27 N.C. App. 72 | N.C. Ct. App. | 1975
By his first assignment of error defendant contends the trial court erred in denying his motions .to ■ quash the sale and delivery counts in the bills of indictment as constituting double jeopardy. The assignment is without merit. As conceded by defendant, this question has been answered adversely to his position in several recent opinions of this court and the Supreme Court including State v. Cameron, 283 N.C. 191, 195 S.E. 2d 481 (1973), State v. Thornton, 283 N.C. 513, 196 S.E. 2d 701 (1973), and State v. Patterson, 21 N.C. App. 443, 204 S.E. 2d 709 (1974). We adhere to those opinions and the assignment of error is overruled.
By his second assignment of error, defendant contends the court erred in denying his motion for a mistrial. This assignment relates to an answer given by the witness Teresa Dominick to a question asked by the district attorney. In response to a question as to why she was working with Riggsbee, the witness stated: “Well, I got real sick of a lot of my friends dying." At that point, defense counsel objected, moved to strike and moved for a mistrial. The trial judge declared that he did not hear what the witness said and doubted if the jury heard her answer. Counsel’s request to be heard in the absence of the jury was granted, but the motion for a mistrial was denied. When the jury returned to the box, the court gave the following instruction: “Members of the Jury, if you heard any statement that she made in response to the last question that was asked by the District Attorney, just-eliminate it from your minds and not consider it in connection with this trial at all."
We find no merit in the assignment. It is well settled that the granting of a motion for a mistrial rests largely in the discretion of the trial judge. State v. Jarrette, 284 N.C. 625, 202 S.E. 2d 721 (1974) ; State v. MeVay and State v. Simmons, 279 N.C. 428, 183 S.E. 2d 652 (1971). We perceive no abuse of discretion here. Furthermore, it will be noted that defendant did not object to the question. The assigment of error is overruled.
By his third assignment of error, defendant contends the court erred in admitting State’s exhibits 1 and 5, the powdery substance alleged to have been heroin, arguing that a complete “chain of custody” was not established. No useful purpose would be served in reviewing here the evidence with respect tó the chain of custody. Suffice it to say, we have carefully reviewed
In his fourth and seventh assignments of error, defendant contends the court erred in “tolerating the district attorney’s attempt to shift the burden of proof in the case” and in permitting the district attorney to make improper argument to the jury. We have reviewed the record with respect to these assignments and finding them without merit, they are overruled.
Assignments of error 5, 6, 8, and 9 relate to certain jury instructions which defendant requested but the court did not give and certain instructions which the court did give. We have carefully considered these assignments and find them to be without merit, therefore, they are overruled.
Finally, by his tenth assignment of error, defendant contends the court erred in failing to grant his motion for nonsuit and in signing and entering the judgments as appear of record. We hold that the evidence was sufficient to survive the nonsuit motion and the judgments are fully supported by the verdicts and impose sentences within the limits provided by statute.
Defendant received a fair trial, free from prejudicial error.
No error.
