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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. PATRICE M. PARKER and RAMALLE D.
Filed: 21 August 2007
1. Child Abuse and Neglect--sufficiency of evidence_defendants as perpetrators
In a prosecution for felony child abuse, there was sufficient evidence that defendants
inflicted the injuries where the uncontradicted evidence was that the injuries could not have
occurred accidentally and that the injuries occurred when the child was under the sole care and
supervision of defendants. Additionally, there was evidence that defendants had each altered the
accounts they gave to doctors and investigators.
2. Criminal Law_prosecutor's argument--defendants not testifying_comment only on
The trial court did not err by not intervening ex mero motu in a prosecution for felony
child abuse where the prosecutor argued that only three people knew what happened on the
morning of the injury and that the parents had not testified. Taken in context, the prosecutor was
arguing that the jury was left to consider only circumstantial evidence and did not suggest that
defendants must be guilty because they did not testify. Moreover, the judge instructed the jury on
the privilege of not testifying.
3. Criminal Law_equitable estoppel_not applicable
Equitable estoppel was not extended into a criminal case in which defendants argued that
the State should be barred from presenting inconsistent theories of guilt.
4. Criminal Law_sufficiency of evidence_motion to dismiss and motion to set aside
Where there was sufficient evidence to survive motions to dismiss, there was sufficient
evidence to deny motions to set aside the verdicts for insufficient evidence.
5. Criminal Law_unanimity of verdict--not raised by consistency of verdict and
The question of whether a guilty verdict was consistent with the evidence did not raise the
constitutional question of whether the verdict was unanimous.
6. Child Abuse and Neglect--alternate theories--not mutually inconsistent
The State did not argue mutually inconsistent theories in a felony child abuse prosecution
where defendants were tried together, the evidence showed that they had sole custody of the child
when he suffered his injury, both had the opportunity to commit the crime, and the State's
position throughout was that both defendants had a hand in injuring the child. Furthermore, the
State did not use objectively false evidence or make misrepresentations to the jury.
7. Criminal Law_mistrial denied--cross-examination ended and then continued
The trial court did not abuse his discretion by denying a mistrial after the court ended a
cross-examination for badgering a witness, heard arguments out of the presence of the jury on the
motion for a mistrial, and denied the motion but allowed the cross-examination to continue. The
propriety of counsel's examination was not an issue for the jury to determine, and it is clear that
the judge made a reasoned decision.
Appeal by Defendants from judgments entered 17 November 2005
by Judge Cy A. Grant, Sr. in Beaufort County Superior Court. Heard
in the Court of Appeals 15 March 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Anne M. Middleton, for the State.
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
Nora Henry Hargrove for Defendant Patrice M. Parker.
Sofie W. Hosford for Defendant Ramalle D. Holloway.
Ramalle Nayshawn Holloway (Nayshawn) was born on 1 November
2002. On 25 December 2002, at approximately 11:00 a.m., Nayshawn's
parents, Patrice Parker (Defendant Parker) and Ramalle Holloway
(Defendant Holloway) (collectively Defendants), noticed that
Nayshawn's breathing was labored and that his eyes were not
bilateral or focused. Defendants eventually took Nayshawn to the
Beaufort County Hospital, registering him at 2:29 p.m. Nayshawn
was immediately treated by hospital staff and given oxygen, IV
fluids, and antibiotics. At 4:50 p.m. Nayshawn was transferred by
air to the pediatric intensive care unit at East Carolina
University. The treating physicians determined that Nayshawn had
severe brain damage and that his skull, ribs, collarbone, and femurwere fractured. Overall, doctors believed that Nayshawn's injuries
were intentionally inflicted, not accidental, and that Nayshawn
suffered from battered child syndrome. Nayshawn remains in a
permanent vegetative state, is capable only of rudimentary gagging
and swallowing functions, and is placed at a facility that cares
for physically and developmentally challenged children.
