State v. White, 8626SC879

• Decision Date: 07 April 1987
• Docket Number: No. 8626SC879,8626SC879
• Citation: 354 S.E.2d 324,85 N.C.App. 81
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Willie James WHITE.

Page 324

354 S.E.2d 324

85 N.C.App. 81

STATE of North Carolina v. Willie James WHITE.

No. 8626SC879.

Court of Appeals of North Carolina.

April 7, 1987.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. G. Patrick Murphy, Raleigh, for the State.

Public Defender Isabel Scott Day and Asst. Public Defender Gail Phillips Merritt, Charlotte, for defendant-appellant.

BECTON, Judge.

Defendant, Willie James White, was charged in a proper indictment with robbery with a dangerous weapon. On 9 December 1985 a jury was empaneled, and trial commenced before Judge Robert E. Gaines. Near the conclusion of the trial, and due to improper questioning of defendant by the prosecutor, defendant's motion for a mistrial was granted.

On 6 March 1986, prior to a second trial, defendant filed a motion to dismiss the indictment on double jeopardy grounds. After a hearing before Judge Chase B. Saunders, the motion was denied. Upon retrial defendant was convicted and sentenced to the presumptive term of 14 years imprisonment for robbery with a firearm. Defendant appeals.

Defendant presents four arguments on appeal, contending that the trial court erred in (1) denying his 6 March motion to dismiss, (2) refusing to instruct the jury as to misdemeanor larceny, (3) refusing to permit defense counsel to use leading questions on direct examination of an allegedly hostile witness, and (4) sustaining the State's objection to a portion of defense counsel's closing argument. We find merit in defendant's second argument and accordingly award him a new trial.

I

The State's evidence tended to show that the defendant by use of a handgun took a 1974 Honda automobile from its owner, Roberta Stitt, in Charlotte, North Carolina. Stitt testified that just before midnight on 19 June 1985, she drove to Shelia Smith's house at Piedmont Court Apartments where she waited outside for Smith. Then she and Smith left together to go to a convenience store. On their way, as they rounded a sharp curve on Siegle Avenue at a slow speed, a man opened the driver's door, put a gun to Stitt's head, and pulled her out of the car. Meanwhile, Smith, who was in the passenger seat, jumped from the car and ran. Then the man got into the car and drove away. Stitt and Smith ran together from the scene to a police car.

Shelia Smith testified for the State and corroborated Stitt's story. Both women picked the defendant out of a photographic line-up, and both identified the defendant in court as the robber.

Stitt's vehicle was located across the street from the defendant's girlfriend's house in Forest City. Credit cards belonging to Stitt and keys to the car were located at the girlfriend's house. Vickey Camp testified that on 20 June 1986 defendant tried to sell her a car radio in Forest City. Stitt had testified that her car radio was missing from the dash when she recovered her car.

The defendant testified that he first met Stitt in the parking lot of Piedmont Court Apartments, outside Shelia Smith's residence, where he asked Stitt for a ride to Belmont. Stitt agreed, and after Smith joined them, the three headed toward North Charlotte. On the way, defendant and Stitt engaged in a conversation about drugs, and defendant gave Stitt $35.00 to buy him some cocaine. The car stopped on Alexander Street, a disagreement developed about the purchase, and defendant demanded his money back. Stitt refused and told defendant to get out of the car. Defendant then told Stitt "they was goin' give me somethin', my money or somethin'," and reached toward the front seat. Stitt and Smith jumped from the car and ran, and defendant drove away in the car to Forest City where he was later arrested.

The defense also called Johnsie Smith, Shelia Smith's mother, who testified that when she arrived home after midnight on 20 June 1986, she observed Stitt talking to a man in the parking lot and the man asked for a ride to Belmont. Johnsie Smith then went into her home and told Shelia not to allow the man outside to get into the car or to take him anywhere. Later, Shelia called from the police station and told her mother that Stitt's car had been stolen while she and Stitt were inside the convenience store.

At the second trial in March 1986, essentially the same evidence was presented. However, Shelia Smith was not called to testify by the State but was called as a witness for the defense. On cross-examination, she testified that she told her mother the car was taken while she and Stitt were in the store because her mother had been "getting onto" her about being out late.

