STATE OF NORTH CAROLINA
v. Rowan County
Nos. 02 CRS 50724-25
ROBERT ERIC NICHOLS
Attorney General Roy Cooper, by Assistant Attorney General
Jeffrey R. Edwards, for the State.
Charlotte Gail Blake, for defendant-appellant.
CALABRIA, Judge.
On 8 July 2002, the Rowan County Grand Jury indicted Robert
Eric Nichols (“defendant”) on a charge of felony speeding to elude
arrest. At the start of trial on 5 August 2003, defendant
consented to the State's motion to join for trial the felony
speeding charge with an assault on a government official/employee
conviction that he had appealed from district court.
At trial, the State presented evidence tending to show the
following: On 30 January 2002 at approximately 5:00 p.m., a car
ran a red light at an intersection and almost collided with a
vehicle driven by Officer N. T. Sides (“Officer Sides”). Officer
Sides observed that the car's driver was a male wearing a brownvisor. Officer Sides activated his blue lights and pursued the car
for about one and a half blocks until the driver pulled over on a
side street. Officer Sides parked eight or nine feet behind the
car, exited his vehicle, and walked toward the car. Officer Sides
noticed the driver watching him in the rear view mirror and as soon
as Officer Sides came within four or five feet of the car, he drove
away.
Officer Sides ran back to his vehicle and again began pursuing
the car, which had advanced about fifty or sixty feet. Officer
Sides testified that the driver ran a stop sign and at one point
was traveling sixty-five to seventy miles per hour in a thirty-five
miles-per-hour speed limit zone. The driver subsequently lost
control of his car, and it collided with a metal-encased concrete
pole. The car spun around and landed in the middle of the street.
Officer Sides saw the defendant, wearing the brown visor, open the
door on the driver's side and started running. Officer Sides
exited his vehicle and began chasing defendant. After running
about 200 yards, Officer Sides tackled defendant. Defendant then
stood up and used his heel to kick Officer Sides in his shin and
stomach. After other officers arrived, they secured defendant and
took him into custody.
A bystander, Robert Morgan, (“Mr. Morgan”) testified the car
was out of control and hit a pole. Mr. Morgan first saw a man,
whom he believed was defendant, jump out of the driver's side door
of the car. Next he saw Officer Sides start running after him. Asecond man got out of the car about five or ten seconds after the
first man and ran in a different direction.
Defendant testified that his acquaintance Pumpkin was driving
at the time and that Pumpkin exited the car two or three seconds
before him. Defendant said he exited the car on the driver's side
before Officer Sides arrived and that he panicked and ran because
of the sirens. Defendant said he continued running until he
encountered Mr. Morgan, then he stopped and put up his hands.
Defendant testified that he began struggling only after Officer
Sides placed him in a choke hold. He denied kicking Officer Sides
in the shin or stomach. He also stated that he last saw Pumpkin on
30 January 2002 and had been unable to locate him.
At trial, defendant testified that he did not remember being
placed in the back of Officer Sides police car. The prosecutor
asked, “So that wasn't your drugs found in the back of the patrol
cruiser, was it?” Defense counsel objected, and the trial court
sustained the objection, stating “Ladies and gentlemen, disregard
that[]” to the jury. Defendant then moved to strike, and the trial
court allowed the motion and stated again, “Disregard that, ladies
and gentlemen.”
The prosecutor next asked if defendant told Officer Sides at
any time that night that Pumpkin was driving the car. Defendant
said he had not. When the prosecutor asked if defendant told
Officer Sides at any point in time that he was not driving the car,
defendant said Officer Sides came in while he was telling three
other officers. After the prosecutor asked if defendant toldOfficer Sides that he would help him find the driver, defense
counsel objected on the basis that the question had been asked and
answered. The trial court overruled the objection, and defendant
responded that “I didn't have to. I told the other three
officers.” During redirect, defense counsel elicited information
that defendant had been advised by his legal counsel not to talk to
the police about the case. Defendant also testified that he was
not searched at any time.
Defense counsel moved for a mistrial at the close of all the
evidence on the basis of the prosecutor's question about the drugs
in the back of the police cruiser. Although the trial court agreed
there was no evidence to support the question, the trial court
concluded that its instruction to the jury to disregard the
question was sufficient and denied the motion for a mistrial.
