State v. McGirth ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1172
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
STATE OF NORTH CAROLINA
v. Gaston County
No. 11CRS007117, 12CRS003437
TARAS M. McGIRTH
Defendant.
Appeal by Defendant from judgments entered 16 May 2013 by
Judge James W. Morgan in Gaston County Superior Court. Heard in
the Court of Appeals on 24 April 2014.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Matthew L. Boyatt, for the State.
Bryan Gates, for Defendant-appellant.
DILLON, Judge.
Taras M. McGirth (“Defendant”) appeals from convictions for
felony death by vehicle and involuntary manslaughter, arguing
that the trial court erred in denying his motion for a mistrial
based on comments made by a potential juror during the jury
selection. For the following reasons, we find no error in
Defendant’s trial.
-2-
Defendant was indicted for one count of felony death by
vehicle and one count of second-degree murder. He was tried on
these charges at the 13 May 2013 Criminal Session of Gaston
County Superior Court. The State’s evidence tended to show that
on the night of 10 November 2010, Defendant took prescription
Ambien medication, and the next morning, on 11 November 2010,
Defendant’s vehicle was observed in Gaston County, swerving from
one side of a public highway to another, driving approximately
45 to 50 miles per hour, hitting mailboxes, running other
motorists off the road, and crossing over the center line into
oncoming traffic numerous times. At some point, Defendant’s
vehicle crashed head-on into a vehicle driven by Andrew Hovis.
Mr. Hovis died a short time later from “massive blunt force
trauma . . . to his head, his chest, and his abdomen[,]”
resulting from the collision. Following the collision,
Defendant tested positive for prescription Ambien medication.
Expert testimony was presented that Defendant was “severely”
impaired from Ambien that morning and the manner in which he was
described as driving was consistent with the effects of a person
impaired by ingestion of Ambien.
Defendant testified that he took Ambien medication the
night before the accident to help him sleep but had no
-3-
recollection of the accident. He admitted to taking
prescription Ambien since 2005. He also testified that two
weeks prior to this incident he was standing in his driveway and
then woke up in his neighbor’s house, not remembering how he got
there or what he had being doing for an hour.
On 16 May 2013, a jury found Defendant guilty of felony
death by vehicle, and the trial court sentenced Defendant to an
active term of 25 to 39 months of imprisonment.1 Defendant gave
timely written notice of appeal from the trial court’s
judgments.
___________________________________________________________
In his only argument on appeal, Defendant contends that the
trial court should have granted a mistrial following the
comments from a potential juror during jury selection that her
son was one of the persons following Defendant, Defendant nearly
ran the juror’s son off the road, and Defendant had killed the
victim. We disagree.
“It is well settled that the decision of whether to grant a
mistrial rests in the sound discretion of the trial judge and
will not be disturbed on appeal absent a showing of an abuse of
1
Defendant was also found guilty of involuntary manslaughter
but the trial court arrested judgment and dismissed this
conviction following Defendant’s election to serve an active
sentence for the felony death by vehicle conviction.
-4-
discretion.” State v. Barts, 316 N.C. 666, 682, 343 S.E.2d 828,
839 (1986), overruled on other grounds by State v. Jackson, 340
N.C. 301, 457 S.E.2d 862 (1995). “Abuse of discretion results
where the court’s ruling is manifestly unsupported by reason or
is so arbitrary that it could not have been the result of a
reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372
S.E.2d 523, 527 (1988) (citation omitted). “The judge must
declare a mistrial upon the defendant’s motion if there occurs
during the trial an error or legal defect in the proceedings, or
conduct inside or outside the courtroom, resulting in
substantial and irreparable prejudice to the defendant’s case.”
N.C. Gen. Stat. § 15A-1061 (2010).
Our Supreme Court has held that “[w]hen a jury is
instructed to disregard improperly admitted testimony, the
presumption is that it will disregard the testimony.” State v.
McCraw, 300 N.C. 610, 620, 268 S.E.2d 173, 179 (1980). “It is
well established in this jurisdiction that if the court properly
withdraws incompetent evidence from jury consideration, and
instructs the jury not to consider it, this cures error in its
admission in all but exceptional circumstances.” State v.
Miller, 26 N.C. App. 190, 192, 215 S.E.2d 181, 182 (1975).
-5-
Here, during jury selection a potential juror made the
comment that “her son was one of the people following the
[Defendant’s] vehicle” and Defendant “almost ran him off the
road, and killed the deceased.”2 Defense counsel objected; the
trial court gave a curative instruction; and jury selection
continued. When Court broke for recess at lunch, defense
counsel raised a motion for mistrial, arguing that Defendant was
prejudiced by these comments because they were made in front of
the whole pool of potential jurors. Defendant’s motion was
denied. During the charge conference, defense counsel renewed
his motion for mistrial, which was also denied.
The juror’s statement in this case does not amount to
“substantial and irreparable prejudice” because Defendant did
not challenge the State’s allegations that he hit the victim and
that the victim died; the potential juror’s son was allowed to
testify regarding his observations and actions on the day in
2
We note that none of the jury selection was recorded,
transcribed, or included in the record on appeal. This portion
of what the potential juror said was reconstructed by defense
counsel during his argument for mistrial which was transcribed
and is part of the record. N.C. Gen. Stat. § 15A-1241(c)(2010)
states that it is “the judge [that] must reconstruct for the
record, as accurately as possible, the matter to which objection
was made.” However, the record suggests that the State, in
responding to defense counsel’s argument, conceded that the
statement as represented by defense counsel was made; and,
consequently, we choose to examine the merits of Defendant’s
appeal.
-6-
question as a witness for the State with no objection from
Defendant; and defense counsel was also permitted to cross-
examine this witness regarding his testimony.
Further, after the potential juror made the comment, the
trial court instructed the jury to disregard her statement and
that “her comments are not evidence, [and] are not [to] be
considered as evidence.” The trial court further asked the
potential jurors and audience members if the statement “had any
[effect] . . . whatsoever on their ability to fairly consider
the evidence or follow the instructions of the [c]ourt” to which
no one replied that it did.
Accordingly, because Defendant was not substantially and
irreparably prejudiced by the juror’s statement, the trial court
did not abuse its discretion in denying Defendant’s motion for a
mistrial. We find no error in Defendant’s trial.
NO ERROR.
Judge STROUD and Judge HUNTER, JR. concur.
Report Per Rule 30(e).