{ "id": 8525844, "name": "STATE OF NORTH CAROLINA v. CLARENCE C. MALONE, JR.", "name_abbreviation": "State v. Malone", "decision_date": "1984-01-03", "docket_number": "No. 8314SC315", "first_page": "782", "last_page": "787", "citations": [ { "type": "official", "cite": "65 N.C. App. 782" } ], "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": "199 S.E. 2d 423", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "284 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559866 ], "year": 1973, "pin_cites": [ { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0041-01" ] }, { "cite": "29 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "224 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596113 ], "opinion_index": 0, "case_paths": [ "/nc/224/0128-01" ] }, { "cite": "134 S.E. 2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "261 N.C. 17", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571554 ], "opinion_index": 0, "case_paths": [ "/nc/261/0017-01" ] }, { "cite": "141 S.E. 2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "264 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572632 ], "opinion_index": 0, "case_paths": [ "/nc/264/0277-01" ] }, { "cite": "81 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1954, "pin_cites": [ { "page": "365" }, { "page": "368" } ], "opinion_index": 0 }, { "cite": "240 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596105 ], "year": 1954, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0171-01" ] }, { "cite": "268 S.E. 2d 173", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "179" } ], "opinion_index": 0 }, { "cite": "300 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564153 ], "year": 1980, "pin_cites": [ { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0610-01" ] }, { "cite": "279 S.E. 2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566532, 8566566, 8566600, 8566636, 8566489 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0399-02", "/nc/302/0399-03", "/nc/302/0399-04", "/nc/302/0399-05", "/nc/302/0399-01" ] }, { "cite": "272 S.E. 2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "787" } ], "opinion_index": 0 }, { "cite": "50 N.C. App. 173", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2673169 ], "year": 1980, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc-app/50/0173-01" ] }, { "cite": "192 S.E. 2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565795, 8565766, 8565736, 8565816, 8565850 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0426-03", "/nc/282/0426-02", "/nc/282/0426-01", "/nc/282/0426-04", "/nc/282/0426-05" ] }, { "cite": "192 S.E. 2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "35" } ], "opinion_index": 0 }, { "cite": "16 N.C. App. 272", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550199 ], "year": 1972, "pin_cites": [ { "page": "275" } ], "opinion_index": 0, "case_paths": [ "/nc-app/16/0272-01" ] }, { "cite": "254 S.E. 2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 740", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571176 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0740-01" ] }, { "cite": "250 S.E. 2d 279", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "299" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550498 ], "year": 1978, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0077-01" ] }, { "cite": "124 S.E. 2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "256 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573643 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/256/0494-01" ] }, { "cite": "154 S.E. 604", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1930, "opinion_index": 0 }, { "cite": "199 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599333 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/nc/199/0278-01" ] }, { "cite": "235 S.E. 2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "231", "parenthetical": "quoting State v. Beal, 199 N.C. 278, 154 S.E. 604 (1930)" } ], "opinion_index": 0 }, { "cite": "293 N.C. 34", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561330 ], "year": 1977, "pin_cites": [ { "page": "43", "parenthetical": "quoting State v. Beal, 199 N.C. 278, 154 S.E. 604 (1930)" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0034-01" ] }, { "cite": "277 S.E. 2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "548" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 613", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2644403 ], "year": 1981, "pin_cites": [ { "page": "617" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0613-01" ] }, { "cite": "50 L.Ed. 2d 830", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1978, "opinion_index": 0 }, { "cite": "434 