An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1144


Filed: 3 June 2003


         v.                        Duplin County
                                No. 01 CRS 2175

    Appeal by defendant from judgment entered 29 April 2002 by Judge Jay D. Hockenbury in Duplin County Superior Court. Heard in the Court of Appeals 2 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Jason T. Campbell, for the State.

    Ligon and Hinton, by Lemuel W. Hinton, for defendant- appellant.

    TYSON, Judge.

    Craig Thomas Cole (“defendant”) appeals his jury conviction and judgment of possessing a controlled substance in a penal institution. N.C. Gen. Stat. 90-95(e)(9). We find no error.

I. Background

    At approximately 1:20 p.m. on 12 April 2001, Correctional Officers Isaac Batchelor and Michael Hodges were called to do a property inventory of defendant's locker because defendant tested positive for marijuana during urinalysis and was being transported to segregation. At the correctional facility, each inmate is assigned a locker, lock and key to keep personal property items and State property items issued to them. The Department of Correctiondoes not have copies of those keys. Defendant stored his property in locker E-3 and possessed his own locker key.
    Defendant stayed at the gatepost of the correctional facility to await his transfer to segregation while the correctional officers went to his locker. Officers Batchelor and Hodges opened the locker with defendant's key and began to inventory the top shelf. Officers found cosmetics and a styrofoam ice cream cup toward the back. The cup appeared to and was later determined to contain marijuana. Defendant was placed under arrest.
    Defendant testified on his own behalf and denied placing the marijuana in his locker. He testified that other inmates had access to his locker and that inmates have entered lockers without using a key by bending back the door and sticking their arm inside. Defendant also testified that he used another inmate's key to open his locker when he locked his key in his locker.
    A jury found defendant guilty as charged and the trial court sentenced defendant to eight to ten months imprisonment. Defendant appeals.
II. Issues

    Defendant contends: (1) the trial court erred by allowing certain testimony of Officer Batchelor, (2) the trial court erred in allowing the State to elicit evidence that defendant's locker was being searched because of a positive urine test, (3) the trial court erred in allowing testimony regarding his silence after the inventory of his locker, and (4) the trial court erred by questioning three of the State's witnesses during trial.
III. Plain Error

    Defendant did not object to the testimony, and therefore, asks this Court to review for plain error. The North Carolina Supreme Court has chosen to review such "unpreserved issues 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." 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). Plain error arises when the error is "'so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]'” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)(quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513 (1982)). Thus, defendant "must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result." State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
IV. Search of Locker

    Defendant argues the trial court erred in allowing the State to elicit evidence that defendant's locker was being searched because of a positive urine test. Officer Batchelor testified, without objection, that “about 1:20 that day, Officer Hodges and myself . . . were called to do a property inventory on inmate Craig Cole's property - inventory of his locker due to the fact we were getting ready to transport him to segregation for a positive urinalysis.” Also without objection, Officer Batchelor testifiedthat defendant was being transferred to segregation because of “a positive urinalysis.”
    Defendant asserts the admission of this testimony violated North Carolina Rules of Evidence Rule 404(b), which provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." Defendant argues that this evidence convinced the jury he had a “reputation as a drug user.” N.C. Gen. Stat. § 8C-1, Rule 404(b)(2001). Evidence of other wrongs "may, however, be admissible for other purposes, such as proof of motive." N.C. Gen. Stat. § 8C-1, Rule 404(b).
    Here, Officer Batchelor's testimony was admitted to show the necessity of the search of defendant's locker. We find that any error in admission of evidence of other crimes is harmless and not prejudicial based on the plenary evidence that defendant committed the charged offenses. This assignment of error is overruled.
V. Defendant's Silence After Search

    Defendant argues the trial court erred in allowing testimony regarding his silence after the inventory of his locker. On direct examination, Officer Batchelor testified that defendant did not make any statements after discovering the marijuana in defendant's locker. Relying on Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91 (1976), in which the United States Supreme Court held that when a person under arrest has been advised of his Miranda rights there is an implicit promise that the silence will not be used against that person, defendant asserts that his in-custody silence may not beused against him. Again, we find no plain error.
    Here, the record is silent as to whether defendant was Mirandized and thereby invoking the doctrine set out in Doyle. Furthermore, defendant testified that when the officers asked if the marijuana in his locker was his, he responded, “No” and that he did not know anything about it. Thus, defendant's own testimony shows that he did not remain silent after officers found the marijuana in his locker. This assignment of error is overruled.
VI. Questioning of Witnesses

