STATE OF NORTH CAROLINA
v. Duplin County
No. 02 CRS 052772,
TERRY CURTIS HILL 02 CRS 053008-10,
02 CRS 8539
Attorney General Roy Cooper, by Assistant Attorney General
Thomas H. Moore, for the State.
Charns & Charns, by D. Tucker Charns, for defendant-appellant.
McGEE, Judge.
Terry Curtis Hill (defendant) was convicted on 8 May 2003 of
two counts of felonious breaking and entering, two counts of
malicious conduct by a prisoner, and one count each of felonious
larceny, misdemeanor possession of marijuana, and possession of
drug paraphernalia. Defendant was also adjudged to be an habitual
felon. The trial court consolidated the convictions into two
judgments, found defendant to have a prior record level IV, and
sentenced defendant to two consecutive terms of a minimum of eighty
months to a maximum of 105 months, active imprisonment. Defendant
appeals.
The evidence presented at trial tended to show that WilliamClark Johnson (Johnson) heard his dog barking in his backyard at
approximately 10:38 p.m. on 15 November 2002. Johnson went to
investigate and turned on the floodlights in his backyard. Johnson
saw a man carrying a large, black plastic bag enter his storage
shed and close the door. Johnson's wife called the police. James
Marshburn (Officer Marshburn) and William E. Barnette (Officer
Barnette) of the Warsaw Police Department arrived to investigate.
Officer Barnette entered the shed, turned on the light, and
discovered defendant behind the door. Once defendant was outside
the shed, Officer Marshburn placed him under arrest.
Officer Marshburn drove defendant to the Warsaw Police
Department. He testified that defendant smelled of alcohol and
"was in the back seat of the car cussing and hollering." Once at
the police department, Officer Marshburn escorted defendant inside
the building, and defendant tried to kick him. Officer Marshburn
avoided the kick and regained control of defendant. Defendant was
placed in a holding cell, where he "spit three or four times" on
Officer Marshburn. Officer Marshburn left the area to calm down.
Defendant was later discovered unconscious in his cell and was
transported to the hospital. After regaining consciousness,
defendant continued to act in a hostile manner. Officer Marshburn
testified that defendant told him that "white people were the
ruination of America, but that was okay because bin Laden had
something for us and that bin Laden was a bad man and that he was
going to kill all white people. " Michael Berger (Berger),
Johnson's next door neighbor, heard somebody talking outside hiswindow at "about 10:30 or 11:00" the evening of 19 December 2002.
Berger saw a man wearing a plaid shirt in Johnson's yard. At
trial, Berger identified defendant as the man he saw in Johnson's
yard. Defendant was carrying a leaf blower, walking from the
general direction of the backyard towards the front of the house,
and talking to himself. Berger called the police and told them
that defendant was walking towards a street behind a nearby Piggly
Wiggly store.
Officer Marshburn, James Preston (Officer Preston) and Angela
Dudley (Officer Dudley) responded to Berger's call. The three
officers arrived at the back of the Piggly Wiggly, found defendant,
who matched the description given by Berger, and took defendant
into custody. Officer Marshburn frisked defendant and found two
small car stereo speakers inside defendant's jacket pockets. A
leaf blower was found beside a nearby light pole. Both items were
later identified as belonging to Johnson.
Defendant was taken to the police station. As Officer Preston
was placing defendant in a holding cell, defendant turned around
and "spit directly in [Officer Preston's] face." Officer Dudley
later searched defendant while defendant was in his cell and found
"a pack of rolling papers inside [his] wallet and a marijuana
roach."
During jury selection at trial, the State asked the following
question: "[D]oes anybody have any reason, without telling me the
reason, why you would rather not serve as a juror here today,
either personal problems or other things . . . ?" One potentialjuror responded affirmatively and stated that "[w]hen [he] was
working over at Duplin Correctional, [he] [thought] [he] had run
into the defendant." After a brief bench conference, the potential
juror was excused. Defendant subsequently moved for a mistrial,
and the trial court denied the motion.
We first note that defendant has failed to present an argument
in support of assignments of error numbers two, five, and six and
they are deemed abandoned pursuant to N.C.R. App. P. 28(b)(6).