U.S. 497", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6185127 ], "weight": 10, "year": 1978, "pin_cites": [ { "page": "511" }, { "page": "732" }, { "page": "833" } ], "opinion_index": 0, "case_paths": [ "/us/434/0497-01" ] }, { "cite": "273 S.E. 2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562692, 8562666, 8562768, 8562713, 8562747 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0096-02", "/nc/301/0096-01", "/nc/301/0096-05", "/nc/301/0096-03", "/nc/301/0096-04" ] }, { "cite": "268 S.E. 2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "92" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 376", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549733 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "383-84" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0376-01" ] }, { "cite": "195 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558300 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0191-01" ] } ], "analysis": { "cardinality": 668, "char_count": 12576, "ocr_confidence": 0.82, "pagerank": { "raw": 9.924182260346764e-08, "percentile": 0.5362042343009187 }, "sha256": "4a02a16cd3ac7d3671dc9930fa1457dbbbe6cb2127ae04318414c22c5efeabb5", "simhash": "1:e92b456a4407cad4", "word_count": 2145 }, "last_updated": "2023-07-14T21:11:09.312138+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Webb concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CLARENCE C. MALONE, JR." ], "opinions": [ { "text": "HILL, Judge.\nOn 15 August 1981 defendant was charged with the offense of driving under the influence of intoxicating liquor in violation of G.S. 20-138(a). Defendant was convicted of the lesser included offense of operating a motor vehicle upon the public street or highways of the State of North Carolina with a blood alcohol content of 0.10% or more in violation of G.S. 20438(b), and appealed to superior court. Defendant, who is an attorney, was represented by two members of his law firm. When the case originally was called for trial in superior court, the State presented a written motion to disqualify defense counsel. The court did not rule on the motion, but permitted defense counsel to withdraw and granted defendant\u2019s pro se request for continuance. The second time the case was called for trial it resulted in a mistrial because the jury could not agree upon a verdict.\nThe case subsequently was called a third time, and the same attorneys from defendant\u2019s law firm appeared as counsel. No motion to disqualify defense counsel was made. The State called as a witness one of defendant\u2019s attorneys, who previously had been subpoenaed by the State. At the conclusion of his testimony, the court on its own motion ordered defense counsel disqualified from further participation in the case, declared a mistrial, and rescheduled the case for a later date.\nWhen the case was called for trial again defendant made a motion to dismiss on grounds of double jeopardy. The motion was denied. The trial proceeded, and the jury found defendant guilty. Defendant appeals from the conviction and judgment.\nDefendant first contends that the court erred in denying his motion to dismiss on grounds of double jeopardy. He argues that the court did not have authority under G.S. 15A-1063 to declare a mistrial after the testimony of his attorney.\nIt is a basic precept of the common law, guaranteed by the Federal and State Constitutions, that no person may be twice put in jeopardy of life or limb for the same offense. U.S. Const. Amend. V; N.C. Const. Art. 1, \u00a7 19; State v. Cameron, 283 N.C. 191, 195 S.E. 2d 481 (1973); State v. Cooley, 47 N.C. App. 376, 268 S.E. 2d 87, appeal dismissed, 301 N.C. 96, 273 S.E. 2d 442 (1980). A defendant\u2019s cherished right to have his liberty or life legally imperilled only once for a criminal charge does not, however, necessarily preclude retrial when previous proceedings against him have failed to conclude in a judgment of either conviction or acquittal. Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed. 2d 717 (1978). See generally Annot., 50 L.Ed. 2d 830. 841-42 (1978); 21 Am. Jur. 2d Criminal Law \u00a7 194, at 246 (1965).\nState v. Williams, 51 N.C. App. 613, 617, 277 S.E. 2d 546, 548 (1981).\nG.S. 15A-1063(1) provides that the court may declare a mistrial on its own motion if \u201c[i]t is impossible for the trial to proceed in conformity with law.\u201d Prior to the enactment of G.S. 15A-1063 a court could declare a mistrial, over defendant\u2019s objection, due to \u201ca physical necessity or the necessity of doing justice.\u201d State v. Shuler, 293 N.C. 34, 43, 235 S.E. 2d 226, 231 (1977) (quoting State v. Beal, 199 N.C. 278, 154 S.E. 604 (1930)); see also State v. Birckhead, 256 N.C. 494, 124 S.E. 2d 838 (1962).