STATE OF NORTH CAROLINA
v
.
Forsyth County
Nos. 02 CRS 03883 - 84
RAYSHAWN DERNARD BANNER, and
NATHANIEL ARNOLD CAUTHEN
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Joan M. Cunningham, for the State.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General John G. Barnwell, for the State.
Hardison & Leone, LLP, by Richard B. Glazier, for Rayshawn
Banner, defendant-appellant.
Public Defender Staples S. Hughes, by Assistant Public
Defender Barbara S. Blackman, for Nathaniel Cauthen,
defendant-appellant.
JACKSON, Judge.
Co-defendants, Nathaniel Cauthen (“Cauthen”) and Rayshawn
Banner (“Banner”), each were indicted by the Grand Jury of Forsyth
County 3 November 2003 for first degree murder and robbery with a
dangerous weapon. The cases were joined for trial and came on for
jury trial 9 August 2004. Cauthen and Banner each were found
guilty as charged 19 August 2004. Both were sentenced to life in
prison without the possibility of parole on the murder conviction
and the trial court arrested judgment on the robbery with adangerous weapon conviction for both defendants. Both defendants
gave notice of appeal in open court.
At trial, the State's evidence tended to show that Nathaniel
Jones (“the victim”) was murdered and robbed at his residence
sometime in the late afternoon or evening of 15 November 2002.
During their investigation, police received information that
defendants and several other individuals possibly were involved in
the crime. Officers went to speak with Banner and Cauthen and
asked them to come to the police station to talk. Both were
advised that they did not have to go to the station, they were not
under arrest, the police did not have arrest warrants for either of
them, they could not be forced to go to the station, and, if they
did go to the station, they would be free to leave at any time.
Banner refused, within earshot of Cauthen, to accompany the
officers, and did not go to the station.
Cauthen agreed to go with the officers. He was not handcuffed
and rode in the front seat of an unmarked police car to the
station. After arriving at the station, Cauthen was led to an
interview room where he again was told that he was not under
arrest. After being left alone in the interview room for about two
hours, defendant was interviewed by two detectives for about
twenty-five minutes. During the interview Cauthen denied
involvement in the crime, resisted answering questions, and was
belligerent. Cauthen was told that other people were implicating
him in the crime. Cauthen continued to deny involvement and the
interview was stopped. Cauthen's mother was allowed to speak with him for
approximately fifteen to twenty minutes. After his mother left,
Cauthen was shown to the restroom and provided with popcorn and a
drink. Officers then resumed questioning Cauthen who initially
continued to deny his involvement. Cauthen appeared upset that his
mother believed that he was involved in the crime and then began to
admit to his involvement. After listening to his statements, the
officers told Cauthen that they were going to take a recorded
statement and left the room for some time. When the officers
returned, they took Cauthen's recorded statement from 10:14 until
10:30 p.m.
Later on the evening of 19 November 2002, officers went to
Banner's house and again requested that he come to the station for
questioning. When Banner again refused he was arrested and brought
to the station. Banner was advised of his Miranda and juvenile
rights and that he had the right to have a parent present during
questioning. In an affidavit filed in support of his motion to
suppress his statement at trial, Banner denied ever being advised
of his rights or that he could have his parent with him during
questioning. At trial, the State introduced a waiver of rights
form signed by Banner.
Initially, Banner denied involvement in the crime, but after
officers played a portion of Cauthen's recorded statement, he
admitted his involvement. At no time during his questioning was
Banner denied permission to use the restroom or denied drink. The trial court denied both motions to suppress the statements
made by defendants to the police.
Defendants attempted to offer Dr. Soloman Fulero (“Dr.
Fulero”) as an expert in the area of the “psychologic dynamics of
interrogation.” Dr. Fulero made an offer of proof of his proposed
testimony outside the presence of the jury. Dr. Fulero testified
that he had not conducted an examination of either defendant
individually and gave only general testimony regarding the
psychology of police interrogations. After the voir dire was
completed, the trial court declined to admit Dr. Fulero as an
expert and made detailed findings of fact in support of that
determination.
