STATE OF NORTH CAROLINA
v. Beaufort County
Nos. 03 CRS 3552, 51655
JOHNNY EARL LITTLE
Attorney General Roy Cooper, by Assistant Attorney General
Donald R. Teeter, for the State.
Bowen, Berry & Powers, PLLC, by Sue Genrich Berry for
defendant.
LEVINSON, Judge.
Johnny Earl Little (defendant) was indicted on 6 October 2003
for possession with intent to sell or deliver a controlled
substance and for being an habitual felon. On 22 July 2004, the
State moved to correct the habitual felon indictment. The motion
was allowed prior to trial. The case was tried at the 26 July 2004
Criminal Session of Henderson County Superior Court.
The State presented evidence at trial which tended to show the
following:
In May 2003, defendant was arrested after a search
warrant was executed on his residence. During the search, $162.00
was recovered from defendant's person and six clear baggies
containing .9 grams of cocaine were found in the living room areaof the home. A plethora of additional evidence, unnecessary for
the resolution of this appeal, was introduced by the State to
support the charged offense. Defendant testified at trial and
denied that the drugs were his.
Defendant was convicted of possession with intent to sell or
deliver cocaine and being an habitual felon and was sentenced to a
term of 120 to 153 months imprisonment.
Defendant appeals.
Defendant first argues
that the trial court erred by failing
to remain an impartial and disinterested tribunal.
Specifically,
defendant cites several comments made by the trial judge and argues
that these disparaging remarks indicate “a general tone or trend of
hostility which has a cumulative effect of prejudice.”
The first instance relates to a dog bite suffered by an
officer involved in executing the search warrant. When the officer
entered the home and began to chase the defendant, he was tripped
by a dog on a leash that was in the hallway, and the dog bit him on
the leg. During cross-examination, defendant's counsel asked the
officer what type of dog it was. The officer replied that he did
not know, but that “[i]t was a biting dog.” Counsel then asked if
it was a small dog, and when the officer agreed, the trial judge
added the comment “[l]ittle teeth.”
The next instance was during defense counsel's cross-
examination of Kelly Page, a forensic drug chemist with the State
Bureau of Investigation. Counsel asked Page, “What would you
equate the weight of the [.]9 grams to, of something not measured
in the metric system?” After the prosecutor objected, the courtasked counsel what system he would want her to use. When counsel
attempted to rephrase the question, the trial judge stated, “Yeah.
Use the Chinese System. What would it equate for in that?” After
counsel rephrased the question, Page testified that .9 grams was
similar to the amount of sugar in a sugar packet at a restaurant.
Third, during defendant's direct examination, he testified
that on 2 May 2003, he slept until late afternoon and then went out
and purchased a $40 money order. Counsel asked him if he ever told
police that he purchased the money order to pay the phone bill.
The following exchange occurred:
[DEFENDANT]: They didn't give me time. No, I
didn't get it - - I ain't never said a thing
about a phone bill. I don't pay phone bills
there. The phone bill is paid into the rent.
Mr. Gibbs pays the phone bills. In other
words, we pay - - I pay $75 a week for the
apartment.
[THE COURT]: A week?
[DEFENDANT]: $75 a week for the apartment, and
he pays the rent - - I mean, the phone bill -
- I mean, the light bill.
[THE COURT]: Which one? The light bill or the
phone bill?
[DEFENDANT]: I ain't had no phone.
[THE COURT]: That solves that.
[DEFENDANT]: I ain't had no phone.
[THE COURT]: You don't have a phone?
[DEFENDANT]: No, I didn't have a phone.
[DEFENDANT'S COUNSEL]: So you wouldn't have
been paying a phone bill with the money order.
[DEFENDANT]: If I had one. [THE COURT]: I'll tell you one thing. I
wouldn't want my daughter living there if the
man is going to pay the phone bill. Break him
up.
The final exchange occurred when defendant was asked on re-
direct whether a woman who was his resident had given him any
money. Defendant denied that she had given him $80. Defendant
further testified that if the six pieces of crack cocaine were
worth $20 a piece, then there “would have had to be $120.” The
following exchange then occurred:
[DEFENDANT]: . . . And, if it were 15, and he
had six pieces, ah - - what would that come
to?
[THE COURT]: You're getting into high finance
now.
Defendant claims that the trial judge's disparaging comments
deprived him of a fair trial.
After careful review of the record, briefs and contentions of
the parties, we find no error.
N.C.G.S. § 15A-1222 (2003) states
that “[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.”
Defendant claims that the trial judge's
disparaging comments deprived him of a fair trial. Our Supreme
Court has stated:
It is indisputable that every person charged
with a crime is “entitled to a trial before an
impartial judge and an unprejudiced jury in an
atmosphere of judicial calm. . . . ”
“The bare possibility, however, that an
accused may have suffered prejudice from the
conduct or language of the judge is not
sufficient to overthrow an adverse verdict.
The criterion for determining whether or notthe trial judge deprived an accused of his
right to a fair trial by improper comments or
remarks in the hearing of the jury is the
probable effect of the language upon the jury.
In applying this test, the utterance of the
judge is to be considered in the light of the
circumstances under which it was made.”
State v. Locklear, 349 N.C. 118, 143, 505 S.E.2d 277
, 292
(1998)(quoting State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10-
11 (1951)). Here, there was no hint in the record of any possible
prejudicial impact on the jury resulting from the judge's comments.
The comments largely appear to be an attempt at levity during a
full day's trial, and amount to a very small portion of the entire
transcript. See State v. Weeks, 322 N.C. 152, 158, 367 S.E.2d 895,
899 (1988)(
“an alleged improper statement will not be reviewed in
isolation, but will be considered in light of the circumstances in
which it was made.”). Thus, defendant has failed to meet his
burden of establishing that the trial court's remarks were
prejudicial. See State v. Green, 129 N.C. App. 539, 545, 500
S.E.2d 452, 456
(1998)(citing State v. Summerlin, 98 N.C. App. 167,
174, 390 S.E.2d 358, 361 (1990)).
Accordingly, the assignment of
error is overruled.
Defendant next argues there was insufficient evidence of prior
convictions to sustain the jury's finding that he was an habitual
felon.
We are not persuaded.
To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the charged
offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434
(1997). “'Substantial evidence is relevant evidence that areasonable mind might accept as adequate to support a conclusion.'”
Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C.
557, 564, 411 S.E.2d 592, 595 (1992)).
Here, the State presented
evidence in the form of certified copies of criminal judgments that
defendant had been convicted of the following felonies: (1) Sale
and Delivery of Cocaine (86 CRS 3759); (2) Sale and Delivery of
Cocaine (96 CRS 7407); and (3) Possession of Schedule II Controlled
Substance (01 CRS 053456). The evidence was admitted without
objection. In the light most favorable to the State, a jury could
reasonably conclude from this evidence that defendant had attained
habitual felon status. Accordingly, this assignment of error is
overruled.
No error.
Judges McGEE and HUDSON concur.
Report per Rule 30(e).
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