State v. Parker, COA94-1045

• Decision Date: 05 July 1995
• Docket Number: No. COA94-1045,COA94-1045
• Citation: 459 S.E.2d 9,119 N.C.App. 328
• Parties: STATE of North Carolina v. Michael Alan PARKER, Sr.
• Court: North Carolina Court of Appeals

Page 9

459 S.E.2d 9

119 N.C.App. 328

STATE of North Carolina v. Michael Alan PARKER, Sr.

No. COA94-1045.

Court of Appeals of North Carolina.

July 5, 1995.

Atty. Gen. Michael F. Easley by Associate Atty. Gen. Gail E. Weis, for the State.

J. Michael Edney, Hendersonville, for defendant-appellant.

EAGLES, Judge.

Defendant brings forward numerous assignments of error. After careful review of the record and briefs, we find no prejudicial error.

I.

Defendant first contends that the trial court erred in denying both his motions for mistrial. We disagree. Defendant's first motion for mistrial came during M's testimony. Prior to trial, defendant filed a Motion in Limine to exclude testimony about defendant's alleged threat to blow up the battered women's shelter where the victims were staying. During M's testimony, in response to the State's question asking why M and his family left the shelter, nine year old M answered, "The reason that we left is because my daddy forced [sic] to bomb the place." Defendant immediately moved for mistrial. The trial court instructed the jury to disregard M's statement and that it was not a proper statement for their consideration. S also testified that when the family left the battered women's shelter, their mother went to the hospital "and then my dad threatened to bomb the place." Defendant's objection was sustained, the answer was stricken from the record and the jury was instructed to disregard that statement. Defendant did not make a motion for mistrial during S's testimony.

Defendant's second motion for mistrial concerned a suspicious package that was found in one of the entrances to the courthouse. The package was found after M and S testified. After the package was found, the courthouse was cordoned off and searched and extra security measures were taken. The trial court informed the jury that the package was in the possession of the State Bureau of Investigation and that the court could not discuss the contents of the package because law enforcement officials were conducting an ongoing investigation. The trial court also informed the jury that the courthouse had been searched and that law enforcement officials had allowed the courthouse to be occupied again. The trial court asked each juror individually whether anything that had occurred would affect their verdict and whether each juror would still be able to render a fair and impartial verdict. The jurors each assured the court of their ability to serve.

A motion for mistrial is within the trial court's discretion. State v. Bonney, 329 N.C. 61, 73, 405 S.E.2d 145, 152 (1991).

"Not every disruptive event occurring during the course of trial requires the court automatically to declare a mistrial," and if in the sound discretion of the trial judge it is possible despite the untoward event, to preserve defendant's basic right to receive a fair trial before an unbiased jury, then the motion for mistrial should be denied. On appeal, the decision of the trial judge in this regard is entitled to the greatest respect. He is present while the events unfold and is in a position to know far better than the printed record can ever reflect just how far the jury may have been influenced by the events occurring during the trial and whether it has been possible to erase the prejudicial effect of some emotional outburst. Therefore, unless his ruling is clearly erroneous so as to amount to a manifest abuse of discretion, it will not be disturbed on appeal.

State v. Moore, 335 N.C. 567, 598, 440 S.E.2d 797, 815 (1994) (quoting State v. Blackstock, 314 N.C. 232, 244, 333 S.E.2d 245, 253 (1985)). We conclude that the trial court did not abuse its discretion in denying defendant's motions for mistrial.

II.

Defendant next contends that the trial court erred in holding that the State was not bound by the charge as differently stated in its bill of particulars. Defendant was indicted in case number 93 CRS 1014 of first degree sexual offense. In response to defendant's request for a bill of particulars pursuant to G.S. 15A-925, the State responded:

93-CRS-1014--Indecent Lib.--this occurred in summer of 1992 sometime after the above events and occurred in a garage at their home in Saluda. Defendant stripped the victim and put his penis in the victim's butt.

