State v. Lyons

• Decision Date: 29 October 1985
• Docket Number: No. 8510SC349,8510SC349
• Citation: 335 S.E.2d 532,77 N.C.App. 565
• Parties: , 28 Ed. Law Rep. 286 STATE of North Carolina v. Lilly LYONS.
• Court: North Carolina Court of Appeals

Page 532

335 S.E.2d 532

77 N.C.App. 565, 28 Ed. Law Rep. 286

STATE of North Carolina v. Lilly LYONS.

No. 8510SC349.

Court of Appeals of North Carolina.

Oct. 29, 1985.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Doris J. Holton, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Geoffrey C. Mangum, Raleigh, for defendant, appellant.

HEDRICK, Chief Judge.

By her first assignment of error defendant contends she has been subjected to "double jeopardy" because her first trial ended when the judge declared a "mistrial." The record discloses that during the first trial, the State asked defendant on cross-examination a question regarding her prior conviction of killing her husband. Defendant's counsel made a motion for mistrial which was granted. Defendant, Lilly Lyons, stated that she wanted the trial to proceed. Defendant now argues that the trial judge abused his discretion when, over defendant's objection, he granted the mistrial. We do not agree.

Defendant will hardly be heard to complain about the court's granting her own motion for a mistrial. Assuming, however, that the trial court granted the motion over defendant's objection, there is nothing in this record to indicate that the trial court abused its discretion in ordering a mistrial.

Under G.S. 15A-1063(1) a judge may declare a mistrial, upon a motion of a party or upon his own motion, if "[i]t is impossible for the trial to proceed in conformity with law." This statute allows a judge, over the defendant's objection, to grant a mistrial where he could reasonably conclude that the trial will not be fair and impartial. State v. Malone, 65 N.C.App. 782, 310 S.E.2d 385, disc. rev. denied and appeal dismissed, 311 N.C. 405, 319 S.E.2d 277 (1984); State v. Cooley, 47 N.C.App. 376, 268 S.E.2d 87, disc. rev. denied and appeal dismissed, 301 N.C. 96, 273 S.E.2d 442 (1980).

A plea of former jeopardy will not preclude a subsequent trial of a defendant, where the mistrial was ordered, over defendant's objections, due to "physical necessity or the necessity of doing justice." State v. Shuler, 293 N.C. 34, 42-43, 235 S.E.2d 226, 231 (1977) (citation omitted).

An order of a mistrial on a motion of the court is "addressed to the sound discretion of the trial judge, and his ruling on the motion will not be disturbed on appeal absent a gross abuse of that discretion." State v. Malone, 65 N.C.App. at 785, 310 S.E.2d at 387 (citations omitted). To ensure that mistrial is declared only for necessity, G.S. 15A-1064 provides: "Before granting a mistrial, the judge must make finding of facts with respect to the grounds for the mistrial and insert the findings in the record of the case." The purpose of this statute is to protect the constitutional rights of defendants and to facilitate the process of appellate review. State v. Jones, 67 N.C.App. 377, 313 S.E.2d 808 (1984).

In the present case, the trial court made findings of fact that defendant made a motion to suppress questions by the district attorney relating to a prior conviction of defendant for first degree murder and that this motion had been denied to allow the jurors to consider the conviction as it might relate to defendant's credibility. The court also found that during cross-examination the district attorney asked a question relating to defendant's state of mind at the time of the murder of her husband and that defendant asked whether she was being retried for murder. On this basis, the judge's conclusion that there was a probability that the jury would consider the prior conviction in a manner that would be prejudicial to defendant and thus prevent a fair trial was reasonable. The judge's findings of fact are sufficient to show...