*1 v. White day and unsuitable to modern surgeons was outmoded operations patient’s thereafter extend as the health and could surgical practice required being exceeding without liable for good authority. If without enactment our Courts have legislative their modify to extend or the law for the benefit of an al- power the done in and has been done in Kennedy, tort-feasor as was leged show, many reports cases as the it would seem to follow as other they have do same power thing of course that the a matter wrongfully injured behalf of children. Third, erroneously for were punitive damages the claims court, dismissed, my before the opinion, because evidence for the is suffi- light plaintiffs, when its most favorable viewed grossly was the claim that defendant either cient for the disregard or acted with a reckless and wanton negligent Hill. bodily and health of Mrs. integrity WHITE OF NORTH CAROLINA WILLIE JAMES STATE No. 8626SC879 (Filed 1987) April grounds error —harmless to state Law 128.1— mistrial—iailure 1. Criminal the record before the grounds were clear from for mistrial Where hearing obviously on court at appeal clеar the trial and were court dismiss, prejudiced the trial was not motion order, omis- findings supporting mistrial and such judge’s to make failure error. constituted harmless sion not barred prosecutorial —retrial misconduct 26.8— mistrial for Criminal Law 2. was barred due that retrial contention was no merit to defendant's There properly judge con- where the trial prosecutor’s intentional misconduct to the furthermore, mistrial; provoke no intent evidence and found sidered overreaching aimed at or harassment no faith bad there appear from the acquittal, it did not for prejudicing defendant’s chances resulting badly prejudice going so State’s case was that the record continue choice to grave that defendant’s was so prosecutor’s conduct from the unmeaningful. proceedings rendered or to abort robbery as lesser 1; Robbery —misdemeanor Larceny 1.2— armed 3. offense weapon the dangerous with a prosecution of defendant In a larceny, to misdemeanor refusing to instruct trial court erred COURT OF APPEALS *2 larceny robbery; sincе misdemeanor is a lesser included offense of armed de- regarding acquisition person’s automobile fendant’s evidence another larceny; support a conviction of and the State introduced no evidence of would value, only making punishable as a misdemeanor. Judge part dissenting concurring part. in in and Johnson by from Friday, Judge. Judgment entered APPEAL defendant Court, Superior 1986 in MECKLENBURGCounty. March Heard February Appeals the Court 1987. Lacy General H. Assistant Attorney Thornburg, Attorney General G. Patrick the State. Murphy for
Public Isabel Scott Day and Assistant Public De- Defender Gail Merritt Phillips appellant. fender for defendant BECTON, Judge.
Defendant, White, Willie was charged James in a in- proper robbery dictment with with a dangerous weapon. 9 December On 1985 a was empaneled, and trial Judge commenced before trial, Robert E. Gaines. Near the conclusion of the to im- due proper questioning of the prosecutor, defendant’s motion for a mistrial was granted. trial,
6On prior March to a second filed a motion to dismiss the indictment on double Saunders, grounds. Af- ter а hearing Judge before B. Chase the motion was de- Upon nied. retrial defendant was convicted and to sentenced presumptive 14 years term of imprisonment with a firearm. Defendant appeals. presents Defendant four arguments on appeal, contending (1)
that the trial court erred denying his March motion dis- (2) miss, refusing instruct the jury as to misdemeanor larceny, (3) refusing permit defense counsel to leading use questions on (4) witness, direct examination anof allegedly hostile sustain- ing the objection State’s portion a of defense counsel’s closing argument. We find merit in defendant’s second argument and ac- cordingly award him a new trial.
