State v. McDougald, ___ N.C. App. ___, 2021-NCCOA-424 (Aug. 17, 2021)

In this armed robbery case, the trial court did not err by denying the defendant’s motion for a mistrial based upon a detective testifying that he had retrieved from the “jail archive” photographs used for a lineup where the victim identified the defendant.  The court noted that G.S. 15A-1061 mandates that a trial judge declare a mistrial if there occurs during trial an error resulting in substantial and irreparable prejudice to the defendant’s case.  Otherwise, declaring a mistrial is in the trial court’s discretion.  The court explained that while the detective’s testimony arguably indicated to the jury indirectly that the defendant had a criminal history, the testimony was not prejudicial because the defendant himself directly informed the jury of his criminal history on direct and cross-examination.  The court went on to conclude that even if the testimony was prejudicial, the trial court cured any prejudice by sustaining the defendant’s objection and instructing the jury to disregard the detective’s statement. 

The court dismissed without prejudice the defendant’s IAC claim based upon defense counsel’s failure to challenge the photographic lineup’s compliance with the Eyewitness Identification Reform Act because the record on direct appeal was insufficient to assess the claim.