{ "id": 11080959, "name": "STATE OF NORTH CAROLINA v. MELVIN KEITH SMITH, Defendant", "name_abbreviation": "State v. Smith", "decision_date": "2000-07-05", "docket_number": "No. COA99-302", "first_page": "605", "last_page": "612", "citations": [ { "type": "official", "cite": "138 N.C. App. 605" } ], "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": "165 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "508", "parenthetical": "error for court to fail to rule upon motion to strike made in apt time; \"[t]he right to make [such] motion . . . would be an empty one unless it included the right to have the motion ruled upon\"" } ], "opinion_index": 0 }, { "cite": "3 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555948 ], "year": 1969, "pin_cites": [ { "page": "583", "parenthetical": "error for court to fail to rule upon motion to strike made in apt time; \"[t]he right to make [such] motion . . . would be an empty one unless it included the right to have the motion ruled upon\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/3/0581-01" ] }, { "cite": "265 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "235", "parenthetical": "\"[u]nder particular circumstances of [the instant] case, the failure to rule promptly on . . . meritorious objections . . . constituted reversible error\"" } ], "opinion_index": 0 }, { "cite": "300 N.C. 57", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559759 ], "year": 1980, "pin_cites": [ { "page": "70", "parenthetical": "\"[u]nder particular circumstances of [the instant] case, the failure to rule promptly on . . . meritorious objections . . . constituted reversible error\"" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0057-01" ] }, { "cite": "157 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "678-79" }, { "page": "678-79" } ], "opinion_index": 0 }, { "cite": "272 N.C. 53", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570527 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "56-7" }, { "page": "56-7" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0053-01" ] }, { "cite": "189 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1972, "pin_cites": [ { "page": "585", "parenthetical": "motion for mistrial after verdict of guilty \"comes too late\" and proper motion would have been to \"set aside verdict, and order a new trial\"" }, { "page": "584", "parenthetical": "following verdict, proper course upon motion to \"set aside the verdict\" is to \"order a new trial\"" } ], "opinion_index": 0 }, { "cite": "15 N.C. App. 233", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549224 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "234", "parenthetical": "motion for mistrial after verdict of guilty \"comes too late\" and proper motion would have been to \"set aside verdict, and order a new trial\"" }, { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nc-app/15/0233-01" ] }, { "cite": "72 S.E. 630", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1911, "pin_cites": [ { "page": "632" } ], "opinion_index": 0 }, { "cite": "156 N.C. 468", "category": "reporters:state", "reporter": "N.C.", "year": 1911, "pin_cites": [ { "page": "472" } ], "opinion_index": 0 }, { "cite": "333 S.E.2d 722", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "731", "parenthetical": "quoting Urquhart v. Durham and South Carolina Railroad Co., 156 N.C. 468, 472, 72 S.E. 630, 632 (1911)" } ], "opinion_index": 0 }, { "cite": "314 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686122 ], "year": 1985, "pin_cites": [ { "page": "387-88", "parenthetical": "quoting Urquhart v. Durham and South Carolina Railroad Co., 156 N.C. 468, 472, 72 S.E. 630, 632 (1911)" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0374-01" ] }, { "cite": "312 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "495", "parenthetical": "\"retroactive declaration of a mistrial upon reconsideration has no valid basis in policy or law\"" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 65", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525614 ], "year": 1984, "pin_cites": [ { "page": "68", "parenthetical": "\"retroactive declaration of a mistrial upon reconsideration has no valid basis in policy or law\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0065-01" ] }, { "cite": "519 S.E.2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "99", "parenthetical": "\"sentence actually imposed in this case was the [consecutive] sentence[s] contained in the written judgment\" as opposed to the concurrent terms contained in oral judgment given in open court" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 59", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11238982 ], "year": 1999, "pin_cites": [ { "page": "66-7", "parenthetical": "\"sentence actually imposed in this case was the [consecutive] sentence[s] contained in the written judgment\" as opposed to the concurrent terms contained in oral judgment given in open court" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0059-01" ] }, { "cite": "358 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "335" } ], "opinion_index": 