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.
[N]ot every improper remark by a trial judge requires a new
(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
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.
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.
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.
ection 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
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.
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.
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
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).