Defendant argues in assignment of error number one that the
trial court erred by denying his motion for a mistrial. Defendant
contends that it was "clear" to the jurors that the potential juror
who had been excused had met defendant while defendant was in
prison. Defendant asserts this was clear in light of the fact that
the potential juror was immediately excused after his statement and
a bench conference. Defendant argues this denial prejudiced his
case, and he was entitled to a mistrial.
After careful review of the record, briefs and contentions of
the parties, we find no abuse of discretion. "Whether to grant a
motion for mistrial is within the sound discretion of the trial
court, and its ruling will not be disturbed on appeal unless it is
so clearly erroneous as to amount to a manifest abuse of
discretion." State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25,
36 (1995), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996).
"'[A] mistrial is appropriate only when there are such serious
improprieties as would make it impossible to attain a fair and
impartial verdict under the law.'" State v. Mason, 159 N.C. App.691, 694, 583 S.E.2d 410, 412 (2003) (quoting State v. Calloway,
305 N.C. 747, 754, 291 S.E.2d 622, 627 (1982) ).
In the case before us, defendant argues that the trial court
should have declared a mistrial because of the statement made by
the potential juror who was subsequently excused. The trial court
denied the motion based on findings and a conclusion that "the
juror's equivocation and his lack of certainty in his response and
the subsequent dismissal from the panel for cause of the challenged
juror did not result in substantial and irreparable prejudice to
the defendant." We note that the potential juror did not specify
whether defendant was an inmate, a co-worker, or a visitor.
"Not every disruptive event which occurs during trial
automatically requires the court to declare a mistrial." State v.
Allen, 141 N.C. App. 610, 617, 541 S.E.2d 490, 496 (2000), disc.
review denied, 353 N.C. 382, 547 S.E.2d 816 (2001). "'[I]f in the
sound discretion of the trial judge it is possible despite the
untoward event, to preserve defendant's basic right to receive a
fair trial before an unbiased jury, then the motion for mistrial
should be denied.'" State v. Parker, 119 N.C. App. 328, 335, 459
S.E.2d 9, 13 (1995) (quoting State v. Moore, 335 N.C. 567, 598, 440
S.E.2d 797, 815, cert. denied, 513 U.S. 898, 130 L. Ed. 2d 174
(1994) (citations omitted)).
"On appeal, the decision of the trial judge in
this regard is entitled to the greatest
respect. He is present while the events
unfold and is in a position to know far better
than the printed record can ever reflect, just
how far the jury may have been influenced by
the events occurring during the trial and
whether it has been possible to erase theprejudicial effect . . . . Therefore, unless
his ruling is so clearly erroneous so as to
amount to a manifest abuse of discretion, it
will not be disturbed on appeal."
State v. McCollum, 157 N.C. App. 408, 415, 579 S.E.2d 467, 471
(2003), aff'd, 358 N.C. 132, 591 S.E.2d 519 (2004) (quoting State
v. Newton, 82 N.C. App. 555, 559, 347 S.E.2d 81, 84 (1986), disc.
review denied, 318 N.C. 699, 351 S.E.2d 756 (1987) (citations
omitted)). Accordingly, this assignment of error is overruled.
Defendant next argues in assignment of error number three that
the trial court erred by admitting Johnson's testimony regarding
the emotional state of his wife following the break-in of their
shed. Defendant contends that the testimony was not relevant.
Defendant similarly argues in assignment of error number four that
the trial court erred by admitting statements made by defendant
which were irrelevant. Officer Marshburn testified that defendant
stated that "white people were the ruination of America" and "bin
Laden was a bad man and that he was going to kill all white
people." Defendant contends that the only relevant reason to offer
the statements to the jury was "to inflame the jury's passions" and
to paint defendant as a "vile and repulsive person."
Initially, we note that we agree with defendant that the
evidence was not relevant and should not have been admitted.
"However, admission of irrelevant evidence will be treated as
harmless unless the defendant shows that he was so prejudiced by
the erroneous admission that a different result would have ensued
if the evidence had been excluded." State v. Harper, 96 N.C. App.
36, 42, 384 S.E.2d 297, 300 (1989). In light of the substantialevidence against defendant, he has failed to show that there was a
reasonable possibility that the outcome of the trial would have
been different without the error. Accordingly, we find no error.
No error.
Chief Judge MARTIN and Judge BRYANT concur.
Report per Rule 30(e).
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