The function of a bill of particulars is to inform the defendant of the nature of the evidence the State intends to offer against him and to limit the evidence to the items and transactions stated in the bill of particulars. State v. Wadford, 194 N.C. 336, 338, 139 S.E. 608, 609 (1927). Defendant contends that since the charge of indecent liberties is not a lesser included offense of first degree sexual offense, the trial court should have dismissed the first degree sexual offense charge. A bill of particulars is not a part of the indictment, nor is it a substitute for or amendment to the indictment. Id. The State's evidence at trial was consistent with the information provided in the bill of particulars. Defendant was in no way misled. The clerical error in the bill of particulars listing the charge as "Indecent Lib." did not amend the original indictment charging first degree sexual offense. Defendant was not prejudiced by this clerical mistake. This assignment of error fails.

Defendant also contends that the grand jury was improperly convened and that the trial court erred in denying defendant's motion to dismiss the indictments. G.S. 15A-622(g) provides that, "At any time when a grand jury is in recess, a superior court judge may, upon application of the prosecutor or upon his own motion, order the grand jury reconvened for the purpose of dealing with a matter requiring grand jury action." In denying defendant's motion to dismiss the indictment, the trial court made findings of fact to the effect that: On 4 January 1993 a grand jury was duly selected and sworn and discharged after completing its work. Sometime after 29 January 1993, the Henderson County District Attorney, Alan C. Leonard, made an oral application to the trial court judge to have the grand jury reconvened. As a result of the oral application to the trial court, the trial court ordered and authorized the District Attorney to institute the necessary proceedings for reconvening the grand jury. On 8 February 1993, the grand jury was reconvened and issued the true Bills of Indictments against defendant. The trial court concluded that the oral application made by the District Attorney to the trial court constituted substantial compliance with G.S. 15A-622(g) and denied defendant's motion to dismiss.

Assuming, without deciding, that the provisions of G.S. 15A-622(g) require a written application to the trial court or a written order from the trial judge, we have held in other contexts that certain technical violations concerning the grand jury proceedings do not render an otherwise valid indictment fatally defective. In State v. Reep, 12 N.C.App. 125, 182 S.E.2d 623 (1971), this Court held that failure to return bills of indictment strictly according to statute was not prejudicial error. See also State v. Avant, 202 N.C. 680, 163 S.E. 806 (1932) (no error in failure of grand jury foreman to endorse a bill of indictment or to include in the indictment the names of the State's witnesses who were examined before the grand jury); State v. Midyette, 45 N.C.App. 87, 262 S.E.2d 353 (1980) (signature of grand jury foreman pursuant to statute is merely directory and does not invalidate an indictment). Defendant has shown no prejudice from the lack of a written application or order of the trial court. Accordingly, we conclude that the trial court did not err in denying defendant's motion to dismiss.

III.

Defendant further contends the trial court erred in denying defendant's counsel's motion to be released as defendant's attorney. During the course of the trial, the State called defendant's counsel to testify during a voir dire hearing to determine whether evidence had been tampered with or altered. After hearing the testimony of defense counsel, J. Michael Edney, and two other witnesses, the trial court concluded that defense counsel did not unlawfully alter, destroy or conceal any evidence in the case. Rule 5.2(B) of the North Carolina Rules of Professional Conduct states:

If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer or a lawyer in his or her firm ought to be called as a witness on behalf of the client, the lawyer shall withdraw from the conduct of the trial and his or her firm, if any, shall not continue representation in the trial, except that the lawyer may continue the representation and the lawyer or a lawyer in his or her firm may testify under the circumstances enumerated in (A) above.

Here, defendant's attorney did not testify on behalf of defendant, but on a collateral matter regarding the attorney's handling of certain evidence. Rule 5.2(C) provides that if a lawyer learns that he "may be called as a witness other than on behalf of his client, the lawyer may continue the representation until it is apparent that the lawyer's testimony is or may be prejudicial to the client." N.C.R.Professional Conduct, Rule 5.2(C). Furthermore, defendant's counsel's testimony was taken during a voir dire hearing outside the presence of the jury. Defendant has shown no prejudice from defense counsel's testimony. This assignment of error is overruled.

IV.

Defendant next contends that the trial court erred in failing to intervene during the State's closing argument. Defendant contends that the State argued in its closing argument that the State's witnesses were not paid to testify. The trial court, however, had already signed orders for expert witness fees to be paid to the State's three expert witnesses. The trial court had informed counsel for both sides that he would be absent during certain portions of the closing arguments. Defendant did not...