STATE OF NORTH CAROLINA
v. Lenoir County
No. 03 CRS 50299
TERRIS LEE EDMONDSON
Attorney General Roy Cooper, by Associate Attorney General
Nancy Reed Dunn, for the State.
Appellate Defender Staples Hughes for defendant appellant.
McCULLOUGH, Judge.
On appeal from his conviction in district court, a superior
court jury found defendant guilty of injury to personal property.
The State's evidence tended to show that he broke two windshields,
a left side mirror and a left side window out of vehicles belonging
to James C. Burney on 5 November 2002. The trial court sentenced
defendant to ninety days of imprisonment, and he gave notice of
appeal in open court.
Defendant first claims the trial court abused its discretion
and subjected him to double jeopardy by declaring a mistrial after
a jury was empanelled on 26 February 2004. While he acknowledges
that the court based its decision on reports of hazardous driving
conditions caused by inclement weather, defendant insists there wasno showing that the circumstances made it “impossible for the trial
to proceed in conformity with law[,]” as required under N.C. Gen.
Stat. § 15A-1063(1) (2005).
The constitutional proscription against double jeopardy “'is
not violated where a defendant's first trial ends with a mistrial
which is declared for a manifest necessity or to serve the ends of
public justice.'" State v. Shoff, 128 N.C. App. 432, 434, 496
S.E.2d 590, 592 (quoting State v. Lachat, 317 N.C. 73, 82, 343
S.E.2d 872, 877 (1986)), appeal dismissed, cert. denied, 348 N.C.
289, 501 S.E.2d 923 (1998). Under North Carolina law, the trial
court may declare a mistrial, sua sponte, “if: (1) it is impossible
for the trial to proceed in conformity with law; or (2) it appears
there is no reasonable probability of the jury's agreement upon a
verdict.” N.C. Gen. Stat. § 15A-1063. The court must “make
findings of facts with respect to the grounds for the mistrial and
insert the findings in the record of the case." N.C. Gen. Stat. §
15A-1064 (2005). Otherwise, the decision to declare a mistrial is
within the trial court's discretion and “will not be disturbed
unless it is 'manifestly unsupported by reason,' or it is 'so
arbitrary that it could not have been the result of a reasoned
decision.'" Shoff, 128 N.C. App. at 434, 496 S.E.2d at 592
(quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833
(1985) and State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465
(1985)).
Defendant has not provided this Court with a transcript of the
proceedings held 26 February 2004. However, the record on appealcontains the order entered by the trial judge on 26 February 2004,
which includes the following findings:
The jury was chosen and empanelled. The court
was advised after the fact that the N.C. State
Highway Patrol advised that the roads were
dangerous and the Lenoir County Schools were
closing early. The court hereby withdraws
Juror #12 and declares a mis-trial.
The defendant notes objection.
While the findings regarding the hazardous driving conditions in
the county are not as detailed as those entered in Shoff, 128 N.C.
App. at 434, 496 S.E.2d at 592, we conclude they are sufficient to
demonstrate a rational, non-arbitrary basis for the judge's
decision. Nothing in N.C. Gen. Stat. § 15A-1063(1) or the principle
of double jeopardy requires the trial court to endanger the lives
of the trial's participants in order to avoid a mistrial. See id.
(“Due to the adverse weather conditions and the effect that these
conditions had on both the jurors' and the attorney's ability to
physically get to court for the second day of trial, we do not find
the trial court's decision to declare a mistrial was an abuse of
his discretionary power.”). As for defendant's unsupported
assertion that the Lenoir County public schools were open on 27
February 2004, we note that a trial court's inability to forecast
future weather conditions does not constitute an abuse of its
discretion.
Because we find no abuse of discretion by the court in
declaring a mistrial on 26 February 2004, we further find that the
court did not err in denying defendant's motion to dismiss ongrounds of double jeopardy. Id. at 434-35, 496 S.E.2d at 592.
Defendant next claims the trial court relieved the State of
its burden of proof and violated his due process rights by
improperly instructing the jury that, in order for a grand jury to
return an indictment, “[t]he only thing they have to determine is
if a crime was committed and if the accused person probably did
it.” Defendant faults the court for improperly communicating to
the jury that another fact-finding body had already determined that
(1) a crime had been committed and (2) defendant probably committed
it. However, defendant raised no objection to the instruction at
trial, did not present his constitutional claim to the trial court,
and has not assigned plain error on appeal. See N.C.R. App. P.
10(b)(1)-(2), (c)(2), (4).
“'The trial judge occupies an exalted station . . . [and] must
abstain from conduct or language which tends to discredit or
prejudice the accused or his cause with the jury.'” State v.
Allen, 353 N.C. 504, 510, 546 S.E.2d 372, 375 (2001) (quoting State
v. Belk, 268 N.C. 320, 324, 150 S.E.2d 481, 484 (1966)); see also
N.C. Gen. Stat. §§ 15A-1222 and -1232 (2005) (prohibiting the judge
from expressing an opinion about a fact at issue). Our Supreme
Court has made clear, however, that not “every ill-advised comment
by the trial judge” constitutes grounds for reversal:
The comment made or the question propounded
should be considered in the light of all the
facts and attendant circumstances disclosed by
the record, and unless it is apparent that
such infraction of the rules might reasonably
have had a prejudicial effect on the result of
the trial, the error will be consideredharmless.