Defendant then renewed his motion to dismiss the charges, and the
trial court denied the motion. At defendant's request, the trial
court again instructed the jury that they were not to consider a
question or answer during their deliberations that the trial court
had ordered stricken. The jury subsequently found defendant guilty
of felony speeding to elude arrest and of assault on a law
enforcement officer while discharging or attempting to discharge a
duty of his office. The trial court imposed consecutive sentences
of eight to ten months and 150 days imprisonment for the respective
convictions. From the trial court's judgments, defendant appeals.
I. Right to Remain Silent Defendant first contends the trial court erred by allowing the
prosecutor to question him over objection about his failure to
inform officers that someone else was driving the car. He argues
the prosecutors' questioning violated his right to remain silent.
Defendant's argument is without merit.
Defendant simply objected to the prosecutor's question before
the trial court on the basis that it had been asked and answered.
However, he now seeks to argue the question violated his right to
remain silent. “[W]here a theory argued on appeal was not raised
before the trial court, 'the law does not permit parties to swap
horses between courts in order to get a better mount . . . .'”
State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (quoting
Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)).
Because defendant did not raise this constitutional issue at trial,
he has waived it by his failure to preserve it for appellate
review. See N.C.R. App. P. 10(b)(1). This assignment of error is
overruled.
II. Failure to Declare a Mistrial
Defendant next contends the trial court erred by failing to
declare a mistrial after the prosecutor improperly questioned him
about the presence of drugs found in the patrol vehicle in which he
had been transported after his arrest. He argues the trial court
abused its discretion by denying his request for a mistrial because
the prosecutor did not have a good faith basis for asking the
question. We disagree. The decision to grant a motion for mistrial rests in the
sound discretion of the trial court, and its ruling will not be
disturbed on appeal unless it is so clearly erroneous so as to
amount to a manifest abuse of discretion. State v. Ward, 338 N.C.
64, 92-93, 449 S.E.2d 709, 724 (1994), cert. denied, 514 U.S. 1134,
131 L. Ed. 2d 1013 (1995). The trial court here sustained
defendant's objection to the prosecutor's question and instructed
the jury to disregard it. When defendant moved to strike, the
trial court allowed the motion and again instructed the jury to
disregard the question. “It is well-settled that where the trial
court withdraws incompetent evidence and instructs the jury not to
consider that evidence, any prejudice is ordinarily cured.” State
v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998).
“Ordinarily, when incompetent or objectionable evidence is
withdrawn from the jury's consideration by appropriate instructions
from the trial judge, any error in the admission of the evidence is
cured.” State v. Pruitt, 301 N.C. 683, 688, 273 S.E.2d 264, 268
(1981).
In considering defendant's motion for a mistrial, the trial
court agreed there was no evidence to support the prosecutor's
question but concluded its instruction to disregard the question
was sufficient. At defendant's request, the trial court in its
final instructions again reminded the jurors that they were not to
consider a question or answer which had been ordered stricken.
“[O]ur legal system through trial by jury operates on the
assumption that a jury is composed of men and women of sufficientintelligence to comply with the court's instructions and they are
presumed to have done so.” State v. Glover, 77 N.C. App. 418, 421,
335 S.E.2d 86, 88 (1985). On appeal, an appellate court presumes
that juries follow the trial court's instructions. State v.
Richardson, 346 N.C. 520, 534, 488 S.E.2d 148, 156 (1997), cert.
denied, 522 U.S. 1056, 139 L. Ed. 2d 652 (1998).
“[A] mistrial is appropriate only when there are such serious
improprieties as would make it impossible to achieve a fair and
impartial verdict under the law.” State v. Black, 328 N.C. 191,
200, 400 S.E.2d 398, 403 (1991). The trial court's actions were
sufficient to cure any prejudice to defendant, and we find no abuse
of discretion by the trial court in denying the motion for a
mistrial. Defendant received a fair trial, free from prejudicial
error.
No error.
Judges TIMMONS-GOODSON and LEVINSON concur.
Report per Rule 30(e).
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