Appeal by defendant from judgment entered 3 August 2004 by
Judge Evelyn Hill in Cumberland County Superior Court. Heard in
the Court of Appeals 10 October 2005.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Laura E. Crumpler, for the State.
McAfee Law, P.A., by Robert J. McAfee, for defendant-
appellant.
HUNTER, Judge.
Daniel Saint Walters Moore, Jr. (“defendant”) appeals from
judgment entered 3 August 2004 consistent with a jury verdict
finding him guilty of taking indecent liberties with a student and
taking indecent liberties with a child. For the reasons stated
herein, we find no error by the trial court.
The following issues are presented by defendant in this
appeal: (1) whether the trial court's comments deprived defendant
of a trial by a fair and impartial judge; (2) whether the trial
court erred by denying defendant's motion for mistrial; (3) whether
the trial court erred by qualifying Dr. Sharon Cooper (“Dr.
Cooper”) as an expert; and (4) whether defendant was denied
effective assistance of counsel. The evidence tends to show the following: In the spring of
2002, B.T., a thirteen-year old eighth-grader at Anne Chestnutt
Middle School in Fayetteville, North Carolina, developed a
friendship with defendant, who was then twenty years old.
Defendant was an occasional substitute teacher for health and P.E.
classes and an assistant coach for the school's football and
wrestling teams.
In October 2002, defendant saw B.T. at a concert in a nearby
college town. B.T. thought defendant was intoxicated and
remembered defendant “mention[ing] that he _- something that had to
do with him going to have sex or something. I mean, he asked did
I want to watch.” One week later, defendant approached B.T. at
school and gave her two handwritten notes, one asking if she
remembered what he said at the concert, and another asking B.T. for
a favor. Defendant also gave B.T. his phone number.
Defendant and B.T. then began talking to one another once or
twice per week. B.T. felt comfortable talking to defendant. On
one occasion, defendant took B.T. out of her first period class
into an empty classroom where defendant began to kiss her and touch
her breasts. On another occasion, defendant met B.T. in a school
hallway and kissed her. On 21 October 2002, defendant arranged to
pick up B.T., and they drove to a nearby neighborhood, where
defendant and B.T. had sex.
Defendant was indicted on 24 June 2003 for statutory rape,
statutory sexual offense, first degree kidnapping, sexual activity
with a student, indecent liberties with a minor, and indecentliberties with a student. The trial court granted defendant's
motion to dismiss the first degree kidnapping charge at the close
of the State's evidence. Defendant did not testify at trial.
On 3 August 2004, defendant was found guilty of indecent
liberties with a student and indecent liberties with a minor.
However, the jury acquitted defendant of statutory rape, statutory
sex offense, and sexual activity with a student. Defendant was
sentenced to a term of sixteen to twenty months imprisonment. The
execution of the sentence was suspended, and defendant was placed
on special probation for twenty-four months, serving an
intermediate punishment of four months imprisonment. Defendant
appeals.
I.
Defendant first contends that the trial court's derogatory
comments directed toward defense counsel deprived defendant of a
trial by a fair and impartial judge. We disagree.
A “fundamental [precept of] due process [is] that every
defendant be tried 'before an impartial judge and an unprejudiced
jury in an
atmosphere of judicial calm.'”
State v. Brinkley, 159
N.C. App. 446, 450, 583 S.E.2d 335, 338 (2003) (quoting
State v.
Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951)). N.C. Gen.
Stat. § 15A-1222 (2003) directs 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.”
Id. “The
judge's duty of impartiality extends to defense counsel. He [or
she] should refrain from remarks which tend to belittle orhumiliate 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).
However, “not every improper remark will require a new
trial[;] a new trial may be awarded if the remarks go to the heart
of the case.”
State v. Sidbury, 64 N.C. App. 177, 179, 306 S.E.2d
844, 845 (1983). “'In evaluating whether a judge's comments cross
into the realm of impermissible opinion, a totality of the
circumstances test is utilized.'”
State v. Mack, 161 N.C. App.
595, 598, 589 S.E.2d 168, 171 (2003) (citation omitted),
disc.
review denied,
358 N.C. 379, 598 S.E.2d 140,
cert. denied,
Mack v.
North Carolina, ___ U.S. ___, 160 L. Ed. 2d 336 (2004).
“'“[W]hether the accused was deprived of a fair trial by the
challenged remarks [of the trial judge] must be determined by what
was said and its probable effect upon the jury in light of all
attendant circumstances, the burden of showing prejudice being upon
the appellant.”'”
State v. Wright, ___ N.C. App. ___, ___, 616
S.E.2d 366, 369 (citations omitted),
per curiam affirmed, ___ N.C.
___, ___ S.E.2d ___ (No. 483A05 filed 1 December 2005).
Here, defendant contends that comments made by the trial judge
to defense counsel were improper and deprived him of a fair and
impartial trial. Defendant cites several portions of the
transcript as examples, including the following incidents.