0 }, { "cite": "320 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729461 ], "year": 1987, "pin_cites": [ { "page": "415-16" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0404-01" ] }, { "cite": "311 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "285", "parenthetical": "where trial court passed on motion to suppress in open court during session and in judicial district and later reduced its ruling to writing, signed the order and filed it with the clerk, order was not void as having been entered out of session and out of district" } ], "opinion_index": 0 }, { "cite": "310 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403051 ], "year": 1984, "pin_cites": [ { "page": "278-79" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0274-01" ] }, { "cite": "334 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "236", "parenthetical": "citation omitted" }, { "page": "236", "parenthetical": "Court \"not persuaded\" by argument that defendant \"impliedly consented to . .. order being entered out of session and out of county when he failed to object to the judge's announcement that he would take the case under advisement\"" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527813 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "670", "parenthetical": "citation omitted" }, { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0668-01" ] }, { "cite": "261 S.E.2d 839", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574426 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0319-01" ] }, { "cite": "311 S.E.2d 552", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "556", "parenthetical": "citing State v. Saults, 299 N.C. 319, 261 S.E.2d 839 (1980)" }, { "page": "556" } ], "opinion_index": 0 }, { "cite": "310 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402923 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "288-89", "parenthetical": "citing State v. Saults, 299 N.C. 319, 261 S.E.2d 839 (1980)" }, { "page": "289-90" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0284-01" ] }, { "cite": "446 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552615 ], "year": 1994, "pin_cites": [ { "page": "154" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0150-01" ] } ], "analysis": { "cardinality": 829, "char_count": 16613, "ocr_confidence": 0.769, "pagerank": { "raw": 7.075236354555082e-07, "percentile": 0.9664739141162284 }, "sha256": "ca0e3f57dc4a7ab57d7398e6ea8c1ed40717263801da1316570871d3a872c3e5", "simhash": "1:85e3d4e7376d89e2", "word_count": 2751 }, "last_updated": "2023-07-14T15:09:36.911228+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and HUNTER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MELVIN KEITH SMITH, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant challenges the trial court\u2019s 5 December 1997 order (the Order) denying \u201cDefendant\u2019s Motions For A Mistrial and To Set Aside The Jury Verdict\u201d' (defendant\u2019s motions) as well as the court\u2019s 12 February 1998 judgment (the Judgment). We reverse the trial court\u2019s denial of defendant\u2019s motion to set aside the verdict.\nOn 6 November 1995, defendant was indicted in Rutherford County on a charge of assault with a deadly weapon with intent to kill inflicting serious injury. The alleged offense arose out of an incident involving Joe Simmons (Simmons), a neighbor with whom defendant shared a mutually antagonistic relationship. On 23 January 1996, defendant tendered a guilty plea which was subsequently stricken upon the belated discovery of defendant\u2019s approximately twenty-year-old similar conviction of firing into an occupied vehicle.\nPrior to trial which commenced 13 November 1996, the trial court granted defendant\u2019s motion in limine to prohibit evidence relating to the earlier conviction. On the evening of 14 November 1996, the day the case was submitted to the jury, The Daily Courier, a local newspaper published in Forest City, printed a front page, lead story pertaining to the trial. Included therein was the following:\nAccording to the DA\u2019s office, Smith had been convicted of firing a weapon into an occupied vehicle in 1978 . . . [and] [b]efore the trial began . . . Judge [Guice] accepted a motion from Smith\u2019s attorney to prevent the jury from hearing about the previous conviction.\nThe following morning, in the absence of the jury, defendant alerted the trial court to the article, asserting that the prominent reference in the county newspaper to defendant\u2019s prior conviction, which had been excluded at trial, was inflammatory and highly prejudicial. Defendant then moved for mistrial pursuant to N.C.G.S. \u00a7 15A-1061 (1999), but suggested that the court \u201cconsider postponing a ruling on the motion until after the jury returned] with the verdict.\u201d The trial court inquired, \u201c[y]ou\u2019re making a motion for a mistrial at this time but requesting that the Court take that under advisement\u201d? Defendant\u2019s counsel replied \u201c[y]es, sir.