State v Whitaker, (03-796) 05/04/2004

Appeal by defendant from judgment entered 17 October 2002 by Judge Thomas D. Haigwood in Beaufort County Superior Court. Heard in the Court of Appeals 19 April 2004.

Attorney General Roy A. Cooper, III, by Assistant Attorney General J. Bruce McKinney, for the State.

Paul T. Cleavenger for defendant-appellant.

HUNTER, Judge.

    Tony Earl Whitaker (“defendant”) appeals his convictions, following a jury trial, for possession with intent to sell or deliver a counterfeit controlled substance, sale or delivery of a counterfeit controlled substance, and habitual felon status. We find no error and affirm the judgment of the trial court.
    Williamson Police Sergeant William Waters (“Waters”) testified that he made a series of undercover narcotics purchases in Washington, North Carolina, during May of 2001. On 9 May 2001, Waters saw defendant with Fred Bailey (“Bailey”) standing on the side of a road in the vicinity of Van Norden Street and Martin Luther King Drive. As Waters drove his car alongside defendant andBailey, they approached his driver's side window. Waters had previously bought drugs from Bailey and asked Bailey if he could purchase a $20.00 rock of crack cocaine. Defendant responded to Waters, saying, “we've got it.” The two men told Waters to meet them at King Chicken, a nearby restaurant.
    Waters drove to King Chicken as instructed and was met about five minutes later by defendant and Bailey, who arrived on bicycles. After a brief negotiation of the purchase price, defendant told Bailey to “hit [Waters] off[.]” Defendant stood back to watch for police while Bailey and Waters completed the sale. Waters paid Bailey “$30 for what appeared to be crack cocaine” and drove to a pre-arranged location where he delivered the contraband to Washington Police Detective Jerry Davis.
    Davis testified that the off-white rock purchased by Waters tested negative for the presence of a controlled substance.
    In his lone assignment of error, defendant contends the trial court elicited testimony from Waters in a manner prejudicial to the defense. Defendant points to the following questions posed to Waters by the court, which he claims improperly “underscored the transaction” at issue:
            [Waters]: I made the transaction with Mr. Bailey and drove off.

            Q.    And when you say you made the transaction, what do you mean?

            A.    I gave him $30 for what appeared to be crack cocaine.

            . . .
            THE COURT: Excuse me. Excuse me, sir. You gave $30 to who?

            A.    To Mr. Bailey.

            . . .

            THE COURT: What did he give to you?

            A.    He gave me what appeared to be crack cocaine.

            THE COURT: Excuse me again for interrupting. Continue with your question, sir.

Defendant also cites the following inquiry by the trial court during defense counsel's cross-examination of Waters:
            Q.    And your testimony that [defendant] watched for the police, that's just your speculation what he was looking for, isn't it?

            A.    No, sir. He stated that he was going to watch for the police.

            THE COURT: Excuse me. He said what?

            A.    Mr. Whitaker said he was going to watch for the police.

Defendant claims the court's question here did not clarify Waters' testimony but served to highlight to the jury Waters' testimony regarding defendant's involvement in the unlawful transaction.
    It is well established that the trial court may ask questions of a witness in order to clarify the witness's testimony. N.C. Gen. Stat. § 8C-1 Rule 614(b) (2003); State v. Whittington, 318 N.C. 114, 125, 347 S.E.2d 403, 409 (1986). In the course of questioning a witness, however, the court may not indicate its opinion “on any question of fact to be decided by the jury.” N.C. Gen. Stat. § 15A-1222 (2003). Care must be used in both thesubstance and manner of questioning to avoid even an inadvertent suggestion of the judge's opinion on a material fact. State v. Colson, 274 N.C. 295, 308, 163 S.E.2d 376, 385 (1968).
    In both instances set forth above, the trial court's questions to Waters were entirely consistent with its authority under N.C.R. Evid. 614(b). By its first inquiry, the court clarified that Waters conducted the actual purchase and sale transaction with Bailey, not defendant. In the second instance, the court appears not to have heard Waters' response to defense counsel's question and simply asked Waters to repeat it. See State v. Hudson, 295 N.C. 427, 435, 245 S.E.2d 686, 692 (1978). We find nothing in these questions or in the transcript as a whole “which would indicate that a juror could have reasonably inferred . . . the trial judge expressed an opinion as to the credibility of the witness or as to the guilt or innocence of defendant.” Id.
    No error.
    Judge McCULLOUGH concurs.
    Judge WYNN concurs in the result only.
    Report per Rule 30(e).

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