During the preliminary instructions to the jury prior to
opening statements, the trial court admonished defense counsel to
pay attention. Prior to the State's first witness, the trial courtinterrupted defense counsel and advised him to refrain from
discussing certain matters in front of the jury. On two occasions
during defense counsel's cross-examination of the State's initial
witnesses, the trial court instructed counsel to not repeat
testimony, and on several occasions the court refused to let
defense counsel approach a witness, stating that a proper
foundation had not been laid. The court refused to hear counsel on
the subject, ordering him to sit down and move on to the next
question.
The trial court also interrupted defense counsel's cross-
examination several times to inquire whether counsel was making
statements or asking questions, and the court offered commentary on
how to ask a question. At one point, the trial court interrupted
defense counsel's cross-examination to reprimand counsel for
failing to ask a question properly, but the transcript reveals that
a question was asked. The trial court also interrupted and
reprimanded defense counsel for “making editorial comments” when
counsel attempted to find a document upon which he sought to
question the witness.
Finally, the trial court sustained several objections
ex mero
motu throughout the trial. The court also threatened to have the
bailiff return defense counsel to the defense table after an off-
the-record discussion with the bench, at which time, the trial
court refused to hear anything further from counsel.
Here, utilizing the totality of the circumstances test,
appellant has failed to show that the challenged remarks of thetrial court to defense counsel deprived defendant of a fair trial.
Defendant fails to demonstrate the probable effect upon the jury of
the trial court's comments and interruptions, which were directed
only toward defense counsel. In the context of this trial, some of
the trial court's comments were inappropriate; however, in light of
all attendant circumstances, we hold that the trial court's
comments were
insufficient to show that defendant's right to a fair
trial before an impartial judge and an unprejudiced jury was
violated. This assignment of error is overruled.
II.
Defendant next argues that the trial court erred by denying
defendant's motion for mistrial, which was based on the trial
court's comments made during the course of the trial. We disagree.
“The obvious purposes of mistrial are to prevent prejudice
arising from conduct before the jury and to provide a remedy where
the jury is unable to perform its function.”
State v. O'Neal, 67
N.C. App. 65, 69, 312 S.E.2d 493, 495 (1984).
N.C. Gen. Stat. § 15A-1061 (2003) provides, in pertinent part:
Upon motion of a defendant or with his
concurrence the judge may declare a mistrial
at any time during the trial. The 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.
Id. “It is well settled that a motion for a mistrial and the
determination of whether defendant's case has been irreparably and
substantially prejudiced is within the trial court's sounddiscretion.”
State v. King, 343 N.C. 29, 44, 468 S.E.2d 232, 242
(1996). “However, this discretionary power is not unlimited; a
motion for mistrial must be granted if there occurs an incident of
such a nature that it would render a fair and impartial trial
impossible under the law.”
State v. McCraw, 300 N.C. 610, 620, 268
S.E.2d 173, 179, (1980). The trial court's “decision is not
reviewable absent a showing of gross abuse of discretion.”
State
v. Monk, 63 N.C. App. 512, 521, 305 S.E.2d 755, 761 (1983).
In the instant case, as discussed
supra in Section I, we
conclude that the trial court's comments were insufficient to
deprive defendant of the right to an impartial judge and
unprejudiced jury. We further conclude that the trial court did
not abuse its discretion by denying defendant's motion for mistrial
based on the trial court's comments. This assignment of error is
overruled.
III.
Defendant next argues that the trial court abused its
discretion by qualifying Dr. Cooper as an expert in “pediatrics
specializing in child physical and sexual abuse.” Defendant
contends that the field of forensic pediatrics does not exist, and
the trial court used a synonym, child abuse and neglect, to qualify
Dr. Cooper as a specialist in a non-existent area of expertise. We
conclude that the trial court did not abuse its discretion.
Rule 702 of the North Carolina Rules of Evidence, which
governs the admissibility of expert testimony, states the
following: “If scientific, technical or other specializedknowledge will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion.” N.C. Gen. Stat. . 8C-
1, Rule 702(a) (2003). “Our courts construe this rule to admit
expert testimony when it will assist the jury 'in drawing certain
inferences from facts, and the expert is better qualified than the
jury to draw such inferences.'”
State v. Parks, 96 N.C. App. 589,
592, 386 S.E.2d 748, 750 (1989) (quoting
State v. Anderson, 322
N.C. 22, 28, 366 S.E.2d 459, 463 (1988)).
This Court has long held that “'[o]rdinarily, whether a
witness qualifies as an expert is exclusively within the discretion
of the trial judge.'”
FormyDuval v. Bunn, 138 N.C. App. 381, 385,
530 S.E.2d 96, 99 (2000) (citation omitted). Furthermore, a
“'finding by the trial judge that the witness possesses the
requisite skill will not be reversed on appeal unless there is no
evidence to support it.'”
