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[T] State v. Hair12/16/2003
e that defendant has failed to meet his burden of establishing any constitutional error. State v. Upchurch, 332 N.C. 439, 457, 421 S.E.2d 577, 587 (1992). Moreover, even assuming there was error in the trial judge's contact with the juror, the error was harmless beyond a reasonable doubt. Id. Defendant's sixth assignment of error is overruled.
By his seventh assignment of error, defendant excepts to the trial court's denial of his motion for a mistrial, made after Officer Russ mentioned "polygraphs" in response to the prosecutor's question concerning Officer Russ' reasons for excluding Harden and Musselwhite as suspects. Defendant correctly notes the trial court "must declare a mistrial upon the defendant's motion 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." N.C. Gen. Stat. ยง 15A-1061 (2001). However, " hether a motion for mistrial should be granted is a matter which rests in the sound discretion of the trial judge, and a mistrial is appropriate only when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law." State v. Calloway, 305 N.C. 747, 754, 291 S.E.2d 622, 627 (1982) (internal citations omitted). Every reference to a polygraph does not necessarily result in prejudicial error requiring a mistrial. State v. Montgomery, 291 N.C. 235, 244, 229 S.E.2d 904, 909 (1976). The transcript in the present case reveals the following exchange between the prosecutor and Officer Russ:
Q: Likewise, you talked to Tommy Musselwhite and Ricky Harden?
A: Yes, sir.
Q: Were they suspects in the early stages of this investigation?
A: Yes, sir.
Q: Were they eventually excluded?
A: Yes, sir.
Q: Can you tell us why?
A: They were excluded through alibi's and polygraphs.
MR. THOMPSON: Well ---
Q: Did you ----
MR. THOMPSON: ---- object and move to strike as to any polygraphs.
THE COURT: Objection sustained. Members of the jury, disregard any statement made by the witness about any polygraph.
The prosecutor then continued his re-direct examination of Officer Russ and called two more witnesses before defendant moved for a mistrial the following day.
Based on this record, we are unable to conclude that the trial court abused its discretion by failing to find that defendant suffered substantial and irreparable prejudice from Officer Russ' mention of "polygraphs" in his testimony and denying defendant's motion for a mistrial. The trial court granted defendant's motion to strike that portion of Officer Russ' testimony, gave a curativeinstruction, and offered to give an additional instruction if requested by defendant to do so. Jurors are presumed to heed a trial judge's cautionary instruction to disregard all testimony about a polygraph. State v. Rogers, 355 N.C. 420, 452-53, 562 S.E.2d 859, 880 (2002). Defendant's seventh assignment of error is without merit.
Defendant's brief contains a heading purporting to bring forth an eighth assignment of error. However, because defendant's brief contains no reason or argument in support thereof, we deem this assignment of error to be abandoned. See N.C.R. App. P. 28(b)(5) (2004).
No prejudicial error.
Judges TIMMONS-GOODSON and HUNTER concur .
Report per Rule 30(e).
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