STATE OF NORTH CAROLINA
v
.
Gates County
No. 02 CRS 50000
ROBERT CULLEN ASKEW, JR.
Attorney General Roy Cooper, by Assistant Attorney General
John G. Barnwell, for the State.
McAfee Law, P.A., by Robert J. McAfee, for defendant.
LEVINSON, Judge.
Defendant (Robert Cullen Askew, Jr.) appeals from conviction
and judgment for assault with a deadly weapon inflicting serious
injury. We remand for a new sentencing hearing.
The evidence may be summarized as follows: Shortly after 9:00
p.m. on 31 December 2001, as Thomas Goodman was walking to his
friend Michael Wiggins's house to celebrate the new year, he was
suddenly shot in the chest. As Goodman approached Michael
Wiggins's house he had seen three men: Wiggins, Eure, and a man he
later learned was defendant. When Goodman passed behind
defendant's SUV, “at the crack of the gun barrel, it [the bullet]
hit me.” Defendant got into his SUV and drove away. Goodman told
Wiggins he had been shot. Wiggins “grabbed my coat open,” Goodmantestified, “and blood was running.” Goodman said he had nothing in
his own hands.
In court, Goodman identified defendant as the man who had shot
him. Goodman did not know defendant, though he had seen him before
“a couple of times riding by.”
Goodman testified he had suffered a “big gunshot wound”
located “[t]wo (2) inches from my heart.” Goodman remembered being
taken to Norfolk General Hospital by an air ambulance. After that,
he did not remember anything until he was coming out of the
intensive care unit. Goodman was hospitalized from 1 January 2002
until 20 February 2002 during which time “some surgeries” were
performed on him. Hospital personnel told Goodman that “it [the
bullet] tore the top of my liver all to pieces and it broke two (2)
of my ribs.” At the time of the trial in May 2002, Goodman was
continuing to receive treatment once a week from the Norfolk
General Hospital trauma clinic. He continued to have “some pain”
as well as “shortage of my breath and I can't hardly breath[e].”
Goodman showed the scars from his wound to the jury.
At the end of Goodman's direct examination, the trial court
asked him the following question from the bench, “Tell the jury
whether your injuries were painful[.]” Goodman answered, “Yes,
sir. I mean, very painful.”
Michael Wiggins testified that the shooting occurred at the
road by his house. Wiggins was out by the road burning a tree
stump. His friend, Langdon Eure, was with him. Defendant “came
up” and began talking to Wiggins and Eure. Earlier that evening, Wiggins had invited Goodman to come over
to his house to celebrate New Year's Eve. Wiggins saw Goodman
coming toward him; Wiggins was “looking right straight at him.”
As Goodman passed behind defendant's van, defendant “whipped it
[the gun] out and bang.” Wiggins testified:
And when [Goodman] said he got shot, I thought
he was playing because a man get shot with a
gun like that and still standing up. He told
me he got shot. I just didn't believe it, so
I went over there and ripped his coat right
off and seen the hole and blood was running
everywhere.
According to Wiggins, defendant had said nothing before or
after he shot Goodman and Goodman had not made any unusual moves
toward defendant. Goodman was just “walking real fast.” After the
shooting, defendant “took off . . . just as fast as he could go.”
Langdon Eure testified that he was talking to Wiggins when
defendant drove up to them in a black Blazer. Eure had asked
defendant for a cigarette. “About that time,” Eure testified:
[Goodman] walks up behind [defendant's] truck and he
[defendant] whirls away from me and I see this explosion.
It was like as [ ] big as a basketball. It was a ball of
fire. I heard this little pop.
It sounded like a firecracker, but I never saw a gun.
[Defendant] jumps back in his truck and goes away at a
high rate of speed. [Goodman] said, I have been shot. Of
course, I didn't want to believe it, you know. [Wiggins]
jumped the ditch and opened his coat up and that is when
we could see the blood coming down.
Eure testified Goodman had nothing in his hands and that he
saw nothing near Goodman after the shooting that looked like a gun.
Before he was shot, Goodman had not said anything to defendant nor
made any motions towards defendant. Eure confirmed that after theshooting, defendant got into his SUV and drove “away at a fast rate
of speed.”
Billy Wynn, the chief officer of the rescue squad and EMS in
Gates County, testified to the treatment Goodman received from the
EMS team. Wynn called for an air ambulance evacuation of Goodman
by helicopter and treated Goodman on the way to the helicopter
landing zone.
Deputy Randy Hathaway of the Gates County Sheriff's Department
interviewed Wiggins and Eure. They described defendant and his
residence on Hackley Road to the deputy. Officers secured the
residence and learned that the person described by the witnesses
was defendant Robert Cullen Askew, Jr. Officers discovered a black
Ford Explorer in the yard of defendant's home and they obtained and
executed a search warrant. When Officer Hathaway and Sheriff Webb
entered the house, they found doors and dresser drawers open and it
appeared that someone had left the house in a hurry. Defendant
“turned himself in” at approximately daybreak that next morning.
Deputy Johnny Wiggins testified. Several hours after the
shooting, he learned that Debbie Askew, defendant's wife, had
called the sheriff's department and that defendant wanted to
surrender to the police. Officer Wiggins drove to defendant's
house where he took defendant into custody. Defendant showed the
officer the location of his gun and Deputy Wiggins secured it. The
weapon was a .357 caliber pistol.
