State v McNair, (03-298) 04/20/2004

The State's evidence tended to show that at approximately 5:45 p.m. on 26 May 2000, defendant's father, Willie Lee Barrow, left his home and went to a store. Defendant's stepmother, Norma Barrow, remained at home babysitting for a friend. During his father's absence, defendant entered the residence through a windownear the front door. Shortly thereafter, Ms. Barrow went into her bedroom and noticed someone was in there. She asked, “Who's there?” and defendant started laughing and said his father's name. Ms. Barrow told defendant to stop playing and to go into another room and sit down. Instead, defendant, who was naked at the time, began grabbing at Ms. Barrow's shirt and pants trying to take them off, and then pulled her to the floor. Ms. Barrow reached for a telephone to call for help, but defendant grabbed the telephone and broke the cord. During the struggle, defendant repeatedly told Ms. Barrow that he was her husband, she was his wife, and that she was going to have sex with him. Ms. Barrow told defendant she would not have sex with him, and eventually struck defendant in the head with an ashtray. Then defendant went to the kitchen and returned with a knife, which he held to Ms. Barrow's neck and threatened to kill her. Ms. Barrow told defendant, “You know you're not going to kill me. But if you're going to kill me, you might as well kill me before your father come[s] home because then he's going to kill you.” Defendant gave Ms. Barrow the knife and got dressed as she instructed.
Shortly thereafter, defendant's father came home and Ms. Barrow told him what had just transpired. After Mr. Barrow told defendant to get out of the house, he and his wife went to the police station to report the incident. When they returned to the house with police officers, defendant was lying on the roof of the house. Defendant was arrested. At the police station, after being advised of and waiving his Miranda rights, defendant admitted thathe tried to rape Ms. Barrow. Defendant appeals.

    Defendant next argues that he is entitled to a new trial because, during defendant's trial, the trial court made numerous statements either to or in front of the jury that prejudiced his right to a fair and impartial jury. We disagree.
    First, defendant takes exception to the trial court's explanation of the proceedings to the jury:
    Mr. McNair is here in the blue shirt at the table in front of me, and he's here because he's been accused of Attempted First Degree Rape. He denies the charge, says he's not guilty and he's been wrongfully accused and he ought not to be here. For that reason, we'll have to have 12 jurors to listen to the State's evidence and determine if they can satisfy you beyond a reasonable doubt of the accusation, the truth of the accusation.

Defendant argues that these comments “improperly denigrated defendant's right to a trial by jury,” but he did not object, nor does he explain how these comments lessened the State's burden of proof or constituted plain error.
    [T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimederror is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “'resulted in a miscarriage of justice or in the denial to appellant of a fair trial'” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”
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 (4^th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). Plain error review also applies to the admission of evidence. State v. Black, 308 N.C. 736, 741, 303 S.E.2d 804, 807 (1983). However, after reviewing the entire record, we are not persuaded that this is the exceptional case where the claimed error is so fundamental that justice could not have been done. Accordingly, this assignment of error is overruled.
    Defendant next takes issue with the trial court's assertion that the parties are allowed to, but do not have to, make opening statements to the jury:
    Members of the jury, the parties are permitted to make opening statements. They don't have to, but they are allowed to outline their case for you, if they want to do that, if they want to talk rather than letting their evidence talk.

Again, defendant failed to object. Even assuming arguendo that the trial court's explanation of the opening statements implied that the parties could give opening statements in lieu of presenting evidence, any such misconception was cured by the express instructions in the final charge that the jury must “decide fromthe evidence presented what the true facts are” and that the State must “prove [defendant's guilt] beyond a reasonable doubt.” See State v. Kemmerlin, 356 N.C. 446, 461, 573 S.E.2d 870, 882 (2002) (trial court's instruction cures possible misconception). Although defendant contends, without citing authority, that this comment “clearly” entitled him to a new trial as plain error, we disagree.
    Defendant also takes issue with the trial court's management of the trial. In particular, defendant contends that the trial court “made numerous comments that denigrated either defense counsel and/or [defendant's expert witness] Dr. Bachara.” After eliciting Dr. Bachara's qualifications on direct examination, defense counsel tendered him as an expert witness, to which the trial court responded, “There's been no objection. Keep on asking him questions.” Defendant contends that by these comments, the trial court improperly implied that counsel did not know the procedure for tending an expert, and then improperly disallowed several questions as irrelevant to Dr. Bachara.
    “[T]he presiding judge is given large discretionary power as to the conduct of a trial. Generally, in the absence of controlling statutory provisions or established rules, all matters relating to the orderly conduct of the trial or which involve the proper administration of justice in the court, are within the trial court's discretion and are reviewed only for abuse of that discretion.” State v. Waddell, 351 N.C. 413, 423, 527 S.E.2d 644, 651 (2000) (citations omitted). We have reviewed the entire transcript of the proceeding and find no abuse of the trial court'sdiscretion in the management of defendant's trial.

    Defendant next argues that the trial court committed plain error in ruling on the admissibility of evidence. We disagree.
    First, defendant contends that Deputy Reeves' testimony that both Mr. and Ms. Barrow told her that defendant tried to rape Ms. Barrow was inadmissible hearsay. Second, defendant disputes the admission of a knife police officers found in Ms. Barrow's living room. Third, defendant contends that the trial court improperly allowed the State to cross-examine Dr. Bachara regarding his history of testifying on behalf of defendants in criminal prosecutions. Finally, defendant contends that the trial court improperly allowed the State to inquire as to whether there is any history of mental illness in defendant's family. Defendant did not object to any of these matters at trial, but he asks this Court to review this assignment of error for plain error. Again, in light of the overwhelming evidence of defendant's guilt, we are not persuaded that any error was so fundamental that justice was not done.

    Finally, defendant argues that the trial court committed “constitutional” error when it refused to “accept” defendant's tender of a qualified expert witness, though defendant concedes in his brief that “admittedly, Dr. Bachara was permitted to render an opinion that on the day of the incident, defendant was 'greatlyaffected by the drugs and alcohol that he took and it rendered him psychotic in his behavior'” and that “at the time of the incident, defendant was unable to form the specific intent to commit rape.” Defendant does not contend that the trial court disallowed any relevant opinions held by Dr. Bachara. Rather, defendant argues that, by not explicitly accepting Dr. Bachara as an expert, the trial court “undermined the credibility of Dr. Bachara's findings and discounted the legitimacy of the area of [his] expertise.”
    As stated above, the trial court is given wide discretion in its management of the trial, and we review for abuse of that discretion. Here, where the court allowed Dr. Bachara to express his opinions, we do not believe that the court undermined Dr. Bachara's credibility by failing explicitly to accept him as an expert. Thus, we find no abuse of discretion and we overrule this assignment of error.
    No error.
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

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