STATE OF NORTH CAROLINA
v. Orange County
No. 00 CRS 55667
CLARISSA FARRINGTON
Attorney General Roy Cooper, by Special Deputy Attorney
General William H. Borden, for the State.
Mary Exum Schaefer for defendant-appellant.
LEVINSON, Judge.
On 19 March 2001, defendant was indicted for larceny of a
motor vehicle pursuant to N.C.G.S. 14-72(a). The case was tried at
the 6 June 2001 Criminal Session of Orange County Superior Court.
Prior to jury selection, the trial court made opening remarks
to the potential jurors regarding the presumption of innocence.
The court instructed the jurors:
But I will tell you some preliminary things
about the law. One is, [defendant] has
entered a plea of not guilty. Under our
system as [sic] of justice when she plead
[sic] not guilty, she is not required to prove
her innocence. She is presumed to be
innocent. This presumption remains with her
throughout the trial until the jury is
convinced from the facts and the law beyond a
reasonable doubt of the guilt of thedefendant.
(emphasis added).
Defendant was convicted of larceny of a motor vehicle and
sentenced to a term of eight to ten months imprisonment. Defendant
appeals.
Defendant's sole argument on appeal is that the trial court's
instruction that the jury was to presume her innocence until they
were convinced by the evidence and the law of her guilt amounted to
an improper expression of opinion by the trial judge upon her
guilt. Defendant contends that by use of the word “until,” the
trial court impermissibly suggested that at some point defendant's
guilt would become a foregone conclusion. Defendant argues that
she was prejudiced by this instruction and is entitled to a new
trial.
After careful review of the record, briefs and contentions of
the parties, we find no error. Our Supreme Court has stated:
Section 15A-1222 of the North Carolina General
Statutes provides that [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.
Similarly, section 15A-1232 of the North
Carolina General Statutes requires that [i]n
instructing the jury, the judge shall not
express an opinion as to whether or not a fact
has been proved and shall not be required to
state, summarize or recapitulate the evidence,
or to explain the application of the law to
the evidence. In applying these statutes, we
have stated that [i]n evaluating whether a
judge's comments cross into the realm of
impermissible opinion, a totality of the
circumstances test is utilized. Further, a
defendant claiming that he was deprived of a
fair trial by the judge's remarks has the
burden of showing prejudice in order toreceive a new trial.
State v. Anthony, 354 N.C. 372, 402, 555 S.E.2d 557, 578, cert.
denied, 354 N.C. 575, 559 S.E.2d 184 (2001) (internal citations and
quotation marks omitted); see also State v. Nicholson, 355 N.C. 1,
59, 558 S.E.2d 109, 147 (the trial court's words may not be
detached from the context and the incidents of the trial and then
critically examined for an interpretation from which erroneous
expressions may be inferred.), cert. denied, 537 U.S. 845, 154 L.
Ed. 2d 71 (2002) (internal citations and quotation marks omitted).
In the case sub judice, defendant has failed to carry her
burden of showing that she was prejudiced by the trial court's use
of the word “until” during the judges opening remarks to the jury.
The trial court's use of the word “until” was embedded in lengthy
opening statements to the jury. Soon after making this statement,
the court instructed the jury:
There's no burden or duty of any kind upon the
defendant. The mere fact that she has been
charged with a crime is no evidence of guilt.
It brings the matter to trial. [If] the State
proves guilty beyond a reasonable doubt, then
the function of the jury by its verdict is to
say guilty. If the State fails to prove guilt
beyond a reasonable doubt, then, of course,
you must say not guilty.
Moreover, our review of the transcript reveals that the jury was
thereafter fully and carefully instructed several times regarding
the presumption of defendant's innocence and the State's burden of
proof. After the evidence was presented, the trial court
instructed the jury:
If you do not find that the State has proven
beyond a reasonable doubt under the law thatI've given you that she's guilty of felonious
larceny, then you'll be instructed to
determine whether or not she is guilty of [the
lesser offense] of unauthorized use of a
conveyance. And if you do not find that the
State has proven beyond a reasonable doubt
that she's guilty of unauthorized use of a
conveyance, then you must find her not guilty.
(emphasis added). Furthermore, the court emphasized that it was
within the exclusive province of the jury to determine the guilt of
the defendant, and the jury should not draw any inference from the
court as to the defendant's guilt. Accordingly, when considered in
the context of all the comments made by the court during the trial,
we conclude there was no error.
No error.
Chief Judge EAGLES and Judge BRYANT concur.
Report per Rule 30(e).
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