66 N.C. App. 706 | N.C. Ct. App. | 1984
The sole question before the court is whether the trial court committed prejudicial and reversible error in overruling and denying the defendants’ motions to dismiss based on former jeopardy. We conclude no error was committed and affirm the decision of the trial judge.
Defendants contend that the testimony of Officer Robbins was given in bad faith or undertaken to harass or prejudice the defendants, and as such constitutes an exception to the rule that a defendant’s motion for or consent to a mistrial removes any double jeopardy bar to reprosecution. See Lee v. United States, 432 U.S. 23, 53 L.Ed. 2d 80, 97 S.Ct. 2141 (1977). We disagree. The record reveals no misconduct by the judge or the prosecutor to provoke defendants’ motion for mistrial. Officer Robbins answered the question of defense counsel properly, but then proceeded to testify to an altogether immaterial and irrelevant matter. The trial judge promptly sustained defendants’ objection and instructed the jury not to consider that portion of the answer. In granting defendants’ motion for a new trial, the trial judge found as a fact that the testimony was not intentional on the part of the State’s witness. The trial judge had an opportunity to observe the witness through the trial and found his demeanor free of bad faith. “[W]here circumstances develop not attributable to prosecu-
As Justice Stevens pointed out in his concurring opinion in Oregon v. Kennedy, 456 U.S. 667, 690, 72 L.Ed. 2d 416, 434, 102 S.Ct. 2083, 2097 (1982), “. . . only in a rare and compelling case will a mistrial declared at the request of the defendant or with his consent bar a retrial.” Such a case is not now before this court.
The decision of the trial judge is affirmed, and the cause is remanded for further proceedings.
