{ "id": 12139849, "name": "STATE OF NORTH CAROLINA v. VICTOR BYRON MOOSE", "name_abbreviation": "State v. Moose", "decision_date": "1994-08-02", "docket_number": "No. 9318SC455", "first_page": "707", "last_page": "711", "citations": [ { "type": "official", "cite": "115 N.C. App. 707" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "431 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 795", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549696, 2549262, 2548312, 2548187, 2550014 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0795-04", "/nc/333/0795-05", "/nc/333/0795-01", "/nc/333/0795-02", "/nc/333/0795-03" ] }, { "cite": "426 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "109 N.C. App. 184", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524813 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/109/0184-01" ] }, { "cite": "429 S.E.2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "422" } ], "opinion_index": 1 }, { "cite": "110 N.C. App. 155", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525102 ], "year": 1993, "pin_cites": [ { "page": "164" } ], "opinion_index": 1, "case_paths": [ "/nc-app/110/0155-01" ] }, { "cite": "371 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "697" } ], "opinion_index": 1 }, { "cite": "323 N.C. 112", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562327 ], "year": 1988, "pin_cites": [ { "page": "125" } ], "opinion_index": 1, "case_paths": [ "/nc/323/0112-01" ] } ], "analysis": { "cardinality": 420, "char_count": 6852, "ocr_confidence": 0.755, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.3229499094348744 }, "sha256": "f91ca80960da9a6b0da0aaf650fc05b9020a2c96fd19636a969312fde251c9ea", "simhash": "1:1547a1c81f04006f", "word_count": 1109 }, "last_updated": "2023-07-14T22:58:18.676868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JOHN concurs.", "Judge ORR dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. VICTOR BYRON MOOSE" ], "opinions": [ { "text": "LEWIS, Judge.\nDefendant was indicted, tried and convicted on two counts of felonious incest, two counts of first degree statutory rape, and two counts of taking indecent liberties with a child. He was sentenced to serve two consecutive life terms. From these judgments, defendant appeals.\nThe indictments arise from acts charged against defendant on two occasions involving defendant\u2019s thirteen-year-old stepdaughter. The stepdaughter testified at trial that defendant on both occasions had sexual relations with her. This testimony was corroborated by others to whom the child gave the information. There was also evidence that defendant had involved her in sexual activities for several years.\nBefore the beginning of trial, defendant moved to exclude any mention of \u201cany polygraph or talk of a polygraph, because at one time there was talk of Mr. Moose taking a polygraph, but it was not administered.\u201d The following exchange took place during the hearing on the defendant\u2019s motion:\nThe Court: Mr. Carroll [the district attorney], do you want to introduce any evidence about any polygraphs?\nMr. Carroll: Well, under case law, your Honor, I think whether or not he was offered a polygraph would be admissible.\nMr. Lind [the defense attorney]: We would object to that, whether he was offered a polygraph. We would say that\u2019s not relevant in the case, and we would strenuously object to that, because that\u2019s not even \u2014 a polygraph would not be admissible in evidence.\nThe Court: Mr. Carroll, if you get near any polygraph mentions, let me know, and we\u2019ll do an in camera hearing, and I\u2019ll rale on it at that time. It could conceivably be admissible, but the chance of prejudice is so great.\nMr. Carroll: I understand.\nThe Court: Warn me before you get to that point.\nThereafter the trial began and on re-direct examination of a prosecution witness, Mr. Carroll asked three questions regarding the prosecuting witness\u2019 statements to police and whether or not they were false. The witness answered that she saw no reason to believe the child had falsely reported sexual abuse. The district attorney then asked the following questions:\nQ. During the course of the interview, was he offered a polygraph examination?\nMr. Lind: Objection. Move to strike.\nThe Court: Sustained.\nMr. Lind: Motion for mistrial.\nThe Court: Denied. Motion to strike is allowed. Ladies and gentlemen, disregard anything about any mention of that last question. Go ahead.\nNo answer was recorded as being given from the witness. The judge refused to grant a mistrial, and defendant urges reversal on the basis that this was an abuse of the judge\u2019s discretion. We agree.