STATE OF NORTH CAROLINA
v. Pitt County
No. 03 CRS 58533
JARIAN JAVON DUPREE
Attorney General Roy Cooper, by Assistant Attorney General
Daniel D. Addison, for the State.
Jarvis John Edgerton, IV, for defendant-appellant.
MARTIN, Chief Judge.
Defendant was charged with robbery with a dangerous weapon and
assault with a deadly weapon inflicting serious injury. The
State's evidence tended to show that at approximately 1:20 a.m. on
22 June 2003, Tyler Singleton (Singleton) stopped at a McDonald's
restaurant on the way home from her boyfriend's house. Singleton
ordered her food at a drive-through window. Defendant, Travis
Atkins, Trina Leavy and Leavy's son were waiting to place their
order in the vehicle behind Singleton. Defendant, who according to
Atkins was drunk, exited the vehicle and walked up to Singleton's
open driver's side window. Defendant hit Singleton in the facewith a silver handgun. Singleton tried to roll up the window, but
could not. Defendant again hit Singleton in the face and said,
“Give it up, b----.” Singleton gave defendant her wallet and
defendant ran off. Singleton identified defendant as her assailant
in a police photo line-up and in court.
A jury found defendant guilty as charged. The trial court
sentenced defendant to consecutive terms of 77 months to 102 months
and 29 months to 44 months imprisonment. Defendant appeals.
Defendant assigns error to several remarks made by the trial
judge in the presence of the jury. He argues that the trial
judge's comments were sarcastic, demeaning, critical of defense
counsel's performance and violated his constitutional rights to an
impartial trial.
“The judge's duty of impartiality extends to defense counsel.
He should refrain from remarks which tend to belittle or humiliate
counsel since a jury hearing such remarks may tend to disbelieve
evidence adduced in defendant's behalf.” State v. Coleman, 65 N.C.
App. 23, 29, 308 S.E.2d 742, 746 (1983), cert. denied, 311 N.C.
404, 319 S.E.2d 275 (1984). A totality of the circumstances test
is used to determine whether a judge's comments cross into the
realm of impermissible opinion. State v. Larrimore, 340 N.C. 119,
155, 456 S.E.2d 789, 808 (1995). “Unless it is apparent that such
infraction of the rules might reasonably have had a prejudicial
effect on the result of the trial, the error will be considered
harmless.” Id. (quoting State v. Perry, 231 N.C. 467, 471, 57
S.E.2d 774, 777 (1950)). A judge's broad discretionary power tosupervise and control the trial “will not be disturbed absent a
manifest abuse of discretion.” State v. Goldman, 311 N.C. 338,
350, 317 S.E.2d 361, 368 (1984). Whether a trial court's
“comments, questions or actions constitute reversible error is a
question to be considered in light of the factors and circumstances
disclosed by the record,” and “the burden of showing prejudice” is
“upon the defendant.” State v. Blackstock, 314 N.C. 232, 236, 333
S.E.2d 245, 248 (1985).
With this standard of review in mind, we turn our attention to
the trial judge's comments in this case and the context in which
they were made. During cross-examination of Singleton, defense
counsel questioned her about the composite drawing of her
assailant. The following exchange occurred:
Q. Okay. To you would it be a fair statement
that - - now this is just your own subjective
opinion. Would it be a fair statement - -
THE COURT: Are you going to ask her what her
opinion is or are you going to tell her?
[DEFENSE COUNSEL]: I'm going to ask her.
THE COURT: Well ask her is it your opinion so-
and-so. That's the way you do a question.
After re-direct examination of Singleton, the following exchange
took place:
[PROSECUTOR]: No further questions, Your
Honor.
THE COURT: Anything further Mr. Wells?
[DEFENSE COUNSEL]: In response to that
question --
THE COURT: Well, I said is there anything
further?
In recross-examination, defense counsel asked Singleton
whether it would be a fair statement that defendant's hairstyle at
trial was “like dreadlocks or dreads.” Singleton responded,
A. I guess. I don't know. I don't put
dreadlocks in my hair and I don't really know
exactly what those are.
[DEFENSE ATTORNEY]: But in any event you do
know what cornrows are. They've got - - it's
like a --
THE COURT: Well, now wait a minute. Are you
going to ask her what they are or are you
going to tell her what they are?
[DEFENSE ATTORNEY]: I'm allowed to ask leading
questions on cross-examination.
THE COURT: Yeah, but ask her what they are.
Don't you describe them.
[DEFENSE ATTORNEY]: I'm allowed that, Your
Honor, with all due respect.
THE COURT: I said you have to ask her the
question. Don't you testify to what they are.
Ask her does she know what they are.
[DEFENSE COUNSEL]: Is it not correct - -
THE COURT: All right.
[DEFENSE COUNSEL]: - - that cornrows consist
of rows of hair just like maybe a cornfield
would have rows of corn and that they are very
distinct lines in between. Is that not a
correct statement?
Defendant next cites to cross-examination of Officer Scott
Lascallette of the Greenville Police Department. Defense counsel
asked Officer Lascallette about the police “be on the lookout”
report issued in the early morning hours of 22 June 2003. Reading
from the report, Officer Lascallette answered, A. (As read) “Same occurred around 0128 hours
this date at McDonalds, 2116 Southeast
Greenville Boulevard. Subject is a black
male, six foot, 220 pounds, white shirt,
jeans. Subject was driving a smoke blue
Chevrolet Cavalier with chrome wheels. There
were also two other black males in the vehicle
as well. No description, no direction of
travel. If located, stop and hold GPD,” which
stands for Greenville Police Department.
Q. Okay, and so you mentioned the correction
- - that you transmitted 200 pounds, so it
should have been reported as 200?
