An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-376


Filed: 17 May 2005


v .                         Greene County
                            Nos. 02 CRS 50869;
CHRISTOPHER KARL SMITH                03 CRS 204

    Appeal by defendant from judgment entered 1 October 2003 by Judge Jerry Braswell in Greene County Superior Court. Heard in the Court of Appeals 10 January 2005.

    Attorney General Roy Cooper, by Assistant Attorney General John F. Oates Jr., for the State.

    M. Jason Williams, for defendant-appellant.

    CALABRIA, Judge.

    Defendant appeals his convictions of assault with a deadly weapon inflicting serious injury and attaining the status of an habitual felon. We find no error.
    On 10 September 2002 at approximately 12:00 a.m., defendant crossed the field behind his home and approached the home of his two younger brothers, Andreas Smith (“Andreas”) and Joshua Smith (“Joshua”), both of whom were inside their home. Andreas noticed a light shining through his window, looked outside, and observed defendant shining a spotlight and carrying a shotgun slung across his back. Defendant had been involved in several recent disagreements with his two brothers. Andreas informed Joshua thathe was going outside. Both Andreas and Joshua testified Andreas exited their home unarmed.
    Upon exiting, Andreas observed defendant walking next to the field on the edge of Andreas and Joshua's driveway. Andreas yelled at defendant, telling him to get out of their yard and leave them alone. Defendant continued walking around the edge of their yard. When Andreas lost sight of defendant, Andreas moved toward another corner of his home to observe defendant. As Andreas rounded the corner, he looked toward a light in an area of the back yard and saw defendant lower his shotgun and fire. One shotgun pellet struck Andreas in the arm and lodged in the side of his chest, and another struck his leg. Andreas yelled and fell to the ground. When he got to his feet, he ran next door to his parents' home. Shortly thereafter, he was transported by ambulance to a local hospital. Defendant walked nearby to his grandmother's house, learned he shot Andreas, returned to his home, and left the area to avoid arrest. At trial, defendant testified someone was shooting at him, and when he fired in self-defense toward a tractor shed, he did so to force a pause in his assailant's fire, allowing him to escape across the field to his home.
    When court reconvened at 2:00 p.m. after lunch on the second day of the trial, defendant was not present. During the time the judge waited for defendant to arrive, he joked that defendant was probably stuck in a “traffic jam” in town and related a story about his experiences as an attorney in the U.S. Navy. The judge stated that, often before a ship would sail for a six-month west-pacifictour of duty, a few sailors with short leave would remain away without leave almost until the moment the ship sailed. He added to the story that prosecuting these sailors was difficult because most captains preferred to punish the sailors aboard their ship instead of losing a sailor to military court proceedings. As a result, the sailors were able to “kind of snub their nose up at the legal office” and avoid court proceedings by receiving their punishment aboard the ship on their west-pacific tour of duty. The judge finished his story by saying, “Sometimes in this business you do have to kind of wait on the defendants. I think Mr. Smith is taking a west-pac tour. He's probably just taking an extended lunch break.” At approximately 2:24 p.m., the judge resumed proceedings without defendant's presence.
    Defendant did not return to court until the beginning of the third day of trial. At the close of the third day, defendant was found guilty of assault with a deadly weapon inflicting serious injury and attaining the status of an habitual felon. The trial court sentenced defendant in the mitigated range to a minimum of seventy months and a maximum of ninety-three months' imprisonment in the custody of the North Carolina Department of Correction.
    As an initial matter, we note defendant's brief violates two rules of appellate procedure by failing to include a statement of the facts and by using an incorrect type size, Courier 10-point type. Under N.C. R. App. P. 28(b)(5) (2005) an appellant's brief must contain “[a] full and complete statement of the facts[,]” and N.C. R. App. P. 28 (j)(1)(B) (2005) requires that nonproportionallyspaced type, such as Courier or Courier New, be set in 12-point type or greater. It is well established that the North Carolina Rules of Appellate Procedure are mandatory, and a violation of the Rules subjects an appeal to dismissal. State v. Puckett, 54 N.C. App. 576, 578-79, 284 S.E.2d 326, 328 (1981). Accordingly, adherence to the Rules is an essential prerequisite for an appeal before the North Carolina Appellate Courts. Id. Although this case is subject to dismissal, N.C. R. App. P. 2 (2005) permits us to address the merits of defendant's appeal in our discretion.
    Defendant first asserts the judge's comparison of him to a sailor avoiding court proceedings by “taking a west-pac tour” constituted prejudicial error in that it implied he was attempting to avoid the court proceeding because he was guilty. Defendant similarly asserts the judge committed prejudicial error by joking that defendant was late because he was caught in a “traffic jam” in town. We agree the comments were improper, but conclude they were not prejudicial.
    Under N.C. Gen. Stat. § 15A-1222 (2003), “[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.” “It does not matter whether the opinion of the trial judge is conveyed to the jury directly or indirectly as every defendant in a criminal case is entitled to a trial before an impartial judge and an unbiased jury.” State v. Sidbury, 64 N.C. App. 177, 178-79, 306 S.E.2d 844, 845 (1983). However, “not every improper remark will require a new trial, a new trial may be awarded if the remarksgo to the heart of the case.” Id., 64 N.C. App. at 179, 306 S.E.2d at 845. “Whether the judge's comments, questions or actions constitute [prejudicial] error is a question to be considered in light of the factors and circumstances disclosed by the record, the burden of showing prejudice being upon the defendant.” State v. Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985). Therefore, in criminal cases, “[prejudicial] error results [only] where the jury may rationally infer from the trial judge's [comments, questions, or actions] an expression of opinion as to the defendant's guilt or the credibility of a witness.” State v. Baldwin, 141 N.C. App. 596, 602, 540 S.E.2d 815, 820 (2000).
    In the instant case, the trial judge's comparison of defendant to a sailor and joke about his absence were improper and constituted error. The jury could have reasonably inferred from the comments that the trial judge did not have a favorable opinion of the defendant. Nevertheless, neither the trial judge's comparison nor his joke could reasonably have been inferred to mean that he believed defendant was guilty. Rather, the most unfavorable rational inference to be drawn from the trial judge's comparison was that he thought defendant, in the spirit of a sailor “taking a west-pac tour,” wanted to “kind of snub [his] nose up at the [court]” or in some way show disrespect by taking “an extended lunch break” and avoiding a portion of the court proceedings. Similarly, taken in the most unfavorable light, the judge's joke intimated that defendant was an irresponsible person deserving of ridicule for his lack of punctuality. Therefore, even the mostunfavorable interpretations of the trial judge's comparison and joke do not reasonably intimate that the judge felt defendant was guilty. Accordingly, in light of the substantial evidence against defendant and defendant's choice to absent himself from the trial, defendant cannot show that the court's remarks likely affected the verdict.
    Defendant further asserts the judge erred by denying his motion for a mistrial, which was based on the trial judge's comparison and joke. Under N.C. Gen. Stat. § 15A-1061 (2003), “[t]he judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.” “It is well established, however, that the decision as to whether such prejudice has occurred within the meaning of the statute is addressed to the sound discretion of the trial judge.” State v. Bailey, 97 N.C. App. 472, 477, 389 S.E.2d 131, 134 (1990). As discussed above, the judge's comments did not rise to the level of prejudicial error necessitating a new trial. Therefore, the trial judge did not abuse his discretion by denying defendant's motion for a mistrial.     
    Defendant finally asserts the trial court erred by denying his motion to dismiss the habitual felon indictment because the name on one of the three certified judgments used by the State was incorrect. The caption of the habitual felon indictment refers to defendant as, “CARL CHRISTOPHER SMITH also known as KARL CHRISTPHERSMITH [also known as] CHRISTOPHER CARL SMITH also known as CHRISTOPHER KARL SMITH also known as CHRISTOPHER SMITH.” The three felony convictions listed in the indictment refer to defendant as: (1) “CHRISTOPHER KARL SMITH”; (2) “CHRISTOPHER KARL SMITH”; and (3) “SMITH, KARL, CHRISTOPHER.” Defendant argues the third conviction may not be used because it does not match the habitual felon indictment; the habitual felon indictment does not name “KARL CHRISTOPHER SMITH” but “KARL CHRISTPHER SMITH.”
    Pursuant to N.C. Gen. Stat. § 14-7.4 (2003):
        In all cases where a person is charged . . . with being an habitual felon, the record or records of prior convictions of felony offenses shall be admissible in evidence, but only for the purpose of proving that said person has been convicted of former felony offenses. A prior conviction may be proved by stipulation of the parties or by the original or a certified copy of the court record of the prior conviction. The original or certified copy of the court record, bearing the same name as that by which the defendant is charged, shall be prima facie evidence that the defendant named therein is the same as the defendant before the court, and shall be prima facie evidence of the facts set out therein.

