State v. Mills
| Decision Date | 05 December 1978 |
| Docket Number | No. 7822SC640,7822SC640 |
| Citation | 39 N.C.App. 47,249 S.E.2d 446 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Gary Ray MILLS. |
Atty. Gen. Rufus L. Edmisten, by Deputy Atty. Gen. William W. Melvin and Asst. Atty. Gen. William B. Ray, Raleigh for the State.
C. Gary Triggs, Triggs & Hodges, Morganton, for defendant-appellant.
The defendant first assigns as error the admission of the testimony of two officers that the breathalyzer was administered to the defendant at 1:05 p. m. when the written breathalyzer record indicated that it was administered at 12:15 p. m. The defendant contends that this violated the best evidence rule. We do not agree.
The best evidence rule indicates that a writing is the best evidence of its contents. The rule does not apply "to writings when their contents are not in question or when they are only 'collateral' to the issues in the case." 2 Stansbury, N.C. Evidence (Brandis Rev. 1973) § 190, p. 100. Additionally, "if a fact has an existence independent of the terms of any writing, the best evidence rule does not prevent proof of such fact by the oral testimony of a witness having knowledge of (that fact)." 2 Stansbury, N.C. Evidence (Brandis Rev. 1973) § 191, n. 24, p. 103.
In the present case, the contents of a writing are not in question. The original breathalyzer record was introduced into evidence, and it is undisputed that it indicated the test was administered at 12:15 p. m. The time at which the breathalyzer test was given was a fact which had an existence independent of the words on the record. The knowledge of the officers concerning this fact arose from their personal observations and experiences rather than from the writing. In such cases, the best evidence rule does not apply. State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975); State v. Cornell, 281 N.C. 20, 187 S.E.2d 768 (1972); State v. Fox, 277 N.C. 1, 175 S.E.2d 561 (1970).
The defendant next assigns as error the trial court's denial of his motion for a mistrial. The motion was made when it was learned that the breathalyzer operator had talked to one of the jurors during a recess. A hearing was then conducted concerning the incident, and both the State and the defendant examined the breathalyzer operator concerning the conversation with the juror. The trial court found that a conversation had taken place, that it concerned the association of the two with a softball team some five years earlier, that the case was not discussed and that the conversation would not influence the juror. The trial court then denied the defendant's motion for a mistrial.
A motion for mistrial should be granted when an occurrence during the trial results "in substantial and irreparable prejudice to the defendant's case." G.S. 15A-1061. The decision as to whether substantial and irreparable prejudice has occurred lies within the court's discretion and, absent a showing of abuse of that discretion, the decision of the trial court will not be disturbed on appeal. State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968). Although the conversation between the breathalyzer operator and the juror was improper and should not have occurred, there has been no showing that the trial court abused its discretion or that the conversation had a prejudicial effect on the outcome of the case. See State v. Johnson, 295 N.C. 227, 244 S.E.2d 391 (1978). This assignment of error is overruled.
The defendant also assigns as error the failure of the trial court to grant his motion to have a bag removed from the view of the jury during his trial. The bag, which apparently was a brown paper bag, was never introduced into evidence. The defendant contends, however, that its presence in the courtroom was prejudicial to him. We do not agree.
A brown paper bag is not in and of itself capable of arousing prejudice among the members of a jury. The existence of a bag was not an essential link in the...
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State v. Thomas, 8015SC900
... ... 202] disturbed on appeal. State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968); State v. Mills, 39 N.C.App. 47, 249 S.E.2d 446 (1978), rev. denied, 296 N.C. 588, 254 S.E.2d 33 (1979). In State v. Dollar, 292 N.C. 344, 233 S.E.2d 521 (1977), the Supreme Court held that the trial court did not err by denying the defendant's motion for a mistrial on the basis of a statement by a prospective ... ...
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State v. Johnston
... ... The best evidence rule provides: "To prove the content of a ... recording ... , the original ... is required ... " N.C.R. Evid. 1002 (1992). "The rule does not apply ... when [the] contents are not in question or when they are only "collateral" to the issues in the case." State v. Mills, 39 N.C.App. 47, 49-50, 249 S.E.2d 446, 448 (1978), disc. review denied, 296 N.C. 588, 254 S.E.2d 33 (1979) ... Clearly, the content of the movies available at the store is not at issue in this case. Rather, it is a collateral matter tending to show defendant's knowledge ... ...
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State v. Sisk
... ... State v. Mills, 39 N.C.App. 47, 50, 249 S.E.2d 446, 448 (1978), disc. review denied, 296 N.C. 588, 254 S.E.2d 33 (1979). (citation omitted). No abuse of discretion was shown, thus, this argument is also without merit ... Defendant's final argument is that the trial court abused its discretion ... ...
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State v. Strickland
... ... State v. Calloway, 305 N.C. 747, 754, 291 S.E.2d 622, 627 (1982) ... If no prejudicial effect is shown, the denial of a mistrial motion is appropriate. See State v. Mills, 39 N.C.App. 47, 249 S.E.2d 446 (1978), disc. rev. denied, 296 N.C. 588, 254 S.E.2d 33 (1979) ... Here, defendant contends that the trial court allowed the State to cross-examine defendant improperly about the details of his prior convictions for trespass, communicating ... ...