\nIt is clear that the law of this state does not mandate reversal upon the mere mention of a polygraph. State v. Willis, 109 N.C. App. 184, 426 S.E.2d 471, disc. review denied, 333 N.C. 795, 431 S.E.2d 29 (1993). However, here the Assistant District Attorney was twice clearly warned by the judge and instructed not to bring it up without having first consulted the judge and he indicated that he understood. We find the district attorney\u2019s subsequent actions to be inexcusable. Certainly all would agree that such a deliberately offensive act would provide grounds for sanctions by the trial judge. Furthermore, immediately after their initial discussion of the polygraph, the court ruled that it would sustain defendant\u2019s motion \u201cat this time.\u201d Because the judge had sustained defendant\u2019s motion, we find that the district attorney\u2019s mention of the polygraph constituted reversible error. We conclude that the trial judge abused his discretion in denying the motion for a mistrial. Other matters asserted as issues in this case may not recur on retrial.\nReversed. New trial.\nJudge JOHN concurs.\nJudge ORR dissents.", "type": "majority", "author": "LEWIS, Judge." }, { "text": "Judge Orr\ndissenting.\nBecause I disagree with the majority\u2019s holding that the trial judge abused his discretion by denying defendant\u2019s motion for mistrial, I respectfully dissent.\nThe State urges us to find that the trial court did not abuse its discretion, correctly stating that \u201c[w]hether a motion for mistrial should be granted is a matter addressed to the sound discretion of the trial judge. A mistrial is appropriate only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict.\u201d State v. Harris, 323 N.C. 112, 125, 371 S.E.2d 689, 697 (1988).\nThe defendant, on the other hand, bases his argument in large part on the fact that the actions of the prosecutor were in direct violation of the court\u2019s order. While such a deliberate act is inexcusable and certainly would provide grounds for appropriate sanctions by the trial judge to the offending attorney, this Court should base its decision on whether the impropriety of the question made it impossible for the defendant to attain a fair and impartial verdict. The mere mention of an offer of polygraph testing does not necessarily require granting a mistrial. \u201cA motion for a mistrial must be granted if an incident occurs of such a nature that a fair and impartial trial would be impossible under the law.\u201d State v. Harding, 110 N.C. App. 155, 164, 429 S.E.2d 416, 422 (1993). \u201cAbsent a showing of abuse of discretion, the decision of the trial court will not be disturbed on appeal.\u201d Id. Under the facts of this case, I find that the defendant received a fair and impartial trial in spite of the district attorney\u2019s mentiorvof the offer of a polygraph.\nTherefore, I would hold that there was no abuse of discretion in denying the motion for a mistrial.", "type": "dissent", "author": "Judge Orr" } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General David Gordon, for the State.", "Assistant Public Defenders Frederick G. Lind and Richard S. Boulden for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. VICTOR BYRON MOOSE\nNo. 9318SC455\n(Filed 2 August 1994)\nEvidence and Witnesses \u00a7 1788 (NCI4th)\u2014 polygraph evidence excluded \u2014 prosecutor\u2019s subsequent mention of polygraph \u2014 reversible error\nThe trial court abused its discretion in denying defendant\u2019s motion for a mistrial where the assistant district attorney was twice clearly warned by the judge and instructed not to bring up the matter of defendant\u2019s having been offered a polygraph examination; the assistant district attorney indicated that he understood; immediately after the initial discussion of the polygraph, the court ruled that it would \u201csustain defendant\u2019s motion at this time\u201d; the prosecutor subsequently asked a prosecution witness if defendant had been offered a polygraph examination; and because the judge had sustained defendant\u2019s motion, the prosecutor\u2019s mention of the polygraph constituted reversible error.\nAun Jur 2d, Appeal and Error \u00a7\u00a7 797-803.\nJudge Orr dissenting.\nAppeal by defendant from judgment entered 14 January 1993 by Judge William Z. Wood, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 5 January 1994.\nAttorney General Michael F. Easley, by Assistant Attorney General David Gordon, for the State.\nAssistant Public Defenders Frederick G. Lind and Richard S. Boulden for defendant-appellant." }, "file_name": "0707-01", "first_page_order": 739, "last_page_order": 743 }