\nThus, we must decide whether G.S. 15A-1063G) gives the court authority to declare a mistrial when one of defendant\u2019s attorneys testified for the State. A similar case is State v. Cooley, 47 N.C. App. 376, 268 S.E. 2d 87, disc. rev. denied and appeal dismissed, 301 N.C. 96, 273 S.E. 2d 442 (1980). In Cooley testimony was admitted showing that someone other than defendant or his attorney had bribed some of the jurors. The Court held that a court had authority under G.S. 15A-1063G) to declare a mistrial\nwhere it could reasonably conclude that a fair and impartial trial in accordance with law could not be had. As we view the language of these sections, the draftsman\u2019s comments, and the prior case law of this State, we do not believe the General Assembly intended to so limit the authority of trial judges to require that jury trials in criminal cases be free of improper influence. We believe the General Assembly intended to permit trial judges to grant mistrials in cases such as the one sub judice under G.S. 15A-1063G), if constitutionally allowable.\n47 N.C. App. at 383-84, 268 S.E. 2d at 92.\nA court has the authority to declare a mistrial because the conduct of the attorneys prejudices the fair consideration of the issues by the jury. Arizona v. Washington, 434 U.S. 497, 54 L.Ed. 2d 717, 98 S.Ct. 824 (1978). Further, the North Carolina Code of Professional Responsibility provides that:\nIf, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.\nDR 5-102(B) (1974). Although matters relating to attorneys ordinarily are handled by the State Bar, courts also have authority in this area. Swenson v. Thibaut, 39 N.C. App. 77, 109, 250 S.E. 2d 279, 299 (1978), disc. rev. denied and appeal dismissed, 296 N.C. 740, 254 S.E. 2d 181 (1979); In re Bonding Co., 16 N.C. App. 272, 275, 192 S.E. 2d 33, 35, cert. denied and appeal dismissed, 282 N.C. 426, 192 S.E. 2d 837 (1972).\nHere, the court found that \u201cthrough the testimony of [defendant\u2019s attorney] some matter has been established by the State that is prejudicial to [defendant].\u201d The court then declared a mistrial. A ruling on a motion for a mistrial is \u201caddressed to the sound discretion of the trial judge, and his ruling on the motion will not be disturbed on appeal absent a gross abuse of that discretion.\u201d State v. Allen, 50 N.C. App. 173, 176, 272 S.E. 2d 785, 787 (1980), appeal dismissed, 302 N.C. 399, 279 S.E. 2d 353 (1981); see also State v. McCraw, 300 N.C. 610, 620, 268 S.E. 2d 173, 179 (1980).\nThe attorney\u2019s testimony conflicted with the arresting officer\u2019s testimony as to what happened on the night defendant was arrested. If the jury chose to believe the officer, then the attorney\u2019s credibility, not only as a witness but as an attorney, was lessened considerably. Also, since the attorney had been subpoenaed prior to trial, defendant had notice that his attorney would be called as a witness and could have taken steps to avoid the situation. The court determined that the testimony did in fact prejudice defendant. As the United States Supreme Court once stated, \u201cthe overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge\u2019s evaluation [of whether a mistrial is necessary].\u201d Arizona v. Washington, supra, 434 U.S. at 511, 54 L.Ed. 2d at 732, 98 S.Ct. at 833. We find no abuse of discretion and thus hold that the court did not err in declaring a mistrial.\nDefendant contends the court erred in admitting testimony relating to the offense of driving under the influence. Specifically, defendant contends the court should not have allowed evidence concerning defendant\u2019s operation of the vehicle prior to the time he was stopped and of his behavior after he was stopped. He contends this was not relevant to the offense of operating a motor vehicle upon the public street or highways of the State of North Carolina with a blood alcohol content of 0.10% or more.\n\u201cThe general rule is that in a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense.\u201d State v. McClain, 240 N.C. 171, 173, 81 S.E. 2d 364, 365 (1954). On the other hand, the mere fact that evidence tends to prove the commission of another crime does not automatically mean the evidence must be excluded. Id. at 177, 81 S.E. 2d at 368. As our Supreme Court once stated:\nEvidence is relevant if it has any logical tendency to prove a fact at issue in a case, Stansbury N.C. Evidence 2d Ed. \u00a7 77, and in a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible. State v. Hamilton, 264 N.C. 277, 141 S.E. 2d 506; State v. Knight, 261 N.C. 17, 134 S.E. 2d 101; State v. Ham, 224 N.C. 128, 29 S.E. 2d 449.