During the presentation of its case, the State called the
victim's daughter, Robin Paul (“Paul”), as a witness. Paul was
asked, on the witness stand before the jury, to identify her father
from two photographs. The first photo showed the victim while he
was alive and the second photo showed the victim during the
autopsy. The autopsy photo was not submitted to the jury at the
time of Paul's identification. Prior to the identification,
defendants objected to the identification from the second photo in
an unrecorded bench conference. After the bench conference,
defendants entered their objection on the record. The basis for
the objection was that Paul did not have personal knowledge of her
father's physical condition at the time of the autopsy and,
therefore, the identification was not relevant. The trial courtoverruled the objection and stated that Paul would be allowed to
make an identification from the autopsy photo.
The State also introduced photographs taken during the
victim's autopsy during the direct examination of Dr. Donald Jason
(“Dr. Jason”), the doctor who performed the autopsy in order to
illustrate Dr. Jason's testimony. Defendants objected to the
introduction of those photos on the ground that the photos were
repetitious and prejudicial. The trial court overruled the
objections and concluded that the photos were not so gory,
inflammatory, or repetitive as to render them inadmissible. The
trial court further found that the probative value of the photos as
illustrative of Dr. Jason's testimony outweighed their potential
prejudicial effect.
At trial, Dr. Jason testified on direct examination that, in
his opinion, the victim died of cardiac arrhythmia due to stress on
his heart caused by multiple blunt force injuries. On cross
examination, Dr. Jason testified that, although the victim's pre-
existing heart condition was the immediate cause of death, in his
opinion, the proximate cause of death was the assault upon the
victim. Dr. Jason subsequently stated twice more that the
immediate cause of death was cardiac arrhythmia. After his second
statement to that effect, the court asked Dr. Jason what, in his
opinion caused the arrhythmia. Dr. Jason responded that, in his
opinion, the arrhythmia was caused by the multiple blunt force
injuries to the victim's head. Defendants were convicted on all charges and sentenced to life
imprisonment without the possibility of parole on the murder
conviction and the trial court arrested judgment on the assault
with a deadly weapons convictions. Both defendants gave timely
notice of appeal.
On appeal, each defendant makes numerous assignments of error
but neither presents in their brief, argument or authority in
support of all assignments of error included in the record on
appeal. Assignments of error for which no argument or authority
are set out in appellant's brief are deemed abandoned. N.C. R.
App. P., Rule 28(b)(6) (2006); State v. Augustine, 359 N.C. 709,
738, 616 S.E.2d 515, 535 (2005). Accordingly, defendants'
assignments of error not argued in their briefs are deemed
abandoned and are not considered.
Banner's assignments of error that are properly before this
Court are that the trial court erred: (1) in disallowing the
proffered testimony of defendants' expert witness, Dr. Fulero; (2)
by permitting Paul to identify the victim from an autopsy
photograph; and (3) by allowing the introduction of autopsy
photographs into evidence after the injuries depicted had already
been extensively described by the doctor who conducted the autopsy.
Cauthen's remaining assignments of error are that the trial
court erred: (1) in disallowing the proffered testimony of
defendants' expert witness, Dr. Fulero; (2) by permitting Robin
Paul to identify the victim from an autopsy photograph; (3) in
denying his motion to suppress statements made to law enforcementofficers on the ground that the trial court's finding of fact that
he was not in custody when he was questioned was not supported by
the evidence; (4) in denying his motion to suppress statements made
to law enforcement officers on the ground that the trial court's
finding of fact that the statements in question were made
voluntarily was not supported by the evidence; and (5) by
questioning the doctor who conducted the autopsy regarding the
victim's cause of death.
We first address those assignments of error common to both
defendants. Both defendants assign error to the trial court's
exclusion of the proffered testimony of Dr. Fulero. Rule 702 of
the North Carolina Rules of Evidence governs the admissibility of
expert testimony. Rule 702 provides, “If scientific, technical or
other specialized knowledge 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) (2005). Relevant evidence may be
excluded if the probative value of such evidence is substantially
outweighed by the danger of confusion of the issues or misleading
the jury. N.C. Gen. Stat. . 8C-1, Rule 403 (2005). The trial
court has broad discretion in determining whether to admit the
testimony of an expert. State v. Gainey, 355 N.C. 73, 88, 558
S.E.2d 463, 474, cert. denied, 537 U.S. 896, 154 L. Ed. 2d (2002).
After extensive voir dire, the trial court ruled that any
probative value Dr. Fulero's testimony might have was substantiallyoutweighed by the danger of confusion of the issues for the jury.