In State v. Petty, 100 N.C. App. 465, 470, 397 S.E.2d 337, 341 (1990), this Court held “absolute identity of name is not required under [N.C. Gen. Stat. § 14-7.4].” Therefore, the absence in the habitual felon indictment of a single letter, the “O” in “CHRISTOPHER,” an apparent typo, is not a fatal flaw in the habitual felon indictment. Moreover, the indictment in the instant case meets the requirement under N.C. Gen. Stat. § 15A-924(d) (2003) in that defendant's surname in the habitual felon indictment as well as one given name does match the names in the thirdjudgment, specifically “SMITH” and “KARL.” See Petty, 100 N.C. App. at 470, 397 S.E.2d at 341 (suggesting that the N.C. Gen. Stat. § 14-7.4 “same name” standard for habitual felon indictments is not as stringent as the standard set out in N.C. Gen. Stat. § 15A- 924(d)). In addition, the third judgment correctly identifies defendant's race, sex, and birth date. See id., 100 N.C. App. at 469-70, 397 S.E.2d at 341 (suggesting that agreement between an habitual felon indictment and an underlying judgment regarding a defendant's race, sex, and birth date indicates the same defendant is identified in each). Finally, after the ruling on the motion to dismiss the habitual felon indictment, defendant through counsel stipulated to the three felony convictions used in the indictment. Accordingly, the trial court did not err by denying defendant's motion to dismiss the habitual felon indictment.
    We have carefully reviewed defendant's remaining argument and consider it to be without merit. For the foregoing reasons, we hold defendant received a fair trial free from prejudicial error.
    No error.
    Chief Judge MARTIN and Judge GEER concur.
    Report per Rule 30(e).     

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