I The State’s evidence tended to show the defendant use of a handgun owner, took a 1974 Honda automobile from its COURT OF APPEALS
State White Stitt, Charlotte, North Stitt Roberta testified that Carolina. just before June she drove to midnight Shelia Smith’s Apartments house at Piedmont Court where she outside waited for Smith. Then and Smith together go she left to a conven- they way, sharp store. On their a on Sie- ience rounded curve door, man speed, Avеnue at slow the driver’s gle opened put head, Meanwhile, Stitt’s pulled her out of car. gun Smith, *3 seat, passenger who was in the from the car and jumped the away. ran. Then the man into car and drove Stitt and got from the car. together police Smith ran scene to a Smith for the State and corroborated Stitt’s Shelia testified of a the defendant out story. picked photographic Both women the in court robber. and both identified defendant as the line-up, street from defend- vehicle was located across the Stitt’s City. in Fоrest cars belonging house Credit girlfriend’s ant’s house. keys girlfriend’s to the car were located at the Stitt and tried to that on June defendant Vickey Camp testified her car City. had testified that her a car radio in Forest Stitt sell her car. dash when she recovered was from the missing radio parking Stitt in the that he first met The defendant testified Shelia resi- Smith’s Apartments, Piedmont outside lot of Court dence, agreed, Belmont. Stitt he Stitt for a ride to where asked them, North headed toward Smith the three joined and after in a conversa- way, engaged and Stitt On the Charlotte. him buy $35.00 Stitt gave drugs, about tion Street, disagree- on Alexander stopped car cocaine. The some and defendant demanded purchase, developed about ment get out of and told defendant refused money back. Stitt somethin’, “they goin’ give was me Stitt Defendant then told car. somethin’,” Stitt the front seat. toward money or and reached my ran, drove and defendant the car and jumped from and Smith later arrested. City he was where away in the car to Forest mother, Smith, Smith’s Shelia also called Johnsie defеnse on midnight after home when she arrived who testified that lot parking man to a talking Stitt she observed June Smith then Johnsie a ride Belmont. asked for the man outside the man to allow told Shelia not her home and went into Later, called Shelia him anywhere. take the car or to into get station and told her mother that Stitt’s car had police from the stolen while she and Stitt were inside the convenience store. been 1986, essentially
At the second trial in March evi- same However, Smith presented. dence Shelia called testify by thе State but was a witness called as defense. cross-examination, she she her On testified that told mother was taken while car she and Stitt the store because her were had been “getting mother onto” her out late. being about
II We consider first jeopardy arguments. double trial, During day the second of testimony at the first Judge an objection Gaines sustained to an attempt prosecutor, defendant, testimony cross-examination to elicit regarding circumstances of a prior prosecutor conviction. The nevertheless his re-cross began examination with the following improper ques- *4 tion:
Isn’t it true that on on you assault female conviction [the] were on originally degree tried second rape?
Defense counsel’s immediate motion for a mistrial was granted. prosecutor apologized to the court and requested limiting instruction but explanation offered no the asking question. Judge Gaines made no fact findings of to the mistrial However, order. the transcript clearly shows that mistrial result- from ed the improper question, which the judge characterized “probably one the flagrant most violations of solicitorial power I that have ever observed.”
Defendant now contends that the first trial was terminated due intentional misconduct of the prosecutor, pro- calculated to mistrial, and, therefore, voke a prosecution further barred the Jeopardy Double Clause of the Fifth Amendment to the I, United States Constitution and Article Section 19 addition, Constitution of North Carolina. In he that argues retrial is prohibited because the court failed findings make of fact before the ordering mistrial as required by N.C. Gen. Sec. Stat. (1983). 15A-1064 We reject both contentions.
State White A [1] Regarding requirement findings fact, Official Sec. 15A-1064 states: Commentary following G.S. when the rule important against will be dou- provision
This is cer- prohibits ble retrial unless mistrial jeopardy requests grounds tain or unless recognized defendant or ac- requests in the mistrial acquiesces If should finding in the alone quiesces mistrial suffice. added.) (Emphasis granted mistrial been at defendant’s Ordinarily, has “[w]here no in the failure to prejudice can be request, there 412, 418, Moses, 52 N.C. findings.” make such denied, 281 S.E. 2d S.E. 2d cert. when, However, as in a defendant contends judice, the case sub motion for his precipitated misconduct that serious mistrial, review may adequate be findings fact as essential is as in case which mistrial claim double Nevertheless, because objection. over the defendant’s ordered clear, us, for the mistrial are grounds from record before court at the obviously hearing to the trial were clear dismiss, we that defendant has conclude motion required failure make Judge Gаines’ prejudiced been harmless error. thus constitutes that the omission findings and B [2] barred due order We denying next turn to defendant’s the prosecutor’s motion to intentional contention dismiss, misconduct. Judge retrial was Saunders *5 In his of fact: following pertinent finding made the affidavits, counsel, and briefs upon [arguments 9. Based . . the Assistant . the trial proceeding] transcript and the into the defendant goad not intend Attorney did District the chances improve as a mistrial so for moving conviction. for a upon retrial State was not that defendant mattеr of law as a concluded court or state con- the federal of either protection invoke the entitled to stitution and
86 Attorney Assistant assuming arguendo, 2. That the District faith, record fails bad a review of the and affidavits acted prosecutor’s the behavior question to establish conducted so as to afford the a more favorable prosecution defendant, the reflecting to convict the record opportunity the which ample jury upon there was evidence before the be verdict favorable to State could returned. whether findings
We must determine these and conclusions are turn, by they, in supported the evidence and whether court’s denial relief to defendant. multiple prosecutions from for the same offense is
Freedom
guaranteed
by the Fifth and
Fourteenth Amendments
I,
United States Constitution and
Article
19 of
Section
Dinitz,
Constitution of North
424
Carolina. See United States v.