\u201d The court indicated it would \u201ctake the matter under advisement\u201d and allow the jury to resume deliberations. The jury did so at 9:41 a.m. and returned a verdict of guilty as charged at 10:08 a.m. on 15 November 1996.\nIn the absence of the jury, the trial court thereafter indicated it would \u201cproceed on the motion with respect to the jury\u2019s verdict and the motion for a mistrial or a motion to set the verdict aside.\u201d Defendant requested an individual voir dire of the jurors by the trial court regarding the newspaper article. The court complied and several jurors acknowledged the article had been \u201cmentioned\u201d or \u201cdiscussed\u201d in the jury room, but none admitted having seen or read it.\nUpon conclusion of the voir dire, the trial court indicated concern over \u201cconflicting statements\u201d by the jurors and determined that \u201cthe best thing to do is take this entire matter under advisement\u201d and \u201cconsider this whole situation in a little bit calmer atmosphere than I\u2019ve got here right now.\u201d The court thereupon directed the State and defendant to submit briefs and prepare for a second hearing, following which it would resolve defendant\u2019s motions. Defendant was permitted to continue under previously imposed terms and conditions of secured pre-trial release.\nFurther hearing was subsequently conducted 11 July 1997 before the original trial judge, the Honorable Zoro J. Guice, Jr. After receiving evidence and hearing from both the State and defendant, the trial court again took the matter under advisement. On 5 December 1997, the Order was entered denying \u201cDefendant\u2019s Motions For A Mistrial and To Set Aside The Jury Verdict\u201d and directing that defendant appear for a sentencing hearing and imposition of judgment.\nThe sentencing hearing was conducted 12 February 1998. Defendant objected, through a motion for mistrial, that the court lacked authority and power to enter judgment absent an order continuing the 11 November 1996 session of court. In advancing his motion, defendant further asserted the Order was void as having been entered out of session and out of term. The trial court denied the motion and sentenced defendant to minimum and maximum active terms of seventy-five and ninety-nine months respectively. Defendant was denied release pending the instant appeal.\nDefendant contends the trial court erred by entering, out of term and out of session and without consent, both the Order and the Judgment, and that, in any event, the court improperly denied his motions. Preliminarily, we note that, although the words are frequently used interchangeably, \u201cterm\u201d in this jurisdiction generally refers to the typical six-month assignment of superior court judges to a judicial district, while \u201csession\u201d designates the typical one-week assignment to a particular location during the term. Capital Outdoor Advertising v. City of Raleigh, 337 N.C. 150, 154, 446 S.E.2d 289, 291-92 n.1, 2 (1994).\nDefendant relies upon N.C.G.S. \u00a7 15-167 (1999), pursuant to which the trial court may continue a session of court \u201cas long as in [it]s opinion it shall be necessary for the purposes of the case,\u201d in order to complete a case. G.S. \u00a7 15-167. In such instance, the court\nshall cause an order to such effect to be entered in the minutes, which order may be entered at such time as the judge directs, either before or after he has extended the session,\nG.S. \u00a7 15-167, and orders subsequently entered during the time designated in the court\u2019s directive are not subject to a claim of invalidity by reason of having been rendered out of session. See State v. Boone, 310 N.C. 284, 288-89, 311 S.E.2d 552, 556 (1984) (citing State v. Saults, 299 N.C. 319, 261 S.E.2d 839 (1980)) (order pertaining either to pre-trial or post-trial motions entered out of session and out of term is \u201cnull and void and of no legal effect\u201d), and State v. Reid, 76 N.C. App. 668, 670, 334 S.E.2d 235, 236 (1985) (citation omitted) (order entered \u201cout of term and out of county, and without consent of the parties,... is null and void and of no legal effect\u201d); see also N.C.G.S. \u00a7 15A-101(4a) (1999) (\u201cjudgment is entered when sentence is pronounced\u201d), Boone, 310 N.C. at 289-90, 311 S.E.2d at 556 (\u201c[although G.S. \u00a7 15A-101(4a) does not specifically apply to orders . . . the same rule should apply to judgments and orders\u201d; \u201cbetter practice\u201d is for court to announce \u201crulings in open court and direct the clerk to note the ruling in the minutes. . . . When the judge\u2019s ruling is not announced in open court, the order or judgment containing the ruling must be signed and filed with the clerk in the county, in the district and during the session when and where the question is presented\u201d), State v. Horner, 310 N.C. 274, 278-79, 311 S.E.2d 281, 285 (1984) (where trial court passed on motion to suppress in open court during session and in judicial district and later reduced its ruling to writing, signed the order and filed it with the clerk, order was not void as having been entered out of session and out of district), and State v. Smith, 320 N.C. 404, 415-16, 358 S.E.2d 329, 335 (1987) (filing, \u201cover six months post-trial, of a written order denying defendant\u2019s motion to suppress ... is simply a revised written version of the verbal order entered in open court\u201d which likewise denied defendant\u2019s motion; written version merely \u201cwas inserted in the transcript in place of the verbal order rendered in open court\u201d); but see State v. Crumbley, 135 N.C. App. 59, 66-7, 519 S.E.2d 94, 99 (1999) (\u201csentence actually imposed in this case was the [consecutive] sentence[s] contained in the written judgment\u201d as opposed to the concurrent terms contained in oral judgment given in open court).