A trial court's findings of fact, made after voir dire, which are
supported by competent evidence are binding on appeal. See State
v. Lee, 154 N.C. App. 410, 415, 572 S.E.2d 170, 174 (2002). Dr.
Fulero's proffered testimony showed that he had not examined either
defendant personally to determine his individual characteristics,
such as intelligence or mental condition, nor had he reviewed the
statements of the other defendants in the case. Dr. Fulero's
testimony on voir dire also indicated that the purpose of his
testimony was not to offer a specific opinion regarding either
defendant except as to their ages.
Dr Fulero's testimony consisted primarily of a general
explanation of police interrogation techniques and the phenomenon
of false confessions. Dr. Fulero's testimony did not indicate
which, if any, of the interrogation techniques that he described
were utilized in the instant case or the possible effect of the
employment of such techniques. In fact, his testimony specifically
indicated that there was no evidence that the police lied to either
defendant regarding statements of other defendants incriminating
them in an effort to obtain a confession.
The trial court's findings that Dr. Fulero's testimony was not
based on any examination of defendants, was not related to any
psychological characteristics of the individual defendants and
amounted to a “generalized exposition” on police interrogation
techniques and “a phenomenon of false or coercive confessions ” are
supported by competent evidence. Expert testimony which is notspecific to the case itself or a party to it may properly be
excluded. See State v. Horton, 299 N.C. 690, 696, 263 S.E.2d 745,
749-50 (1980); Lee, 154 N.C. App. at 417, 572 S.E.2d at 175; State
v. Knox, 78 N.C. App. 493, 495, 337 S.E.2d 154, 156 (1985).
Based on these findings of fact, the trial court concluded
that the proffered testimony lacked probative value as it would not
assist the trier of fact in understanding the evidence in the case
nor make the existence or non-existence of a fact at issue in the
case more or less probable. As the trial court's findings of fact
were supported by competent evidence, and therefore binding on
appeal, and they support the trial court's conclusions of law, this
assignment of error is overruled.
Both defendants rely on Crane v. Kentucky, 476 U.S. 683, 90 L.
Ed. 2d 636 (1986), in support of their position that Dr. Fulero's
testimony was excluded improperly. Crane clearly is
distinguishable from the instant case, however. In Crane, the
defendant was prohibited from presenting evidence to the jury
pertaining to the circumstances surrounding his interrogation by,
and confession to, the police. 476 U.S. at 685, 90 L. Ed. 2d at
641-42. Evidence which the trial court specifically prohibited
Crane from presenting to the jury included the duration of his
interrogation and the individuals who were present during the
interrogation. 476 U.S. at 686, 90 L. Ed. 2d at 642.
In the case sub judice, defendants were permitted to present
extensive evidence to the jury regarding the specific circumstances
surrounding their interrogations and confessions. The onlyevidence precluded by the trial court consisted of the general
testimony of Dr. Fulero which did not deal with any of the specific
facts concerning defendants' interrogations or confessions.
Accordingly, defendants' reliance on Crane is misplaced.
Both defendants also assign error to the trial court's
allowing Paul to make a second identification of the victim from an
autopsy photograph after previously identifying her father in a
photograph taken while he was alive. The autopsy photograph itself
was neither admitted nor shown to the jury at the time of Paul's
identification. Defendants objected to the use of the autopsy
photograph in an unrecorded bench conference. After the unrecorded
bench conference, defendants entered their objection on the record
stating that the basis of the objection was that Paul had no
personal knowledge of the victim's physical state at the time that
the autopsy photograph was taken and that consequently the
photograph was not relevant. At that time, the trial court stated
that Paul would be allowed to identify the person appearing in the
photograph.
On appeal, defendants do not challenge the relevancy of the
autopsy photograph. Defendants instead assign error to Paul's
identification from the autopsy photograph on the basis that its
only effect was to excite prejudice or sympathy. Defendants
contend that Paul's emotional outburst upon seeing the autopsy
photo of her father served only to arouse the passions of the jury.
Rule 10(b)(1) of the North Carolina Rules of Appellate
Procedure provides, in part: In order to preserve a question for appellate
review, a party must have presented to the
trial court a timely request, objection or
motion, stating the specific grounds for the
ruling the party desired the court to make if
the specific grounds were not apparent from
the context. It is also necessary for the
complaining party to obtain a ruling upon the
party's request, objection or motion (emphasis
added).
