State v. Falk

HEDRICK, Judge.

Defendant first contends the court erred in denying his motion for a “mistrial.” While defendant’s counsel was cross-examining the State’s witness Buck, the witness said that he recognized the faces of two of the jurors. The district attorney had not given Buck’s name to the defendant along with the other names of the State’s witnesses before the trial commenced. Defendant now argues, as he did before the trial judge, that the State’s failure to include Buck in its list of witnesses prejudiced the defendant in the selection of the jury. We do not agree. Ordinarily a motion for a mistrial is addressed to the discretion of the trial court, and the judge’s ruling thereon is not reviewable on appeal in the absence of a showing of an abuse of discretion. 4 Strong, N. C. Index 3d, Criminal Law § 128.1 (1976). Defendant has shown no abuse of discretion in the court’s denial of his motion for a mistrial in the present case.

Defendant contends the court erred in allowing Moore, over defendant’s objection, to testify that defendant offered to sell him some “junk” or “smack,” and that “smack” was heroin. Defendant argues that the challenged testimony was irrelevant and prejudicial to his case in the minds of the jurors. We do not agree. Moore was merely allowed to describe what transpired in the automobile with respect to the defendant and the other occupants immediately before the robbery. We think that the challenged testimony was relevant as a part of the chain of circumstances leading up to the robbery and was competent to develop properly the evidence at trial. State v. Jenerett, 281 N.C. 81, 187 S.E. 2d 735 (1972); State v. Christopher, 258 N.C. 249, 128 S.E. 2d 667 (1962).

Finally defendant argues that the court erred in allowing Moore to testify that “ . . . Officer Flowers had to pull out his revolver and handcuff the defendant. I don’t know if he had handcuffed the defendant or not, but he handcuffed somebody.” We recognize that the statement challenged by this exception was the conclusion of the witness, but we perceive no prejudice whatsoever in the court’s failure to strike the testimony.

We hold the defendant had a fair trial free from prejudicial error.

No error.

Judges Morris and Arnold concur.