial court granted a mistrial because of
prosecutorial conduct motivated by an intent to provoke a mistrial.
Defendant points to the record on appeal which shows that, at the
initial trial, the State objected to defense counsel's cross-
examination of Hester regarding whether he saw a scar ondefendant's right hand by stating “I object at this point to Mr.
Hicks testifying as to the characteristics of his client who has
not testified.” From that objection, the trial court granted
defense counsel's motion for a mistrial without directing the case
be retained for trial. At the beginning of defendant's second
trial, defendant moved to dismiss for former jeopardy arguing “the
mistrial was caused by the provocative or bad faith conduct by the
prosecutor.” The trial court denied the motion and found that the
record as a whole and the phrasing of the prosecutor's objection
did not support a contention of bad faith, overreaching, harassment
or intentional misconduct aimed at prejudicing the defendant's
chances for acquittal. Defendant assigns error to these findings.
“If a defendant moves for a mistrial, he or she normally
should be held to have waived the right not to be tried a second
time for the same offense. Where the defendant makes such a motion
because of prosecutorial misconduct, and the court grants the
motion, retrial is not barred by Article I, Section 19 unless the
defendant shows that the prosecutor was motivated by the intent to
provoke a mistrial instead of merely the intent to prejudice
defendant.” State v. White, 322 N.C. 506, 511, 369 S.E.2d 813, 815
(1988).
As stated, the trial court denied defendant's motion to
dismiss for former jeopardy because it found the prosecutor was not
motivated by bad faith, harassment, overreaching or intentional
misconduct aimed at prejudicing defendant's chances for acquittal.
Our review of the record finds the trial court's conclusions andfindings well supported. The improper objection occurred during
the cross-examination of the state's first witness, one of the
victims in the case. The testimony elicited by the State from this
witness related to the events of the evening the robbery occurred,
the facts surrounding the identification of the defendant, and the
items stolen from the witness. Defendant's cross-examination did
not substantially undermine the witness's testimony on direct.
Essentially, as the trial court stated in its order, the record
does not indicate the State's case was going badly. Nor does the
record sustain any allegation of bad faith, intentional misconduct,
harassment or overreaching. Therefore, we find no error.
Second, defendant assigns error to the trial court's failure
to grant a jury request during deliberation to have the testimony
of Robert Hester and Tenique Trotman read aloud. Pursuant to 15A-
1233(a), “the Judge in his discretion, after notice to the
prosecutor and defendant, may direct that requested parts of the
testimony be read to the jury and may permit the jury to reexamine
in open court the requested materials admitted into evidence.”
After reviewing the transcripts and the record, we are convinced
that the trial judge plainly exercised his discretion. In a
similar case, our Supreme Court held such a decision was without
error. See State v. Fullwood, 343 N.C. 725, 472 S.E.2d 883 (1996).
Accordingly, we find no error.
We have carefully reviewed defendant's remaining assignments
of error and find them to be without any merit.
No Error. Judges TIMMMONS-GOODSON and HUDSON concur.
Report per Rule 30(e).
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