This rule requires that the grounds upon which the alleged error on
appeal is based must have been presented to, and ruled upon by, the
trial court to preserve the issue for appeal.
As has been said many times, “the law does not
permit parties to swap horses between courts
in order to get a better mount,” . . .
meaning, of course, that a contention not
raised and argued in the trial court may not
be raised and argued for the first time in the
appellate court.
Wood v. Weldon, 160 N.C. App. 697, 699, 586 S.E.2d 801, 803 (2003)
(quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838
(1934)), disc. review denied, 358 N.C. 550, 600 S.E.2d 469 (2004).
As defendants present a different basis for this alleged error on
appeal than the grounds presented for their objection at trial this
assignment of error has not been properly preserved for appeal and
is not considered.
Next we address those assignments of error unique to each
defendant. Banner's final assignment of error is that the trial
court erred in allowing photographs of the victim at the crime
scene and autopsy photographs of the victim to be admitted into
evidence after already having been described in detail in the trial
testimony of investigating officers and the doctor who performed
the autopsy. Banner argues that the admission of the photographswas excessive and prejudicial in light of the extensive testimony
regarding what was depicted in them.
Banner fails, however, to bring the challenged photographs
forward with the record on appeal. Rule 9(d)(2) of the North
Carolina Rules of Appellate Procedure requires that exhibits
“offered in evidence and required for understanding of errors
assigned” be filed with the appellate court. Accordingly, we are
unable to review the challenged photographs to determine whether
they were excessive in light of the testimony describing what was
depicted in the photographs. Banner has “failed to bring forward
a record sufficient to allow proper review of this issue and has
failed to overcome the presumption of correctness at trial.” State
v. Ali, 329 N.C. 394, 412, 407 S.E.2d 183, 194 (1991). This
assignment of error is overruled.
We now turn to defendant Cauthen's remaining assignments of
error. Cauthen argues that the trial court erred in denying his
motion to suppress the incriminating statements that he made to
police as he was in custody when the statements were made and he
was not given his Miranda warnings prior to making the statements.
Miranda warnings are required only if the person being
questioned is in custody at the time of the questioning. Oregon v.
Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 719 (1977). In
determining whether a person is “in custody” at the time of
questioning, an appellate court must consider all of the
circumstances surrounding the questioning. State v. Buchanan, 353
N.C. 332, 338, 543 S.E.2d 823, 828 (2001)(“Buchanan I”) (citingState v. Gaines, 345 N.C. 647, 662, 483 S.E.2d 396, 405, cert.
denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997)). The ultimate
determination that must be made “'is whether there was a formal
arrest or a restraint on freedom of movement of the degree
associated with a formal arrest.'” Id. (quoting Gaines, 345 N.C. at
662, 483 S.E.2d at 405). Making this determination requires the
application of “'an objective test as to whether a reasonable
person in the position of the defendant would believe himself to be
in custody or that he had been deprived of his freedom of action in
some significant way.'” State v. Sanders, 122 N.C. App. 691, 693,
471 S.E.2d 641, 642 (1996) (quoting State v. Greene, 332 N.C. 565,
577, 422 S.E.2d 730, 737 (1992)).
In reviewing a trial court's denial of a motion to suppress,
our inquiry is limited to whether the trial court's findings of
fact are supported by competent evidence, in which case those
findings of fact become conclusive on appeal, and if those findings
of fact support the trial court's conclusions of law. State v.
Barden, 356 N.C. 316, 340, 572 S.E.2d 108, 125 (2002), cert.
denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003).
In the case sub judice, the trial court made the following
findings of fact pertinent to this appeal:
5. On November 19, 2002, approximately 4:30
or 5:00 p.m., Detective Rose located the
defendant and his brother Rayshawn Banner
and asked them, in each other's hearing,
to accompany officers the Public Safety
Center for questioning about the homocide
[sic] and that they could not be
compelled to go if they didn't want to
go. Detective Rose also told them that he
did not have an order of arrest foreither of them and they were not under
arrest and that if they chose to
accompany officers, they were free to
leave at any time;
. . .
7. The defendant agreed to go with the
officers, having heard his brother's
refusal and knowing that his brother did
not accompany officers;
. . .
