STATE OF NORTH CAROLINA
v. Mecklenburg County
Nos. 03 CRS 7053
BILLY WAYNE MURCHISON 03 CRS 7054
Attorney General Roy Cooper, by Special Deputy Attorney
General Charles J. Murray, for the State.
Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott
Holmes for defendant-appellant.
ELMORE, Judge.
Billy Wayne Murchison (defendant) was charged with possession
with intent to sell or deliver a controlled substance and sale of
a controlled substance. The State's evidence tended to show that
on 8 January 2003, Officers Kyle John Odell and Robert J. Wise of
the Mecklenburg Police Department were participating in an
undercover operation at Piedmont Courts Housing Projects. The goal
of the operation was to buy drugs from dealers, make an
identification and then arrest the dealers at a later date. At
approximately 2:00 p.m., Officer Odell was driving down Willis
Street in an unmarked vehicle when he was flagged down by a man,
later identified as defendant. Officer Odell asked defendant for$20.00 worth of cocaine and defendant told him to drive over to a
store fifty yards away. Officer Odell informed the other members
of the operation via radio that he had arranged to purchase cocaine
from defendant at the backside of the store. Officer Odell also
gave a description of defendant. Officer Wise subsequently pulled
within 200 yards of the store.
Defendant approached Officer Odell, who gave defendant a
twenty dollar bill in exchange for two small rocks of crack
cocaine. After Officer Odell drove away, he notified the other
members of the operation that the transaction was complete.
Officer Wise confronted defendant in the store. Defendant told
Officer Wise his name. Officer Wise testified at trial that
defendant provided “jail release papers” to confirm his identity.
After the trial court denied defendant's motion for a mistrial, the
court instructed the jury to disregard the description of the
papers. Officer Wise subsequently showed a picture of defendant to
Officer Odell, who identified defendant as the person who sold him
crack cocaine. Defendant did not present any evidence.
A jury found defendant guilty as charged. The trial court
sentenced defendant to twenty-nine to thirty-five months
imprisonment. Defendant appeals.
Defendant contends the trial court erred by denying his motion
for a mistrial after the State placed highly prejudicial
information before the jury during the State's examination of
Officer Wise. Specifically, defendant takes issue with the
following colloquy between the prosecutor and Officer Wise: Q. You said he did; he was able to produce an
ID for you?
A. No, sir. He actually did not have
identification on his person. He did tell me
his name. . .
He came out of the store; advised me he
had some paper work. Mr. Murchinson actually
had some jail release papers that confirmed
that all the information he gave was correct.
MR. OSHO [Defense Counsel]: OBJECTION, Your
Honor. May we approach, Your Honor?
THE COURT: All right.
Out of the presence of the jury, defense counsel moved for a
mistrial and asserted that the information regarding “jail
paperwork” was not pertinent to the case and would prejudice the
jury against defendant. The trial court replied that it would deny
the motion, but would “give the jury a curative instruction about
the unsolicited comment from the witness.” Upon the jury's return,
the trial court instructed the jury:
Members of the jury, the testimony presented
that indicated a certain type of description
of papers, referred to by the witness, is not
proper for your consideration. And,
therefore, you are to strike that testimony
from your mind and memory and not consider the
type or the place that these papers might have
come from. It's not relevant. It's not
proper, for your consideration.
Therefore, you are to strike it from your
minds and memory.
Would you, by show of hands, indicate that you
can follow the Court's instructions?
. . .
Thank you. Regarding not considering that. Appreciate a show of hands. And, you have so
indicated by each of you raising a hand.
“The 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.”
N.C. Gen. Stat. § 15A-1061 (2003). “Whether a motion for mistrial
should be granted . . . rests in the sound discretion of the trial
judge, and 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. Calloway, 305 N.C.
747, 754, 291 S.E.2d 622, 627 (1982) (citations omitted). Unless
the trial court's ruling is so clearly erroneous so as to amount to
a manifest abuse of discretion, it will not be disturbed on appeal.
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 756-57 (1987).
Here, the trial court sustained defendant's objection and gave
a curative instruction. “[J]urors are presumed to heed a trial
judge's instructions.” State v. Rogers, 355 N.C. 420, 453, 562
S.E.2d 859, 880 (2002). Defendant made no showing that the jury
failed to follow the instructions of the trial court and did not
disregard the testimony of Officer Wise as ordered. Accordingly,
the trial court did not abuse its discretion by not declaring a
mistrial.
No error.
Judges HUNTER and STEELMAN concur.
Report per Rule 30(e).
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