On 10 November 2003, Defendants were indicted on charges of
felony child abuse. Defendants were tried by a jury before the
Honorable Cy A. Grant, Sr. during the 14 November 2005 session of
Beaufort County Superior Court. The jury found both Defendants
guilty as charged. Based on Defendant Holloway's prior record
level of II, Judge Grant sentenced him to a prison term of 90
months minimum and 117 months maximum. Defendant Parker was
sentenced to a minimum term of 44 months and a maximum term of 62
months imprisonment. Defendants appeal. For the reasons set forth
below, we hold Defendants received a fair trial, free of error.
 By their first arguments,
(See footnote 1)
Defendants contend the trial
court erred in denying their motions to dismiss because the State
failed to present substantial evidence that either Defendant Parker
or Defendant Holloway inflicted Nayshawn's injuries. We disagree.
On a defendant's motion for dismissal on the ground of
insufficiency of the evidence, the trial court must determine only
whether there is substantial evidence of each essential element ofthe offense charged and of the defendant being the perpetrator of
the offense. State v. Crawford
, 344 N.C. 65, 73, 472 S.E.2d 920,
925 (1996) (citing State v. Vause
, 328 N.C. 231, 400 S.E.2d 57
(1991)). Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
State v. Franklin
, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990)
If the evidence presented is circumstantial,
the court must consider whether a reasonable
inference of defendant's guilt may be drawn
from the circumstances. Once the court
decides that a reasonable inference of
defendant's guilt may be drawn from the
circumstances, then it is for the jury to
decide whether the facts, taken singly or in
combination, satisfy [it] beyond a reasonable
doubt that the defendant is actually guilty.
State v. Scott
, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002)
(quotation marks and citations omitted). In considering a motion
to dismiss, the trial court must analyze the evidence in the light
most favorable to the State and give the State the benefit of every
reasonable inference from the evidence. State v. Thaggard
N.C. App. 263, 281, 608 S.E.2d 774, 786 (2005) (citation omitted).
Any contradictions or discrepancies arising from the evidence are
properly left for the jury to resolve and do not warrant
dismissal. State v. King
, 343 N.C. 29, 36, 468 S.E.2d 232, 237
(1996) (citation omitted). If there is more than a scintilla of
competent evidence to support the allegations . . . it is the
court's duty to submit the case to the jury. State v. Horner
N.C. 342, 344-45, 103 S.E.2d 694, 696 (1958) (citation omitted).
Our Supreme Court has held that [w]here an adult has exclusive custody of a
child for a period of time and during such
time the child suffers injuries which are
neither self-inflicted nor accidental, the
evidence is sufficient to create an inference
that the adult inflicted an injury.
State v. Perdue
, 320 N.C. 51, 63, 357 S.E.2d 345, 353 (1987)
(citations omitted). Furthermore, upon a finding that the child
suffered from battered child syndrome, a logical presumption is
raised that someone 'caring' for the child was responsible for the
injuries. State v. Byrd
, 309 N.C. 132, 138, 305 S.E.2d 724, 729
(1983), overruled on other grounds by State v. Childress
, 321 N.C.
226, 362 S.E.2d 263 (1987). Additionally, decisions from our
Supreme Court have established that false, contradictory or
conflicting statements made by an accused concerning the commission
of a crime may be considered as a circumstance tending to reflect
the mental processes of 'a person possessed of a guilty conscience
seeking to divert suspicion and to exculpate [himself].' State v.
, 309 N.C. 78, 86, 305 S.E.2d 506, 511 (1983) (quoting State
, 246 N.C. 293, 297-98, 98 S.E.2d 322, 326 (1957)).
Here, both Defendants were charged with felony child abuse in
violation of N.C. Gen. Stat. § 14-318.4. That provision provides
in relevant part that:
A parent or any other person providing care to
or supervision of a child less than 16 years
of age who intentionally inflicts any serious
bodily injury to the child or who
intentionally commits an assault upon the
child which results in any serious bodily
injury to the child, or which results in
permanent or protracted loss or impairment of
any mental or emotional function of the child,
is guilty of a Class C felony. Serious
bodily injury is defined as bodily injurythat creates a substantial risk of death, or
that causes serious permanent disfigurement,
coma, a permanent or protracted condition that
causes extreme pain, or permanent or
protracted loss or impairment of the function
of any bodily member or organ, or that results
in prolonged hospitalization.
