STATE OF NORTH CAROLINA v. VICTOR BYRON MOOSE, 115 N.C. App. 707

LEWIS, Judge. Defendant was indicted, tried and convicted on two counts of felonious incest, two counts of first degree statutory rape, and two counts of taking indecent liberties with a child. He was sentenced to serve two consecutive life terms. From these judgments, defendant appeals. The indictments arise from acts charged against defendant on two occasions involving defendant’s thirteen-year-old stepdaughter. The stepdaughter testified at trial that defendant on both occasions had sexual relations with her. This testimony was corroborated by others to whom the child gave the information.

There was also evidence that defendant had involved her in sexual activities for several years. Before the beginning of trial, defendant moved to exclude any mention of “any polygraph or talk of a polygraph, because at one time there was talk of Mr. Moose taking a polygraph, but it was not administered.” The following exchange took place during the hearing on the defendant’s motion: The Court: Mr. Carroll [the district attorney], do you want to introduce any evidence about any polygraphs? Mr. Carroll: Well, under case law, your Honor, I think whether or not he was offered a polygraph would be admissible. Mr.

Lind [the defense attorney]: We would object to that, whether he was offered a polygraph. We would say that’s not relevant in the case, and we would strenuously object to that, because that’s not even — a polygraph would not be admissible in evidence. The Court: Mr. Carroll, if you get near any polygraph mentions, let me know, and we’ll do an in camera hearing, and I’ll rale on it at that time. It could conceivably be admissible, but the chance of prejudice is so great. Mr. Carroll: I understand. The Court: Warn me before you get to that point.

Thereafter the trial began and on re-direct examination of a prosecution witness, Mr. Carroll asked three questions regarding the prosecuting witness’ statements to police and whether or not they were false. The witness answered that she saw no reason to believe the child had falsely reported sexual abuse. The district attorney then asked the following questions: Q. During the course of the interview, was he offered a polygraph examination? Mr. Lind: Objection. Move to strike. The Court: Sustained. Mr. Lind: Motion for mistrial. The Court: Denied. Motion to strike is allowed.

Ladies and gentlemen, disregard anything about any mention of that last question. Go ahead. No answer was recorded as being given from the witness. The judge refused to grant a mistrial, and defendant urges reversal on the basis that this was an abuse of the judge’s discretion. We agree. It is clear that the law of this state does not mandate reversal upon the mere mention of a polygraph. State v. Willis, 109 N.C. App. 184, 426 S.E.2d 471, disc. review denied, 333 N.C. 795, 431 S.E.2d 29 (1993).

However, here the Assistant District Attorney was twice clearly warned by the judge and instructed not to bring it up without having first consulted the judge and he indicated that he understood. We find the district attorney’s subsequent actions to be inexcusable. Certainly all would agree that such a deliberately offensive act would provide grounds for sanctions by the trial judge.

Furthermore, immediately after their initial discussion of the polygraph, the court ruled that it would sustain defendant’s motion “at this time.” Because the judge had sustained defendant’s motion, we find that the district attorney’s mention of the polygraph constituted reversible error. We conclude that the trial judge abused his discretion in denying the motion for a mistrial. Other matters asserted as issues in this case may not recur on retrial. Reversed. New trial. Judge JOHN concurs. Judge ORR dissents.