22 N.C. App. 332 | N.C. Ct. App. | 1974
The sole question presented by this appeal is whether the trial judge committed error by refusing to grant the defendant’s motion for mistrial based upon allegedly improper remarks made by the solicitor during the course of the trial. The victim of the crime, a husband and wife, operated the Camellia Motel in Leland. They testified as to the details of the robbery and that they were able to positively identify the defendant. Officer George B. Eeid testified concerning his investigation of the robbery and corroborated the testimony of the victim. On cross-examination Officer Eeid testified that the defendant was in the custody of the New Hanover sheriff’s office when he first saw him. On redirect examination the solicitor propounded the following question:
Mr. Greer: Before you answer this question, I want the Judge to rule on it. Do you know what Linwood Jerome Harris was being held for?
Mr. Lambeth: Objection.
The Court: Sustained.
At this point the defendant made a motion for a mistrial. This motion was denied.
Certainly, this question was improper. By requesting the judge to rule on it before it was answered, the solicitor clearly indicated that he also knew it was improper. Had the question
We disapprove of the action of the solicitor in asking an obviously improper question to try to prejudice the jury by the question rather than the expected answer. We do not, however, deem it to be so prejudicial that the failure of the trial court to grant the mistrial was an abuse of discretion. The granting or denying of a motion for a mistrial is within the sound discretion of the trial court. State v. Daye, 281 N.C. 592, 189 S.E. 2d 481 (1972) ; State v. Battle, 267 N.C. 513, 148 S.E. 2d 599 (1966) ; State v. Williams, 7 N.C. App. 51, 171 S.E. 2d 39 (1969). He is in the best position to observe its impact upon the jury and to determine its effect upon the overall trial. His ruling will not be reviewed in absence of an abuse of discretion.
Here, the trial court promptly sustained the defendant’s objection. There was an abundance of evidence to sustain the verdict of the jury. The one improper question by the solicitor is not sufficiently prejudicial for us to hold that the trial court abused its discretion in refusing to grant a motion for a mistrial. We hold, therefore, that the defendant received a fair and impartial trial free from prejudicial error.
No error.