N.C. Gen. Stat. § 14-318.4(a3) (2001). Neither Defendant Parker
nor Defendant Holloway contest the seriousness of Nayshawn's
injuries. Rather, both assert that because Nayshawn had several
caretakers and suffered injuries that could have occurred while
Nayshawn was not in the care of Defendants, the State failed to
establish that either Defendant Parker or Defendant Holloway
perpetrated the abuse. We are not persuaded.
At trial, Dr. Russell Cooke, a board-certified pediatrician
who treated Nayshawn at Beaufort County Hospital, testified that,
based on the infant's vitals, [and] given the blood loss, the
onset of the traumatic event would have been a matter of hours,
most likely, not days. Dr. Cooke testified further that the time
lapse between the trauma and the manifestation of the injuries
could have been a matter of a few minutes, depending upon how
severe the [blood] loss was. Dr. Ira Adler, a board-certified
radiologist qualified in pediatric radiology, testified that he
examined Nayshawn's medical scans and was of the opinion that the
trauma which led to the swelling of Nayshawn's brain occurred
within six to 24 hours of 8:00 p.m. on 25 December 2002
Adler testified further that because of the findings of the blood
in between the two hemispheres of the brain[,] the injury was
very indicative of a shaking or an acceleration - decelerationinjury. Additionally, Dr. Adler testified that, in his opinion,
Nayshawn suffered from battered child syndrome.
Hillary Parks (Parks) and Russell Ball (Ball), friends of
Defendants, described their visit with Defendants and Nayshawn on
24 December 2002. Parks stated that she spent the late afternoon
and evening with Defendants, Nayshawn, and Ball, and that she and
Ball left Defendants' house at approximately 11:00 p.m. Parks
testified further that while she was there, Nayshawn looked fine
and was not crying, moaning, or grunting. Likewise, Ball stated
that during the evening, Nayshawn was fine. There was nothing
wrong with him at all. Statements that Defendants provided to
investigators established that after Parks and Ball left their
house, Defendants and Nayshawn went to sleep. Both Defendants
alleged they then discovered Nayshawn's injuries the next day.
This evidence is sufficient to establish that the event which
caused Nayshawn's brain injury occurred between 11:00 p.m. on 24
December 2002 and 2:29 p.m. on 25 December 2002, when he was
admitted to Beaufort County Hospital. During this time, Nayshawn
was under the sole care and supervision of Defendants.
Furthermore, the uncontradicted evidence established that
Nayshawn's injuries could not have occurred accidentally.
Additionally, evidence was presented that Defendant Parker and
Defendant Holloway each altered the accounts they provided to
investigators and the doctors treating Nayshawn. For example,
Defendant Holloway informed investigators that he was up for two
hours while he fed Nayshawn and changed the baby's diaper duringthe early morning hours of Christmas Day. However, Defendant
Holloway told the doctors treating Nayshawn that this whole
episode, meaning the feeding/diaper change, lasted about 45
minutes[;] then he and Nayshawn went back to sleep. Similarly,
Defendant Parker first claimed that she did not know what caused
Nayshawn's injuries, but in April 2003, she informed investigators
that Nayshawn was injured when, as she was carrying him, she
tripped over a toy . . . [and] Nayshawn fell out of [her] arms and
hit the floor. Furthermore, each Defendant provided a different
description of where Nayshawn was sleeping during Christmas
morning. Defendant Holloway stated that Nayshawn was in his swing
when he woke up at 11:00 a.m. Defendant Parker, on the other hand,
informed investigators that she retrieved Nayshawn from his swing
at 9:00 a.m. and that he slept in bed with her until 11:30 a.m.