State v. Perry, 231 N.C. 467, 471, 57 S.E.2d 774, 777 (1950).
Prejudice will arise when the jury learns that the defendant was
found guilty of the charge in a prior judicial proceeding. See
State v. Britt, 288 N.C. 699, 713, 220 S.E.2d 283, 292 (1975)
(holding that a curative instruction could not undo prejudice
arising from the jury's awareness that the defendant was previously
convicted and sentenced to death for the murder at issue).
Likewise, our courts have held that a pending indictment is merely
an unproved, hearsay accusation of wrongdoing and thus may not be
admitted to impeach a defendant's testimony. State v. Williams,
279 N.C. 663, 672-73, 185 S.E.2d 174, 180 (1971).
The transcript of defendant's trial reflects that, after the
jury was selected but before it was empanelled, a juror asked the
trial court to explain how criminal prosecutions were typically
initiated:
JUROR 3: I've got a question. Normally
when the State represents someone what causes
that to happen? I mean, you know, normally.
THE COURT: Either a warrant being issued
or a bill of indictment being handed down by a
grand jury. The State has the duty to
prosecute the violations for crimes.
JUROR 3: So people just, I mean, due to a
complaint go to _ who do they go to?
THE COURT: They go to a judicial officer
to see if they can get one.
JUROR 3: Okay.
THE COURT: I mean, it's not _ you can't
just walk in and say, D.A., how aboutprosecuting somebody.
JUROR 3: Right.
The trial court later alluded to this exchange with Juror 3 in its
initial instructions to the jury, as follows:
Now to follow-up on the question Juror
Number 3 asked me. In my opening remarks to
the entire jury panel, I told you that the
mere fact somebody was indicted was no
evidence of guilt and it isn't.
An indictment is returned by a grand jury
and their standard of proof is very, very
small. The only thing they have to determine
is if a crime was committed and if the accused
person probably did it. That gets them into
court for you folks to determine if they did
do it. So the mere fact that someone has been
indicted or charged is absolutely no evidence
that they're guilty of anything.
The evidence of guilt would come from the
witness stand and it would have to convince
you beyond a reasonable doubt before you can
render a verdict of guilty. All right.
Defendant now avers that the challenged portion of the charge
relieved the jury of determining whether a crime had been committed
and “directly informed them that authorities had previously
determined that the defendant was probably guilty.”
Initially, we note that the court advised the jury that a
prosecution can originate either by the issuance of a warrant or by
a grand jury indictment. Here, defendant was not indicted by a
grand jury; and the jury was never told by the court or the parties
that defendant had been indicted. To the contrary, the evidence
showed that defendant's prosecution began when Burney obtained a
warrant from the magistrate. Defense counsel emphasized the originof the charge against defendant during his cross-examination of
Burney, revealing that Burney sought the warrant only after his
earlier warrant charging defendant with communicating threats was
dismissed. The evidence before the jury rendered the court's
general discussion of the indictment process inapposite to
defendant's case.
Viewed in context, the challenged statement was neither
erroneous as a statement of law nor prejudicial to defendant. The
trial court accurately characterized an indictment as reflecting
the grand jury's finding, under a “very small” standard of proof,
that the indicted person “probably committed” a crime. See State
v. Broughton, 29 N.C. 96, 98 (1846) (describing persons under
indictment as “thus found [by the grand jury] to be probably
guilty”); see also N.C. Gen. Stat. § 15A-628(a)(1) (2005)
(requiring return of a true bill upon finding of “probable cause
for the charge made”); State v. Hart, 64 N.C. App. 699, 702, 308
S.E.2d 474, 475 (1983) (defining probable cause as “evidence that
warrants a reasonably prudent person's belief that a crime was
committed and that defendant was the perpetrator”). Moreover, any
error was rendered completely harmless by the court's repeated and
unequivocal instructions that an indictment was no evidence of
guilt, that defendant was entitled to the presumption of innocence,
and that the State bore the burden proving his guilt by evidence
adduced at trial beyond a reasonable doubt. Cf. State v. Steen,
352 N.C. 227, 283-84, 536 S.E.2d 1, 34 (2000) (“[W]e note that the
trial court did instruct the jury that 'the fact that he's beencharged or indicted is no evidence of guilt, whatsoever.' This
instruction . . . was sufficient to eliminate any confusion or
false impression the jury may have had in this regard.”), cert.
denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001). The court
reiterated these principles to the jury immediately before they
retired for deliberations, as follows: “The fact that [defendant]
has been charged is no evidence of guilt. Under our system
whenever a defendant pleads not guilty he is not required to prove
his innocence. The State is required to prove his guilt and prove
it beyond a reasonable doubt.” Accordingly, we overrule this
assignment of error.
The record on appeal includes additional assignments of error
not addressed by defendant in his brief to this Court. Pursuant to
N.C.R. App. P. 28(b)(6), we deem them abandoned.
No error.
Judges TYSON and ELMORE concur.
Report per Rule 30(e).
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