STATE OF NORTH CAROLINA
v. Mitchell County
No. 04 CRS 50230
WILLIAM D. TIPTON
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Richard H. Bradford, for the State.
William B. Gibson, for defendant-appellant.
JACKSON, Judge.
William D. Tipton (“Defendant”) appeals from a judgment
imposing an active sentence of imprisonment for his conviction by
a jury of second degree rape.
A summary of the evidence presented at trial is not necessary
for an understanding of the sole assignment of error brought
forward on appeal. Defendant
contends the court committed plain
error by instructing the jury during its opening remarks as
follows: “The State has the burden of proof and we're going to be
talking about that as we go forward to present sufficient evidence
to convince you beyond a reasonable doubt of the defendant's
guilt.” He argues this statement “calls into question the
impartiality of the trial judge” by telling the jurors that “'we'_ i.e., the judge and the prosecutor _ were going to convict the
Defendant.”
Plain error may be found
only in the exceptional case where, after
reviewing the entire record, it can be said
the claimed error is a “fundamental error,
something so basic, so prejudicial, so lacking
in its elements that justice cannot have been
done,” or “where [the error] is grave error
which amounts to a denial of a fundamental
right of the accused,” or the error has
“'resulted in a miscarriage of justice or in
the denial to appellant of a fair trial'” or
where the error is such as to “seriously
affect the fairness, integrity or public
reputation of judicial proceedings” or where
it can be fairly said “the instructional
mistake had a probable impact on the jury's
finding that the defendant was guilty.”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(quoting
United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.
1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)
(footnotes omitted)) (emphasis in original). “
It is the rare case
in which an improper instruction will justify reversal of a
criminal conviction when no objection has been made in the trial
court.” Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203,
212 (1977). In determining whether a judge's comments, statements
or actions constitute reversible error, the reviewing court must
consider the statements in the context in which they were made and
in view of the circumstances disclosed by the record. State v.
Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985).
Reversible error may be found only when it can be reasonably
inferred that the trial court intimated an opinion as to a factualissue, the defendant's guilt, the weight of the evidence, or a
witness's credibility. Id.
In the case at bar, the court made the statement at the call
of the case for hearing before any jurors had been seated and any
evidence had been presented. After making the statement at issue,
the court stated:
The defendant is not required under our laws
to defend himself in the sense that he's
required to testify because he doesn't have
the burden of proof. The State of North
Carolina has that burden and again we'll talk
about what that means but suffice it to say at
this point in time that it is a, a reasonable
doubt is just a doubt based on your good
common sense and that you must be entirely
convinced and satisfied of the defendant's
guilt for you to find him guilty.
By this statement the court clearly conveyed to the jury that the
State had the burden of proof. Defendant's construction of the
statement at issue disregards the syntax of the statement.
Insertion of commas as to make the statement to read, “The State
has the burden of proof[,] and we're going to be talking about that
as we go forward[,] to present sufficient evidence to convince you
beyond a reasonable doubt of the defendant's guilt,” clearly
conveys to the jury that the State alone has the burden of proof.
A “court reporter's punctuation[, or lack thereof,] of the judge's
charge . . . is not sufficient evidence of error to warrant a new
trial.” State v. Jarrette, 284 N.C. 625, 650, 202 S.E.2d 721, 737
(1974), vacated in part on other grounds, 428 U.S. 903, 49 L. Ed.
2d 1206 (1976).
We conclude that the court's usage of the first person pluralwas intended to include everyone as a participant in the trial and
was not an expression of opinion on a question of fact to be
decided by the jury. See State v. Scercy, 159 N.C. App. 344, 351,
583 S.E.2d 339, 343 (holding judge's statement “that's what we'll
do” was not an expression of opinion on a “question of fact to be
decided by the jury” but was a comment on the roles of the court
and the attorneys)
, appeal dismissed and disc. rev. denied, 357
N.C. 581, 589 S.E.2d 363 (2003); State v. Wallace, 21 N.C. App.
523, 524-25, 204 S.E.2d 855, 856 (1974) (holding judge's statement
“we are trying” was not inferring that the judge was a member of
the prosecutorial team but was intended to include everyone in the
courtroom as participants in the trial). We hold that the trial
court did not commit plain error.
No error.
Judges WYNN and CALABRIA concur.
Report per Rule 30(e).
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