STATE OF NORTH CAROLINA
v. Granville County
Nos. 95 CRS 4516
SCOTT DEON BROOKS 01 CRS 1728
Attorney General Roy Cooper, by Special Deputy Attorney
General Lars F. Nance, for the State.
Samuel L. Bridges for defendant appellant.
McCULLOUGH, Judge.
Defendant was charged with possession of a Schedule II
controlled substance. The State's evidence tended to show that on
13 April 2001, Deputy R.E. Winesett of the Granville County
Sheriff's Department served an arrest warrant on defendant at his
residence. Deputy Winesett brought defendant before a magistrate
and took him to the jail booking area. Officer Allen and Sergeant
Boyd were in the booking area, which is a secured area within the
jail. Detective Winesett did not observe any items on the booking
station counter when he brought defendant to the counter for
booking. As part of booking, defendant emptied his pockets and
placed a pack of Newport cigarettes on the counter. Detective
Winesett remembered defendant having the green and white pack ofcigarettes with him at his residence.
Officer Allen took defendant's cigarettes to the control room
to destroy them because the jail is a non-smoking environment. In
the cigarette pack, Officer Allen found a folded piece of paper
containing what appeared to be a rock of crack cocaine. Officer
Allen immediately returned to the booking area with the pack of
cigarettes and reported her discovery to Sergeant Boyd. Sergeant
Boyd set the cigarette pack containing the rock of crack cocaine by
the computer until Investigator Noblin arrived to conduct a field
test of the off-white rock substance. The substance tested
positive for cocaine.
Johnny Kimball, who was incarcerated at the Granville County
Jail on forgery charges, testified on defendant's behalf. Kimball
testified that while he was cleaning in the booking area, he saw
defendant at the desk placing his personal items, including a
“green and white cigarette pack,” on the counter. Defendant
testified that he was arrested by Deputy Winesett on a
communicating threats domestic warrant and taken to the Granville
County Jail. He testified that Officer Allen “check[ed] my
cigarettes right there in front of me. And she threw them in the
trash can.” Defendant further testified that when Sergeant Boyd
told him about the drugs found in the cigarette pack, he told
Sergeant Boyd they could not have been his.
Defendant first contends the evidence as submitted to the jury
was insufficient with regard to his possession or control of the
cigarette pack in which the contraband was found. Defendant argueshis insufficiency of the evidence claim is reviewable pursuant to
N.C. Gen. Stat. § 15A-1227(d) (2001) even though he did not move to
dismiss or object to the evidence at trial. We disagree.
N.C.R. App. P. 10(b)(3) (2002) provides that a defendant who
fails to make a motion to dismiss at the close of all of the
evidence may not attack on appeal the sufficiency of the evidence
at trial. Our Supreme Court has held that “'[t]o the extent that
N.C.G.S. 15A-1446(d)(5) is inconsistent with N.C.R. App. P.
10(b)(3), the statute must fail.'” State v. Spaugh, 321 N.C. 550,
552, 364 S.E.2d 368, 370 (1988) (quoting State v. Stocks, 319 N.C.
437, 439, 355 S.E.2d 492, 493 (1987)). Accordingly, this
assignment of error is dismissed.
Defendant next assigns error to the trial court giving “non-
standard, confusing and erroneous preliminary instructions to the
jury prior to trial.” After the jury was impaneled, the trial
court told the jury that evidence would come in the form of
testimony from witnesses, admissions of parties and physical
exhibits; that exhibits would be given to the jury to be examined,
that the lawyers had a right to object to evidence; and that the
jury should disregard an answer or evidence stricken by the court.
In explaining the jury's obligation to disregard excluded evidence,
the trial court stated:
Now, here is one of those places where if
you don't use your mind, you think the law is
stupid, because as soon as somebody tells you
not to think about something, what do you do?
That's right, you think about it. So, the law
doesn't say you can't think about it, it says,
you must disregard it and not consider it asevidence. So, in other words, when you go
back in the jury room, you can't consider that
as part of the evidence. If someone were to
say, well, what about that pink elephant, you
would have to say, well, yes, but we were told
not to regard that as part of the evidence,
and we have to put that over here. It doesn't
mean you have to forget it.
We only forget those things we need to
remember anyway, which -- like, where our car
keys are and stuff.
Because defendant did not object to the jury instructions,
this Court must review defendant's assigned error using the "plain
error" rule. State v. Cummings, 346 N.C. 291, 313-14, 488 S.E.2d
550, 563 (1997), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873
(1998) (issues not properly preserved for appeal may be reviewed on
appeal for plain error when the issue involves either errors in the
trial judge's instructions to the jury or rulings on the
admissibility of evidence). Plain error is error "so fundamental
as to amount to a miscarriage of justice or which probably resulted
in the jury reaching a different verdict than it otherwise would
have reached." State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244,
251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988).
Here, the trial judge simply gave the jury an overview of what
to expect during the trial proceedings, including the jury's
responsibility when the trial court strikes an answer. These were
preliminary remarks given by the trial court without objection from
either party. Accordingly, the trial court did not commit error,
much less "plain error."
Defendant also contends the trial court erred by making“unprovoked, unprofessional and degrading remarks to defense
counsel in the presence of the jury[.]” The trial court's first
remarks occurred during Johnny Kimball's direct testimony. Mr.
Kimball testified that while he was at the sergeant's desk,
officers brought in “Mr. Ragland, Scott Ragland.” Defense counsel
then asked if he was sure that was defendant's name. When the
State objected, the following colloquy occurred:
THE COURT: Sustained. He never testified
that was the Defendant.