600,
(1976);
Shuler,
34,
U.S.
An to this rule exists for exception certain cases in which the defendant’s motion is prompted by serious misconduct judge or prosecutor. (1982),
1. In Oregon Kennedy, 456 U.S. L.Ed. 2d the United States Supreme Court redefined the standard for the exception misconduct so limit circum- stances under which a defendant who moves for may a mistrial invoke the double bar to those cases in the prose- which cutorial misconduct giving rise to the motion was intended to “goad” provoke the defendant into moving a mistrial. Prior decisions of that court phrased had the standard in broader terms of “prosecutorial or judicial overreaching,” see United States v. Jorn, 400 U.S. at 27 L.Ed. 2d at or “prosecutorial im- id., propriety designed to avoid an n.12. In acquittal,” Lee v. States, United the Court had stated that retrial was not barred *6 judicial “unless the prosecutorial or error that prompted peti- tioner’s motion was ‘intended to provоke’ or motion COURT OF APPEALS v.
State White by faith or or otherwise ‘motivated bad undertaken harass (1977) 23, 33-34, 53 L.Ed. 2d prejudice’ petitioner.” U.S. 276) (em- v. at United States Dinitz at 47 L.Ed. 2d (quoting added). phasis very v. test is a narrow one which re- Oregon Kennedy intent to cause a mistrial. Under that quires standard, finding specific a con- finding by trial court that the was not so is conclusive if supported duct in intended question must generally The existence of such intent competent evidence. In objective present circumstances. by inferred from facts and case, the evidence and judge as factfinder considered the trial We cannot conclude that provoke found no intent a mistrial. based is unreasonable erroneous the court’s determination Therefore, defendant’s retrial was before it. upon the evidence of the con- Jeopardy Double Clause federal precluded not stitution. of North courts
2. no decisions Carolina appellate We find miscon- standard for prosecutorial which set forth the expressly under double claims assessing to be applied duct bound, in Our state courts are North Carolina. Constitution constitution, court decisions con- by federal state interpreting our Bulova constitution. of the federal provisions similar struing Inc., Wilkesboro, North Watch v. Brand Distributors Co. Barnes, 141 (1965). See also State S.E. 2d 517, 142 S.E. 2d concurring wrote Stevens Kennedy, Justice Oregon
In soundly criti- in which he justices, three other opinion, joined previously portion aoff “lop[ping] majority cized the after retrial permitting rule general to the exception” recognized We with Justice agree motion. mistrial declаred Stevens that prove could that a defendant inconceivable is almost [i]t by an motivated misconduct deliberate prosecutor’s simply intent of an instead a mistrial to provoke intent intent subjective . . . Court’s defendant. prejudice [T]he exception. would eviscerate
standard (Stevens, J., con- at 432-33 72 L.Ed. Kennedy at Oregon omitted). view, (footnotes reasoned better In our curring) *7 APPEALS OF COURT includes bad faith prose- the broader test that arguments prejudicing or harassment aimed at the de- overreaching cutorial in the сurrent trial or a chances for whether acquittal, fendant’s We believe that retrial. overreaching, for court need not exception invoke the
[T]o
error. It is
exact motivation for the
divine the
that
persuaded
egregious prosecu-
sufficient that
the court is
unmeaningful
has rendered
the defendant’s
torial misconduct
or to abort
proceeding.
choice to continue
689,
Despite
espousal
the trial court’s determination that
the defendant
uphold
less
this case has not established his double
claim under our
Even
“overreaching”
state constitution.
under
or “harass-
test,
heavy
ment”
a defendant bears a
burden of
establishing
bar to
when
reprosecution
requested
he has
the mistrial. Id. at
688,
We make no all the relevant factors that However, may influence a court’s in addition to ruling. requiring a misconduct, finding agree deliberate we with Justice Stevens that
because the defendant’s option proceeding abort after prosecutorial misconduct would retain real meaning for the in any case in which badly the trial wаs going him, normally a required finding would be that the prosecu- eliminated, virtually torial error or at substantially least re- duced, probability acquittal proceeding that was badly going for the government. (footnote omitted).
Id. at 72 L.Ed. 2d at But n.31. see id. case, In the present Judge Saunders concluded that there was ample evidence which could have convicted the defendant. Although the prosecutor’s appears conduct to have deliberate, been from our review of the record say we cannot the State’s case was badly so going and the prejudice resulting from the prosecutor’s conduct was grave so the defendant’s choice to continue or to abort proceedings rendered un- meaningful. *8 v.