Additionally, after Nayshawn was injured, Defendant Holloway
informed Ball that the baby was getting medical treatment because
he had a cold. The inconsistencies between and the changes in each
Defendant's account are clearly relevant and tend to show a guilty
conscience and Defendants' efforts to divert suspicion from
themselves. See Myers
While the evidence does not clearly demonstrate that either
Defendant Parker or Defendant Holloway or both inflicted Nayshawn's
injuries, from the substantial circumstantial evidence a reasonable
inference is raised that Defendant Parker and Defendant Holloway
committed the crime. This inference is strengthened by theundisputed expert testimony establishing that Nayshawn suffered
from battered child syndrome.
All of this evidence, taken in the light most favorable to the
State, was sufficient to survive Defendants' motions to dismiss and
to submit the case to the jury. Accordingly, Defendants'
assignments of error related to the sufficiency of the evidence are
 Next, Defendants argue the trial court erred by failing to
intervene ex mero motu
when, during closing arguments, the
prosecutor made reference to each Defendant's failure to testify.
Under the United States and North Carolina constitutions, a
defendant has the right to refuse to testify at trial. State v.
, 353 N.C. 309, 543 S.E.2d 830, cert. denied
, 534 U.S.
1000, 151 L. Ed. 2d 389 (2001). Therefore, any reference by the
State regarding [a defendant's] failure to testify is violative of
his constitutional right to remain silent. State v. Baymon
N.C. 748, 758, 446 S.E.2d 1, 6 (1994) (citation omitted). A
prosecutor violates [this rule] if 'the language used [was]
manifestly intended to be, or was of such character that the jury
would naturally and necessarily take it to be a comment on the
failure of the accused to testify.' State v. Rouse
, 339 N.C. 59,
95-96, 451 S.E.2d 543, 563 (1994) (quoting United States v.
, 481 F.2d 685, 701 (4th Cir. 1973), aff'd
, 417 U.S. 211,
41 L. Ed. 2d 20 (1974)), cert. denied
, 516 U.S. 832, 133 L. Ed. 2d60 (1995), overruled on other grounds by State v. Hurst
, 360 N.C.
181, 624 S.E.2d 309, cert. denied
, ___ U.S. ___, 166 L. Ed. 2d 131
(2006). However, in closing argument, the prosecutor 'may
properly bring to the jury's attention the failure of a defendant
to produce exculpatory evidence or to contradict evidence presented
by the State.' State v. Campbell
, 359 N.C. 644, 680, 617 S.E.2d 1,
24 (2005) (quoting State v. Parker
, 350 N.C. 411, 431, 516 S.E.2d
106, 120 (1999), cert. denied
, 528 U.S. 1084, 145 L. Ed. 2d 681
(2000)), cert. denied
, ___ U.S. ___, 164 L. Ed. 2d 523 (2006).
Defendants concede that their trial counsel did not object to
the allegedly improper statements of the prosecutor. When a
defendant fails to object to a closing argument, this Court must
determine whether the challenged comment was so grossly improper
that the trial court should have intervened ex mero motu
. State v.
, 357 N.C. 68, 101, 588 S.E.2d 344, 364 (quotation marks and
citation omitted), cert. denied
, 540 U.S. 971, 157 L. Ed. 2d 320
(2003). Only an extreme impropriety on the part of the prosecutor
will compel this Court to hold that the trial judge abused his
discretion in not recognizing and correcting ex mero motu
argument that defense counsel apparently did not believe was
prejudicial when originally spoken. State v. Richardson
, 342 N.C.
772, 786, 467 S.E.2d 685, 693 (citation omitted), cert. denied
U.S. 890, 136 L. Ed. 2d 160 (1996). On appeal,
the reviewing court must determine whether the
argument in question strayed far enough from
the parameters of propriety that the trial
court, in order to protect the rights of the
parties and the sanctity of the proceedings,
should have intervened on its own accord and:(1) precluded other similar remarks from the
offending attorney; and/or (2) instructed the
jury to disregard the improper comments
State v. Jones
, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002).
