No. 8911SC211 | N.C. Ct. App. | Nov 21, 1989
We note at the outset that defendant did not discuss his second assignment of error in the brief. Therefore, it is deemed abandoned. N.C. R. App. P., Rule 28(a).
By his remaining assignment of error, defendant challenges the court’s denial of his motion for mistrial. For the reasons discussed below, we conclude that defendant has failed to preserve this issue for review.
To place this issue in the proper context, the record discloses that the following sequence of events occurred at trial.
Opening statements to the jury were made on the afternoon of 26 October 1988. In the State’s opening statement, these remarks were made in reference to defendant’s prior conviction:
You’ll hear from State Trooper Terry McLeod, who lives in the same neighborhood the defendant does. State Trooper McLeod will tell you he was building a house and his house burned. You will receive a certified judgment from this Court showing where the defendant pled guilty to setting Trooper McLeod’s house on fire.
No objection was made to these remarks, and no curative instruction was requested. Defendant instead proceeded with his own opening statement. At the conclusion of opening statements, the proceedings were recessed overnight.
[W]hen the evidence is offered, . . . since the district attorney indicated that he intended to offer it, I would object . . . . I would move to suppress that evidence now[.]
(Emphasis added.) The court reserved ruling on this motion. Defendant did not at this time object to the content of the State’s opening remarks pertaining to his prior conviction, and no further motion was made.
Later in the trial, after extensive voir dire, the court granted defendant’s motion to suppress the evidence of his prior' conviction. Defendant again made no motion at this time with respect to the State’s remarks in its opening statement.
After all the evidence had been presented, after closing arguments had been made, after the court had instructed the jury, and after the jury had retired for deliberation, defendant — for the first time — raised the issue of the content of the State’s opening remarks pertaining to his prior conviction in a motion for mistrial. The ensuing discussion on the record as to the merits of defendant’s motion clearly evidences confusion on the párt of all concerned, both as to the content of the State’s qúestioned opening remarks and as to whether defendant had, in fact, objected to them at their making. .
Following ah overnight recess, the court denied the motion and gave a curative instruction to the jury, before it resumed deliberations, to disregard any remarks by the State in its opening statement pertaining-to a prior conviction. The court then took the further precaution of asking the jury whether it could follow the curative instructions. By a show of hands, all twelve jurors responded in the affirmative.
The requisites for preserving -the right to appellate review of alleged errors in a criminal trial .are set forth at .N.C. Gen. Stat. § 15A-1446 (1988). That statute provides, in pertinent part, that error
(a) . . . may not be asserted upon appellate review unless the error has been brought to the attention of the trial, court by appropriate and timely objection or motion[.]
*355 (b) Failure to make an appropriate and timely motion or objection constitutes a waiver of the right to assert the alleged error upon appeal[.]
(Emphasis added.) The sound rationale which undergirds this requirement is the recognized need that alleged errors in the trial “[be] made clear to the trial judge, at some time sufficiently close to the occurrence of the errorfs] to permit [their] correction.” Id., Official Commentary (emphasis added). This is not merely a matter of judicial economy. Rather, it is a crucial means of ensuring that trials are conducted free from the taint of prejudice. This is particularly true in the context of a motion for mistrial, the very purpose of which is to provide a remedy where “substantial and irreparable prejudice” results from error in the proceedings. N.C. Gen. Stat. §§ 15A-1061, -1062.
The sequence of events in this case is illustrative, of precisely the kind of circumstances which the timeliness requirement of G.S. § 15A-1446 was instituted to avoid. Assuming arguendo that the State’s comment in its opening remarks regarding defendant’s prior conviction was inappropriate, it was incumbent upon defendant to timely bring the alleged error to the attention of the court. By failing to do so, defendant deprived the court of the opportunity to appropriately rectify the alleged error, deprived the State of the opportunity to take the proper measures to correct its alleged error, and — most importantly — deprived the jury of the opportunity to hear the evidence, from the beginning, in the clear light of a trial unclouded by the alleged error. The plain language of G.S. § 15A-1446 does not permit defendant to raise on appeal the denial of his eleventh-hour motion for mistrial.
No error.