II

We first consider defendant's double jeopardy arguments. During the second day of testimony at the first trial, Judge Gaines sustained an objection to an attempt by the prosecutor, on cross-examination of defendant, to elicit testimony regarding the circumstances of a prior conviction. The prosecutor nevertheless began his re-cross examination with the following improper question:

Isn't it true that on [the] assault on female conviction you were originally tried on second degree rape?

Defense counsel's immediate motion for a mistrial was granted. The prosecutor apologized to the court and requested a limiting instruction but offered no explanation for asking the question.

Judge Gaines made no findings of fact to support the mistrial order. However, the transcript clearly shows that mistrial resulted from the improper question, which the judge characterized as "probably one of the most flagrant violations of solicitorial power that I have ever observed."

Defendant now contends that the first trial was terminated due to intentional misconduct of the prosecutor, calculated to provoke a mistrial, and, therefore, further prosecution was barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and by Article I, Section 19 of the Constitution of North Carolina. In addition, he argues that retrial is prohibited because the court failed to make findings of fact before ordering the mistrial as required by N.C.Gen.Stat. Sec. 15A-1064 (1983). We reject both contentions.

A

Regarding the requirement of findings of fact, the Official Commentary following G.S. Sec. 15A-1064 states:

This provision will be important when the rule against double jeopardy prohibits retrial unless the mistrial is upon certain recognized grounds or unless the defendant requests or acquiesces in the mistrial. If the defendant requests or acquiesces in the mistrial, that finding alone should suffice. (emphasis added.)

Ordinarily, "[w]here the mistrial has been granted at defendant's request, there can be no prejudice to defendant in the failure to make such findings." State v. Moses, 52 N.C.App. 412, 418, 279 S.E.2d 59, 64, cert. denied, 303 N.C. 318, 281 S.E.2d 390 (1981). However, when, as in the case sub judice, a defendant contends that serious prosecutorial misconduct precipitated his motion for mistrial, findings of fact may be as essential to adequate review of his double jeopardy claim as in a case in which mistrial is ordered over the defendant's objection. Nevertheless, because from the record before us, the grounds for the mistrial are clear, and were obviously clear to the trial court at the hearing on defendant's motion to dismiss, we conclude that defendant has not been prejudiced by Judge Gaines' failure to make the required findings and that the omission thus constitutes harmless error.

B

We next turn to defendant's contention that retrial was barred due to the prosecutor's intentional misconduct. In his order denying defendant's motion to dismiss, Judge Saunders made the following pertinent finding of fact:

9. Based upon [arguments and briefs of counsel, affidavits, and the transcript of the trial proceeding] ... the Assistant District Attorney did not intend to goad the defendant into moving for a mistrial so as to improve the chances of the State upon retrial for a conviction.

The court concluded as a matter of law that defendant was not entitled to invoke the protection of either the federal or state constitution and

2. That assuming arguendo, the Assistant District Attorney acted in bad faith, a review of the record and affidavits fails to establish that the prosecutor's behavior in question was conducted so as to afford the prosecution a more favorable opportunity to convict the defendant, the record reflecting that there was ample evidence before the jury upon which a verdict favorable to the State could be returned.

We must determine whether these findings and conclusions are supported by the evidence and whether they, in turn, support the court's denial of relief to defendant.

Freedom from multiple prosecutions for the same offense is guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and by Article I, Section 19 of the Constitution of North Carolina. See United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); State v. Shuler, 293 N.C. 34, 235 S.E.2d 226 (1977). As a general rule, the prohibition against double jeopardy does not bar reprosecution when a trial terminates in a mistrial upon the motion, or with the consent, of the defendant, even if the defendant's motion is motivated by a prosecutorial error. United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 556 (1971); see also State v. Crocker, 239 N.C. 446, 80 S.E.2d 243 (1954); State v. Cuthrell, 66 N.C.App. 706, 311 S.E.2d 699 (1984). An exception to this rule exists for certain cases in which the defendant's motion is prompted by serious misconduct by the judge or prosecutor.

1. In Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), the United States Supreme Court redefined the standard for the prosecutorial misconduct exception so as to limit the circumstances under which a defendant who moves for a mistrial may invoke the double jeopardy bar to those cases in which the prosecutorial misconduct giving rise to the motion was...