In the case sub judice, the prosecutor made the following
statements that Defendants assert constitute reversible error:
Ladies and gentlemen, the only thing I'm
going to say about this is Mr. Holloway did
not testify, and because he did not testify
you can't guess or speculate about what he
would have said.
His plea of not guilty . . . is basically
him saying the State has to prove its case,
and that's what we're going to do in this
case, and that's what we have done is this
Now, let's talk about possibilities.
Remember three people, three people know what
happened to Nayshawn on Christmas morning
2002. One is Patrice Parker, one is Ramalle
Holloway, and one is Nayshawn.
And you haven't heard testimony from the
defendants, and really you haven't heard
(See footnote 2)
from Nayshawn in a way, but I think
you have. I think he tells you who did this.
He doesn't tell you it in his own voice. He
has the voice of the doctors.
In a sense he has the voice of his
parents, because they kind of tell you who did
this. They don't tell you who did it, but
they only leave you to one conclusion that
they did it, and that's his testimony in this
case and that's why we're here. That's what
justice is about.
(Emphasis added). While the prosecutor's closing argument pushes
the boundaries of what is proper, we hold it was not such an
extreme impropriety that the trial court should have been compelledto act. Taken in the context in which it was made, the
prosecutor's statement does not allege or even suggest that
Defendants must be guilty because they did not testify. Rather,
the statement explains that because of the absence of direct
evidence and Defendants' failure to provide exculpatory evidence,
the jury is left to consider only circumstantial evidence to reach
their decision. Furthermore, in his instructions to the jury,
Judge Grant directed that although neither defendant in this case
has testified[,] . . . [t]he law give a defendant this privilege.
This same law also assures a defendant that this decision not to
testify creates no presumption against the defendant. Therefore
the silence of the defendant is not to influence your decision in
any way. In this case, based on the circumstantial evidence upon
which the State was forced to rely, the trial court did not err in
failing to intervene. Accordingly, this argument is overruled.
 Defendants next contend that the trial court erred in
failing to set aside the jury's verdicts. Defendants argue that
the State was barred by equitable estoppel from arguing
inconsistent theories of guilt to the jury, that the evidence did
not support each Defendant's conviction, and that the State
violated each Defendant's constitutional rights by presenting
inconsistent theories of guilt to the jury. We cannot agree.
Equitable estoppel prevents one party from taking
inconsistent positions in the same or different judicial
proceedings, and 'is an equitable doctrine designed to protect theintegrity of the courts and the judicial process.' State v.
, 128 N.C. App. 394, 400, 496 S.E.2d 811, 815 (quoting
Medicare Rentals, Inc. v. Advanced Servs.
, 119 N.C. App. 767, 769,
460 S.E.2d 361, 363, disc. review denied
, 342 N.C. 415, 467 S.E.2d
700 (1995)), aff'd per curiam
, 349 N.C. 219, 504 S.E.2d 785 (1998).
While this doctrine has a long and storied history in civil cases,
this Court has recognized that 'as far as we can tell, th[e]
obscure doctrine [of judicial estoppel] has never been applied
against the government in a criminal proceeding[.]' Taylor
N.C. App. at 400, 496 S.E.2d at 815 (quoting United States v.
, 840 F.2d 118, 129-30 n. 7 (1st Cir. 1988)). Defendants
provide no authority to support the application of this doctrine to
the criminal context and our research reveals none. We thus
decline to extend the reach of this principle into the criminal
arena. Accordingly, Defendants' arguments based on equitable
estoppel are overruled.
 Defendants further contend the trial court erred in
failing to set aside the verdicts against them because there was
insufficient evidence to support the convictions. As with their
motions to dismiss, Defendants assert that because there was no
direct evidence that either Defendant Parker or Defendant Holloway
inflicted Nayshawn's injuries, the motions to set aside the
verdicts should have been granted. Again, we disagree.
