An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1250


Filed: 21 June 2005


v .                         Forsyth County
                            No. 03 CRS 31229
VICTOR ANTHONY DOE,                 03 CRS 60578

    Appeal by defendant from judgment entered 28 May 2004 by Judge Michael E. Helms in Forsyth County Superior Court. Heard in the Court of Appeals 19 May 2005.

    John T. Hall, for defendant.

    Attorney General Roy Cooper, by Assistant Attorney General Dorothy Powers, for the State.

    STEELMAN, Judge.

    On the night of 23 September 2003, Detectives Haynes, Branham and Singletary of the Winston-Salem Police Department's Special Investigations Unit, were driving around the Colony Apartments complex in an unmarked police van investigating possible drug sales activity. The detectives spotted defendant, and stopped their van with its headlights directed at defendant about twenty to twenty- five feet away. Detective Haynes observed defendant talking into a cell phone held in his right hand while he used his left hand to pull an object that looked like a ball of white tissue or napkin out of his left front pants pocket and toss it about two feet behind him. Detective Haynes recognized defendant, and because of his knowledge of defendant's prior history, Detective Haynesinformed the other detectives that they should detain defendant. Detective Haynes retrieved the item that defendant had thrown behind him, opened it, and observed that its contents resembled crack cocaine. The substance was later tested and determined to in fact be crack cocaine.
    On 28 May 2004 defendant was found guilty of felonious possession of cocaine. Defendant subsequently pled guilty to the status of habitual felon, and was sentenced to an active prison term of 107 to 138 months. From this judgment, defendant appeals.
    In his first argument defendant contends that the trial court committed prejudicial error by its frequent and prolonged questioning of witnesses. We disagree.
    N.C. Gen. Stat. § 15A-1222 (2004) states: “The 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.” However:
        “It has been the immemorial custom for the trial judge to examine witnesses who are tendered by either side whenever he sees fit to do so. . . .” Of course, such examinations should be conducted in a manner which avoids prejudice to either party. If by their tenor, their frequency, or by the persistence of the trial judge they tend to convey the impression of judicial leaning, they violate the purpose and intent of G.S. 1-180 [now N.C. Gen. Stat. § 15A-1222] and constitute prejudicial error. Even so, judges are not mere moderators. They preside over the courts as essential and active agencies in the due and orderly administration of justice. “It is entirely proper, and often necessary, that the trial judge ask questions to clarify and promote a proper understanding of the testimony of the witnesses.”
State v. Currie, 293 N.C. 523, 530-31, 238 S.E.2d 477, 481-82 (1977)(internal citations omitted).
        “A judge may ask questions . . . that elicit testimony which proves an element of the State's case so long as he does not comment on the strength of the evidence or the credibility of the witness.” A judge may not, however, “by his questions to a witness intimate an opinion as to whether any fact essential to the State's case has been proved.”

State v. Smarr, 146 N.C. App. 44, 52, 551 S.E.2d 881, 886 (2001).
        It does not follow, however, that every ill-advised comment by the trial judge or question propounded by him which may tend to impeach the witness, is of such harmful effect as to constitute reversible error. The comment made or the question propounded should be considered in the light of all the facts and attendant circumstances disclosed by the record, and 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.