Parks, 96 N.C. App. at 592, 386 S.E.2d
at 750 (citation omitted). This Court has also determined that
“the legislature intended the term 'specialist' to include a
physician who is
either board certified in a specialty or who
holds
himself out as a specialist or limits his practice to a specialty.”
FormyDuval, 138 N.C. App. at 389, 530 S.E.2d at 102 (emphasis
added).
In the instant case, Dr. Cooper testified that she presently
practices medicine as a “developmental and forensic pediatrician”
at the Southern Regional Area Health Education Center (“AHEC”) inFayetteville, North Carolina, and at Womack Army Medical Center at
Fort Bragg, North Carolina. Dr. Cooper is board certified in
pediatrics, and is a member of the American Academy of Pediatrics
and the American Professional Society on the Abuse of Children.
She holds faculty positions at the University of North Carolina at
Chapel Hill and in the Department of Pediatrics at the Uniformed
Services University of Health Sciences in Bethesda, Maryland, and
also teaches at the Institute of Government, the Womack Army
Medical Center, the Southern Regional AHEC, and the National Center
for Missing and Exploited Children. Dr. Cooper has also had her
work published in a textbook entitled, “Sexual Assault
Victimization Across the Life Span” and has written a textbook on
the topic of Internet child sexual exploitation.
At trial, the court allowed Dr. Cooper to be qualified as an
expert in “pediatrics . . . specializing in child physical and
sexual abuse[,]” rather than forensic pediatrics, as suggested by
the State. Dr. Cooper testified that “[f]orensic pediatrics is a
relatively new subspecialty. . . . [I]t does not as yet have any
board certification or a specific examination that you have to
take.” Dr. Cooper further testified that “[w]ithin the last two
years, developmental pediatricians ha[ve] established for the first
time [their] own boards. I haven't as yet taken those boards, but
they are now present.”
Despite Dr. Cooper's admissions concerning board examinations,
she is not precluded from qualifying as a specialist. According to
FormyDuval, one may be qualified as a specialist, even if not boardcertified, if one either (1) holds oneself out as a specialist or
(2) limits one's practice to a specialty.
FormyDuval, 138 N.C.
App. at 389, 530 S.E.2d at 102. Here, Dr. Cooper both holds
herself out as a specialist in child physical and sexual abuse and
limits her practice to that specialty, as reflected by her
testimony as to her certifications, employment, and publications.
We find the trial court did not abuse its discretion in
qualifying Dr. Cooper as an expert specializing in child physical
and sexual abuse. This assignment of error is overruled.
IV.
Defendant finally argues that his constitutional rights were
violated because he received ineffective assistance of counsel. We
disagree.
“Attorney conduct that falls below an objective standard of
reasonableness and prejudices the defense denies the defendant the
right to effective assistance of counsel.”
State v. Fair, 354 N.C.
131, 167, 557 S.E.2d 500, 525 (2001). An ineffective assistance of
counsel claim “must establish both that the professional assistance
defendant received was unreasonable and that the trial would have
had a different outcome in the absence of such assistance.”
Id.
“Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
'might be considered sound trial strategy.'”
Strickland v.Washington, 466 U.S. 668, 689, 80 L. Ed. 2d 674, 694-95 (1984)
(citations omitted). Furthermore, “[i]t is not enough for the
defendant to show that the errors had some conceivable effect on
the outcome of the proceeding. Virtually every act or omission of
counsel would meet that test, and not every error that conceivably
could have influenced the outcome undermines the reliability of the
result of the proceeding.”
Id. at 693, 80 L. Ed. 2d at 697
(citation omitted). In North Carolina, the “statutorily enacted
test for prejudice mirrors the
Strickland test.”
State v. Atkins,
349 N.C. 62, 112, 505 S.E.2d 97, 127 (1998);
see also N.C. Gen.
Stat. § 15A-1443(a) (2003).
In the instant case, defendant contends that the aggregation
of numerous incidents involving defense counsel constituted
inadequate assistance of counsel, including allegations regarding
counsel's demeanor, counsel's conduct toward the trial court and
counsel's attempts to elicit inadmissible evidence. We have
examined the general claims brought by defendant, most of which do
not reference any specific episode, and conclude that defendant's
constitutional rights were not violated; defendant did not receive
ineffective assistance of counsel. This assignment of error is
overruled.
In summary, we hold that the trial court's comments, under the
totality of the circumstances, did not deprive defendant of a trial
by a fair and impartial judge, and the trial court did not err in
denying defendant's motion for mistrial, or abuse its discretion in
qualifying Dr. Cooper as an expert. Furthermore, the record doesnot support defendant's claim of ineffective assistance of counsel.
We, therefore, find no error in defendant's trial.
No error.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).
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