The standard of review of a trial court's denial of a motion
to set aside a verdict for lack of substantial evidence is the same
as reviewing its denial of a motion to dismiss . . . . State v.Duncan
, 136 N.C. App. 515, 520, 524 S.E.2d 808, 811 (2000)
citation omitted). Since we have held that the State presented
sufficient evidence to survive each Defendant's motion to dismiss,
it follows that Defendants' motions to set aside the verdicts based
on the alleged lack of substantial evidence should also be denied.
Accordingly, this argument is overruled.
 Finally, both Defendants contend the trial court's denial
of their motions to set aside the verdicts violated their
constitutional rights. Relying on the North Carolina Constitution,
Defendant Holloway argues that the trial court's denial of his
motion violated his right that any criminal conviction shall
be . . . by the unanimous verdict of a jury in open court. This
constitutional argument is not properly before us. In making his
motion to set aside the verdict to the trial court, Defendant
Holloway's attorney argued that the guilty verdict [was] . . .
inconsistent with the evidence. This argument raised only the
sufficiency of the State's evidence to support Defendant Holloway's
conviction. It did not present for the trial court's consideration
any alleged constitutional violation in Defendant Holloway's case.
Because this constitutional argument was not raised before the
trial court, we will not consider it on appeal. See State v.
, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001) (holding that
[c]onstitutional issues not raised and passed upon at trial will
not be considered for the first time on appeal) (citation
 Defendant Parker asserts that the trial court's denial of
her motion to set aside the verdict violated her due process rights
because the State impermissibly proceeded under two alternative
theories of guilt by which it sought to convict both Defendant
Parker and Defendant Holloway. We disagree.
(See footnote 3)
In State v. Leggett
, 135 N.C. App. 168, 519 S.E.2d 328 (1999),
appeal dismissed and disc. review denied
, 351 N.C. 365, 542 S.E.2d
650 (2000), this Court held that it was not improper for the State
to argue different theories at two different trials when the
evidence presented was not inconsistent. In so holding, the Court
relied on the fact that there was no indication that [the]
evidence was objectively false or that any knowing
misrepresentations were made to the jury. Id.
at 175, 519 S.E.2d
at 333. Additionally, the Leggett
Court determined that [b]ecause
only the co-defendants know who actually fired the fatal shots at
each victim, it was appropriate for the State to argue alternative
but not mutually inconsistent theories at different trials. Id.
at 176, 519 S.E.2d at 334. Here, although both Defendants were tried together, it was not
a violation of Defendant Parker's due process rights for the
prosecution to argue alternative but not mutually inconsistent
theories. The evidence before the trial court tended to show that
both Defendants had sole custody of Nayshawn at the time he
suffered his brain injury and femur and skull fractures, and that
both had the opportunity to commit the crime. Additionally, the
State did not argue mutually inconsistent theories. In his closing
argument, the prosecutor stated if you decide [Defendant Holloway]
did it, and he did it alone, find her not guilty. If you decide
[Defendant Parker] did it, and she did it alone, find him not
guilty. But you have evidence to conclude beyond a reasonable
doubt that they're both guilty. From this argument, it is clear
that the State's position throughout the case was that both
Defendants had a hand in injuring Nayshawn. Furthermore, as in
, the prosecutor did not use objectively false evidence
against Defendants or make misrepresentations to the jury. On the
contrary, like the defendants in Leggett
, because Defendant Parker
and Defendant Holloway are the only ones who know what happened to
Nayshawn, it was not improper for the State to argue alternative
but not mutually inconsistent theories of Defendants' guilt to the
jury. This assignment of error is overruled.
