An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1677

NORTH CAROLINA COURT OF APPEALS

Filed: 2 January 2007

STATE OF NORTH CAROLINA

v .                         Rockingham County
                            No. 05CRS 51021
GEORGE WESLEY NELSON, II,
    Defendant.

    Appeal by Defendant from judgment entered 16 August 2005 by Judge Michael E. Helms in Superior Court, Rockingham County. Heard in the Court of Appeals 10 October 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Alexandra M. Hightower, for the State.

    Lisa Miles, for defendant-appellant.

    WYNN, Judge.

    “[N]ot every improper remark by a trial judge requires a new trial.”   (See footnote 1)  Here, Defendant contends the trial court's expression that he is sometimes referred to by a different name, which witnesses identified as the name of the perpetrator, undermined his alibi defense. Because witness testimony unequivocally identified Defendant as the perpetrator of the charged offenses, we hold the expression by the trial court amounted to harmless error.
    At trial, the evidence tended to show that on the evening of 18 March 2005, Mario Woods crossed the street from his home to deliver a drink and cigar to Kakila Taylor at her home at 1005Sharpe Street in Eden, North Carolina. Mr. Woods later returned, to give her change he had forgotten to give her earlier. Sometime thereafter, Ms. Taylor recognized her boyfriend, “Wes,” coming to the house and told Mr. Woods to run out the back door. However, “Wes” intercepted Mr. Woods and asked him what he was doing in the house, to which Mr. Woods replied, “It was nothing like that.” Nonetheless, “Wes” struck Mr. Woods, pulled out a handgun, shot into the ground, and then shot Mr. Woods in the stomach. Mr. Woods ran to his house; his girlfriend, Gladys Richardson, took him to the hospital.
    At the hospital, Mr. Woods provided information to Detective Clint Simpson of the Eden Police Department. Thereafter, Detective Simpson contacted the Henry County Sheriff's Department in Virginia, which provided a photo array consisting of six photos, one of which was identified as Wesley Johnson. Detective Simpson showed the photo array to Mr. Woods, who pointed at the photo identified as Wesley Johnson and said, “That is the guy that shot me.” At trial, Mr. Woods pointed to Defendant, who was seated with his counsel, and identified him as the man who shot him. During the investigation, Detective Simpson also showed the photo array to Kalika Taylor, who also identified the photo identified as Wesley Johnson as being her boyfriend and the individual who shot Mr. Woods.
    During an interview with Detective Simpson, Defendant asked to see the photo array. Defendant stated that his picture was in the photo array but that he had never been to North Carolina.    Before trial, Defendant's counsel advised the Court that Defendant's name on his birth certificate was George Wesley Nelson, II. Thereafter, the prosecutor moved to amend the indictment to include that name as well as the name Wesley Johnson. Defendant's counsel did not object to the amendment, and in fact, when asked by the trial court if this would be error, defense counsel replied he did not believe it was.
    At trial, Jerry Totten testified he had rented the house at 1005 Sharpe Street to Defendant and knew him as Wes Johnson. Mr. Totten stated that Defendant's name was on the lease as Wes Johnson but Defendant would not sign the lease so only the signature of Ms. Taylor was present.
    Defendant presented testimony by his mother, LeTanya Gail Monroe, that Defendant's name was George Wesley Nelson, II and that he lived at 22 Park Hill Avenue, Yonkers, New York, near other immediate family. Ms. Monroe further testified that on the morning of 18 March 2005, Defendant had driven her and her twelve-year-old son to a doctor's appointment in New York. Another of Defendant's brothers, and that brother's girlfriend, also testified that Defendant lived in New York.
    Defendant testified that his name was George Wesley Nelson. He testified that he had not been to North Carolina, and he did not know the North Carolina residents involved in the prosecution.
    Following the trial, the jury acquitted Defendant of attempted first-degree murder but found him guilty of assault with a deadlyweapon with intent to kill inflicting serious injury. The trial court sentenced Defendant to 100 to 129 months imprisonment.
    On appeal, Defendant argues that (I) the trial court erred by informing the jury, contrary to Defendant's contention, that Defendant, Mr. Nelson, is also “referred to as Mr. Johnson from time to time,” and (II) Defendant was deprived of his constitutional right to the effective assistance of counsel where trial counsel elicited testimony suggesting that Defendant had a violent criminal history and failed to appear in court.

I.