[DEFENSE COUNSEL]: That's true, Your
Honor.
THE COURT: Sir, if I need you to make a
comment, I'll let you know. How many more
times do you want me to tell you that? Would
you like me to leave, and you can come up here
and sit. And stop acting like you do, okay?
Thank you.
The following remarks occurred at the end of Mr. Kimball's
testimony:
THE COURT: Excellent. You're free to go.
Please call your next witness.
[DEFENSE COUNSEL]: Nothing further.
THE COURT: Oh, yes, there is, unless you
need to be heard out of the presence of the
jury.
[DEFENSE COUNSEL]: I do, Your Honor.
THE COURT: Don't you think that would be
a good idea to tell the Court that?
Finally, the following exchange took place before defendant took
the stand:
THE COURT: Let the record reflect all 13
jurors are with us.
You may call your next witness.
[DEFENSE COUNSEL]: Your Honor, Mr.
Brooks states that he wishes to testify.
THE COURT: I believe, sir, that I said
you may call your next witness[.]
[DEFENSE COUNSEL]: I call Mr. Brooks.
THE COURT: All right. That's right.
Apparently, you don't understand the
procedure.
“[A] judge may not express during any stage of the trial, any
opinion in the presence of the jury on any question of fact to be
decided by the jury.” N.C. Gen. Stat. § 15A-1222 (2001). Trial
judges therefore have a duty of absolute impartiality, State v.
Fleming, 350 N.C. 109, 125-26, 512 S.E.2d 720, 732, cert. denied,
528 U.S. 941, 145 L. Ed. 2d 274 (1999), as "every defendant in a
criminal case is entitled to a trial before an impartial judge and
an unbiased jury." State v. Sidbury, 64 N.C. App. 177, 178-79, 306
S.E.2d 844, 845 (1983). Nonetheless, not every expression of
opinion by the trial court constitutes prejudicial error. State v.
Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985). Our
Supreme Court further stated in Blackstock:
Whether the judge's comments, questions or
actions constitute reversible error is a
question to be considered in light of the
factors and circumstances disclosed by the
record, the burden of showing prejudice being
upon the defendant. Thus, in a criminal case
it is only when the jury may reasonably infer
from the evidence before it that the trial
judge's action intimated an opinion as to a
factual issue, the defendant's guilt, the
weight of the evidence or a witness's
credibility that prejudicial error results.
Id. (citations omitted). The burden rests upon defendant to show
that the remarks of the trial judge deprived him of a fair trial.
State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974).
After careful examination of the transcript, we hold that
defendant has in no way shown that he was prejudiced by the trial
judge's remarks. The statements do not reflect on the credibility
of the witnesses or the weight of the evidence. We discern no
prejudicial error.
Lastly, defendant contends the trial court erred in its
instruction to the jury in response to its question regarding the
meaning of intent and possession. During jury deliberations, the
jury sent a note to the trial court asking the trial court to
define the parameters of intent to possess. In response, the trial
court read the pattern jury instruction for possession of cocaine
and for intent. When the jury foreman indicated that the jury
needed more assistance, the trial court gave a hypothetical
involving a bank teller in a bank. The jury foreperson then
described the jury's question by stating that the jury was
“struggling with [] possession and intent surrounding possession
versus intent to transport[.]” The trial court responded:
Okay. I understand where you're coming from.
The issue you are to decide is whether or not
the Defendant, on the date alleged, possessed
cocaine. You are not being asked to decide
whether or not he possessed it at any time -
time, like transported it to the jail. Did
he, on that date, at any time, under the law,
possess cocaine? That's what you're being
asked to answer.
Some of you may be familiar with otherlaws that involve that, and -- but he is not
charged with any other offense, other than
simply it's called simple possession,
possessing -- did he, has the State proved
beyond a reasonable doubt that on or about the
alleged date, the Defendant on or about the
alleged date, at any time on that date,
possessed cocaine.
Defense counsel objected and asked the trial court to reiterate
that “it's knowingly possess, not just possess.” The trial court
agreed and reinstructed the jury as follows:
I want to remind you that possession by
definition is this: A person possesses cocaine
when he is aware of its presence, that's
knowingly possesses, and has both the power
and intent to control the disposition and use
of that substance.
Defendant claims the trial court erred when it “varied widely
from the pattern instructions[.]” However, the trial court's
charge to the jury must be construed contextually and isolated
portions of it will not be held prejudicial error when the charge
as a whole is correct. State v. Hardy, 353 N.C. 122, 131-32, 540
S.E.2d 334, 342 (2000), cert. denied, ___ U.S. ___, 151 L. Ed. 2d
56 (2001). “'If the charge presents the law fairly and clearly to
the jury, the fact that some expressions, standing alone, might be
considered erroneous will afford no ground for reversal.'” State
v. Rich, 351 N.C. 386, 394, 527 S.E.2d 299, 303 (2000) (quoting
State v. Lee, 277 N.C. 205, 214, 176 S.E.2d 765, 770 (1970)).
After reviewing the trial court's jury instructions as a
whole, we conclude that the trial court correctly instructed the
jury that defendant must have knowingly possessed the cocaine. The
trial court properly read from the pattern instructions forpossession of cocaine and for intent and, upon defendant's
objection, reinstructed the jury on “knowingly possess.”
Accordingly, this assignment of error is overruled.
After careful review of the record, transcript, and the
arguments presented by the parties, we conclude defendant received
a fair trial free from error.
No error.
Chief Judge EAGLES and Judge HUDSON concur.
Report per Rule 30(e).
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