State v. Perry, 231 N.C. 467, 471, 57 S.E.2d 774, 777 (1950); see also State v. Barnard, 346 N.C. 95, 105-06, 484 S.E.2d 382, 388 (1997). It is not necessary for a defendant to object to the questioning at trial in order to preserve the issue on appeal. Perry, 231 N.C. at 470, 57 S.E.2d at 776.
    We first note that out of approximately 3400 lines of testimony, defendant objects to approximately ninety lines that represent direct questioning of witnesses by the trial court. In the instant case, evidence was admitted at trial showing that two detectives witnessed defendant remove an object from his pocket and toss it behind him. They testified that the area was well lit, and that they were trained to focus on a suspects hands in order toprevent the suspect from disposing of evidence, and for their own protection in case the suspect had a weapon. They both testified that they saw where the thrown object landed on the ground, and Detective Haynes testified that he had no difficulty locating the object when he went to retrieve it. The substance in the napkin tested positive for cocaine.
    Defendant has not appealed the introduction of any of this evidence. Defendant simply argues that frequent and prolonged questioning of witnesses by the trial court amounts to the improper introduction of the trial court's opinion supporting the credibility of the State's witnesses in violation of N.C. Gen. Stat. § 15A-1222. We have carefully reviewed the entire record, including all instances of the trial court's questioning of witnesses. We agree with defendant that the trial court occasionally asked some questions that were better left to the prosecution. Further, we caution:
        It is not unusual nor improper for a trial judge to ask questions of a witness to make clear his testimony on some point, and sometimes to facilitate the taking of the testimony, but frequent interruptions and prolonged questionings by the court are not approved and may be held for prejudicial error if this tends to create in the minds of the jurors the impression of judicial leaning to one side or the other.

Andrews v. Andrews, 243 N.C. 779, 780-81, 92 S.E.2d 180, 181 (1956). However, we conclude that all of these instances represent attempts of the trial court to “clarify and promote a proper understanding of the testimony of the witnesses.” We do not find that the trial court's questions in the instant case created animpression in the minds of the jurors of judicial leaning in favor of the State. Furthermore, when considering all the evidence and circumstances, we hold that defendant has failed in his burden of proving that any improper questioning might reasonably have had a prejudicial effect on the result of the trial. Perry, 231 N.C. at 471, 57 S.E.2d at 777; State v. Pickard, 143 N.C. App. 485, 490, 547 S.E.2d 102, 106 (2001).
    Defendant further argues that the trial court committed reversible error in its questioning of witnesses during a voir dire hearing. In his second assignment of error, upon which he bases this argument, he claims that this questioning “violated North Carolina statutory and appellate law as well as violating Mr. Doe's constitutional rights.” However, nowhere in defendant's brief does he indicate what “statutory” or “appellate” laws were violated, nor does he cite a single authority for this general proposition. Defendant has abandoned this argument. N.C. R. App. P. Rule 28(b)(6); State v. Stevenson, 136 N.C. App. 235, 244, 523 S.E.2d 734, 739 (1999). We further note that N.C. Gen. Stat. § 15A-1222 is inapplicable in the absence of a jury. State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled in part on other grounds, State v. Gaines, 345 N.C. 647, 483 S.E.2d 396 (1997). Defendant's first argument is without merit.
    In his second argument, defendant contends that the trial court “erred to the unfair prejudice of the defendant” by directing the bailiff to issue instructions to the jury instead of issuing the instructions itself. We disagree.    Because the jury was in the jury room, the trial court instructed the bailiff to “let the jury go to lunch. Tell them to come back to the jury room at two o'clock and continue to abide by the rules I have previously read them.” Defendant contends that it was error for the trial court not to give these instructions directly to the jury. N.C. Gen. Stat. § 15A-1236 (2004) mandates that the trial court shall give certain instructions to the jury when appropriate. This statute does not provide that a bailiff may give those instructions. However, in State v. Gay, 334 N.C. 467, 482, 434 S.E.2d 840, 848 (1993), our Supreme Court stated: “While a bailiff certainly may not attempt to instruct jurors as to the law, a simple reminder by the bailiff to the jurors that they are to abide by the court's earlier instructions should not be considered an instruction as to the law.” Though it is the province of the trial court to instruct the jury, the use of the bailiff to remind the jury of the trial court's prior instructions does not constitute prejudicial error. Id at 482-83, 434 S.E.2d at 848. Furthermore, it was defendant's duty to object if he believed the jury was not properly instructed. State v. Harris, 315 N.C. 556, 566, 340 S.E.2d 383, 389 (1986). This argument is without merit.
    Because defendant has not argued his other assignment of error in his brief, it is deemed abandoned. N.C. R. App. P. Rule 28(b)(6) (2003).
    Judges TIMMONS-GOODSON and McCULLOUGH concur.
    Report per Rule 30(e).

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