    Defendant first argues that the trial court's expression to the jury that Mr. Nelson is also “referred to as Mr. Johnson from time to time” amounted to an improper expression of judicial opinion. He contends the expression discredited his cause before the jury as it was his contention that he is not known as “Wesley Johnson.” We agree that this was error, but under the facts of this case, it was not prejudicial to the identification of Defendant as the perpetrator of the charged offenses.
    Under Section 15A-1222 of the 2003 North Carolina General Statutes, 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.” Section 15A-1232 further states “[i]n instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved . . . .” N.C. Gen. Stat. § 15A-1232 (2003).    Without engaging in a protracted discussion of this issue, we observe summarily that under the facts of this case, the trial court improperly expressed to the jury that Mr. Nelson is also referred to as Mr. Johnson from time to time. However, while a trial judge's expression of opinion before a jury may amount to an improper remark, “not every improper remark by a trial judge requires a new trial.” State v. Guffey, 39 N.C. App. 359, 361, 250 S.E.2d 96, 97 (1979) (citation omitted). “When considering an improper remark in light of the circumstances under which it was made, the underlying result may manifest mere harmless error. Defendant nonetheless bears the burden of establishing that the trial judge's remarks were prejudicial.” State v. Summerlin, 98 N.C. App. 167, 174, 390 S.E.2d 358, 361 (1990) (internal and external citations omitted).
    Here, the issue presented to the jury was whether there was proof beyond a reasonable doubt that Defendant was guilty of assaulting Mr. Woods with a deadly weapon, with intent to kill, inflicting serious injury.
    The State presented evidence showing that Mr. Woods and Ms. Taylor independently identified to the investigating detective the same picture from a six-photo array as a picture of the man who shot Mr. Woods. Both witnesses identified the man in the photo as being called Wesley Johnson. Thereafter, at trial, Mr. Woods again established which picture in the photo array was the picture of the man who shot him, the man he knew to be Wesley Johnson, and further pointed out that man was in court and was in fact the defendant. No evidence presented contradicted this testimony. Additionally, Detective Simpson testified that in an interview with Defendant, Defendant viewed the same photo array and stated that his picture was in it. Moreover, Mr. Totten identified Defendant as the man to whom he rented a house at 1010 Sharpe Street. Mr. Totten indicated that Defendant was known by the name of Wesley Johnson.
    We agree the trial court erred by expressing that Mr. Nelson is also referred to as Mr. Johnson; however, the evidence presented did not require the jury to make a finding that George Wesley Nelson, II and Wesley Johnson were one and the same person. Indeed, the photo-identification statements of Mr. Woods and Ms. Taylor independently identified Defendant as the man who shot Mr. Woods. Moreover, at trial, Mr. Woods pointed out Defendant as the man who shot him. The evidence presented to the jury did not require the determination that George Wesley Nelson, II and Wesley Johnson were in fact the same person to find Defendant guilty of assaulting Mr. Woods with a deadly weapon with intent to kill, inflicting serious injury. Accordingly, we hold the trial court's statement amounted to harmless error.
II.

    Defendant also argues he was deprived of his constitutional right to effective assistance of counsel when his counsel elicited testimony suggesting that Defendant had a violent criminal history and failed to appear in court. We disagree.
    To prevail on a claim for ineffective assistance of counsel, a defendant must establish two components - (1) that counsel'sperformance was so deficient that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 L. Ed. 2d 2052, 2064 (1984). “[T]o establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (2006) (citation and quotation omitted), cert. denied, 127 S. Ct. 164, 166 L. Ed. 2d 116 (2006).
    Here, the evidence presented at trial indicated Defendant was in Eden, North Carolina, came upon Mr. Woods in a house with his girlfriend, chased Mr. Woods onto the front lawn, and then shot Mr. Woods in the stomach. Defendant was identified from his picture by by his girlfriend, Ms. Taylor, and by Mr. Woods. Further, Defendant was identified in person at trial by Mr. Woods. No evidence presented contradicted this testimony. The jury then found Defendant guilty of assault with a deadly weapon with intent to kill, inflicting serious injury.
    During the trial, defense counsel called Defendant's mother, Ms. Monroe, as a witness and elicited testimony regarding Defendant's history in the New York State court system. Defense counsel asked Defendant's mother if she had previously accompanied her son to court, the nature of the charges, and if he had once missed a court appearance. Defendant's mother testified thatDefendant had been to court for “an argument” and that he had missed one court appearance, but it was later straightened out.
    While we cannot surmise from the record before us the exact intent of defense counsel's questioning, we consider a purpose of this line of questioning may have been to put this information before the jury before Defendant later took the stand, a trial strategy. In any event, neither the questions presented nor the answers elicited created a reasonable probability that the outcome of the trial was undermined. Therefore, we cannot say that Defendant was deprived of his constitutional rights to the effective assistance of counsel.
    No prejudicial error.
    Judges MCGEE and MCCULLOUGH concur.
    Report per rule 30(e).


Footnote: 1
     State v. Guffey, 39 N.C. App. 359, 360, 250 S.E.2d 96, 97 (1979) (citation omitted).

*** Converted from WordPerfect ***