. . .
Q. And then you transmitted there was a blue
Chevrolet Cavalier, but we've since then - - I
mean since then the Greenville Police
Department - -
THE COURT: Well do we know what the Greenville
Police did, Mr. Wells. Can you ask a question
rather than testifying. Ask him did - -
[DEFENSE COUNSEL]: May I approach the bench,
Your Honor?
THE COURT: No, just go ahead.
[DEFENSE COUNSEL]: Since then, the Greenville
Police Department determined - - there's no
dispute that the vehicle that was used was a
Pontiac Sunbird. Is that correct?
During the cross-examination of Travis Atkins, defendant
points to the following exchange:
Q. And Monte House is a little taller than you
are. That's your testimony?
A. Uh-huh. (indicates affirmatively).
Q. How certain are you of that, that he's
taller than you?
A. Pretty certain.
Q. And on June the 22nd of this year, he was a
little bit taller than you - - than you werethen?
A. Yes, sir.
THE COURT: Has he shrunk? That's been four or
five months ago, isn't it? He hasn't changed
in size, has he? He hasn't changed has he, Mr.
Atkins?
A. No, sir.
THE COURT: All right.
Later, defense counsel questioned Travis Atkins about his suspended
sentence for discharging a weapon into occupied property
conviction.
Q. And in testifying, are you hoping that you
will get some help from the State?
A. No sir.
Q. You're not hoping to get some help from the
State? You don't have any guarantee of help -
-
A. No.
Q. - - but you're hoping to get some, aren't
you? You'd like to have some help?
A. Yeah, I'd like to have some help, yes,
sir.
Q. All right, so it's fair to say you are
hoping - -
THE COURT: Well, now, Mr. Wells, you're
putting words in his mouth. He said he'd like
to have some.
Defense counsel then questioned Atkins about pending charges as
follows:
Q. And do you have an expired registration --
A. Yes, sir.
Q. And in addition to driving while license
revoked, do you have a no operator's license?
A. Yes, sir
THE COURT: That would probably follow. His
license were revoked. Go ahead, Mr. Wells.
Anything else?
Q. Well are those two separate incidences of
no operator's license - -
[PROSECUTOR]: Objection.
THE COURT: Mr. Wells, how much more of this
are you going into? These are pending charges
anyway, aren't they?
[DEFENSE COUNSEL]: Yes, Your Honor, they are
pending.
Q. Do you have a resisting public officer
pending?
A. Yes, sir.
[DEFENSE COUNSEL]: Thank you. I have no
further questions.
Finally, defendant challenges the trial judge's comments during the
State's examination of witness Greg Leavy. After the prosecutor
established that people were drinking before the assault, the
following exchange ensued:
Q. Was Jarian Dupree drinking?
A. Yes, sir.
Q. Was he drunk?
A. Yes, sir.
Q. Were you drunk?
[DEFENSE COUNSEL]: Your Honor, I would ask the
questions be put in the proper form.
THE COURT: All right, Mr. Perry, Mr. Wellswants you to put the questions in proper form.
[PROSECUTOR]: Yes, sir.
Defendant also challenges the trial court's remarks outside the
presence of the jury as belittling and unfairly biased.
An examination of these instances reveals that the trial
court's actions did not indicate any opinion towards the
defendant's case or any negative attitude toward defense counsel,
but rather revealed the trial judge's attempt to an efficient and
controlled trial. Rather than expressing an opinion as to the
truthfulness of the witness, the court merely reminded the attorney
of the witness' testimony in some of the exchanges. Some comments
were for the purpose of obtaining a proper understanding and
clarification of somewhat ambiguous questions, while others can be
reasonably viewed as an attempt to maintain progress and proper
decorum in the trial. See State v. White, 340 N.C. 264, 299, 457
S.E.2d 841, 861, cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436
(1995) (trial court has “duty to control the examination of
witnesses, for the purposes of conserving the trial court's time
and protecting the witness from prolonged, needless, or abusive
examination”). Defendant has pointed to no statement by the trial
court which, taken together with other allegedly improper
statements or separately, can be said to constitute a prejudicial
expression of opinion on an issue of fact or to intimate a position
detrimental to defendant's case. Furthermore, the trial court's
remarks when the jury was not present were clearly not prejudicial
to defendant, since it was not observed by the jury. Thisassignment of error is overruled.
Defendant also contends the trial court committed plain error
by failing to instruct the jury on voluntary intoxication.
Defendant acknowledges, however, that his trial counsel
specifically requested that the trial court not instruct the jury
on the defense of voluntary intoxication. The record discloses
that when the trial court inquired about a voluntary intoxication
instruction during the charge conference, defense counsel expressly
objected to the instruction as part of his trial strategy because
the defense's theory was that defendant was not the perpetrator.
Out of an abundance of caution, the trial judge discussed with
defense counsel the evidence of defendant's intoxication and asked
defense counsel if he wanted the instruction. Defense counsel
again objected to the jury being instructed on voluntary
intoxication and the trial court yielded to counsel's request. The
record makes clear defendant sought to prevent the trial court from
instructing the jury on voluntary intoxication. We will not
entertain defendant's complaint that the granting of his request
prejudiced him. See State v. Barber, 147 N.C. App. 69, 74, 554
S.E.2d 413, 416 (2001), disc. review denied, 355 N.C. 216, 560
S.E.2d 141 (2002) (holding “a defendant who invites error has
waived his right to all appellate review concerning the invited
error, including plain error review”). Accordingly, the trial
court properly instructed the jury.
No error.
Judges McCULLOUGH and CALABRIA concur. Report per Rule 30(e).
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