STATE OF NORTH CAROLINA
v
.
Greene County
Nos. 02 CRS 50869;
CHRISTOPHER KARL SMITH 03 CRS 204
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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