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State v. Merritt9/7/2004
At trial, Officer Steven Brewington of the Lillington Police Department testified that in the early morning of 15 August 2002, he observed defendant driving a Jeep Cherokee on South Main Streetin Lillington. Officer Brewington observed defendant's vehicle move into the left lane even though the right turn signal of defendant's vehicle was on. From the left lane, defendant made a right turn. Next, Officer Brewington observed two tires of defendant's vehicle go up onto the curb of the road. Officer Brewington followed defendant and testified that defendant was driving in the oncoming traffic lane and speeding. Officer Brewington activated his blue light and siren, but defendant did not stop. Defendant drove off the road and onto a dirt path, running over a large log. A short distance later, defendant drove into a ditch, wrecking his vehicle. Defendant then exited his vehicle. Officer Brewington exited his vehicle as well and approached defendant. Defendant was lying face down on the ground. Officer Brewington noted a strong odor of alcohol and placed defendant under arrest. Officer Brewington had to help defendant into the patrol car because defendant was having difficulty walking. Officer Brewington transported defendant to the Harnett County Sheriff's Office. Defendant was asked to perform the intoxilyzer test and other tests, but defendant refused to take the tests.
On appeal, defendant argues that the trial court erred by (1) failing to allow defendant's motion for a mistrial; (2) overruling defendant's objection to testimony by Sergeant Freeman of the Lillington Police Department; and (3) overruling defendant's objection to remarks made by the prosecutor during closing argument.
I.
Defendant contends that the trial court committed reversible error by failing to grant defendant's motion for a mistrial. At trial, the State called Officer Brewington to testify concerning the events that led to the charges against defendant. During Officer Brewington's testimony, the following exchange occurred:
Q: What happened once you got [defendant] down to Law Enforcement Center?
A: I had to have somebody run an intoxilizer test. Detective Galloway was there. He_ I asked him if he would run the test for me. We found out, at that time, you know, his driver's license was revoked for driving while impaired.
Defense counsel objected to this testimony and the trial court sustained the objection. Defense counsel then moved to strike the testimony. The trial court allowed the motion to strike and stated, "[m]embers of the jury, you'll disregard any comments about the driving while impaired."
After the jury left the courtroom, defense counsel made a motion for a mistrial based on Officer Brewington's testimony that defendant's license was previously revoked for driving while impaired. After argument from the prosecution and defense, the trial court denied this motion. Defendant contends that the trial court erred in that the jury was likely prejudiced by hearing evidence of a prior alcohol abuse conviction when considering whether to find defendant guilty of the same type of crime, notwithstanding the trial court's instruction to disregard thetestimony. We agree that the testimony by Officer Brewington was improper and unresponsive to the question asked. For the following reasons, however, we hold that the trial court did not abuse his discretion in failing to grant defendant's motion for a mistrial.
The decision to grant or deny a motion for a mistrial is in the sound discretion of the trial court. State v. Blackstock, 314 N.C. 232, 243, 333 S.E.2d 245, 252 (1985). This Court has found no error in a trial court's failure to grant a mistrial where the "[tri
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