State v. Marino

386 S.E.2d 72 (1989)

96 N.C. App. 506

STATE of North Carolina v. Ernest John MARINO.

No. 8912SC743.

Court of Appeals of North Carolina.

December 5, 1989.

*73 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Teresa L. White, Raleigh, for the State.

Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Teresa A. McHugh, Raleigh, for defendant-appellant.

WELLS, Judge.

At trial while defendant's mother was testifying for the defense, defendant engaged in an intemperate and profane outburst. During the defendant's misconduct, the trial court excused the jury, but defendant's misconduct continued briefly. Following a bench conference, defendant moved for a mistrial, asserting his own misconduct as the basis for his motion. The trial court denied his motion.

Defendant's first assignment of error is to the denial of his motion for a mistrial. The decision whether or not to grant a mistrial is within the sound discretion of the trial judge. State v. Calloway, 305 N.C. 747, 291 S.E.2d 622 (1982). A mistrial is appropriate only when there are such serious improprieties as to make it impossible for a fair and impartial verdict to be rendered. Id.

Defendant argues that the trial court's ruling was based upon an erroneous recollection of the facts in that the jurors were present and did hear at least some of the profane outburst. The record, however, shows that the court stated it would probably deny the motion even if the jurors were present and heard the entire outburst.

We cannot say that the court abused its discretion in denying the motion. If defendant was prejudiced in the eyes of the jury by his own misconduct, he cannot be heard to complain. In addition, the evidence of defendant's guilt was overwhelming and it is unlikely that the outburst prevented him from receiving a fair and impartial verdict. State v. Blackstock, 314 N.C. 232, 333 S.E.2d 245 (1985).

Defendant also contends that the court erred in failing to find as a statutory mitigating factor that defendant was suffering from a mental or physical condition that was insufficient to constitute a defense but which significantly reduced his culpability for the offense. He argues the evidence was uncontradicted that he had a drug habit requiring him to steal in order to support the habit and that he suffered from endocarditis. Although the evidence may have shown that defendant did have these conditions, no evidence was presented to show that his culpability for the offenses was reduced by these conditions. The court therefore properly refused to make the finding. State v. Arnette, 85 N.C.App. 492, 355 S.E.2d 498 (1987); State v. Grier, 70 N.C.App. 40, 318 S.E.2d 889 (1984), cert. denied, 318 N.C. 698, 350 S.E.2d 860 (1986).

On the errors assigned we find

No error.

PARKER and GREENE, JJ., concur.