State White III [3] struction Defendant further claims that he was entitled to a misdemeanor larceny. We agree. in It is a well-established rule North that Carolina offense, may a is criminal he defendant indicted a [w]hen be convicted of the included of- charged offense a lesser of when the offense in the bill indict- greater charged fense lesser, of of the all of ment contains all the essential elements of in the in- by proof allegations could be proved which Further, some a supporting dictment. when there is evidence offense, charge is entitled lesser included . . error in to do so will not be cured failing thereon . and of the degree of a finding guilty higher a verdict crime. same (1982); 633-34, 375, Weaver, 629, 377 295 S.E.
State v. 306 N.C. (1978). 743, 415-16, Banks, 399, S.E. 2d 754 295 245 State v. N.C. away per- of Larceny taking carrying is the felonious with the intent of his consent and another without property sonal v. of State propеrty. the owner See deprive to permanently (1985); 678, 572, 576, v. S.E. 2d 681 State App. 78 N.C. Boykin, 68, 69, 134, Lamson, rev. disc. 330 S.E. 2d App. 75 N.C. (1985). case, denied, In the instant S.E. 2d 318 N.C. that the de- part, alleged, for armed the indictment take, steal, feloniously unlawfully, wilfully, “did fendant carry of assault means an away personal property” another’s elements of the essential all Unquestionably, with a firearm. in the indict- larceny proof allegations be proven would his ac- regarding is evidence clear that defendant’s Equally ment. a conviction would Stitt’s automobile Roberta quisition Furthermore, charged although indictment larceny. $1,490.00,the approximately property the stolen the value In order to convict of value. no evidence introduced State doubt beyond a reasonable prove the State must felony larceny, otherwise, $400; exceeded of the stolen property value See, State e.g., only as a misdemeanor. larceny is punishable (1969), Sec. Jones, Stat. N.C. Gen. 168 S.E. 2d E.g., State jury. so instruct The must judge 14-72 court’s refus- we that the conclude foregoing, on the Jones. Based APPEALS OF larceny prejudicial jury on misdemeanor to instruct al error. was not entitled to initially that defendant argues State lesser in- is not a because misdemeanor
the instruction
Hurst, 82
Recently,
robbery.
of armed
cluded offense
(1986),
thoroughly
discussed
346 S.E. 2d
this Court
Su-
lines of North
conflict between two
Carolina
apparent
*9
larceny is a lesser
included
decisions on whether
preme Court
we noted that
“the most
robbery.
armed
There
offense of
stands for the principle
series of cases
lengthy
entrenched
robbery,
of common law
larceny is a lesser included offense
robbery,”
of
id.
both are lesser included offenses
armed
and that
15-16,
in accompanying
which the
reached the
conclusion without reconcil-
opposite
Court
541, 548-49, 313
cases.
310
ing
prior
Murray,
See State
N.C.
(1984);
491, 500-01,
S.E. 2d
306
Beatty,
State
N.C.
(1982);
Revelle,
153, 163,
293 S.E.
766-67
2d
State v.
N.C.
270 S.E.
2d
We conclude that
those decisions do
in
not control
the resolution of this
The issue
each of
appeal.
prohibi-
those cases involved the constitutional double jeopardy
tion, not the
to a
instruction.
right
particular
jury
Moreover,
discussion and conclusion
regarding
Court’s
unnecessary
lesser
in
holding
included offense issue was
to the
cases,
any of
three
since each
multiple
involved
offenses
time,
in
separate
separate
place,
directed at different vic-
tims so
the convictions for both
support
larceny
as to
and armed
16-18,
robbery.
at
346 S.E.
See
Hurst
2d at 17-18.
generally
which have specifically
jury
Cases
addressed the
instruction
here
question presented
the defendant’s claim. In
(1980),
270 S.E.
Chapman,
App.
this
held
Court
the trial
should have
judge
jury
larceny
instructed the
when the State’s evidence tended to show an unlawful
taking
knife,
from a
employer
former
accomplished
an assault with a
but the testified that he
money
took the
without
use of a knife or threats.
Perry,
See also State v.