 Defendant Holloway additionally assigns as error the trial
court's failure to grant a mistrial for making allegedly improper
statements in the presence of the jury. We disagree. Under North Carolina law, a trial 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. N.C. Gen. Stat. §
15A-1061 (2005). Our Supreme Court has recognized that a
[m]istrial is a drastic remedy, warranted only for such serious
improprieties as would make it impossible to attain a fair and
impartial verdict. State v. Stocks
, 319 N.C. 437, 441, 355 S.E.2d
492, 494 (1987) (citation omitted). On appeal, this Court reviews
a trial court's failure to grant a mistrial for an abuse of
discretion. State v. Hagans
, 177 N.C. App. 17, 628 S.E.2d 776
(2006). A trial court abuses its discretion if the trial court's
decision was so arbitrary that it could not have been the result of
a reasoned decision. State v. Wilson
, 313 N.C. 516, 330 S.E.2d 450
At trial, Defendant Holloway moved for a mistrial when, during
his trial counsel's cross-examination of Dr. Michael E. Reichel,
one of the pediatricians who treated Nayshawn, the trial court
interjected and the following exchange occurred:
THE COURT: Wait a minute, I'm not going to
let you sit here and badger
argue with the witness _-
MR. KING: _- but Judge, he's not
responsive to my question.
THE COURT: Keep arguing with me [and]
you're not going to ask any
MR. KING: Judge I ask _-
THE COURT: _- step down. End cross-
After this exchange, out of the presence of the jury, Defendant's
attorney moved for a mistrial. After hearing arguments from
counsel, Judge Grant denied the motion, but allowed Mr. King to
continue his cross-examination.
Defendant Holloway argues that Judge Grant's action in
stopping cross-examination and his statement that Defendant
Holloway's attorney was badger[ing] the witness constituted an
impermissible expression of an opinion in violation of the Criminal
Procedure Act. See
N.C. Gen. Stat. § 15A-1222 (2005) (stating that
a 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). However, the courts of our State have long held
that the scope and manner of examination of witnesses are matters
which are ordinarily governed by the trial judge who may take
appropriate measures to restrict improper questioning by counsel.
State v. Searles
, 304 N.C. 149, 157, 282 S.E.2d 430, 435 (1981)
(citation omitted). In State v. Alverson
, 91 N.C. App. 577, 579,
372 S.E.2d 729, 730 (1988), this Court held that a trial court did
not violate N.C. Gen. Stat. § 15A-1222 when the judge stated that
the defendant's attorney was 'badgering the witness' and 'arguing'
on cross-examination because [a]ll of the comments were routinely
made in the course of the right and duty the trial judge had to
control examination and cross-examination of witnesses[.]
Here, Judge Grant's actions and comments were directed solely
at counsel's conduct during cross-examination and therefore were
proper under Alverson
. Furthermore, the plain language of section15A-1222 prohibits the trial court from expressing an opinion on a
fact to be decided by the jury. N.C. Gen. Stat. § 15A-1222.
Because the propriety of counsel's cross-examination was not an
issue of fact for the jury to determine, Judge Grant's actions or
comments in no way violated section 15A-1222 of the Criminal
Procedure Act. Moreover, because the trial court discussed the
matter and heard argument from Defendant's counsel outside the
presence of the jury before making his decision to deny the motion
for a mistrial, it is clear that Judge Grant made a reasoned
decision and did not abuse his discretion. Accordingly, this
assignment of error is overruled.
For the reasons stated, we hold Defendants received a fair
trial, free of error.
Judges McGEE and ELMORE concur.
Although Defendants filed separate briefs, because their
first three arguments allege the same errors, we will address them
Each Defendant's assignment of error limits review of the
prosecutor's closing argument at this point. To understand the
context in which the statement was made and to promote thorough
appellate review, we have included additional portions of the
argument in this opinion.
In its brief, the State contends that Defendant Parker did
not preserve her due process argument because she did not
specifically argue a due process violation to the trial court.
However, a review of the transcript reveals that Judge Grant was
aware of a potential due process objection based on the State's
arguing inconsistent theories of guilt to the jury. Therefore,
although Defendant Parker's motion to the trial judge to set aside
the verdict did not specifically utilize the term due process, we
conclude that her argument that the motion should be granted
because there were alternative and totally inconsistent theories
presented as to the guilt was sufficient to preserve her due
process issue on appeal.
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