\nThe State does not maintain the trial court entered an order pursuant to G.S. \u00a7 15-167 either at the 11 November 1996 nor 11 July 1997 sessions. Rather the State contends defendant, by failing to object to continuation of either session or to the trial court\u2019s taking defendant\u2019s motions \u201cunder advisement\u201d and by acquiescing in the court\u2019s directive to present written briefs and participating in subsequent proceedings, impliedly consented to the trial court\u2019s entry of the Order and the Judgment out of session and term. But see Reid, 76 N.C. App. at 670, 334 S.E.2d at 236 (Court \u201cnot persuaded\u201d by argument that defendant \u201cimpliedly consented to . .. order being entered out of session and out of county when he failed to object to the judge\u2019s announcement that he would take the case under advisement\u201d); of. N.C.G.S. \u00a7 1A-1, Rule 58 (1994) (\u201cconsent for the signing and entry\u201d of civil \u201cjudgment out of term, session, county and district shall be deemed to have been given\u201d unless express objection made on the record prior to end of session at which matter heard).\nWe assume arguendo, but expressly do not decide, that the Order and Judgment are not invalid by virtue of having been entered out of session and term and thus do not discuss the issue of consent or the implication herein of G.S. \u00a7 15-167. However, we do consider whether, under the circumstances sub judice, denial of defendant\u2019s motion to set aside the verdict following a delay of over one year constituted an abuse of discretion.\nUpon bringing the news article to the attention of the trial court at the 11 November 1996 session, defendant moved for mistrial. The court indicated it was taking the motion under advisement and the jury subsequently returned a verdict. The State properly interjects that a trial court may exercise its mistrial authority in a criminal matter only \u201cduring the trial,\u201d G.S. \u00a7 15A-1061, and\n[t]o retroactively declare a mistrial, after the jury had returned a verdict . . . goes far beyond any concurrence which may be implied from the motion [itself],\nState v. O\u2019Neal, 67 N.C. App. 65, 68, 312 S.E.2d 493, 495 (1984) (\u201cretroactive declaration of a mistrial upon reconsideration has no valid basis in policy or law\u201d).\nNonetheless, it is apparent that both the parties and the trial court considered defendant\u2019s mistrial motion likewise to constitute a motion to set aside the verdict. See State v. Spangler, 314 N.C. 374, 387-88, 333 S.E.2d 722, 731 (1985) (quoting Urquhart v. Durham and South Carolina Railroad Co., 156 N.C. 468, 472, 72 S.E. 630, 632 (1911)) (in criminal case upon \u201cmisconduct on the part of the jury,\u201d trial court is \u201cintrusted with the power and the duty ... to set aside their verdict\u201d). For example, immediately following the jury verdict and defendant\u2019s renewed argument on possible jury contamination, the court specifically referred, without objection, to defendant\u2019s motion as \u201cthe motion for mistrial or a motion to set the verdict aside\u201d (emphasis added). Moreover, upon conclusion of the voir dire questioning of the jurors which followed, the court stated it would take the matter under advisement \u201cuntil [it] decide[d] whether or not [it would] accept th[e] verdict or not accept [the] verdict.\u201d Finally, the Order recited the court\u2019s determination that it found \u201cno basis in fact or in law to support the Defendant\u2019s Motion For a Mistrial or To Set The Jury Verdict aside,\u201d as well as the conclusion that defendant\u2019s \u201cMotion For A Mistrial and his Motion To Set Aside The Jury Verdict should be denied.\u201d\nA motion to set aside a jury verdict may of necessity come only upon return of that verdict. See State v. Daye, 15 N.C. App. 233, 234, 189 S.E.2d 584, 585 (1972) (motion for mistrial after verdict of guilty \u201ccomes too late\u201d and proper motion would have been to \u201cset aside verdict, and order a new trial\u201d). As with a motion for mistrial, a motion to set aside the verdict is addressed to the discretion of the trial court and such ruling will not be disturbed on appeal absent an abuse of discretion. Id.