An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-717

NORTH CAROLINA COURT OF APPEALS

Filed: 7 March 2006

STATE OF NORTH CAROLINA

v .                         Guilford County
                            No. 03 CRS 98188-89
JAVIS LEE MARTIN,
        Defendant.

    Appeal by defendant from judgments entered 3 November 2004 by Judge Michael E. Helms in the Superior Court in Guilford County. Heard in the Court of Appeals 26 January 2006.

    Attorney General Roy Cooper, by Special Deputy Attorney General John F. Maddrey, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant-appellant.

    HUDSON, Judge.

    At the 1 November 2004 criminal session, a jury convicted defendant Javis Lee Martin of first-degree murder and second-degree kidnaping. The court sentenced defendant to a term of life in prison without parole on the murder charge and 34 to 50 months on the kidnapping charge. Defendant appeals. For the reasons discussed below, we conclude defendant received a fair trial free from error.
    Brenda Green (“Ms. Green”) lived in an apartment with her daughter, Jane, and Jane's two-year old daughter. Ms. Green's son Jeremy occasionally spent nights at the apartment. Defendant had briefly lived with Jane, with whom he had a romantic relationship. Jane ended the relationship and moved back to her mother's home. On 17 August 2003, defendant approached Jane as she stood on the street talking with neighbors and asked her to walk with him. Once out of the neighbors' view, defendant pulled out a knife and forced Jane into a nearby park where he began to remove her clothes. When Jane said she had to use the restroom, defendant stopped and took her to a nearby Harris Teeter grocery store. Once inside, Jane sought help from store employees and defendant fled. Jane reported the incident to police. The same night, defendant came to Ms. Green's apartment and asked Jane to come outside, but she refused.
    On the evening of 20 August 2003, Ms. Green and her friend, Marvin Hill (“Mr. Hill”), heard a knocking on a downstairs bedroom door. Ms. Green called out, asking who was there, and opened the door, but saw no one. After she shut the door, Ms. Green heard a gunshot, a thump and sounds on the stairs. Defendant entered the bedroom, waving a gun and asking “where is she? Where's that baby?” Ms. Green told defendant that “she” was not there and the baby was with her. Defendant cursed Ms. Green and forced her upstairs, threatening to shoot her if she told anyone what had happened. At the top of the stairs, she saw Mr. Hill lying on the floor with a gunshot wound to the head. As Ms. Green called emergency medical services, defendant ran out the door. In the hospital, Mr. Hill's condition improved, but after he refused a lung treatment on 17 September, Mr. Hill died.    Defendant first argues that the court erred in sustaining the State's objection to Ms. Green's proposed testimony about pending criminal charges against her son. We do not agree.
    Defendant planned to cross-examine Ms. Green about pending criminal charges against her son Jeremy, arguing that this would show Ms. Green's bias, in that she would seek to please the State with her testimony. Following voir dire, the court sustained the State's objection to this line of questioning on grounds that any probative value of the testimony was outweighed by the likelihood of jury confusion. The court noted that the proposed testimony concerned a third party who rarely stayed at his mother's apartment. Defendant contends that the court's ruling violated his right of confrontation.
        Cross-examination of an opposing witness for the purpose of showing his bias or interest is a substantial legal right. Jurors are to consider evidence of any prejudice in determining the witness' credibility.

State v. Jacobs, __ N.C. App. __, __, 616 S.E.2d 306, 312 (2005) (internal quotation marks omitted). A defendant may cross-examine a witness on “particular facts having a logical tendency to show that the witness is biased against him or his cause, or that the witness is interested adversely to him in the outcome of the litigation.” State v. Hart, 239 N.C. 709, 711, 80 S.E.2d 901, 902 (1954). This right is not unlimited, however, and the trial court “has discretion to ban unduly repetitious and argumentative questions, as well as inquiry into matters of tenuous relevance.” State v. Hatcher, 136 N.C. App. 524, 526, 524 S.E.2d 815, 816 (2000) (internal quotation marks omitted).
        “The trial judge may and should rule out immaterial, irrelevant, and incompetent matter.” State v. Stanfield, 292 N.C. 357, 362, 233 S.E.2d 574, 578 (1977). On appeal, the trial court's decision to limit cross-examination is reviewed for abuse of discretion, and “rulings in controlling cross examination will not be disturbed unless it is shown that the verdict was improperly influenced.” Hatcher, 136 N.C. App. at 526, 524 S.E.2d at 816.