Defendant testified. In the fall of 2001, someone had kicked
in his back door. On 21 December 2001 in Suffolk, Virginia,defendant had been robbed at gunpoint by three people. He later
began receiving threatening telephone calls at home and a number of
strange cars had been pulling into his driveway. On 31 December
2001, while he was outside his house, he heard three shots fired
and saw a truck heading toward the Roduco community, near Eure's
house. Defendant went to investigate and found Eure at Wiggins's
house. Defendant was carrying a gun because of having heard the
gunshots. Defendant saw Goodman when Goodman “jumped out from
behind [defendant's] truck.” Defendant believed Goodman was
carrying a “chrome pistol” and believed Goodman was one of the men
who had robbed him. Defendant did not intend to kill Goodman.
Debbie Askew, defendant's wife, testified she and defendant
had been married for over 21 years. She confirmed their house was
broken into twice in the fall of 2001 and that defendant told her
he had been robbed in December 2001. She testified that late in
December 2001 a man identified as “Keith” appeared at the house
asking for defendant. She was home when the shots were fired
behind the house and defendant left to investigate. Defendant
returned at approximately 10:00 p.m., upset that he might have shot
one of the men who had robbed him. She and defendant left the
house and drove to her mother's house in Virginia. They
immediately drove back home.
The jury found defendant guilty of assault with a deadly
weapon inflicting serious injury. The trial court found one
aggravating factor, that the victim suffered “serious injury that
is permanent and debilitating,” and sentenced defendant in theaggravated range as a Level II Offender to a term of 36 to 53
months. From this judgment and conviction, defendant appeals.
____________________________________
On appeal defendant argues that the trial court erred by (1)
questioning the prosecuting witness as to the painfulness of his
injuries, and (2) by finding an aggravating factor and imposing a
sentence in the aggravated range.
Defendant first argues the trial court's questioning of the
witness from the bench was improper. Defendant argues he was
prejudiced because the trial court's question elicited a response
which helped establish a critical element of the State's case, that
Goodman's injury was painful, which the State had failed to
establish itself. For the reasons which follow, the trial court's
questioning of the witness does not constitute reversible error.
The trial court questioning a witness from the bench is not,
in itself, improper. See N.C.G.S. § 8C-1, Rule 614(b) (2003) (“The
court may interrogate witnesses, whether called by itself or by a
party.”). While a trial judge may interrogate a witness, judges
are prohibited by law from “express[ing] 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.” N.C.G.S. § 15A-1222 (2003).
“Where the court does not express an opinion as to the facts, it is
not error for a court to question a witness when necessary to
clarify even a critical element of the case.” State v. Rios, ___
N.C. App. ___, ___, 610 S.E.2d 764, 772-73 (2005) (citing State v.
Shepherd, 163 N.C. App. 646, 652-53, 594 S.E.2d 439, 444 (2004)). “When the trial judge questions a witness to clarify his testimony
or to promote an understanding of the case, such questioning does
not amount to an expression of the trial judge's opinion as to
defendant's guilt or innocence.” State v. Davis, 294 N.C. 397,
402, 241 S.E.2d 656, 659 (1978) (citing State v. Everette, 284 N.C.
81, 199 S.E.2d 462 (1973), and State v. Colson, 274 N.C. 295, 163
S.E.2d 376 (1968)).
At the end of the State's direct examination of the
prosecuting witness, the trial court questioned the witness as
follows:
[THE COURT]: Tell the jury whether your
injuries were painful[.]
[WITNESS]: Yes, sir. I mean, very painful.
The elements of assault with a deadly weapon inflicting
serious injury are: (1) an assault, (2) with a deadly weapon, (3)
inflicting serious injury, (4) not resulting in death. N.C.G.S. §
14-32(b) (2003); State v. Wade, 161 N.C. App. 686, 689, 589 S.E.2d
379, 381-82 (2003), disc. review denied, 358 N.C. 241, 594 S.E.2d
33-34 (2004). “Factors our courts consider in determining if an
injury is serious include pain, loss of blood, hospitalization and
time lost from work.” State v. Owens, 65 N.C. App. 107, 111, 308
S.E.2d 494, 498 (1983).
While the witness' answer was probative of the “seriousness”
of his injury, a “critical element” of the State's case, “the jury
could not [have] reasonably infer[red] that the judge was
expressing an opinion as to the facts of the case.” Shepherd, 163N.C. App. at 653, 594 S.E.2d at 444. Consequently, the trial court
did not err in questioning the witness.
This assignment of error is overruled.
____________________________________
Defendant argues next that the trial court erred by sentencing
him in excess of the statutory maximum based on an aggravating
factor not submitted to the jury and not admitted by defendant.
Defendant argues he is entitled to a new sentencing hearing
pursuant to Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403,
reh'g denied, __ U.S. __, 159 L. Ed. 2d 851 (2004). We agree.
In the instant case, defendant's sentence was aggravated based
on a finding that “[t]he victim . . . suffered serious injury that
is permanent and debilitating.” The trial court sentenced
defendant at the top of the aggravated range to a term of 36 to 53
months. The aggravating factor was not found by the jury, and it
was not admitted by defendant. We remand for resentencing in
conformity with the rulings in Blakely and State v. Allen, ___ N.C.
___, ___ S.E.2d ___ (No. 485PA04)(filed 1 July 2005).
Remanded.
Judges HUNTER and MCCULLOUGH concur.
Report per Rule 30(e).
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