State v McEachern, (02-1711) 10/07/2003

Appeal by defendant from judgments entered 21 August 2002 by Judge Jack Thompson in Cumberland County Superior Court. Heard in the Court of Appeals 29 September 2003.

Attorney General Roy Cooper, by Special Deputy Attorney General Robert T. Hargett, for the State.

Jeffrey Evan Noecker for defendant-appellant.

EAGLES, Chief Judge.

    A jury found defendant guilty of first-degree kidnapping, robbery with a dangerous weapon, and assault with a deadly weapon inflicting serious injury. The Honorable Jack A. Thompson sentenced defendant to three consecutive prison terms of 133 to 169 months, 117 to 150 months, and 46 to 65 months, respectively. Defendant filed timely notice of appeal.
    The State's evidence tended to show that defendant telephoned Ervin Floyd at his home on the night of 14 February 2001, claiming to have car trouble at the Four Points Sheraton Hotel in Fayetteville. Floyd, who had known defendant as a casual acquaintance for eight or nine months, located his jumper cablesand drove in his pickup truck approximately ten minutes to the hotel. When Floyd arrived, defendant sat down in the passenger's side of the truck, pointed a gun at Floyd and demanded money. A second man stood beside the truck and aimed what Floyd believed was a rifle at Floyd's head. When Floyd said he had no money, defendant ordered him out of the truck and into the back seat of a car. While his accomplice drove them back to Floyd's house, defendant searched Floyd and stole $200 in cash as well as Floyd's necklace, ring, pager and cellular phone. During this ride, the defendant told Floyd that he needed $5,000 to $10,000 and the defendant threatened to kill Floyd's children if Floyd did not give him the money. When they arrived at Floyd's house, defendant walked Floyd to the door at gunpoint. Defendant led Floyd at gunpoint to the side door while the accomplice stayed in the car. Floyd knocked on the door, which his wife opened. Floyd tried to indicate to his wife that he wanted his gun, but she did not understand what Floyd was trying to convey. After seeing Floyd try to mouth this message to his wife, defendant led Floyd back to the car and into the back seat. The accomplice drove to Tabor Church Road, where defendant instructed that the car be pulled over on the side of the road. Floyd was once again ordered out of the car and told to undress. As Floyd unbuttoned his shirt, defendant shot him twice. Floyd fell to the ground, but got up and ran toward a house as defendant continued to shoot at him. Floyd knew the occupant of the house, Mrs. Holland, who called 911. Paramedics found Floydlying in Mrs. Holland's carport on Tabor Church Road bleeding “profusely” from six bullet wounds to his thighs and scrotum.
    Defendant first claims the trial court erred in denying his motion to dismiss the kidnapping charge, arguing that his restraint and removal of Floyd was “an inherent, inevitable element” of the felony of armed robbery. State v. Irwin, 304 N.C. 93, 102, 282 S.E.2d 439, 446 (1981). As set forth above, the evidence showed that defendant held Floyd at gunpoint while transporting him against his will from the Four Points Sheraton to Floyd's residence and then from his residence to Tabor Church Road. These actions constitute a restraint and removal of Floyd independent of and distinct from the act of robbery and are thus “sufficient to support . . . his conviction of the separate crime of kidnapping.” State v. Hill, 139 N.C. App. 471, 483, 534 S.E.2d 606, 614 (2000).
    Defendant next contends the trial court improperly expressed its opinion or bias by sustaining its own objections during defense counsel's cross examination of Floyd and direct examination of Cumberland County Sheriff's Detective Barbara Davenport. The trial court may act without objection from a party to exclude improper evidence. State v. Evans, 36 N.C. App. 166, 171-72, 243 S.E.2d 812, 815, cert. denied, 295 N.C. 469, 246 S.E.2d 217 (1978). Moreover, the “court must be left free to keep the examination of witnesses under control and within the bounds of lawful, relevant, and nonrepetitive inquiry[.]” State v. Hughes, 54 N.C. App. 117, 121, 282 S.E.2d 504, 507 (1981). In exercising this discretion,however, the court may not act in a manner that ”intimates any judicial favoritism” toward a party or any opinion as to a fact at issue. Id. (citing N.C. Gen. Stat. §§ 15A-1222, -1232 (2001)).
    The transcript of defendant's trial reveals five instances in which the court interceded to preempt argumentative, irrelevant, or repetitious questions or comments by defense counsel. Although on three occasions the court briefly explained the basis for its objection, it offered no comment implying any opinion of a fact at issue, of the parties or their counsels, or of the merits of their respective cases. After a thorough review of the transcript, we conclude that “the trial judge exercised his discretion without exceeding the bounds of impartiality[.]” Hughes at 121, 282 S.E.2d at 507; Evans at 172, 243 S.E.2d at 816; but see State v. Lemmond, 12 N.C. App. 128, 182 S.E.2d 636 (1971) (finding error where the trial court sustained sixteen of its own objections and remarked to defense counsel, "You know better than that.”).
    Defendant suggests that the trial court displayed further bias against him by failing to raise ex mero motu objections when the prosecutor asked leading questions to Floyd. Defendant raised no objection at trial and has not assigned error in the record on appeal to the trial court's silence or to the questions asked by the prosecutor. See N.C.R. App. P. 10(a), (b)(1), (c)(1). “The scope of appellate review is limited to those issues presented by assignment of error set out in the record on appeal. Because no assignment of error corresponds to the issue presented, this matter is not properly presented for our consideration.” State v.Williamson, 333 N.C. 128, 138, 423 S.E.2d 766, 771 (1992) (citations omitted).
    Defendant also claims that the trial court subjected him to double jeopardy by entering judgment upon both first-degree kidnapping and assault with a deadly weapon inflicting serious injury, because the serious injury used to support the assault conviction was also used to elevate the kidnapping to first-degree. “The record contains neither an exception nor an assignment of error supporting this argument, however. The argument thus is not before us for review.” State v. Johnson, 320 N.C. 746, 754, 360 S.E.2d 676, 681 (1987) (citing N.C.R. App. P. 10(a)).
    The record on appeal contains additional assignments of error not addressed by defendant in his brief to this Court. By rule, they are deemed abandoned. See N.C.R. App. P. 28(b)(6).
    No error.
    Judges BRYANT and LEVINSON concur.
    Report per Rule 30(e).

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