State v. Cuthrell

• Decision Date: 21 February 1984
• Docket Number: No. 832SC838,832SC838
• Citation: 66 N.C.App. 706,311 S.E.2d 699
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Ronald Lewis CUTHRELL. STATE of North Carolina v. William Ernest CUTHRELL.

Page 699

311 S.E.2d 699

66 N.C.App. 706

STATE of North Carolina v.Ronald Lewis CUTHRELL.

STATE of North Carolina v.William Ernest CUTHRELL.

No. 832SC838.

Court of Appeals of North Carolina.

Feb. 21, 1984.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Barbara Peters Riley, Raleigh, for the State.

Gaskins, McMullan & Gaskins, P.A. by Herman E. Gaskins, Jr., Washington, for defendants-appellants.

HILL, Judge.

The sole question before the court is whether the trial court committed prejudicial and reversible error in overruling and denying the defendants' motions to dismiss based on former jeopardy.We conclude no error was committed and affirm the decision of the trial judge.

Defendants contend that the testimony of Officer Robbins was given in bad faith or undertaken to harass or prejudice the defendants, and as such constitutes an exception to the rule that a defendant's motion for or consent to a mistrial removes any double jeopardy bar to reprosecution.SeeLee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80(1977).We disagree.The record reveals no misconduct by the judge or the prosecutor to provoke defendants' motion for mistrial.Officer Robbins answered the question of defense counsel properly, but then proceeded to testify to an altogether immaterial and irrelevant matter.The trial judge promptly sustained defendants' objection and instructed the jury not to consider that portion of the answer.In granting defendants' motion for a new trial, the trial judge found as a fact that the testimony was not intentional on the part of the State's witness.The trial judge had an opportunity to observe the witness through the trial and found his demeanor free of bad faith."[W]here circumstances develop not attributable to prosecutorial or judicial...