State v. Glover

335 S.E.2d 86 (1985)

STATE of North Carolina v. Herman Lee GLOVER.

No. 8521SC125.

Court of Appeals of North Carolina.

October 15, 1985.

*88 Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen., H.A. Cole, Jr., Raleigh, for the State.

Dan S. Johnson, Winston-Salem, for defendant-appellant.

EAGLES, Judge.

By his sole assignment of error, the defendant contends that the trial court erred when it denied his motion for mistrial, when the motion was based on the admission of defendant's criminal record by incompetent and highly prejudicial evidence which violated the defendant's constitutional right to remain silent. We disagree.

Defendant's only assignment of error is based on two exceptions. However, the exceptions do not appear in the record except under the purported assignment of error. These exceptions are worthless and will not be considered on appeal. Holden v. Holden, 245 N.C. 1, 95 S.E.2d 118 (1956).

Under our former Rules ..., the appeal itself constituted an exception to the judgment and presented for review any error appearing on the face of the record proper. [Citations omitted] Our present Rules of Appellate Procedure, effective 1 July 1975, obliterated the former distinction between the "record proper" and the "settled case on appeal." Instead, the single concept of "record on appeal" is used and the composition of the record on appeal is governed by Rule 9(b), Rules of Appellate Procedure.

State v. Samuels, 298 N.C. 783, 785-86, 260 S.E.2d 427, 429-30 (1979).

The crux of this appeal involves certain testimony of Officer Larry Reavis. The pertinent portions, excerpted from the record, are as follows:

Q. Do you know of your own knowledge whether or not the defendant goes by another name other than Herman Lee Glover? MR. JOHNSON: Object, Your Honor, it would have to be hearsay. COURT: Overruled. A. He had numerous charges in our records division MR. JOHNSON: Your Honor, object. COURT: Sustained. That's not responsive. Members of the jury, don't consider that answer. Q. Simply do you know of your own knowledge whether or not the defendant goes by a name other than Herman Lee Glover? A. I do.

Defense counsel promptly objected, and the trial judge promptly sustained the objection and instructed the jury to disregard the witness' answer. While psychologists may debate a juror's ability to ignore spoken words and erase their impressions from his mind, our legal system through trial by jury operates on the assumption that a jury is composed of men and women of sufficient intelligence to comply with the court's instructions and they are presumed to have done so. State v. Ray, 212 N.C. 725, 194 S.E. 482 (1938). A defendant's motion for mistrial must be granted, as required by G.S. 15A-1061, "if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case." The decision as to whether prejudice has occurred is addressed to the discretion of the trial judge. State v. Rogers, 52 N.C.App. 676, 279 S.E.2d 881 (1981). His decision is not reviewable absent a showing of gross abuse of discretion. State v. Love, 296 N.C. 194, 250 S.E.2d 220 (1978). There is no abuse here.

The witness' nonresponsive statement did not violate the defendant's constitutional right to remain silent and the defendant is not entitled to a new trial. Contrary to defendant's argument, it is clear from the transcript of the defendant's testimony that the defendant took the stand, not to answer the State's evidence regarding other charges, but in order to rebut the *89 State's evidence that he committed the crime.

"A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him."

Harrison v. United States, 392 U.S. 219, 222, 88 S. Ct. 2008, 2010, 20 L. Ed. 2d 1047 (1968).

We find no error in the judgment or in the record on appeal which warrants a new trial.

No error.

JOHNSON and PARKER, JJ., concur.