\nState v. Arnold, 284 N.C. 41, 47, 199 S.E. 2d 423, 427 (1973).\nHere, the fact in issue was whether defendant had a blood alcohol content of 0.10% or more. Although defendant registered a 0.10 on the breathalyzer test, there also was evidence that defendant had not had anything to drink in over three hours. The evidence complained of tended to substantiate the results of the breathalyzer test. Thus, it was admissible.\nDefendant\u2019s next contention is that the court erred in sustaining the State\u2019s objections to questions directed to the arresting officer on cross-examination. The questions pertained to the actions of the officer in crossing the dividing line of the highway and any instructions he gave defendant after he was stopped. Defendant contends the evidence was relevant and should have been admitted. Assuming, arguendo, that the court erred in excluding the testimony, defendant has not met his burden of showing prejudice. Defendant must show that \u201chad the error in question not been committed, a different result would have been reached.\u201d G.S. 15A-1443(a). Since evidence was presented on each of the elements of the offense, it is unlikely a different result would have been reached. Thus, the court did not err in excluding the testimony of the officer.\nDefendant contends the court also erred in excluding testimony of another officer. The relevant portion of the testimony is as follows:\nQ. Would you describe your position as you stood on the bumper of your car?\nObjection.\nSustained.\nQ. If your honor, please \u2014\nCOURT: The objection has been sustained.\nQ. Did you stand up, sit down, or lay down on your bumper, officer?\nObjection.\nSustained.\nDefendant contends this evidence was relevant because it related to the circumstances leading to the surveillance and arrest of defendant. Other evidence was admitted, however, of what the officer saw in the parking lot. Further, defendant has failed to show that \u201ca different result would have been reached\u201d if the jurors had known the position of the officer on the bumper of his car.\nNo error.\nJudges Arnold and Webb concur.", "type": "majority", "author": "HILL, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General James Peeler Smith, for the State.", "C. C. Malone, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CLARENCE C. MALONE, JR.\nNo. 8314SC315\n(Filed 3 January 1984)\n1. Attorneys at Law \u00a7 4; Criminal Law \u00a7 128.2\u2014 testimony for State by defendant\u2019s attorney \u2014 mistrial\nThe trial court did not err in declaring a mistrial when one of defendant\u2019s attorneys, who had been subpoenaed by the State, testified for the State where the attorney\u2019s testimony conflicted with the arresting officer\u2019s testimony as to what happened on the night defendant was arrested for driving under the influence and the attorney\u2019s credibility could be lessened considerably if the jury believed the officer, and where the court found that the attorney\u2019s testimony did in fact prejudice defendant. G.S. 15A-1063G).\n2. Automobiles and Other Vehicles \u00a7 126\u2014 driving with blood alcohol content of .10\u00b0/o or more \u2014 evidence of operation of vehicle and behavior after being stopped\nIn a prosecution in which defendant was convicted of driving with a blood alcohol content of .10% or more by weight, evidence concerning defendant\u2019s operation of the vehicle prior to the time he was stopped and of his behavior after he was stopped was admissible to substantiate the results of a breathalyzer test.\n3. Automobiles and Other Vehicles \u00a7 126\u2014 driving with blood alcohol content of .10% or more \u2014exclusion of testimony \u2014 harmless error\nIn a prosecution in which defendant was convicted of driving with a blood alcohol content of .10% or more by weight, the exclusion of an officer\u2019s testimony as to whether he was standing on the bumper of his car during surveillance of defendant, if error, was not prejudicial to defendant.\nAppeal by defendant from Godwin, Judge. Judgment entered 20 October 1982 in Superior Court, DURHAM County. Heard in the Court of Appeals 28 November 1983.\nDefendant appeals from a suspended sentence of thirty days in jail entered upon his conviction of operating a vehicle upon a highway or public vehicular area within the State of North Carolina when the amount of alcohol in his blood was 0.10% or more by weight.\nAttorney General Edmisten, by Assistant Attorney General James Peeler Smith, for the State.\nC. C. Malone, Jr., for defendant appellant." }, "file_name": "0782-01", "first_page_order": 814, "last_page_order": 819 }