{
  "id": 8524268,
  "name": "STATE OF NORTH CAROLINA v. LILLY LYONS",
  "name_abbreviation": "State v. Lyons",
  "decision_date": "1985-10-29",
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  "provenance": {
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  "casebody": {
    "judges": [
      "Judges BECTON and PARKER concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. LILLY LYONS"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Chief Judge.\nBy her first assignment of error defendant contends she has been subjected to \u201cdouble jeopardy\u201d because her first trial ended when the judge declared a \u201cmistrial.\u201d The record discloses that during the first trial, the State asked defendant on cross-examination a question regarding her prior conviction of killing her husband. Defendant\u2019s counsel made a motion for mistrial which was granted. Defendant, Lilly Lyons, stated that she wanted the trial to proceed. Defendant now argues that the trial judge abused his discretion when, over defendant\u2019s objection, he granted the mistrial. We do not agree.\nDefendant will hardly be heard to complain about the court\u2019s granting her own motion for a mistrial. Assuming, however, that the trial court granted the motion over defendant\u2019s objection, there is nothing in this record to indicate that the trial court abused its discretion in ordering a mistrial.\nUnder G.S. 15A-1063(1) a judge may declare a mistrial, upon a motion of a party or upon his own motion, if \u201c[i]t is impossible for the trial to proceed in conformity with law.\u201d This statute allows a judge, over the defendant\u2019s objection, to grant a mistrial where he could reasonably conclude that the trial will not be fair and impartial. State v. Malone, 65 N.C. App. 782, 310 S.E. 2d 385, disc. rev. denied and appeal dismissed, 311 N.C. 405, 319 S.E. 2d 277 (1984); 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).\nA plea of former jeopardy will not preclude a subsequent trial of a defendant, where the mistrial was ordered, over defendant\u2019s objections, due to \u201cphysical necessity or the necessity of doing justice.\u201d State v. Shuler, 293 N.C. 34, 42-43, 235 S.E. 2d 226, 231 (1977) (citation omitted).\nAn order of a mistrial on a motion of the court 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. Malone, 65 N.C. App. at 785, 310 S.E. 2d at 387 (citations omitted). To ensure that mistrial is declared only for necessity, G.S. 15A-1064 provides: \u201cBefore granting a mistrial, the judge must make finding of facts with respect to the grounds for the mistrial and insert the findings in the record of the case.\u201d The purpose of this statute is to protect the constitutional rights of defendants and to facilitate the process of appellate review. State v. Jones, 67 N.C. App. 377, 313 S.E. 2d 808 (1984).\nIn the present case, the trial court made findings of fact that defendant made a motion to suppress questions by the district attorney relating to a prior conviction of defendant for first degree murder and that this motion had been denied to allow the jurors to consider the conviction as it might relate to defendant\u2019s credibility. The court also found that during cross-examination the district attorney asked a question relating to defendant\u2019s state of mind at the time of the murder of her husband and that defendant asked whether she was being retried for murder. On this basis, the judge\u2019s conclusion that there was a probability that the jury would consider the prior conviction in a manner that would be prejudicial to defendant and thus prevent a fair trial was reasonable. The judge\u2019s findings of fact are sufficient to show necessity for the mistrial. Under these circumstances, we believe that the judge properly exercised his discretion.\nBased on exceptions duly noted in the record and brought forward and argued in her brief, defendant further contends that the trial judge erred in requiring her to proceed without counsel representing her and allowing her to proceed pro se without giving her the instructions provided in G.S. 15A-1242, which in pertinent part provides:\nA defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the defendant:\n(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;\n(2) Understands and appreciates the consequences of this decision; and\n(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.\nIn responding to defendant\u2019s contentions in her brief, the State merely states that the trial judge did not err under this factual situation where \u201cdefendant\u2019s contumacious behavior made it impossible for [her] attorneys ... to effectively represent her.\u201d The State does not respond to defendant\u2019s argument that the trial judge did not comply with G.S. 15A-1242 when defendant chose to undertake to represent herself.\nWe have held that the provisions of G.S. 15A-1242 are mandatory in every case where defendant requests to proceed pro se. State v. Michael, 74 N.C. App. 118, 327 S.E. 2d 263 (1985). In the present case, although the trial judge had a lengthy discussion with defendant regarding the case, he did not advise her of the consequences of her decision to proceed pro se or the nature of the charges and proceedings and the range of permissible punishments. Because of this error, defendant is entitled to a new trial.\nThe judgment is reversed and the cause remanded to superior court for a new trial.\nNew trial.\nJudges BECTON and PARKER concur.",
        "type": "majority",
        "author": "HEDRICK, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General Doris J. Holton, for the State.",
      "Appellate Defender Adam Stein, by Assistant Appellate Defender Geoffrey C. Mangum, for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. LILLY LYONS\nNo. 8510SC349\n(Filed 29 October 1985)\n1. Criminal Law \u00a7 128.2\u2014 improper question on cross-examination of defendant \u2014 mistrial\nThe trial court did not abuse its discretion in granting defense counsel\u2019s motion for a mistrial in a prosecution for assault on a school teacher when the prosecutor asked defendant a question on cross-examination relating to her state of mind at the time she murdered her husband and defendant asked whether she was being retried for murder, even though defendant stated that she wanted the trial to proceed, where the court had ruled that the jury could consider defendant\u2019s prior murder conviction only as it might relate to defendant\u2019s credibility, and the court determined that under the circumstances there was a probability that the jury would consider defendant\u2019s prior conviction in a manner prejudicial to defendant and thus prevent a fair trial.\n2. Constitutional Law \u00a7 49\u2014 defendant appearing pro se \u2014 failure to give statutory instructions\nThe trial court erred in allowing defendant to proceed pro se without giving her the instructions provided in G.S. 15A-1242 notwithstanding the court had a lengthy discussion with defendant regarding the case.\nAPPEAL by defendant from Barnette, Judge. Judgment entered 10 December 1984 in Superior Court, WAKE County. Heard in the Court of Appeals 16 October 1985.\nDefendant was charged in a proper warrant with assault on a school teacher when the \u201cschool teacher was attempting to discharge a duty of her office,\u201d in violation of G.S. 14-33. After a trial by a jury, defendant was found guilty as charged and appealed from a judgment imposing a jail sentence of six months.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Doris J. Holton, for the State.\nAppellate Defender Adam Stein, by Assistant Appellate Defender Geoffrey C. Mangum, for defendant, appellant."
  },
  "file_name": "0565-01",
  "first_page_order": 597,
  "last_page_order": 600
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