9. On arrival at the PSC, the defendant
accompanied officers to an office through
doors that were not locked at the time he
entered; all of the doors that the
defendant would be involved with at the
PSC could be opened from the inside
without a key simply by pushing on them;
10. At 6:30 p.m., Detective Mike Rowe and Lt.
Randy Weavil talked with the defendant
and determined that the defendant was not
under the influence of any impairing
substance and repeated to the defendant
that he was not under arrest and that
Detective Rowe wanted to talk to him
about the death of Mr. Jones;
. . .
19. As recapitulated in the recorded
statement, the defendant agreed to go to
the police department, agreed to talk and
agreed to stay in order to do so, he was
never handcuffed, he was never told he
was under arrest and had been told at
least twice that he was not under arrest;
. . .
21. Prior to these events the defendant had
been arrested three or four times, twice
as a juvenile for running away and once
for stealing his mother's car. On several
of those occasions he had been
handcuffed;
22. Despite defendant's testimony to the
contrary, the defendant did not request
that he be allowed to go home nor was he
told that if he would make statements
about the homicide that he would be
allowed to go home;
23. At all times prior to making the first
recorded statement, the defendant was not
under arrest; he was free to go; he was
not denied food, drink or restroom
privileges and was in fact provided with
same; . . .
All of these findings of fact are supported by competent evidence
in the record.
Cauthen argues that the trial court's failure to make findings
of fact regarding the configuration of the police station, the
characteristics of the rooms in which he was placed, and the
details of his trip to the bathroom demonstrate that the trial
court failed to assess the totality of the circumstances. The fact
that the layout of the police facility was confusing, alone, does
not support Cauthen's position that he was not free to leave.
There is no indication that the officers would not have shown him
the way out had he asked.
The cases Cauthen cites in support of this position clearly
are distinguishable. In State v. Harvey, 78 N.C. App. 235, 336
S.E.2d 857 (1985), we held that a seventeen-year-old who
voluntarily went with police officers was in custody when he was
questioned. 78 N.C. App. at 238, 336 S.E.2d at 859-60. Cauthen
asserts that our holding in Harvey was due to the facts that the
contact was initiated by the police and that the police did not
stop questioning the defendant after he denied involvement in thecrime. Cauthen ignores the additional facts that, unlike himself,
the Harvey defendant presented evidence that he had an IQ of 78 and
he was never informed that he was not under arrest. Harvey, 78
N.C. App. at 238, 336 S.E.2d at 860.
Cauthen also cites Buchanan I, supra, for the proposition that
since he was escorted to the restroom by an officer his interaction
at the police station became custodial. In Buchanan I, however,
the defendant initially was allowed to go to the restroom at the
police station unaccompanied. Buchanan I, 353 N.C. at 334, 543
S.E.2d at 824. Later, after implicating himself in the crime under
investigation but prior to being placed under arrest, he was
escorted to the restroom by officers. Buchanan I, 353 N.C. at 334-
35, 543 S.E.2d at 824-25. However, the holding in Buchanan I was
that the trial court applied the incorrect legal standard in
determining that the defendant was in custody for purposes of
Miranda warnings at the time of his questioning and the case was
remanded to the trial court. Id. at 342, 543 S.E.2d at 829-30. On
remand, the trial court made additional findings of fact and
applied the proper test in determining the issue of whether the
defendant was in custody. State v. Buchanan, 355 N.C. 264, 559
S.E.2d 785 (2002)(“Buchanan II”). After applying the correct legal
standard, the trial court determined that, by accompanying
defendant to the restroom the second time, circumstances were
created that would lead a reasonable person in the defendant's
position to believe he was in custody as it “restrained [ ] hismovement to the degree associated with a formal arrest[.]” Id.
(quoting Buchanan I, 353 N.C. at 340, 543 S.E.2d at 828).
In the instant case, Cauthen never was allowed to go to the
restroom unaccompanied and accordingly being escorted by an officer
to the restroom did not constitute any change in circumstances.
The mere fact that he was escorted to the restroom by an officer is
not sufficient to lead a reasonable person in Cauthen's position to
believe he was in custody, particularly in light of his own
testimony that the facility “was like a maze.” Cauthen testified
that he did not know his way out of the facility. A reasonable
person, who acknowledges that he was unable to find his way around
the building, would not believe he was in custody simply because an
officer escorted him to the restroom for the first, and in this
case only, time. Accordingly, this assignment of error is
overruled.