    Defendant finally contends the trial court erred by questioning three of the State's witnesses during the trial on the grounds that the questioning violated his constitutional right to an impartial judge. We disagree.
    A judge may speak to witnesses during the trial but "[t]he 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. This statute does not preclude a judge from questioning a witness to clarify his or her testimony, as long as the questioning is “conducted in such a manner as to avoid prejudice to either party.” State v. Whittington, 318 N.C. 114, 125, 347 S.E.2d 403, 409 (1986).
    Defendant first objects to the trial court's questioning of Correction Officer Isaac Batchelor. Officer Batchelor testified on direct-examination that as an officer, he did not have a key to defendant's locker. Afterwards, the trial court asked Officer Batchelor, “[a]re you telling me that in the Department ofCorrections an inmate has their own locker, they can store whatever they want to in there, and you don't have a key to it?” Later in his testimony, Officer Batchelor testified that defendant was kept in segregation while they performed the inventory and the trial court asked him, “[W]hat exactly is segregation?” Here, the trial court's questioning was simply an effort to clarify Officer Batchelor's testimony and the meaning of “segregation” in a prison setting.
    Next, defendant contends the trial court assisted the State in establishing the chain of custody for the contraband during its questioning of Sergeant Boykin. On direct-examination, Sergeant Boykin testified that Officer Batchelor had come to him with contraband around 1:00-1:30, that he contacted the assistant superintendent who wanted to see the contraband, and that he filled out a Chain of Custody form. The trial court then asked Sergeant Boykin, “who took it to you first?” and “what time was that?” Again, this line of questioning was not prejudicial to defendant since the trial court simply asked Sergeant Boykin to repeat his prior testimony, for clarification.
    Finally, defendant objects to the trial court's questioning of Detective Wayne Brock. After Detective Brock testified about the contents of a manila envelope and a plastic bag, the following colloquy occurred:
        [THE STATE]: Your Honor, the State would request that we have this marked as State's Exhibit No. 4. For the record, it is a plastic . . . a plastic bag, containing a plastic bag and with an evidence label on it and the State would like to mark it as State's Exhibit 4,with the Court's permission.

        THE COURT: This is the plastic bag containing this green, vegetable matter; is that correct?

        [THE STATE]: Yes, sir. And it has on the front “Duplin County Sheriff's Office.”

        THE COURT: Okay; let State's Exhibit 4 be received.

        [THE STATE]: No further questions for the State.

        THE COURT: So you want these _ 3 and 4 admitted?

        [THE STATE]: Yes, sir. The State would request that at the appropriate time, we are allowed to introduce exhibits 2, 3, and 4 into evidence as State's Exhibits 3 and 4.

The Court then asked Detective Boykin, “Do you know what all of these numbers are [on the plastic bag]?” “[I]s there any evidence that it's been tampered with?” and “Is there any writing on State's Exhibit No. 2, which is a large, manila envelop?” The trial court accepted the exhibits into evidence after receiving answers to these questions.
    Defendant argues this line of questioning improperly assisted the State in establishing the foundation for the exhibits and violated his right to an impartial judge. A judge may ask questions, however, that elicit testimony which proves an element of the State's case so long as he does not comment on the strength of the evidence or the credibility of the witness. State v. Stanfield, 19 N.C. App. 622, 626, 199 S.E.2d 744 (1974). Here, the trial court was facilitating the admission of evidence, to which defendant did not object. We believe the questions by the trialcourt were neutral, which, depending upon the answer, would benefit either the State or the defendant. The questioning of Officer Batchelor, Sergeant Boykin and Detective Brock by the trial court was not prejudicial to defendant. Defendant's assignment of error is overruled.
VII. Conclusion

    We have reviewed the errors defendant has assigned and argued. We hold that defendant received a trial free of errors he assigned and argued in his brief.
    No error.
    Judges WYNN and STEELMAN concur.
    Report per Rule 30(e).

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