Jacobs, __ N.C. App. at __, 616 S.E.2d at 312.
    Defendant cites cases in which appellate courts found reversible error when the court refused to allow cross-examination of witnesses about charges pending against the witnesses themselves. See Davis v. Alaska, 415 U.S. 308, 39 L.Ed.2d 347 (1974); State v. Prevatte, 346 N.C. 162, 484 S.E.2d 377 (1997). He cites no case involving charges pending against a third-party, as here, and we have found none. We overrule this assignment of error.
    Defendant next argues that the court erred in sustaining the State's objections to Ms. Green's testimony about her son's prior convictions. We disagree.
    Defendant contended that he took a gun to Ms. Green's apartment out of fear that Jeremy might harm him, rather than out of an intent to terrorize the Green family. As in the first issue, the court ruled that testimony about Jeremy's prior convictions was of limited probative value which was outweighed by the likelihood of confusing the jury. The jury did hear from Ms. Green that herson had “a history of violence.” However, defendant produced no evidence that he expected to encounter Jeremy at the apartment the night of the shooting. Nor did defendant indicate that he was aware of Jeremy's convictions.
    The North Carolina Supreme Court has held that Rule 403 analysis is proper in excluding relevant testimony even where a victim and her family members had threatened a defendant's life.
        We conclude that the trial court did not abuse its discretion by excluding evidence of the alleged threats in this case. Since defendant was not relying upon self-defense or other legal provocation as a defense, the trial court reasonably could have concluded that the admission of the proffered evidence would have substantially prejudiced the State and would have served only to delay the proceedings, to inflame the jury, or to confuse the issues. Accordingly, the trial court did not abuse its discretion in excluding this evidence, and we reject this assignment of error.

State v. Macon, 346 N.C. 109, 115-16, 484 S.E.2d 538, 542 (1997). We therefore hold that the trial court did not abuse its discretion in excluding evidence of the prior convictions.
    Defendant also argues that he is entitled to a new trial because the court engaged in improper conduct toward defendant and his counsel. We disagree.
    Defendant contends that the court conveyed exasperation and disrespect in its comments, and thereby revealed its opinion about defendant's guilt. The standard for reviewing such comments is well-established:
        It is well established by our case law and statutory enactments that it is improper for a trial judge to express in the presence of the jury his opinion upon any issue to be decidedby the jury or to indicate in any manner his opinion as to the weight of the evidence or the credibility of any evidence properly before the jury. Even so, every such impropriety by the trial judge does not result in prejudicial error. Whether the judge's comments, questions or actions constitute reversible error is a question to be considered in light of the factors and circumstances disclosed by the record, the burden of showing prejudice being upon the defendant. Thus, in a criminal case it is only when the jury may reasonably infer from the evidence before it that the trial judge's action intimated an opinion as to a factual issue, the defendant's guilt, the weight of the evidence or a witness's credibility that prejudicial error results. In this connection it is well settled that it is the duty of the trial judge to supervise and control the course of a trial so as to insure justice to all parties. In so doing the court may question a witness in order to clarify confusing or contradictory testimony.

State v. Blackstock, 314 N.C. 232, 236, 333 S.E.2d 245, 248 (1985) (internal citations omitted). However, “[i]t is the right and duty, however, of the trial judge to control examination and cross-examination of witnesses. The trial judge may also ask a witness questions for the purpose of clarifying testimony.” State v. Alverson, 91 N.C. App. 577, 579, 372 S.E.2d 729, 730 (1988) (internal citations omitted). Our review of the comments by the trial judge reveal that the court's comments were directed at both the State and defense. In addition, defendant does not show how he was prejudiced by the comments of the trial judge. The evidence of defendant's guilt was strong and defendant does not persuade us that the court's comments, considering the circumstances, prejudiced the jury's verdict.     Defendant also contends that evidence about the incident between himself and Jane Green on 17 August constituted impermissible character evidence under Rule 404(b) and that any probative value was outweighed by its prejudicial effect. We do not agree. The State argues that the evidence was relevant to show why defendant went to apartment on the night of the shooting. Following voir dire, the court allowed the evidence.
    Rule 404(b) provides, in pertinent part:
        Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

N.C. Gen. Stat. § 8C-1, Rule 404 (2005). The Supreme Court has held that “Rule 404(b) state[s] a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.” State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990) (emphasis in original). “Thus, even though evidence may tend to show other crimes, wrongs, or acts by the defendant and his propensity to commit them, it is admissible under Rule 404(b)” so long as the evidence is also relevant for some other purpose.
Id. at 279, 389 S.E.2d at 54 (internal citation omitted).
    Under Rule 403, relevant evidence may be excluded where any “probative value is substantially outweighed by unfair prejudice,confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C. Gen. Stat. § 8C-1, Rule 403 (2003). “Whether or not to exclude evidence under this rule is a matter within the sound discretion of the trial court, reversible only upon a showing that the ruling was arbitrary and unsupported by reason.” State v. Abraham, 338 N.C. 315, 352, 451 S.E.2d 131, 151 (1994).
    Here, the State introduced this evidence for the purpose of showing defendant's motive for going to the Adams apartment, a purpose permitted under Rule 404(b). The court did not abuse its discretion in determining that the probative value of this evidence outweighed its potentially prejudicial effect. We overrule this assignment of error.
    No error.
    Judges TYSON and GEER concur.
    Report per Rule 30(e).

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