\nNonetheless, even prior to the present criminal and civil procedural codes, our Supreme Court, although in a different context and without the complication present herein of alleged failure to extend the session, expressed a preference for ruling upon a motion to set aside a jury verdict during the session at which the case has been tried:\n[h] earing and determining a motion to set the verdict aside . . . involv[es]... incidents of the trial not likely to be impressed upon the memory of the judge that he may safely act upon them after adjournment.\nGoldston v. Chambers, 272 N.C. 53, 56-7, 157 S.E.2d 676, 678-79 (1967).\nThe trial court stated in the course of the 15 November 1996 voir dire\\\n. . . it\u2019s a terrible situation we\u2019re in because this is absolutely prejudicial information and information which was not allowed to be admitted during the trial and here it is on the front page of the newspaper.\n(emphasis added).\nImmediately following the examination, the court observed that\n[w]hat we\u2019ve got is conflicting statements from jurors; some of them say that [the article] wasn\u2019t mentioned, some of them said that certain jurors mentioned it, those jurors say they didn\u2019t.\nSee N.C.G.S. \u00a7 8C-1, Rule 606(b) (1999) (\u201c[u]pon an inquiry into the validity of a verdict,\u201d jurors \u201cmay testify on the question whether extraneous prejudicial information was improperly brought to the jury\u2019s attention\u201d).\nSignificantly, however, when taking the matter up again upon commencement of the 11 July 1997 hearing, the trial court understandably acknowledged:\nI have a vague recollection of this case and of the trial. There\u2019s been a lot of water over the dam since then, Buncombe County, Mecklenburg County, and wherever else. And this is my first chance to look at this file since the last day of that trial.\nNonetheless, following the hearing, the matter once again was taken under advisement.\nThe trial court ultimately entered the Order denying defendant\u2019s motions 5 December 1997, finding, inter alia, that \u201cthe record is totally and completely devoid of any evidence which would even suggest any prejudice to the Defendant.\u201d We are obliged to contrast the foregoing with the court\u2019s observations approximately one year earlier immediately following the voir dire when its opportunity to assess the credibility of individual jurors was fresh.\nIn short, in light of the substantial lapse of time between the 11 November 1996 session and the 5 December 1997 entry of the Order, during which time \u201cimpress [ion] upon the memory of the [trial] judge\u201d of \u201cincidents of the trial,\u201d Goldston, 272 N.C. at 56-7, 157 S.E.2d at 678-79, had quite naturally diminished and in the court\u2019s word become \u201cvague,\u201d we hold the trial court abused its discretion in denying defendant\u2019s motion to set aside the jury verdict. See Duke Power Co. v. Winebarger, 300 N.C. 57, 70, 265 S.E.2d 227, 235 (1980) (\u201c[u]nder particular circumstances of [the instant] case, the failure to rule promptly on . . . meritorious objections . . . constituted reversible error\u201d); see also Sullivan v. Johnson, 3 N.C. App. 581, 583, 165 S.E.2d 507, 508 (1969) (error for court to fail to rule upon motion to strike made in apt time; \u201c[t]he right to make [such] motion . . . would be an empty one unless it included the right to have the motion ruled upon\u201d). Accordingly, the Order is reversed and the Judgment subsequently entered in reliance thereon vacated, and this matter is remanded to the trial court for a new trial. See Daye, 15 N.C. App. at 234, 189 S.E.2d at 584 (following verdict, proper course upon motion to \u201cset aside the verdict\u201d is to \u201corder a new trial\u201d).\nReversed in part, vacated in part, and remanded for new trial.\nJudges McGEE and HUNTER concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Jane Ammons Gilchrist, for the State.", "Teddy and Meekins, P.L.L.G., by David R. Teddy, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MELVIN KEITH SMITH, Defendant\nNo. COA99-302\n(Filed 5 July 2000)\nCriminal Law\u2014 motion for mistrial \u2014 treated as motion to set aside verdict \u2014 one-year delay\nIn an assault with a deadly weapon case where both parties and the trial court considered defendant\u2019s motion for a mistrial that requested the Court to take the motion under advisement until after the jury returned its verdict to also constitute a motion to set aside the verdict, the trial court abused its discretion by denying defendant\u2019s motion to set aside the verdict following a delay of over one year because the trial judge had vague recollections of the trial.\nAppeal by defendant from judgment entered 12 February 1998 by Judge Zoro J. Guice, Jr. in Rutherford County Superior Court. Heard in the Court of Appeals 27 January 2000.\nAttorney General Michael F. Easley, by Assistant Attorney General Jane Ammons Gilchrist, for the State.\nTeddy and Meekins, P.L.L.G., by David R. Teddy, for defendant-appellant." }, "file_name": "0605-01", "first_page_order": 635, "last_page_order": 642 }