(1978) (error
735,
Furthermore, if be even lesser included offenses must as- analysis purposes same as for sessed instruction Hurst, purposes, jeop- our a double holding double Hurst, case, our In we ardy supports ruling favor defendant. robbery larceny of both could not held that convictions armed In single taking. when both convictions were based stand bar, similarly taking single case at defendant is accused the and, Hurst, rule enunciated in could not be convicted under the tak- Consequently, (involving single on these facts both offenses. but is sub- larceny separate is not a and distinct offense ing), robbery. within the crime armed sumed is not a lesser larceny definitionally maintains that The State (unlike robbery because armed included offense armed or at- either an actual robbery) require law is defined common Thus, taking. actual larceny requires an whereas tempted taking not con- an essential element contains argues, the State *10 However, to reasoning is identical robbery. this in tained armed Owens, 73 in by this State v. rejected that Court denied, S.E. 2d 314 N.C. S.E. disc. rev. 327 (1985) held, robbery law faсt common despite which we that in is in- a lesser common law taking, an actual requires that a weapon, and robbery with a dangerous of cluded offense for the latter. in a trial former was proper on the jury instruction us, with the defendant charged indictment before In the case ato convic- was essential proof taking and of the taking, an actual Moreover, State’s and both the charged. tion of the offense in only conflict The taking. showed an actual evidence defendant’s accomplished taking whether the to pertains the evidence be unrea- it would We believe weapon. awith means of an assault in- defendant an deny the circumstances under these sonable robbery statute the armed larceny merely because struction on in- for an ground alternative taking” as an “attempted establishes dictment. that, argument State’s alternative summarily reject We robbery, the of armed offense included larceny is a lesser
even if The larceny. of charge evidence does defendant’s Stitt, (1) “y’all gonna stаtement that defendant’s contends APPEALS OF ” back, money or somethin’ establishes my me somethin’ give (2) right, that evidence under a claim the automobile he took keys her car were told her where called Stitt and Stitt permanently deprive not intend to defendant did shows that (3) that, therefore, car, felonious intent requisite her However, merely in- these are not established. not, could, draw from the but need jury which the ferences evidence. reasons, we hold that the court’s failure foregoing
For the larceny was preju- instruction on misdemeanor requested give error, is entitled to a new trial. Because dicial unnecessary we deem it to address the defendant’s holding, our of error. remaining assignments two New trial. Phillips concurs.
Judge concurs in and dissents Judge part part. JOHNSON Judge concurring part dissenting part. JOHNSON I majority concur in the for the opinion except part pertain issue of ing right defendant’s to a instruction on larceny as a lesser robbery. included offense armed To that I part opinion, respectfully majority dissent. holds that, for tions, larceny is a lesser purposes right particular jury instruc robbery.
included offense of armed
In so
holding
majority
attempts
distinguish
judice
the facts sub
*11
541,
from the facts in State v.
310
313 S.E.
Murray,
N.C.
2d 523
(1984),
491,
(1982),
State v.
306
Beatty,
Armstrong Armstrong its scope holdings these three cases does the Court limit the give particular claims of double failure to instruc- not Although explicitly tions. the Court did overrule its line long larceny to be a lesser offense of armed holding of cases included robbery, Beatty implicitly and Revelle overrule those Murray, Therefore, I must previous cases. dissent. IVAN
MARTHA G. O. ARMSTRONG ARMSTRONG No. 864DC748 1987) (Filed April 7 post —appeal performance Appeal 18— bond —failure to Error secured 1. and not dismissed appeal for Appeals failure The refused dismiss defendant’s Court $7,000 performance where defendant did post bond in the amount a secured $250 1-285. post appeal required bond N.C.G.S. § 30; pay military Alimony retirement —marital Pensions 1— 2. Divorce property military pay such that it right was “vested” retirement Defendant’s his 50-20(b),yet right property N.C.G.S. as marital under § could be included permit perfected no as to government never so far benefit was this interference, Legislature’s of defendant’s statutory reclassification and the military proрerty neither the constitutional pay violated retirement marital process land. guarantees of nor the law of the due pay 30; military —marital Alimony 1— retirement Pensions Divorce and 3. —equal protection property equal he was denied no merit to defendant’s contention There was X, protects property, Const. Art. protection of the laws because N.C. § man, military not a since that sec- pay, of but including retirement a woman are rights females the amendment accorded expressly states that all tion 50-20(b) limitation, treats regulation legislative and N.C.G.S. subject § recipient differently is male or female. military its pay whether retirement no —findings property of fact Alimony equal 30— division of marital 4. Divorce and required ordering equal division of an not abuse its discretion trial court did military pay, though the retirement including property, marital fact, in its conclusions did state findings of where the court made no court enumerated presented the “factors the evidence it had considered law that *12 50-20,” any rational basis show not fail to the evidence did in N.C.G.S. § equal distribution.