Cauthen next argues that the trial court erred in determining
that the statements he made to the police were voluntary and
consequently denying his motion to suppress those statements. In
determining whether a statement was made voluntarily, a court must
consider the totality of the circumstances surrounding the making
of the statement, including the personal characteristics of the
defendant and the details of the questioning. Schneckloth v.
Bustamonte, 412 U.S. 218, 225-26, 36 L. Ed. 2d 854, 862 (1973);
Gaines, 345 N.C. at 664, 483 S.E.2d at 406.
Some of the factors to be considered include: defendant's
mental capacity; whether defendant was in custody at the time ofthe statements; and if psychological coercion, threats, physical
abuse, or promises were used in the course of the questioning.
Greene, 332 N.C. at 579, 422 S.E.2d at 738. Another important
factor in determining whether a statement was made voluntarily is
the defendant's prior experience with the criminal justice system.
State v. Fincher, 309 N.C. 1, 20, 305 S.E.2d 685, 697 (1983).
A trial court's findings of fact made after conducting a
hearing regarding whether a defendant's statements were made
voluntarily are binding on appeal if supported by competent
evidence even if the evidence is conflicting. State v. Jackson,
308 N.C. 549, 569, 304 S.E.2d 134, 145 (1983). In the instant
case, Cauthen does not challenge the sufficiency of the evidence
supporting the trial court's findings of fact after conducting the
hearing on his motion to suppress. Instead, Cauthen merely
highlights the conflicts in the evidence. A review of the record
demonstrates that the trial court's findings of fact are supported
by competent evidence.
We must now determine whether the trial court's findings of
fact support its conclusion that Cauthen's statements were
voluntary. In the instant case, the trial court found as fact that
Cauthen was asked to go to the police station for questioning, told
he did not have to go, told the officers did not have a warrant for
his arrest and that he was not under arrest, and told that if he
did go he would be free to leave at any time. The trial court
further found as fact that Cauthen voluntarily went with the
officers after hearing Banner refuse to go and knowing that Bannerdid not go, that Cauthen was not handcuffed, that none of the doors
at the police station through which he was taken required a key to
open, and that he was told again that he was not under arrest. The
trial court also found that defendant had been arrested three or
four times previously and had been handcuffed on several of those
occasions, that he never asked to go home, that no promises or
threats were made by the officers during his questioning, and that
none of his questioning lasted more than an hour or an hour and a
half at a time. Based upon these conclusive findings of fact, we
hold that Cauthen's statements were voluntarily made. This
assignment of error is overruled.
Finally, Cauthen argues that the trial court committed
structural error in questioning Dr. Jason about the victim's cause
of death. In his assignment of error regarding the questioning of
Dr. Jason by the trial court, Cauthen contends that it amounted to
structural error and, accordingly, did not require objection at
trial to preserve the error for appellate review. Structural error
is an error which affects the very framework of the trial rather
than the process of the trial. Arizona v. Fulminante, 499 U.S.
279, 310, 113 L. Ed. 2d 302, 311 (1991).
Cauthen argues that the trial court's questioning of Dr. Jason
constituted an expression of opinion by the court regarding the
evidence which was prejudicial to him. Such an expression
constitutes structural error as it is highly unlikely that jurors
can disregard the impression that the trial court holds such a
prejudicial opinion in reaching a verdict. State v. Canipe, 240N.C. 60, 66, 81 S.E.2d 173, 177-78 (1954). In the instant case,
however, the trial court's questions of the witness were
permissible and did not indicate an opinion regarding the evidence,
but merely served to clarify Dr. Jason's testimony.
North Carolina General Statutes, section 8C-1, Rule 614(b)
specifically provides that a trial court may interrogate witnesses
to clarify the testimony of that witness. Such questioning does
not amount to an impermissible expression of the trial court's
opinion regarding the guilt or innocence of the defendant. State
v. Davis, 294 N.C. 397, 402, 241 S.E.2d 656, 659 (1978). In the
case sub judice, the trial court asked Dr. Jason an open-ended
question regarding his opinion of what caused the victim's
arrhythmia - a question which did not suggest any answer. The
court's questioning of Dr. Jason did not indicate an impermissible
opinion regarding defendants' guilt or innocence. Accordingly,
this assignment of error is overruled.
No error.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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